J-A26025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JENNIFER L. KLOTZ IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

JEFFREY J. KLOTZ

 

NO. 247 WDA 2016

Appeal from the Order January 19, 2016
in the Court of Common Pleas of A||egheny County
Civil Division at No(s): FD 13-001133-002

BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSO|V|, J.: FILED NOVEMBER 08, 2016

Jennifer L. K|otz (“Wife") appeals from the January 19, 2016 decree in
divorce from Jeffrey J. K|otz (“Husband") and the equitable distribution order
incorporated therein. We affirm.

We adopt the following statement of facts, taken from the trial court
opinion and the master's recommendations, which in turn are supported by
the record. See Trial Court Opinion (TCO), 4/18/16, at 1-2; Master's
Recommendation (MR), 6/18/16, at 1-7. Husband and Wife married on May
24, 2008, and have one minor child, born November 4, 2012. The parties
separated on July 8, 2013, pursuant to a protection from abuse petition filed
by Wife. On September 6, 2013, Wife filed an eight-count complaint in

d ivo rce.

J-A26025-16

Wife is thirty-one years old and resides with her parents and the
parties' minor child. Wife has a bachelor's degree in accounting. Previously,
she was employed as a collateral review specialist at PNC and National Linl<,
earning between $32,000.00 and $38,000.00 per year. Currently, she is
employed full-time by the Transportation Security Administration as an
administrative assistant, earning $39,784.00 per year.

Husband is forty-seven years old and was employed as a police officer
in the Moon Township Police Department from November 1998 to July 2013.
He earned approximately $90,000.00 per year. In July 2013, Husband was
terminated from his employment for cause related to the PFA order.
Husband twice appealed his termination to no avail. Currently, Husband is
employed as a day laborer in the construction industry, earning
approximately $10.00 per hour. He has been unsuccessful in applications
for steady employment.

Marital property consisted of the marital residence, a Clearview Federal
Credit Union Account,1 money kept in the home, Husband's JANUS account,
Husband's ALGER account, the parties' cars, a motorcycle, Husband's

retirement account, Husband's 457(b) savings, Husband's Health Savings

 

1 The parties stipulated that, prior to the marriage, Husband had a savings
account balance of $47,000.94, which he contributed to a Clearview FCU
account. During the marriage, Husband added Wife's name to this account.
On the date of separation, the Clearview FCU account had a balance
containing $169,103.61.

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Plan, Wife's engagement ring, Pittsburgh Steeler's season's tickets, life
insurance, and burial plots. Marital debt included a mortgage on the marital
residence, which was paid off six weeks prior to the date of separation. The
parties' stipulations as to value are contained within the master's report.

The master issued a report and recommendation, to which both parties
filed exceptions. The trial court entered an order granting Husband's
exceptions in part and dismissing Wife's exceptions. The trial court found it
manifestly inequitable of the master to ignore Husband's pre-marital
contributions to the Clearview FCU account and the parties' payment of
Wife's pre-marital debt. Thus, the court set off 75% of the pre-marital value
of the account, or $35,250.71, and assigned Wife 75% of the value of the
payoff of her student loan, or $26,148.00. The order denied Wife's
exception to Husband's earning capacity.

Wife timely appealed the order and filed a court-ordered Pa.R.A.P.
1925(b) statement. The trial court issued a responsive opinion.

Herein, Wife raises four issues for our review.

I. The trial court erred in affirming the divorce master's
conclusion that Husband's earning capacity is limited to that of a
day laborer of $10.00 per hour . . .

II. The trial court erred in sustaining [Husband's] Exception #2,
thereby overruling the master's refusal to extend credit to
[Husband] for payment of [Wife's] pre-marital student loans . . .

III. The trial court erred in sustaining [Husband's] Exception #3,
thereby overruling the master's refusal to extend credit to
[Husband] for funds held in his pre-marital credit union account
which was converted into a joint account . . .

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IV. The trial court mistakenly allocated to [Husband] a combined
credit consisting of $35,250.71 for 75% of the funds held in his
pre-marital credit union account, and $26,148.00 for 75% of the
payoff of Wife's pre-marital student loans . . .
Appellant's Brief at 8 (unnecessary capitalization removed).
Our role in reviewing equitable distribution awards is well-settled.
Our standard of review in assessing the propriety of a marital
property distribution is whether the trial court abused its
discretion by a misapplication of the law or failure to follow
proper legal procedure. An abuse of discretion is not found
lightly, but only upon a showing of clear and convincing
evidence.
McCoy v. McCoy, 888 A.2d 906, 908 (Pa. Super. 2005) (internal quotations
and citations omitted). “[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). Moreover,
it is within the province of the trial court to weigh the evidence and decide
credibility, and this Court will not reverse those determinations so long as
they are supported by the evidence. Childress v. Bogosian, 12 A.3d 448,
455-56 (Pa. Super. 2011). Additionally, a master's report and
recommendation, though advisory, is to be given the fullest consideration,
particularly in regards to the credibility of witnesses, as the master may

observe and assess their behavior and demeanor. Moran v. Moran, 839

A.Zd 1091, 1095 (Pa. Super. 2003).

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First, Wife claims that the trial court erred in affirming the master's
conclusion that Husband's earning capacity was limited to that of a day
laborer at $10.00 per hour. She avers this determination is inconsistent
with Pa.R.C.P. 1910.6-2(d) and supporting precedent, which states that
when a party is fired for cause, there generally will be no effect on the
support obligation. Thus, Wife claims Husband should have been assigned
an earning capacity consistent with that of a police officer.

It is true that the Pennsylvania Rules of Civil Procedure provide that,
when a party is terminated for cause, there generally will be no effect on the
support obligation. See Pa.R.C.P. 1910.6-2(d)(1). A party may not
voluntarily reduce his or her income in an attempt to circumvent his support
obligation. Woskob v. Woskob, 843 A.2d 1247, 1253-54 (Pa. Super.
2004). However, where a party is fired for cause, the court may consider
reducing the obligation where that party establishes he or she attempted to
mitigate lost income. See Grigoruk v. Grigoruk, 912 A.2d 311, 313 (Pa.
Super. 2006). When considering mitigation evidence, the master's
credibility determinations must be taken into account. See Moran, 839
A.2d at 1095.

We agree that, based upon the reasons for his termination, it is
unlikely Husband will be able to find employment as a police officer in
anotherjurisdiction. He has no higher education and had been employed as

a police officer for twenty-three years. The master and trial court found

_5_

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credible Husband's testimony regarding his attempts to mitigate his loss of
income and lack of success in doing so. Husband twice appealed his
discharge from the police department, worked construction jobs where he
could find them, and attempted to seek employment with various companies
to no avail. Thus, it was appropriate to reduce his earning potential, and the
trial court did not abuse its discretion in this conclusion.

Next, Wife claims that the trial court erred in sustaining Husband's
second exception and granting Husband a credit towards the payment of
Wife's $34,864.00 pre-marital student loan. The trial court assigned Wife
750/o of the value of the debt payoff as, based on the short length of the
marriage, it was unfair to ignore the financial benefit to Wife. Wife contends
this assignment is contrary to the law and inconsistent with the court's
assignment of a 50-50 equitable distribution division of the marital estate.

As noted above, the trial court has broad discretion in fashioning an
equitable distribution award, and we will overturn that award only where
there is an abuse of discretion. See McCoy, 888 A.2d at 908. Pursuant to
statute,

[u]pon the request of either party in an action for divorce or

annulment, the court shall equitably divide, distribute or assign,

in kind or otherwise, the marital property between the parties

without regard to marital misconduct in such percentages and in

such manner as the court deems just after considering all

relevant factors. The court may consider each marital asset or

group of assets independently and apply a different percentage
to each marital asset or group of assets.

J-A26025-16

23 Pa.C.S. § 3502. Factors relevant to the equitable division of marital
property include: the length of the marriage; the age, health, and
employability of the parties; the opportunities of the parties for future
acquisitions of income; the sources of income of both parties; and the
economic circumstances of each party at the time the division of property
becomes effective. See 23 Pa.C.S. § 3502. The trial court may divide the
award as the equities presented in the particular case may require. See
Anzalone v. Anzalone, 835 A.2d 773, 785 (Pa. Super. 2003).

Wife's argument that this analysis would cause each party to a
marriage to “run a tab" on the other's expenditures is unconvincing. In the
instant case, the trial court considered the parties' relatively short marriage
of five years and that the payment of the debt inured solely to Wife's
benefit; Husband's age, difficulty in finding employment, poor economic
circumstances, future prospects, and lack of education; and Wife's age,
steady employment, education, and future economic prospects. We see no
abuse of discretion in this consideration, nor in its result.

Wife next claims that the trial court erred in sustaining Husband's third
exception and crediting Husband 75% of the funds, or $35,250.71, in his
pre-marital credit union account, which was later converted to a joint
account. Wife argues that the trial court improperly identified a portion of
the value of the joint account as a non-marital asset, despite the fact that

the parties had comingled the funds.

J-A26025-16

Marital property consists of all property acquired by either party during
the marriage and the increase in value of any non-marital property
enumerated by statute. 23 Pa.C.S. § 3501(a). However, “[p]roperty
acquired prior to marriage or property acquired in exchange for property
acquired prior to the marriage" is non-marital property. See 23 Pa.C.S.A. §
3501(a)(1, 3); 23 Pa.C.S.A. § 3501(b). Where a party can trace pre-marital
funds even after they have been comingled with marital funds, a court does
not necessarily abuse its discretion in finding that the pre-marital funds do
not constitute a marital asset. See generally Lee v. Lee, 978 A.2d 380,
384-385 (Pa. Super. 2009); but see Busse v. Busse, 921 A.2d 1238, 1257
(Pa. Super. 2007); Verholek v. Verholek, 741 A.2d 792, 797 (Pa. Super.
1999);

In the instant case, although the FCU account was utilized by both
parties as a marital account, both parties stipulated that the pre-marital
balance was $47,000.94. There was no question about whether these funds
were pre-marital, nor was there any difficulty in tracing or identifying them.

The trial court noted that it evaluated the contribution of each party in
the acquisition, preservation, depreciation or appreciation of the marital
property, as required by statute. 23 Pa.C.S. § 3502(a)(7). Specifically, it
noted that Wife had entered the marriage with no assets and debt of almost
$35,000.00. She left the marriage with no debt, one half of the marital

value of Husband's retirement plan and savings plan, one-half of the

_8_

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increase in value of Husband's pre-marital home, one half of Husband's
Janus, Alger, Health Savings Plan accounts, and shared custody. Further,
the trial court again noted Husband's relatively grim future economic
prospects in comparison to Wife's economic prospects, and concluded that it
had properly exercised its discretion in setting off 75% of the value of
Husband's pre-marital assets contributed to the FCU account. We discern no
abuse of discretion in this conclusion.

Finally, Wife argues that the trial court erred in allocating Husband a
combined credit of $61,398.71 from the pre-marital credit union account and
towards the student debt payoff, as this combined credit exceeds 100% of
Husband's original claimed pre-marital credit of $47,000.94. Although
Wife's argument is unclear and does not cite to authority, she appears to
claim that this award was inequitable and capricious. We have discussed the
propriety of the trial court's order above and found no abuse of discretion
therein.

Order affirmed.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 11/8/2016

