J-S62014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    EUGENE B. MILLER, III                         IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellant

                        v.

    DEBORAH J. MILLER

                             Appellee                 No. 676 MDA 2017


                Appeal from the Order Entered January 13, 2017
                 In the Court of Common Pleas of York County
                  Criminal Division at No: 2012-FC-001170-15

BEFORE: STABILE, MOULTON, and STRASSBURGER, * JJ.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 27, 2018

        Appellant, Eugene B. Miller, III (“Husband”), appeals from the January

13, 2017 order entered in the Court of Common Pleas of York County (“trial

court”) awarding Deborah J. Miller (“Wife”) slightly over fifty percent of the

marital estate in its equitable distribution award, and directing Husband to pay

monthly alimony of $1,833.60 to Wife until she turns 67.         We affirm the

equitable distribution award. We remand for further proceedings concerning

Wife’s alimony award. Specifically, we direct the trial court to (1) address

what effect, if any, Wife’s post-separation receipt of an inheritance of

$61,000.00 has on the amount of alimony that Husband must pay, and (2)

perform an item-by-item evaluation of the criteria for alimony within 23

Pa.C.S.A. § 3701(b).
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      On June 26, 2012, Husband filed a complaint in divorce seeking

equitable distribution of marital property. Wife filed a petition seeking, inter

alia, alimony and counsel fees. On August 24, 2015, a court-appointed master

heard testimony from both parties. On June 21, 2016, the master entered a

report with findings of fact and recommendations.          We summarize the

master’s findings of fact and recommendations as follows.

      Both parties are in their fifties. Both parties graduated high school but

did not attend college. Wife was married once before marrying Husband, and

she has two children from the previous marriage.       Her son from her first

marriage, Matthew, lives with her along with Matthew’s son, Devon. Matthew

does not pay her rent or money to support Devon. Husband and Wife had one

child of their own who is now an emancipated adult.       Master’s Report and

Recommendation (“Master’s Report”), 6/21/16, at 3-4, 6.

      Husband was a chef until 2005. From 2005 through 2014, he was a

general manager for a food service contractor. Since 2014, he has been the

director of dining services at Quarryville Presbyterian Retirement Community.

He earned $94,040.00 in 2014 and was on track to earn more than

$100,000.00 in 2015. The master calculated Husband’s net monthly income

to be $5,509.00. Id. at 4, 19.

      Prior to the marriage, Wife obtained a real estate sales license and

worked as a server in a restaurant, a law office secretary, and an assistant in

a real estate office. She renewed her real estate license during the marriage.

She is currently unemployed and has not actively sought out employment.

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She applied for Social Security Disability benefits during divorce proceedings

but was denied due to lack of employment history within the last ten years.

Id. at 4-5.

      During the marriage, Husband and Wife jointly owned a residence in

Hanover, Pennsylvania. In 2003, the parties jointly filed for bankruptcy. To

keep the marital residence, and to pay an automobile loan, they jointly

borrowed $57,000.00 from Husband’s mother and co-signed a mortgage on

the residence to secure the debt. At the time of separation in 2011, the parties

had paid down the debt to $29,916.00.           Husband made several more

payments after separation, reducing the debt to $28,330.00, but made no

further payments after January 2012. The marital residence was sold in the

fall of 2015, by which time interest of $2,408.00 had accrued on the debt. To

permit the sale of the residence, Husband’s mother voluntarily marked the

mortgage satisfied. It is unclear whether she intended to forgive the debt or

merely to release her security for payment. Id. at 10.

      Husband is in good health. Wife testified that she suffers from multiple

medical problems, including fibromyalgia, sleep apnea, arthritis, irritable

bowel syndrome, a deviated septum, lymphedema in her legs, and cellulitis.

She did not offer medical testimony in support of her claims.          Husband

provided medical insurance for Wife, but coverage terminated upon entry of

the divorce decree. Id. at 4-5.




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       Following the parties’ separation, Wife received an inheritance of

approximately $61,000.00, which she used to pay living expenses, and she

has about $3,500.00 left. Id. at 8.

       Husband requested credit for assuming the debt of approximately

$30,000.00 that both Husband and Wife still owed to Husband’s mother. The

master recommended that Husband not receive credit for this debt and that

Wife receive $54,624.00, slightly over half of the net marital estate of

$108,579.00. Id. at 10-11.

       The master determined that Wife should receive alimony because most

of the marital assets are non-liquid1 and Wife is capable of working only part-

time. If she worked for minimum wages of $7.25 per hour, the master wrote,

she would gross $1,257.00 per month working full-time, so she stood to gross

less than this amount working part-time. The master determined that Wife

could work part-time (35 hours per week), thus making gross income of

$1,100 per month with net income of $925 per month.          The master also

determined that Wife’s own living expenses were between $1,800 to $2,000




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1 The master observed that most of the marital estate consists of retirement
assets and $16,091.00 in cash from the sale of the marital residence. Master’s
Report at 20-21. Wife will need the cash from the sale of the real estate to
pay legal fees and other current expenses. Id. at 21. She cannot access the
retirement money until age 62 without incurring either penalties or taxes. Id.




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per month.2 Based on these computations, the master recommended that

Wife receive alimony of $1,000.00 per month until age 62, when she can begin

receiving Social Security retirement benefits. He also recommended that Wife

receive no counsel fees, costs or expenses. Id. at 19-22.

       Both parties filed timely exceptions to the master’s report. On January

13, 2017, following oral argument, the trial court entered an order denying

Husband’s exceptions and denying in part and granting in part Wife’s

exceptions. Specifically, the trial court increased Wife’s monthly alimony to

$1,833.60 and ordered Husband to pay alimony until Wife turned 67 (instead

of 62, as the master recommended).               The trial court calculated monthly

alimony as $1,833.60, forty percent of the difference between the master’s

findings of Husband’s monthly net income ($5,509.00) and Wife’s monthly

earning capacity ($925.00). Otherwise, the trial court adopted the master’s

findings of fact and recommendations, including the master’s determination

that Husband should not receive credit for assuming the debt that both parties

owed to Husband’s mother. Husband filed a timely notice of appeal, and both

Husband and the trial court complied with Pa.R.A.P. 1925.

       Husband raises five issues for our review, which we repeat verbatim:

       I.     Whether the trial court committed abuse of discretion and
              error of law in failing to consider and address the stipulated
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2 The master stated that this sum did not include money to support her son
or grandson, because “she should be seeking contribution from them or from
the Pa. Dept. of Welfare if she chooses to provide them with a home.” Master’s
Report at 19 n. 5.

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             marital debt of the parties in the equitable distribution
             scheme and not considering and ordering some contribution
             from Wife for the repayment of such debt.

      II.    Whether the trial court erred and abused its discretion in not
             considering the dissipation of assets Husband proved
             against Wife in determining the equitable distribution
             scheme as well as in the length and amount of alimony
             awarded.

      III.   Whether the trial court committed abuse of discretion in
             determining that Husband should pay alimony to Wife until
             she is 67 when she would be entitled to social security
             benefits at 62. Such finding results in the Husband paying
             to Wife support and or alimony benefits for nearly 20 years
             or the length of the marriage which is inequitable.

      IV.    The trial court erred and abused its discretion in not
             considering that Wife is residing with other individuals who
             should be contributing to the household expenses, and
             failure of [Wife] to require such contribution should be
             considered in the calculation of the alimony payment.

      V.     Whether the trial court erred and abused its discretion in not
             considering Wife’s receipt of inheritance after the date of
             separation in determining the alimony and equitable
             distribution.

Husband’s Brief at 5-6 (capitalization omitted).

      Wife did not file a brief in this Court. Husband’s first argument and part

of his second argument concern the equitable distribution of the parties’

marital assets. His remaining arguments relate to his alimony obligations.

      We first address Husband’s equitable distribution arguments. Husband

argues that the trial court abused its discretion in the course of determining

equitable distribution by denying Husband credit for assuming the debt that

both parties owed to Husband’s mother. “In making its decision regarding

equitable distribution, the trial court must consider at least the eleven factors

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enumerated in [the Divorce Code’s equitable distribution statute,] 23

Pa.C.S.A. § 3502(a).” Wang v. Feng, 888 A.2d 882, 887 (Pa. Super. 2005).

However,

      there is no simple formula by which to divide marital property.
      The method of distribution derives from the facts of the individual
      case. The list of factors [in the Divorce Code] serves as a guideline
      for consideration, although the list is neither exhaustive nor
      specific as to the weight to be given the various factors. Thus,
      the court has flexibility of method and concomitantly assumes
      responsibility in rendering its decisions.

Id. The trial court has broad discretion when fashioning an award of equitable

distribution. Dalrymple v. Kilishek, 920 A.2d 1275, 1280 (Pa. Super. 2007).

Our standard of review in assessing an equitable distribution order is “whether

the trial court abused its discretion by a misapplication of the law or failure to

follow proper legal procedure.” Smith v. Smith, 904 A.2d 15, 19 (Pa. Super.

2006).   We will not find an “abuse of discretion” unless the law has been

“overridden or misapplied or the judgment exercised” was “manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown

by the evidence in the certified record.”       Wang, 888 A.2d at 887.         In

determining the propriety of an equitable distribution award, courts must

consider the distribution scheme as a whole.          Id.   “[W]e measure the

circumstances of the case against the objective of effectuating economic

justice between the parties and achieving a just determination of their

property rights.” Schenk v. Schenk, 880 A.2d 633, 639 (Pa. Super. 2005)

(citation omitted).

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      Moreover, the trial court’s province is to weigh the evidence and decide

credibility, and this Court will not reverse those determinations so long as they

are supported by the evidence. Sternlicht v. Sternlicht, 822 A.2d 732, 742

(Pa. Super. 2003). “A master's report and recommendation, although only

advisory, is to be given the fullest consideration, particularly on the question

of credibility of witnesses, because the master has the opportunity to observe

and assess the behavior and demeanor of the parties.” Moran v. Moran, 839

A.2d 1091, 1095 (Pa. Super. 2003).

      In this case, the master recommended that Husband not receive credit

for assuming the debt to his mother, because both parties remain equally

liable for repayment, and it is possible that neither party will pay anything

more. Master’s Report at 10-11. Husband, the master reasoned, should not

receive credit for a debt that he might unilaterally decide not to pay. The trial

court accepted the master’s rationale. Trial Ct. Findings of Fact and Order

(“Order”), 1/13/17, at 4.    In our view, this decision was a proper use of

discretion, because there was a rational explanation underlying this decision.

The trial court was understandably wary of giving Husband credit for an act

that he had not yet performed and might later find inconvenient to carry out.

Husband’s “assumption” of debt to his mother might have been a pretext for

depriving Wife of her fair share of the marital estate. For these reasons, the

trial court’s decision was not “manifestly unreasonable or the result of




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partiality, prejudice, bias, or ill will.” Wang, 888 A.2d at 887. Husband’s first

argument fails.3

        Next, Husband asserts that in the course of determining equitable

distribution, the trial court abused its discretion by failing to consider that Wife

dissipated marital assets by failing to contribute to the marital household

during the final half of the parties’ marriage. According to Husband, (1) Wife

was able to work but refused to do so, (2) Wife stopped caring for the marital

home and the parties’ child, and (3) instead of working or behaving

responsibly, Wife regularly smoked and drank and often passed out after

combining alcohol and prescription medications. Appellant’s Brief at 16-17.

The master determined that Wife’s smoking and drinking might have

exacerbated her health problems, thereby dissipating the marital estate, “but

it is impossible to quantify the degree to which Wife’s health issues were

directly related to her smoking and drinking without more detailed medical

evidence.” Master’s Report at 15. The trial court adopted this finding. Order

at 5.

        The equitable distribution statute requires the trial court to consider,

inter alia, “the contribution or dissipation of each party in the acquisition,

preservation, depreciation or appreciation of the marital property, including


____________________________________________


3At the conclusion of this argument, Husband added that his assumption of
debt should have led the trial court to reduce his alimony payments. Once
again, this argument fails because he might unilaterally decide not to pay this
debt.

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the contribution of a party as homemaker.” 23 Pa.C.S.A. § 3502(a)(7). The

Divorce Code does not specify a particular method of valuing assets. The trial

court must exercise discretion and rely on the estimates, inventories, records

of purchase prices, and appraisals submitted by both parties.         Smith v.

Smith, 653 A.2d 1259, 1265 (Pa. Super. 1995). In determining the value of

marital property, the court is free to accept all, part or none of the evidence

as to the true and correct value of the property. Litmans v. Litmans, 673

A.2d 382, 395 (Pa. Super. 1996).

      Here, while Husband’s argument that Wife’s smoking and drinking

dissipated the marital estate has some intuitive appeal, he failed to present

sufficient evidence demonstrating the value of the marital assets that Wife

dissipated through these habits.      Thus, the trial court acted within its

discretion by deciding not to reduce Wife’s share of the marital estate.

      The remaining issues in Husband’s appeal concern Wife’s alimony

award. We review alimony awards for abuse of discretion.          Middleton v.

Middleton, 812 A.2d 1241, 1247 (Pa. Super. 2002). The alimony statute in

the Divorce Code provides: “Where a divorce decree has been entered, the

court may allow alimony, as it deems reasonable, to either party only if it finds

that alimony is necessary.” 23 Pa.C.S.A. § 3701(a). The alimony statute lists

seventeen factors that the court must consider in “determining whether

alimony is necessary and in determining the nature, amount, duration and




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manner of payment of alimony.” 23 Pa.C.S.A. § 3701(b).4 The purpose of

alimony is not to reward one party and to punish the other, but rather to meet


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4   Section 3701(b) provides:

        In determining whether alimony is necessary and in determining
        the nature, amount, duration and manner of payment of alimony,
        the court shall consider all relevant factors, including:

        (1) The relative earnings and earning capacities of the parties.
        (2) The ages and the physical, mental and emotional conditions of
        the parties.
        (3) The sources of income of both parties, including, but not
        limited to, medical, retirement, insurance or other benefits.
        (4) The expectancies and inheritances of the parties.
        (5) The duration of the marriage.
        (6) The contribution by one party to the education, training or
        increased earning power of the other party.
        (7) The extent to which the earning power, expenses or financial
        obligations of a party will be affected by reason of serving as the
        custodian of a minor child.
        (8) The standard of living of the parties established during the
        marriage.
        (9) The relative education of the parties and the time necessary
        to acquire sufficient education or training to enable the party
        seeking alimony to find appropriate employment.
        (10) The relative assets and liabilities of the parties.
        (11) The property brought to the marriage by either party.
        (12) The contribution of a spouse as homemaker.
        (13) The relative needs of the parties.
        (14) The marital misconduct of either of the parties during the
        marriage. The marital misconduct of either of the parties from the
        date of final separation shall not be considered by the court in its
        determinations relative to alimony, except that the court shall
        consider the abuse of one party by the other party. As used in this
        paragraph, “abuse” shall have the meaning given to it under [23
        Pa.C.S.A. §] 6102 (relating to definitions).
        (15) The Federal, State and local tax ramifications of the alimony
        award.



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the reasonable needs of the person who is unable to support herself through

appropriate employment. Grandovic v. Grandovic, 564 A.2d 960, 965 (Pa.

Super. 1989).       Alimony following divorce is a secondary remedy and is

available only where economic justice and the reasonable needs of the parties

cannot be achieved by way of an equitable distribution award and

development of an appropriate employable skill. Id.

         As he argued with regard to equitable discretion, Husband contends that

the trial court should have reduced the alimony award because he assumed

the debt that both parties owed to his mother. Husband’s Brief at 15. For the

reasons given in our discussion of equitable distribution above, the trial court

acted within its discretion by declining to reduce Wife’s alimony award on this

basis.

         Husband also argues that the trial court unfairly increased Wife’s

alimony award to relieve Wife of her duty to obtain contribution from her son,

Matthew, or obtain contribution from the Pennsylvania Department of Welfare

(“DPW”). Husband’s Brief at 27-28. We do not read the trial court’s order

this way. The master recommended that Wife’s alimony award only relate to


____________________________________________


         (16) Whether the party seeking alimony lacks sufficient property,
         including, but not limited to, property distributed under [Title 23,]
         Chapter 35 (relating to property rights), to provide for the party's
         reasonable needs.
         (17) Whether the party seeking alimony is incapable of self-
         support through appropriate employment.

Id.

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her own living expenses, and that she should seek contribution from Matthew

or DPW for expenses relating to Matthew and his son.        Although the trial

court’s order provided more alimony to Wife than the master recommended,

the intent of the trial court’s order was simply to provide more money for

Wife’s own living expenses, not to provide her with money for Matthew or his

son. Under the trial court’s order, Wife continues to have the duty to seek

contribution from Matthew or DPW for the living expenses of Matthew and his

son. Therefore, Husband’s argument does not warrant relief.

       Husband’s final arguments with regard to alimony warrant remand for

further consideration by the trial court. First, Husband argues that the trial

court failed to take Wife’s post-separation inheritance of $61,000.00 into

account when determining the amount of alimony.5 Husband’s Brief at 28.

The alimony statute requires the trial court to consider, among other factors,

“the expectancies and inheritances of the parties.” 23 Pa.C.S.A. § 3701(b)(4).



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5 Husband introduced evidence of Wife’s inheritance during the hearing before
the master. N.T., 8/24/15, at 102. The master, however, found that “neither
party has any” expectancies or inheritances, Master’s Report, at 18, and
recommended that Wife receive monthly alimony of $1,000.00. Id. at 21.
Husband did not file a written exception to the master’s failure to consider
Wife’s inheritance. Husband did, however, raise this issue during oral
argument in the trial court, and the trial court permitted Husband’s counsel to
argue this issue on the merits. N.T., 1/9/17, at 30-34. Therefore, we deem
this issue preserved for appeal.          Cf. Mammocchio v. 1818 Market
Partnership, 734 A.2d 23, 27 (Pa. Super. 1999) (where party filed tardy
post-trial motions in civil action and opposing party did not allege prejudice,
trial court acted within its discretion in considering issues).


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Wife’s inheritance of $61,000.00 is sizable in comparison to the net marital

estate of $108,579.00, much of which is non-liquid, and to Husband’s annual

income of about $100,000.00. The master, however, found erroneously that

Wife did not receive an inheritance.           Master’s Report, at 18.   Following

Husband’s exceptions to the Master’s report, the trial court acknowledged

during oral argument that Husband’s request to take Wife’s inheritance into

consideration had “some logic.” N.T., 1/9/17, at 32. But in its subsequent

Order, the trial court made no mention of Wife’s inheritance in its analysis of

alimony6 and directed Husband to pay monthly alimony of $1,833.60, almost

twice the amount recommended by the master.

       There is no real dispute that Wife is entitled to an alimony award, given

the wide disparity between Husband’s and Wife’s earning power and the lack

of liquid assets available for equitable distribution. The only question is what

amount of alimony Wife should receive. Wife’s inheritance deserves weight in

the calculation of her alimony award, because it is fairly large in comparison

to the liquid marital assets and Husband’s income stream. Because the trial

court failed to mention Wife’s inheritance in its alimony analysis, we cannot

tell whether it took the inheritance into consideration.         The appropriate

remedy, therefore, is to vacate the alimony award and remand for the trial


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6 The only time the trial court’s order mentioned Wife’s inheritance was in
connection with a different issue that is not before us on appeal: whether
Husband should have to pay attorney fees that Wife incurred during divorce
proceedings. Order at 4.

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court’s explicit consideration of Wife’s inheritance. If the trial court took the

inheritance into account in its previous Order, it should explain how it treated

the inheritance in reaching its alimony award of $1,833.60 per month. If it

did not take the inheritance into account, it should recalculate Wife’s award

and explain how the inheritance factors into the new award.

      Next, Husband argues that Wife’s alimony award is excessive in both

amount and length of time because it was more than Husband should pay if

Wife rejoined the workforce. As noted above, the master recommended an

alimony award of $1,000.00 until Wife turned 62 by determining that she

could work part-time (35 hours per week at $7.25 per hour) and by finding

monthly living expenses to be between $1,800.00 to $2,000.00. Although the

trial court agreed that Wife can work part-time, Order at 2, the trial court

increased Wife’s alimony to $1,833.60 and the duration of payments until Wife

turned 67.    This decision was internally inconsistent: monthly alimony of

$1,833.60 would pay all (or at least virtually all) of Wife’s monthly expenses,

a burden which Husband should not have to shoulder if Wife is capable of

partial self-support.

      Further, we are concerned about the manner in which the trial court

determined monthly alimony to be $1,833.60. The trial court arrived at this

amount by calculating forty percent of the difference between the master’s

determination of Husband’s net monthly income ($5,509.00) and Wife’s net

monthly earning capacity ($925.00).      Order at 3. While the Rules of Civil


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Procedure prescribe that alimony pendente lite7 for a spouse without

dependent children is forty percent of the difference between the spouses’ net

incomes, see Pa.R.Civ.P. 1910.16-4(a), the straight forty percent calculation

is intended to be only an interim remedy pending the determination of

alimony itself. The determination of alimony requires the trial court to weigh

the seventeen criteria in 23 Pa.C.S.A. § 3701(b), a far more nuanced and

comprehensive assessment than alimony pendente lite.            Here, instead of

focusing on section 3701(b)’s many criteria, it appears the trial court simply

invoked Rule 1910.16-4(a)’s forty percent alimony pendente lite formula.

       Accordingly, on remand, the trial court should arrive at alimony with an

item-by-item application of the criteria in section 3701(b) to the facts of this

case, including but not limited to (1) analysis of the effect, if any, Wife’s post-

separation receipt of an inheritance of $61,000.00 has on her alimony award,

and (2) analysis of the effect of Wife’s ability to work part-time on her alimony

award.

       Order affirmed as it relates to equitable distribution. Order vacated as

it relates to Wife’s alimony award and remanded for proceedings consistent

with this memorandum. Jurisdiction relinquished.

       Judge Moulton did not participate in the disposition of this appeal.



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7Alimony pendente lite is an order for temporary support granted to a spouse
during the pendency of a divorce or annulment proceeding. Busse v. Busse,
921 A.2d 1248, 1254 (Pa. Super. 2007) (citation omitted).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018




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