J-S01033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LISA BEURY                                :       IN THE SUPERIOR COURT OF
                                          :
            v.                            :
                                          :
KENNETH BEURY,                            :
                                          :
                  Appellant               :           No. 1112 MDA 2016

                    Appeal from the Decree June 9, 2016
          in the Court of Common Pleas of Northumberland County,
                        Civil Division, No(s): 14-CV-72

BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED MARCH 09, 2017

      Kenneth Beury (“Husband”) appeals from the Decree (hereinafter “the

Divorce Decree”) that divorced him and Lisa Beury (“Wife”) from the bonds

of matrimony, equitably distributed the parties’ marital property, and

awarded Wife alimony and attorney’s fees. We affirm.

      The parties married in 1989.    At the time of the hearing before the

Divorce Master, Cindy Kerstetter, Esquire (hereinafter “the Master”), Wife

was 56 and Husband was 57. The parties never had children of their own,

though Husband had two children from a prior marriage,1 which ended upon

the untimely death of Husband’s first wife. In connection with his first wife’s

death, Husband receives an annuity of $1,250 per month, which he will

receive until his death.




1
 At the time of the Master’s hearing, Kenneth Beury, Jr. (“Kenneth”) was
36, and Sarah Beury (“Sarah”) was 29.
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        Throughout their 24-year marriage, the parties resided at 142 East

Melrose Street, Marion Heights, Pennsylvania (hereinafter “the marital

residence”).2    Before the parties married and moved into the marital

residence, Wife resided with her father and sister, Cheryl Roseman

(“Roseman”), in a house in Ashland, Pennsylvania (hereinafter “the Ashland

residence”), which is approximately 15 minutes away from the marital

residence.    Wife and Roseman jointly own the Ashland residence.    At the

time of the Master’s hearing, Roseman continued to reside in the Ashland

residence, though her father had passed away. Roseman testified that the

Ashland residence has no heat on the second floor, and only one “usable

bedroom,” located on the second floor (which Roseman does not use during

the winter due to the lack of heat).3 Accordingly, Roseman testified that it

would not be prudent for Wife to live in the Ashland residence after the

divorce.

        Wife was a homemaker during the entirety of the parties’ marriage,

and cared for Husband’s children.    Wife’s employment history is limited to

one year of working in a sewing factory following her graduation from high

school, before the parties married. Wife has no postsecondary education.



2
 Husband placed a $10,000 down payment on the marital residence when
he purchased it in 1989. At the time of the Master’s hearing, the mortgage
on the marital property had been satisfied.
3
    Husband’s appraiser valued the Ashland residence at $15,700.



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      Husband works as a laborer, and currently earns $19 per hour. 4

Husband did not graduate from high school. He was the sole income-earner

during the parties’ marriage. Wife was financially dependent on Husband’s

income.   The parties had a relatively modest standard of living during the

marriage, given their limited income and assets.

      Both parties suffer from health ailments, and seek treatment from the

same local physician. Importantly, this physician issued a letter stating her

medical opinion that Wife was “indefinitely” unfit to seek any employment

due to her multiple ailments (which include, inter alia, diabetes, glaucoma,

depression, and hypertension). Husband suffers from neuropathy in his feet

and arthritis.

      The parties separated in January 2014, after Husband allegedly

engaged in an affair, which Husband disputes. Wife continues to reside in

the marital residence, along with Sarah, who does not pay rent. In January

2014, Husband left the marital residence and initially moved in with his

then-girlfriend. According to Husband, however, that relationship ended and

he now lives in Kenneth’s house.

      Wife filed a Divorce Complaint in January 2014.      The parties’ only

significant marital asset is the marital residence, which an appraiser valued

at approximately $79,000. A separate appraiser valued the parties’ personal

property at $18,745, much of which pertained to Husband’s hobbies, and

4
 Prior to the divorce, Wife received health insurance through Husband’s
employer.


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included various hunting and fishing items.      Additionally, Husband has a

401(k) account through his employer, which was worth approximately

$10,000 at the time of Wife’s filing of the Divorce Complaint.5

      Following the Master’s hearing on August 25, 2015, the Master issued

a Report and Recommendations (hereinafter “Master’s Report”) on January

13, 2016, wherein she recommended, inter alia, that (1) Wife be awarded

the marital residence, in full;6 (2) Husband retain the full value of his 401(k)

account; (3) Husband continue to pay Wife APL in the amount of $1,362 per

month, until the divorce was finalized, at which time Husband shall pay Wife

alimony of $1,000 per month; and (4) Husband pay half of Wife’s attorney’s

fees, or $2,694.24. Husband filed timely Exceptions to the Master’s Report,

asserting, inter alia, that the Master erred in awarding Wife the marital

residence where (1) if Husband received the marital residence, Wife could

live in the Ashland residence that she jointly owns with Roseman; and (2)

Wife was not required to compensate Husband for any of his equity in the

marital residence.

      On June 9, 2016, the trial court entered the Divorce Decree, which

provides as follows:


5
  At the time of the Master’s hearing, Husband’s 401(k) had a vested
balance of approximately $6,300, as he had taken out a loan from the
account to purchase a second car. Wife has no separate retirement savings.
6
  The Master did not award Husband a rental credit, stating that Wife has no
income aside from the alimony pendente lite (“APL”) that she receives from
Husband.


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     … [Husband’s] Exceptions to         [the]   Master’s   Report   are
     GRANTED, in PART, as follows:

     1. The Master’s conclusion to award the marital residence to
     Wife, in toto, was proper under the circumstances; however, the
     failure to award Husband any rental credit due to Wife’s lack of
     income was not equitable here.        Compare Schneeman v.
     Schneeman, 615 A.2d 1369 (Pa. Super. 1992) (fair rental credit
     awarded indirectly due to reduction in alimony).

     2.  The marital [residence] was the only significant asset
     accumulated by the parties during their marriage.

     3. In recompense for his contributions toward the acquisition of
     the asset, the Master did not adequately provide for Husband’s
     interest and share of the marital residence.

     4. In the event Wife remains in the marital residence, she will
     have to pay Husband a fair rental value [] (one-half of $500.00
     per month) in the sum of $250.00 per month. [FN] Husband shall
     convey his interest in the marital [residence] to Wife by deed
     within 90 days of notice of intent to remain in the premises from
     Wife. The transfer expenses are to be borne by Husband. Wife
     is responsible for all taxes, utilities and expenses of the marital
     [residence].
        [FN]
            A concern is the ability of [Wife,] with her limited
        income[,] to maintain the expense of home ownership, so
        she might just sell it. This would be unfair to Husband to
        not share in the net proceeds of a sale of the home by
        [Wife].

     5. Wife may not encumber or permit any liens to be entered as
     to the marital residence without the consent of Husband.

     6. If Wife sells the marital residence, she will have to pay
     $28,870.00 out of the net proceeds to Husband within 10 days
     of the closing on the sale.

     7. In the event of Wife’s death[,] and the marital residence has
     not been sold to a third party, Husband shall be entitled to the
     sum of $28,870.00 from her estate upon sale or transfer of this
     residence.



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                                  ***

      9. In all other respects, the recommendations of the Master are
      adopted by this [c]ourt.

Divorce Decree, 6/9/16 (footnote in original).

      Husband timely filed a Notice of Appeal from the Divorce Decree. The

trial court ordered Husband to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal, and Husband timely complied. In response,

the trial court issued a Statement in Lieu of Opinion.

      Husband now presents the following issues for our review:

     1. Whether the trial court abused its discretion when it awarded
         ninety percent of the parties’ assets to [Wife,] even though
         the parties are of similar advanced age, have similar
         education, are both in poor health, and when [Wife] owns a
         one-half interest in a non[-]marital residence where she
         resided prior to her marriage to [Husband]?

     2. Whether [Wife’s] alimony should be terminated[,] when the
         parties’ situations are similar and [Wife] has received 90% of
         the parties’ assets?

     3. Whether [Husband] should be required to make payment
         toward [Wife’s] attorney’s fees when he is already paying
         alimony each month and when he received only ten percent
         of the assets[,] and his income is insufficient to both support
         himself and pay Wife alimony?

Brief for Appellant at 4 (issues renumbered for ease of disposition).

      Husband first argues that the trial court abused its discretion by

fashioning an inequitable distribution of the parties’ marital property,

wherein Wife purportedly received approximately 90% of the property, while

Husband is “left destitute” because of the “lopsided … 90/10 split” of the



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parties’ assets. Id. at 8, 14; see also id. at 12 (asserting that the parties’

age, ill health, and education level is similar).   Husband emphasizes that

Wife was awarded the marital residence, but, according to Husband, “Wife

can easily move back to the Ashland residence[,] whereas it is Husband who

now has no place to live[.]”    Id. at 11.   Husband disputes the Master’s

finding that it was not possible for Wife to move into the Ashland residence

because it has only one suitable bedroom and no heat on the second floor.

Id. at 12-13.    According to Husband, “[t]hat finding, and the Master’s

complete ignoring of the fact that Husband is currently living on his son’s

couch[,] demonstrates that the Master was either biased, or was manifestly

unreasonable in her decision.” Id. at 13.

      We review equitable distribution matters as follows:

      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. When reviewing an award of equitable distribution, we
      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.

Smith v. Smith, 904 A.2d 15, 18 (Pa. Super. 2006) (internal citations and

quotation marks omitted).    A trial court has “the authority to divide the

award as the equities presented in the particular case may require.” Drake

v. Drake, 725 A.2d 717, 727 (Pa. 1999); see also Williamson v.

Williamson, 586 A.2d 967, 970 (Pa. Super. 1991) (observing that equitable



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distribution must be equitable, but it need not be equal). Section 3502(a) of

the Divorce Code outlines the factors that a trial court should consider in

fashioning an equitable distribution of marital property.    See 23 Pa.C.S.A.

§ 3502(a)(1)-(11).      “We are also aware that 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.” Morgante v. Morgante, 119 A.3d 382, 387

(Pa. Super. 2015) (citation omitted).

      Here, the trial court addressed Husband’s challenge to the division of

the marital property as follows:

      The Master awarded Wife the marital [residence] on the basis
      that [Wife] was totally dependent financially on [] Husband; she
      needs a place to live after twenty-four years there; she is
      medically unable to work; [] Husband’s daughter[, Sarah,] is in
      the home [still]; and, [Wife] has no other security for her
      future.[FN 1] [Wife] would have to subsist on alimony from
      Husband of only $1,000.00 a month until she receives social
      security benefits.
         [FN 1]
                Husband’s argument that [Wife] could live with
         [Roseman in the Ashland residence] was properly
         rejected by the [M]aster on the basis that it was unfit for
         both [Wife and Roseman] to live there[,] and it could not
         be imposed against their wishes.

             In view of the circumstances, [the trial c]ourt accepted the
      Master’s recommendation; however, in an attempt to provide
      some offset to Husband[,] there was imposed a rent payment
      back to him of $250.00 per month. Another concern was that if
      Wife realized she could not afford to maintain the marital
      [residence], it would be unfair to Husband to allow Wife to sell it,
      or if she predeceased him, for her estate to realize the benefits


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      of the value of the home to the exclusion of Husband. Thus,
      [the trial c]ourt determined that the sum of $28,870.00 would
      be paid to Husband out of the proceeds of any sale (or transfer
      upon [Wife’s] death) of the marital [residence].

                                  ***

            The case at bar does not present circumstances that
      indicate any present or future ability on the part of Wife to make
      substantial payments [toward Husband’s interest in the marital
      residence]. On the contrary, her sole support is the alimony
      from Husband.[FN 2] The rental obligation was imposed to require
      some monthly payment as to [Husband’s] interest.                 …
      Moreover, [Sarah] benefits [by continuing to reside in the
      marital residence with Wife]. On balance, Husband could also
      have been held to the prior APL amount of $1,362.00 [per
      month], which was reduced to $1,000.00 as alimony; thus the
      $362.00 savings can also be considered to offset a theoretical
      payment plan by Wife on the marital [residence]. (This is then a
      total payment of $250 rent + $362 = $612.00 per month[,] and
      this would equate to $7,344.00 per year, which would pay for
      Husband’s interest [in the marital residence] in four years).
      Husband is benefitting from these monthly adjustments[,] as
      well as receiving a lump sum in the event of a sale or upon
      Wife’s death. Economic justice is being achieved.
          [FN 2]
               At only $1,000.00 per month, [W]ife would likely
          also  require  governmental assistance    to  reside
          elsewhere.

Trial Court Statement in Lieu of Opinion, 8/24/16, at 3-4 (footnotes in

original). We are persuaded by the trial court’s rationale, which is supported

by the record.

      Initially, Husband does not explain how he came to the conclusion that

Wife received approximately 90% of the marital assets.        Indeed, Husband

received a significant portion of the parties’ personal property, as well as his

401(k) account. Though we are sympathetic to Husband’s position, the trial



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court’s distribution of marital property was the most equitable division

possible under these particular circumstances, wherein Wife is undisputedly

medically incapable of seeking any type of employment, and the parties’

only significant asset is the marital residence.        Moreover, the trial court

properly    exercised   its   discretion    in   modifying   the   Master’s   initial

recommendation as to the division of the marital residence in order to

compensate Husband for his interest in this asset.            To the extent that

Husband challenges the Master’s assessment of Roseman’s testimony that it

would not be prudent/possible for Wife to move into the Ashland residence

(given that it has only one functional bedroom and no heat on the second

floor), we must defer to the Master’s credibility finding.         See Morgante,

supra.     In any event, as the trial court correctly pointed out, it lacks the

power to compel Wife and Roseman to live together.            Finally, contrary to

Husband’s claim, our review of the record reveals no bias on the part of the

Master. Accordingly, as we discern no abuse of discretion in the trial court’s

equitable distribution award, Husband’s first issue lacks merit.

      In his second issue, Husband asserts that the trial court abused its

discretion when it awarded Wife alimony of $1,000 per month, as “Wife

either has the money available to support herself or does not need it.” Brief

for Appellant at 16. Husband contends that “[e]ven though Wife is unable to

work, the equitable distribution award, the marital [residence], and the

money she received in [APL] are sufficient for Wife to provide for her own



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reasonable needs, particularly when [Sarah] lives with Wife and earns a

gross income of $591.04 per week.” Id. at 15-16.

            Our standard of review over an alimony award is an abuse
      of discretion. We previously have explained that the purpose of
      alimony is not to reward one party and to punish the other, but
      rather to ensure that the reasonable needs of the person who is
      unable to support himself or herself through appropriate
      employment, are met. Alimony is based upon reasonable needs
      in accordance with the lifestyle and standard of living established
      by the parties during the marriage, as well as the payor’s ability
      to pay. Moreover, alimony following a 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.

Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004) (citation

and quotation marks omitted).      In considering a request for alimony, the

trial court must consider the statutory factors enumerated in 23 Pa.C.S.A.

§ 3701(b), which include, inter alia, the duration of the marriage; the

contribution of a spouse as homemaker; the relative needs of the parties;

and whether the party seeking alimony is incapable of self-support through

appropriate employment. Id. § 3701(b)(5), (12), (13), (17).

      Here, it is undisputed that Wife is medically unable to self-support

through any means of employment, and was financially dependent upon

Husband for the entirety of their 24-year marriage.        Wife contributed to

Husband’s earning power and overall quality of life by being a homemaker

and caring for his two children from a prior marriage. Moreover, when the

parties’ divorce is final, Wife, who suffers from several serious maladies, will



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lose her health insurance, which she previously received through Husband’s

employer.     Accordingly, Wife could conceivably incur significant out-of-

pocket medical expenses in the future, and, absent alimony from Husband,

Wife would have no source to cover such expenses.          Additionally, even

though Wife received the marital residence in equitable distribution, she

must pay for its upkeep (including taxes, utilities, maintenance, et cetera).7

Wife must also pay Husband $250 per month in rent.                 Finally, of




7
  The Master found that Sarah did not pay any rent to live in the marital
residence, either before or after the parties separated. Accordingly, contrary
to Husband’s urging, Sarah’s income is irrelevant insofar as Wife’s need for
reasonable alimony is concerned.


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particular note is that Husband’s income from his job8 is supplemented by

the $1,250 per month that he receives from his first wife’s annuity.

      In short, Wife’s needs are great; if she did not receive reasonable

alimony from Husband, she would have no income upon which to survive

(until she is eligible to receive Social Security benefits). We conclude that

the alimony award achieved economic justice and was in accordance with

ensuring that the reasonable needs of Wife, who is unable to support herself

through any employment, were met. See Teodorski, supra. Accordingly,

Husband is not entitled to relief on his second issue.

      In his third and final issue, Husband contends that “[i]n light of the

award of approximately ninety percent of the [marital] assets to Wife, the

trial court abused its discretion in ordering Husband to pay Wife one-half of

her attorney’s fees.” Brief for Appellant at 17. According to Husband, Wife

“has more than enough money to pay her attorney’s fees[,]” and “has not

demonstrated … [that] Husband committed any dilatory, obdurate or

vexatious conduct throughout the proceedings.”       Id. at 16, 17.    Husband

argues that in addition to Wife being awarded the marital residence, she also

“received [APL] of $1,362.00 for over two years and now receives alimony of



8
   Pa.R.C.P. 1910.16-2(e)(1)(B) addresses low income cases in support
actions, and sets a “self-support reserve” for the obligor of $931 per month.
In the instant case, the Master found that Husband has a monthly gross
income from his job of approximately $2,900 per month.              After the
deduction of $1,000 per month in alimony to Wife, Husband’s net income is
above the self-support reserve.


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$1,000.00   per   month,   and   therefore[,]   Wife   is    not   at   a   financial

disadvantage.” Id. at 17-18.

            We will reverse a determination of counsel fees and costs
     only for an abuse of discretion. The purpose of an award of
     counsel fees is to promote fair administration of justice by
     enabling the dependent spouse to maintain or defend the divorce
     action without being placed at a financial disadvantage; the
     parties must be “on par” with one another. Counsel fees are
     awarded based on the facts of each case after a review of all the
     relevant factors. These factors include the payor’s ability to pay,
     the requesting party’s financial resources, the value of the
     services rendered, and the property received in equitable
     distribution.

Anzalone v. Anzalone, 835 A.2d 773, 785-86 (Pa. Super. 2003) (citation

and paragraph break omitted); see also id. at 786 (stating that counsel

fees are awarded only upon a showing of need).              “In most cases, each

party’s financial considerations will ultimately dictate whether an award of

counsel fees is appropriate.     Also pertinent to our review is that, in

determining whether the court has abused its discretion, we do not usurp

the court’s duty as fact finder.” Busse v. Busse, 921 A.2d 1248, 1258 (Pa.

Super. 2007) (citations and quotation marks omitted).

     At the time of the Master’s hearing, Wife had accrued attorney’s fees

in the amount of $5,588.47.9      The Master recommended that as “[t]he

substantial income inequality between the parties is unquestionable[,

t]herefore, some contribution by Husband towards Wife’s counsel fees is


9
   Wife has obviously incurred additional attorney’s fees following Husband’s
filing of the instant appeal. Wife asserts in her brief that she has incurred
attorney’s fees in excess of $10,000.00. Brief for Appellee at 22.


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appropriate.”   Master’s Report, 1/13/16, at 17 (unnumbered).       The trial

court agreed with the Master.    Both the Master and the trial court were

aware of the parties’ respective financial situations and arrived at a

reasonable determination that is appropriate under the circumstances.

Contrary to Husband’s assertion, simply because Wife received the marital

residence and APL/alimony does not mean that she is no longer at a financial

disadvantage insofar as paying for her considerable attorney’s fees is

concerned. Additionally, Husband is mistaken in implying that, in order for

an award of attorney’s fees to be proper, there must have been a finding

that his conduct was dilatory, obdurate or vexatious. See Anzalone, supra

(stating that counsel fees are awarded upon a showing of need).

Accordingly, we conclude that the trial court did not abuse its discretion in

awarding $2,694.24 in counsel fees to Wife.

     Based on the foregoing, we affirm the Divorce Decree.

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2017




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