J-S61028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BEATRIZ RHOADES                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

RODNEY VERNON RHOADES

                        Appellee                    No. 144 WDA 2016


                 Appeal from the Order December 31, 2015
            In the Court of Common Pleas of Armstrong County
            Civil Division at No(s): No. 2004-1376-Civil-Divorce


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                       FILED OCTOBER 18, 2016

      Beatriz Rhoades (“Wife”) appeals pro se from the order entered in the

Court of Common Pleas of Armstrong County distributing the marital

property between her and Rodney Vernon Rhoades (“Husband”).              Wife

challenges the trial court’s valuation and distribution of the marital assets,

as well as the court’s order denying alimony, counsel fees and costs. After

our review, we affirm in part, and vacate and remand in part for correction

of the order.

      Husband and Wife were married on October 4, 2001; they separated

three years later, on November 5, 2004. Wife filed a complaint in divorce on
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September 22, 2004, which included claims for alimony and equitable

distribution.1

       Husband is 63 years old. He is employed as an equipment instructor

with the Pennsylvania Department of Transportation. Wife is 55 years old

and has the equivalent of a college degree in Accounting; she has completed

some coursework in law in pursuit of paralegal certification.    Until May of

2016, Wife was employed as a customer service representative for United

Health Care, earning approximately $36,497.47 annually, with health care

benefits and a retirement plan.

       Following a hearing, the master made the following recommendations:

             The parties’ marital residence was valued at $84,250.00,
              the average of the appraisals offered by each party at the
              date of separation (less mortgage ($57,219.08) and home
              equity loan ($14,649.55), leaving $12,381.37 in equity to
              divide.

             Husband’s SERS Pension – the marital portion, from date
              of marriage to date of separation, was 12.46%.

             Husband’s Janus-Vanguard IRA – non-marital asset, which
              increased in value by $6,109.14 during the marriage. The
              master applied the annual increase of 11.5% over a ten-
              year period to value as of date of distribution, for a
              valuation of $17,876.48.

             Husband’s Deferred Compensation Account – valued at
              $682.00 at time of marriage, at $2,469.02 at time of
              separation, and current value of $6,666.68. The master
              reduced the current value by the premarital portion
              ($1,787.02), valuing the marital portion at $4,879.66.
____________________________________________


1
 The court granted Husband’s petition for bifurcation and a divorce decree
was entered on May 5, 2009.



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       The master recommended the marital property be distributed 50% to

each party. The master also recommended that no costs, counsel fees, or

alimony be awarded to Wife.2 See Master’s Report, 1/7/15, at 10-18. Wife

filed exceptions, which were denied.           On appeal, Wife raises the following

claims:

          1. Whether the court abused its discretion and/or misapplied
             the law in its calculation/determination of the marital value
             of Husband’s Janus-Vanguard IRA, SERS Defined Benefit
             Retirement Plan, SERS Deferred Compensation Account,
             [and]    the    marital    residence;  and     omitting   [a]
             determin[ation of] the marital value[] of Husband’s leave
             accrued during the marriage for the purposes of the
             equitable distribution.

          2. Whether the court abused its discretion and/or misapplied
             the law under the circumstances by distributing only 50%
             of the marital assets to injured Wife (disabled and unable
             to work since May 2015).

          3. Whether the court abused its discretion and/or misapplied
             the law under the circumstances by denying injured Wife’s
             (disabled and unable to work since May 2015) claims for
             alimony, counsel fees, and other costs.

Appellant’s Brief, at 4.

       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
____________________________________________


2
  The master noted that Wife received spousal support from the date of
separation until 2008 in the amount of $10,150.29. The master also noted
that Wife was educated, gainfully employed, owned a home and would be
receiving 50% of the marital estate.



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        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

omitted).

     We do not lightly find an abuse of discretion, which requires a
     showing of clear and convincing evidence. This Court 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. In
     determining the propriety of an equitable distribution award,
     courts must consider the distribution scheme as a whole.

Biese v. Biese, 979 A.2d 892, 895 (Pa. Super. 2009) (quotations and

citations omitted). 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.”   Hayward v. Hayward, 868 A.2d 554, 559 (Pa.

Super. 2005).    “[I]t 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.” Morgante

v. Morgante, 119 A.3d 382, 387 (Pa. Super. 2015).

     With respect to the distribution, when a court endeavors to divide

marital property equitably, it must take into consideration the factors

delineated in section 3502(a) of the Divorce Code.    Drake v. Drake, 725

A.2d 717 (Pa. 1999); 23 Pa.C.S.A. § 3502(a) (stating factors which are



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relevant to equitable division of marital property include:             length of

marriage; any prior marriage of either party; age, health, station, amount

and sources of income, vocational skills, employability, estate, liabilities and

needs of each party; contribution by one party to education, training or

increased earning power of other party; opportunity for each party for future

acquisitions of capital assets and income; sources of income of both parties,

including, but not limited to, medical, retirement, insurance or other

benefits;   contribution   or   dissipation   of   each   party   in   acquisition,

preservation, depreciation or appreciation of marital property, including

contribution of party as homemaker; value of property set apart to each

party; standard of living parties established during marriage; economic

circumstances of each party at time division of property is to become

effective; and whether party will be serving as custodian of any dependent

minor children).

      The weight to be given to these statutory factors depends on the facts

of each case and is within the court’s discretion. We will not reweigh these

factors. See Busse v. Busse, 921 A.2d 1248, 1260 (Pa. Super. 2007). We

look at the distribution as a whole, in light of a trial court’s overall

application of the factors; the trial court has the authority to divide the

award as the equities presented in the particular case may require. Id.

      Further, 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




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the property.      Baker v. Baker, 861 A.2d 298, 302 (Pa. Super. 2004);

Isralsky v. Isralsky, 824 A.2d 1178, 1185 (Pa. Super. 2003).

        Finally, our role in reviewing alimony orders is limited; we review only

to determine whether there has been an error of law or abuse of discretion

by the trial court. Absent an abuse of discretion or insufficient evidence to

sustain the order, this Court will not interfere with the broad discretion

afforded the trial court.      Willoughby v. Willoughby, 862 A.2d 654, 656

(Pa. Super. 2004).        The Divorce Code dictates that “in determining the

nature, amount, duration and manner of payment of alimony, the court shall

consider all relevant factors,” including those statutorily prescribed at 23

Pa.C.S.A. § 3701. See 23 Pa.C.S.A. § 3701(b)(1)-(17).3

____________________________________________


3
    These factors include:

        (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.
(Footnote Continued Next Page)


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      First, Wife argues the court abused its discretion or misapplied the law

in its valuation of Husband’s Janus-Vanguard IRA. Wife contends the marital

portion should have been valued as of the date of distribution, not


                       _______________________
(Footnote Continued)

      (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 section 6102 (relating to definitions).

      (15) The Federal, State and local tax ramifications of the alimony
      award.

      (16) Whether the party seeking alimony lacks sufficient
      property, including, but not limited to, property distributed under
      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.

23 Pa.C.S.A. § 3701(b)(1)-(17).




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separation, and she cites to Smith v. Smith, 653 A.2d 1259 (Pa. Super.

1994). In Smith, this Court stated:

     The increase in the value of Husband’s deferred compensation
     plan, employee savings plan and IRA, from the date of
     separation until the date of distribution, was not a result of
     Husband’s post-separation contributions.      Husband admitted
     that he made no contributions to these retirement funds post-
     separation. Therefore, the most appropriate date for valuing
     Husband’s various pension plans is the date of distribution.

Smith, 653 A.2d at 1271. Here, like in Smith, Husband acknowledged he

made no post-separation contributions to the IRA fund. See N.T. Hearing,

9/11/14, at 362.    Wife states that the value of the IRA as of the hearing

date was $174,409.78, which is the same valuation date and amount the

trial court used.   Wife, however, claims, without explanation, that the

marital portion of the IRA is 62.4% of that, or $108,853.77.

     The trial court determined that the value of the fund was $65,556.51

at the time of the marriage, and $79,630.88 at the time of separation,

concluding, therefore, that the marital portion, or increase in value during

the marriage, was $14,074.37, or 17.7% of $79,630.88.          The court then

determined that the value as of the date of the hearing, $174,409.78, the

date closest to distribution, represented an increase of $108,853.77 over the

date of marriage value, a gain of 166%.      The court then multiplied the

marital portion ($14,074.37) by 166%, which equals $23,363.45, to obtain a

hearing date valuation of $37,437.82 ($14,074.37 + $23,363.45).




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     Although    we   find    no   abuse    of   discretion,        we   note   a   minor

mathematical    correction:    17.7%   of    $79,630.88        is    $14,094.67,      not

$14,074.37. Thus, if we multiply the corrected marital portion by 166%,

the result is $23,397.15, which results in a hearing date valuation of

$37,491.82 ($14,094.67 + $23,397.15).              This results in an additional

$54.00 ($37,491.82 - $37,437.82) to the marital portion of the IRA, which is

added to the marital estate.

     Contrary to Wife’s argument, the trial court properly utilized the

hearing date value to determine the increase in the marital portion of the

IRA. Additionally, we find no support or argument for Wife’s claim that she

is entitled to 62.4% of the value of the IRA as of the date of the hearing.

We find no error or abuse of discretion. Baker, supra.

     Wife next argues that the court erred in determining the marital

portion, or coverture fraction, applicable to Husband’s SERS pension.

Although Wife’s argument is unclear, it appears from her exception to the

master’s report that she is arguing about a 0.088 difference in the master’s

determination of number of years of service (denominator) Husband

participated in SERS during the 36-month marriage (numerator). We agree

with the trial court that the master’s failure to calculate that time down to

the nearest one-thousandth is de minimis. We find no error. Biese, supra.

     Wife also argues the court erred in determining the value of the

marital portion of Husband’s Deferred Compensation account. The account

was valued at $682.00 at the time of marriage.           On September 30, 2004

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(following Wife’s filing for divorce), it was valued at $2,469.02. Thereafter,

Husband made minor contributions and at the time of the master’s hearing

on September 11, 2014, it was valued at $6,666.68. Once again, Wife

argues about the date of valuation, but the date she proposes, date of the

hearing, is the date that was utilized by the master in its recommendation,

which the trial court affirmed.    Further, Wife again proposes a marital

portion, “approximately 90%,” without providing support or argument.

Here, the court found the master’s application of 72.377% appropriate and

reasonable. The court arrived at this fraction/marital portion by subtracting

the value at the time of the marriage from the value after Wife filed for

divorce ($2,469.02 - $682.00 = $1,787.02).             The $1,787.02 figure

represents 72.377% of the total, and thus is the marital portion.           The

master subtracted the marital portion from the current value ($6,666.68 -

$1,787.02) to reach “the marital portion subject to division $4,879.66.”

Master’s Report and Recommendation, 1/7/15, at 12. Although we think it

more appropriate to reduce the current value by 72.377% to reach the

marital portion subject to equitable distribution ($6,666.68 x 72.377% =

$4,826.60), we find this error was in Wife’s favor, was de minimis and,

therefore, of no consequence.

     Wife also argues that the trial court erred in its valuation of the marital

residence. As stated above, the court received appraisals from both parties,

$89,500 from Wife’s appraiser and $79,000 from Husband’s appraiser. The

court determined that the average of these appraisals, $84,250, was

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reasonable. We find no abuse of discretion. See Aletto, 537 A.2d at 1489

(court acted within its discretion in assigning equal weight to testimony of

two experts and averaging the two figures to arrive at estimated fair market

value of marital home).

        Wife also claims the court erred in failing to determine the marital

value of Husband’s accrued leave during the marriage.         She argues that

during the marriage Husband accrued 346.4 annual leave hours and 300 sick

leave hours, totaling 646.4 leave hours, multiplied by his hourly rate of

$23.93, for a total “marital asset” of $15,468.35.     First, we note that this

clam was not raised before the master, and the trial court determined there

was nothing in the record with respect to this claim and, therefore, it was

waived.     Nagle v. Nagle, 799 A.2d 812, 821 (Pa. Super. 2002) (issue

waived because it was not included in exceptions to master’s report).

Further, Wife provides no support in her brief for this claim. Although she

cites to case law in Alaska and Washington, those cases are neither binding

nor persuasive.

        Next, Wife argues the court erred or abused its discretion by

distributing to her “only 50% of the marital assets[.]” Appellant’s Brief at 4.

Instantly, we find no basis in the certified record to disturb the trial court’s

50/50 division of the marital assets.     As the trial court points out, this

“drawn-out divorce has been going on almost four times longer than the

parties’ short-lived marriage of three years.”   Trial Court Opinion, 12/31/14,

at 1.     Wife overlooks the fact that the marriage was of short duration.

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Additionally, the court points out that the parties have been battling over

marital assets valued at less than $100,000.00, and, in particular, Wife has

sought to be named sole beneficiary of Husband’s State Employee

Retirement System (SERS) account, despite the fact that the marital portion

of Husband’s state employee pension was determined to be 13%.4 We find

no error or misapplication of law.         The trial court carefully considered the

relevant statutory factors, in particular the fact that the marriage lasted only

three years. We will not engage in reweighing the statutory factors. Busse,

supra.

       In her final claim, Wife argues the court erred in denying her claim for

alimony, counsel fees and costs. We disagree.

       With respect to her alimony claim, Wife contends she was physically

abused during the marriage, which has had lasting effects and rendered her

incapable of working. She also claims discrepancy in the parties’ earnings,

earning capacities and other sources of income.

       Although marital misconduct may be considered in an alimony

determination, 23 Pa.C.S.A. § 3701(b)(14), the trial court found, and we
____________________________________________


4
  To protect Wife’s interests pending equitable distribution, the court, by
order dated March 3, 2014, directed Husband to name Wife “primary
beneficiary of no less than thirteen percent (13%) of his Pennsylvania State
Employees Retirement Pension account upon his death.” The court also
ordered the SERS board to freeze all activity in account, except that
Husband would be free to designate the primary beneficiary of the remaining
87% of the account. Order, 3/3/14, at ¶ 1.




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agree, that Wife never proved that she was injured. The trial court stated

that Wife failed to prove that Husband “caused her any lasting physical

injuries [and] has also failed to prove that she is physically disabled, that

her earning capacity has been affected or that she has lost earnings as a

result of the alleged injuries.”           Trial Court Opinion, 12/31/15, at 2.5

Further, the court noted that Wife remained employed for eleven years after

separation, up until May 2015, which was just prior to the hearing on the

exceptions to the master’s report.

       In denying Wife’s request for alimony, the trial court emphasized the

short duration of this marriage.         Additionally, at the time of the master’s

hearing, Wife was gainfully employed with health insurance and a retirement

plan, owned a home, and would be receiving $24,839.85 in equitable

distribution in addition to 50% of the marital portion of Husband’s SERS

Pension. With respect to the discrepancy in incomes, earning capacities, and

sources of income, the trial court found:

       [I]t is true that [Husband] made significantly more than [Wife]
       did. However, [Wife] was 53 years old, while [Husband] was 61.
       [Wife] still has a number of years to work, whereas [Husband] is
       closer to retirement.     In addition, [Wife] received spousal
       support from [Husband] totaling $10,150.29 before her support
       case was closed by court order in 2008. Moreover, [Husband]
       brought [Wife] and her minor daughter to the United States at
____________________________________________


5
  The trial court noted that even if Wife had properly authenticated her
medical records, “the opinions, diagnoses and conclusions contained therein
constitute inadmissible hearsay and could not be considered[.]” Trial Court
Opinion, supra at 6-7.



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      [Husband’s] expense and [he] supported both of them for four
      years. [Wife] has more education than [Husband] does, having
      worked as an accountant in Colombia for a number of years
      before she came to the United States. In addition, [Wife] has a
      house in Colombia that she inherited from her mother and a
      Colombian government retirement benefit.

Trial Court Opinion, supra at 19.

      These findings are supported in the record, and the court’s order

denying alimony based on these findings is neither an abuse of discretion

nor error of law. Willoughby, supra.

      With respect to costs and counsel fees, we note that we review a trial

court’s decision to award costs and fees in a divorce matter under an abuse

of discretion standard.    Habjan v. Habjan, 73 A.3d 630, 642 (Pa. Super.

2013).    Here, Wife argues that due to the disparity in their economic

circumstances, she is entitled to counsel fees and costs. Instantly, we find

that the trial court did not abuse its discretion in denying Wife’s request.

The   court   agreed      with   the   master’s   recommendation,   and   that

recommendation was based on a consideration of all relevant factors,

including 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.    See 23 Pa.C.S.A. § 3702.      We find no abuse of

discretion.

      Based upon our review of the parties’ briefs, the certified record on

appeal, and the relevant law, we conclude that the trial court’s award of

equitable distribution and its denial of Wife’s request for alimony, counsel


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fees and costs appropriately effectuated economic justice under the evidence

presented. We find no abuse of discretion or misapplication of law.

      Order affirmed in part; vacated and remanded in part.      Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




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