J-S08033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KATHLEEN F. DIXON                            IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                          Appellant

                    v.

KEVIN G. DIXON

                          Appellee               No. 2280 EDA 2014


                  Appeal from the Order Dated July 1, 2014
              In the Court of Common Pleas of Monroe County
               Domestic Relations at No(s): 7632 CIVIL 2012
                                            997-DR-2012


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                   FILED FEBRUARY 18, 2015

      Kathleen F. Dixon (“Wife”) appeals from the equitable distribution

order of the Monroe County Court of Common Pleas. We affirm.

      On September 12, 2012, Wife filed a divorce complaint against Kevin

G. Dixon (“Husband”). The trial court assigned the case to a master, who

conducted a hearing on November 15, 2013.      On January 29, 2014, the

Master issued a report.

      The Master found, “because of the parties’ employment capabilities,

their relatively young ages, and the good health of each, the Master feels

that nothing other than 50/50% distribution is appropriate.”   The Master

found the following facts:

         Defendant’s Exhibit 2 deals with a Trans America
         Insurance and Investment Group IRA which was originally
         issued February 1, 1984 (approximately two (2) years
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        before the marriage) and categorized as a 403(b) account.
        The value of that policy as of January 1, 2012 was
        $21,468.74 and no testimony was introduced which would
        allow the Master to discount that number to show pre-
        marital contributions.

                                    ...

        In regard to Husband’s assets he had been employed as a
        Mall Manager and after he was terminated he liquidated
        approximately $24,000 of company stock to pay bills in
        regard to house and living expenses. He also seized
        approximately $5,600 from a New York Life Trust Annuity
        account. In addition, Husband had a 401(k) account from
        his employment with CBL - the company managing the
        Malls - which as of April 1, 2013 had a value of $94,181.95
        and this is in addition to a Morgan Stanley stock account
        having a balance of approximately $3,792.40.

Master’s Report, 1/29/2014, at 6-7.       In discussing the distribution, the

Master recommended the following:

        7. The last group of assets that has to be addressed are
        the retirement assets. Wife created a PNC retirement
        account via three (3) different deposits; one $55,235.22,
        the second $168,842.56, and the third $5,491.38. The
        source[s] of these deposits [were] a Rite Aid Pharmacy
        rollover, a CVS 401(k) and a Wells Fargo savings account.
        In addition Wife is also seized of a Trans America IRA
        valued at $21,468.74 giving her total retirement assets of
        $251,037.90.

        Husband is seized of a “CBL” 401(k) valued at $94,181.95
        and a New York Life Trust Annuity valued at $5,600 for . . .
        total retirement assets of $99,781.95. The combined total
        retirement assets of the parties are $350,819.85 and
        allocating this on a 50/50% basis would award
        $175,409.93 to each. The Master recommends that Wife
        transfer $75,627.98 in retirement assets to the Husband
        via an appropriate [Qualified Domestic Relations Order
        (“QDRO”)] which would address the PNC retirement
        account; the preparation and cost of same to be equally
        divided between the parties.


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Master’s Report, 1/29/2014, at 13 ¶ 7.

        Wife and Husband filed exceptions.       Wife’s exceptions included:    (1)

the Master erred in failing to place a value on the pre-marital contributions

made to the Trans American Insurance and Investment Group IRA and (2)

the Master erred in its valuation of the liquidated stock, which should have

been valued at $30,000.00 rather than $24,000.00, and erred in finding

Husband used the funds to pay marital bills. Wife’s Exceptions, at ¶¶ 2, 4.

        On June 30, 2014, the trial court ordered and decreed that the parties

were divorced and approved the Master’s report, which it incorporated into

the decree. Order, 6/30/2014, at ¶¶ 1-2.

        The trial court found Wife failed to present evidence or develop a

record regarding the pre-marital value of the contributions made to the

Trans American Insurance and Investment Group IRA. Trial Court Opinion,

6/30/2014, at 3. The trial court also found Husband sold $24,000 in stock

and used the funds to pay marital bills.         Id.   The trial court, therefore,

denied Wife’s exceptions and directed the parties to prepare a QDRO and

transfer the sum of $75,627.98 in retirement assets from Wife to Husband.

Id., at ¶¶ 3-4.1

        Wife filed a timely notice of appeal.      Both she and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.


____________________________________________


1
    The trial court also denied Husband’s exceptions, which are not at issue.



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       Wife raises the following issues on appeal:

           1. Did [t]he [c]ourt err in sustaining the Master’s findings
           and conclusions that the Wife transfer retirement assets to
           Husband via a QDRO since Husband liquidated $29,600 for
           which Wife received no money?

           2. Did [t]he [c]ourt err in sustaining the Master's findings
           and conclusions that the Trans Amenica Insurance and
           Investment     Group    IRA   contained    no   pre-marital
           contributions, as there was no evidence of anything other
           than the fact that it was pre-marital account which should
           have been taken into consideration by the Master and the
           [c]ourt?

Appellant’s Brief at 3.2

       A “trial court has broad discretion in fashioning equitable distribution

awards.”     Teodorski v. Teodorski, 857 A.2d 194, 199 (Pa.Super.2004)

(quoting Anzalone v. Anzalone, 835 A.2d 773, 785 (Pa.Super.2003)). We

will overturn a trial court’s equitable distribution award only if the court

abused its discretion.       Id.   An abuse of discretion is found only “upon a

showing of clear and convincing evidence.” Smith v. Smith, 904 A.2d 15,

18 (Pa.Super.2006) (quoting McCoy v. McCoy, 888 A.2d 906, 908

(Pa.Super.2005)). In reviewing an equitable distribution scheme, we must

determine:

____________________________________________


2
  Although Wife’s concise statement of errors complained of on appeal raised
five issues, she has consolidated two issues on appeal and withdrawn two
issues. Appellant’s Brief at 4. Wife has waived any issue not contained in
her statement of questions presented in her brief. See Commonwealth v.
Sepulvida, 55 A.3d 1108, 1133 (Pa.2012)(issue waived when not raised in
statement of questions presented).



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           [W]hether the trial court, by misapplication of the law or
           failure to follow proper legal procedure, abused its
           discretion. Specifically, we measure the circumstances of
           the case, and the conclusions drawn by the trial court
           therefrom, against the provisions of 23 P.S. § 402(d) [now
           23 Pa.C.S. § 3502(a)] and the avowed objectives of the
           Divorce Code, that is, to effectuate economic justice
           between the parties and insure a fair and just
           determination of their property rights.

Teodorski, 857 A.2d at 199          (quoting Anzalone, 835 A.2d at 785).

Further, the master, as fact-finder, “is in the best position to assess

credibility of witnesses and we do not disturb credibility determinations on

appeal.”    Busse v. Busse, 921 A.2d 1248, 1255 (Pa.Super.2007) (citing

Doherty v. Doherty, 859 A.2d 811, 812–813 (Pa.Super.2004)).

     The Divorce Code defines marital property as “all property acquired by

either party during the marriage and the increase in value of any nonmarital

property acquired pursuant to paragraphs (1) and (3) as measured and

determined under subsection (a.1).”      23 Pa.C.S. § 3501.    Paragraph (1)

relates to “[p]roperty acquired prior to marriage or property acquired in

exchange for property acquired prior to the marriage” and paragraph (3)

relates to “[p]roperty acquired by gift, except between spouses, bequest,

devise or descent or property acquired in exchange for such property.” The

increase in value of pre-marital assets is marital property.    Anderson v.

Anderson, 822 A.2d 824, 828 (Pa.Super.2003) (quoting Smith v. Smith,

653 A.2d 1259, 1265 (Pa.Super.1995)).          There is a presumption that

property acquired after marriage is marital, which can be rebutted by a



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preponderance of the evidence.             23 Pa.C.S. § 3501(b); Mackalica v.

Mackalica, 716 A.2d 653, 655-56 (Pa.Super.1998).

       Further, “[i]f a spouse uses marital funds to satisfy the parties’ joint

obligations, this constitutes a disposition in good faith and the spouse does

not have to account for such marital funds. These marital funds are properly

excluded from the marital estate.” Smith, 653 A.2d at 1270. If, however,

the funds are used for non-marital obligations, the funds constitute marital

property. Id.

       Wife’s first issue claims the trial court erred when it adopted the

Master’s finding that Husband liquidated only $24,000.00 and further erred

in adopting the finding that Husband used the liquidated funds for household

expenses. Appellant’s Brief at 5-7.

       The trial court found:          “During the [Master’s] hearing, Husband

testified that he sold $24,000 of stock which was used to pay for living

expenses. Wife resided in the marital home until the spring or summer of

2012.[3] Therefore, the Master could have concluded that the liquidated stock

____________________________________________


[3]
    Wife gave inconsistent testimony regarding when she moved from the
marital residence. Wife testified she moved from the marital home in
January 2013. N.T., 11/15/2013, at 17. She subsequently stated she
resided outside the home from the spring or summer of 2012.             N.T.
11/15/2013, at 28. She stated that after the parties separated in August
2011, “I was still residing at the home most of the time. When I did leave, I
was staying with friends of mine. When my son would be home -- I would
try to be home when my son was there.” Id., at 15.




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was used for marital bills. We give the [Master’s] credibility determinations

great weight since it was the Master[] who heard and observed the

witnesses.” Opinion, 7/1/2014, at 3 (internal citations omitted).

     Husband testified he sold $24,000.00 of company stock. N.T.,

11/15/2013, at 38, 55.      From July 2010 through July 2012, he received

approximately $550.00 per week in unemployment compensation.              N.T.,

11/15/2013, at 37, 56.       Husband testified he used his unemployment

compensation to pay the mortgage on the house and the funds received

from liquidating the stock for his living expenses.    Id., at 27.   On cross-

examination he testified:

        A. To be honest with you to go back and look, I don't
        know. Did I use it for the golf? Partially, yes. Did I use it
        for meals? Yes, for my son and I. With his mother not
        being home as often, we would go out to dinner because
        I'm a horrible cook, I don't like to cook, don't cook well. So
        yes. Did I use that for that? Yes, I did. I also used it to pay
        bills when needed.

        Q. What bills did you pay?

        A. At end of the year with the mortgage, not mortgage,
        heating, electric, my share of the phone bill.

        Q. Do you have those bills that you paid?

        A. I don't have them with me.

Id. at 55. Wife testified that she paid all living expenses until September

2012, when the parties’ son went to college, after which she requested that

Husband pay half of the expenses. Id., at 16.




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        Although Husband did not use all liquidated funds for marital

expenses, he testified he used his unemployment compensation for the

mortgage payment and the liquidated assets for the payment of living

expenses. He made these payments while Wife continued to reside at the

home. The Master was entitled to credit this testimony. Busse, 921 A.2d at

1255.    Because Husband used the funds to pay joint obligations, the trial

court acted within its discretion in finding the liquidated stock was not part

of the marital property to be divided.4 Smith, 653 A.2d at 1270.

        Wife also alleges the Master failed to include the additional $5,600.00

from the New York Life Trust with Mainstay Annuity account as marital

property liquidated by Husband.          Appellant’s Brief at 6.   Husband testified

that he used these funds for living expenses.             N.T., 11/15/2013.     The

Master, however, included the funds in calculating Husband’s retirement

funds, which it divided equally. Master’s Report, 1/29/2014, at 13 ¶ 7.

Because the Master included the funds as part of the marital property, Wife’s

claim is moot.




____________________________________________


4
  Neither Wife nor Husband presented evidence establishing the payment of
bills. Wife had a box of bills, but did not go through them before or during
the hearing. N.T., 11/15/2013, at 64-65. The Master admitted the bills and
stated he would determine the amount of weight he would place on the bills.
Id., at 65. Further, at the time of the hearing, the marital house was in
foreclosure. Id. at 5. It is unclear, however, when the foreclosure process
began.



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      Wife’s second issue maintains the trial court erred in sustaining the

Master’s findings that the Trans American Insurance and Investment Group

IRA contained no pre-marital contributions. The trial court found Wife failed

to present evidence or develop a record regarding the pre-marital value of

the contributions made to the Trans American Insurance and Investment

Group IRA. Trial Court Opinion, 6/30/2014, at 3. Wife had the burden of

establishing the portion of the IRA that constituted pre-marital contributions.

See 23 Pa.C.S. § 3501(b); Mackalica, 716 A.2d at 655-56. She failed to

present any evidence. Accordingly, the trial court acted within its discretion

in sustaining the Master’s finding that the IRA contained no pre-marital

contributions.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




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