J-A12015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TAMARA SWEENEY,                                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

THOMAS J. SWEENEY,

                            Appellee                  No. 2164 EDA 2015


                      Appeal from the Decree June 18, 2015
              In the Court of Common Pleas of Montgomery County
                    Domestic Relations at No(s): 2012-11558


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 30, 2016

        Tamara Sweeney (Wife) appeals pro se1 from the June 18, 2015

decree in divorce from Thomas J. Sweeney (Husband) and the equitable

distribution order incorporated therein.        Wife raises numerous issues

concerning the equitable distribution of the marital estate and the alimony

award. After review, we affirm.

        The trial court set forth the following background information in its

equitable distribution decision:

              The parties were married on July 10, 1993, separated on
        April 22, 2012, and Wife filed a Divorce Complaint on May 7,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Although Wife was represented by four different attorneys during the
equitable distribution proceedings, she is representing herself in connection
with this appeal.
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       2012. Four children were born of this marriage[.] [2] … At [the]
       time of hearing, Wife was 47 years of age and Husband was 52
       years of age. By Stipulation dated January 14, 2013, Husband
       resides exclusively in the marital residence with the children at
       173 Buckwalter Road, Royersford, Pennsylvania. Wife's address,
       as reflected on the docket entries, is 1204 Red Rock Road,
       Linfield, Pennsylvania, although her post-trial memorandum
       indicates her present address to be 131 Prospect, Unit 107,
       Phoenixville, Pennsylvania. The parties equally share custody of
       [the youngest son], and Husband has primary custody of [the
       daughter]. [The two oldest sons] are over 18. [One] attends
       the University of Alabama and lives with Father when not in
       school, and [the other] should have graduated from high school
       this month, lives with Father, and also plans to attend the
       University of Alabama.

              Both parties had graduated from college before the
       marriage, with Bachelor Degrees. No testimony was presented
       on either side which would reflect that either party suffers from
       any physical or mental health issue which would keep either one
       of them from gainful employment. At the time of hearing, Wife
       was employed, and had been since October 6, 2014, at Private
       Jet Services, Inc. as a hostess for college basketball teams, and
       testified that she makes $1,000 per week in that capacity. A
       Support Order, entered on May 10, 2013, indicates Wife's net
       income was $3,214.06 per month. Said Order further reflects
       (at that point in time) that she had last worked at B.F.I. for 7½
       months and earned $31,643.96 gross.          Further, said Order
       indicates that Wife voluntarily resigned from that position and, at
       the time of hearing, worked for another company where she
       earned only commission and had not earned anything to the
       date of the support hearing. Her highest paying job, between
       2004 and 2008 was for Yellowbook, where she earned as much
       as $90,000 in one year. Husband is self-employed in a business
       named RoofingProjects.com, LLC and had previously been
       involved in a business called Construction Marketplace, LLC,
       incorporated by his mother.           He further indicated that
       Construction Marketplace, LLC no longer exists. It appears
____________________________________________


2
 The parties’ oldest son was born in November of 1994, a second son was
born in June of 1996, a daughter was born in December of 1998, and the
youngest child, a son, was born in September of 2000.



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      (although no direct documentary proof was introduced) that
      Construction Marketplace “morphed” into the newer business,
      Roofing Project, LLC. The Support Order of May 10, 2013,
      indicates that Husband’s net monthly income was $16,137.56.
      It should be noted that, although Exceptions were filed to this
      particular Support Order, prior to hearing by the undersigned,
      the Exceptions were withdrawn and the Order continued with
      only issues of credits to be resolved by the Court as part of
      Equitable Distribution.

             During the course of litigation, Husband paid $1,782 for
      psychological evaluations, $500 of which was Wife's share, and a
      total of about $12,000 for family counseling.

Trial Court Equitable Distribution Opinion (TCEDO), 6/18/15, at 1-2.

      The trial court then reviewed the marital assets, which include the fair

market value of the marital residence at $630,000, but which has an

outstanding mortgage balance of $506,000.        With regard to retirement

accounts, Husband has none.      Although Wife acknowledged she has such

accounts, no evidence was presented as to their value.       Additionally, the

court found that Husband’s business is a marital asset, but determined that

it had “no value subject to equitable distribution,” because the “goodwill

value of the business is based solely on Husband.” Id. at 3, 4. The court

also discussed the marital debt, stating:

      For many years, Husband failed to pay any taxes, and owes
      I.R.S. over $860,000 total in taxes, interest and penalties.
      Husband is trying to negotiate a reduction of this debt to I.R.S.,
      and at the present time, it is unknown exactly what Husband’s
      liability will be after said negotiations are complete. He has
      already offered $55,000 in compromise for this debt, which offer
      has been rejected by I.R.S. Additionally, he has paid over
      $50,000 to Pennsylvania Department of Revenue between 2013
      and 2014 for unpaid state taxes.



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Id. at 4.   Thereafter, the court reviewed both the equitable distribution

factors outlined at 23 Pa.C.S. § 3502(a), and the alimony factors found at 23

Pa.C.S. § 3701(b).

      On June 18, 2015, the court issued its equitable distribution order,

directing the sale of the marital residence following the youngest child’s

graduation from high school, with Husband to continue to pay the mortgage,

taxes and insurance until the property is sold. The parties would then share

the proceeds from the sale with Wife receiving 65% of the proceeds and

Husband 35%. Wife was also directed to pay Husband from her share of the

proceeds “one-tenth of any final tax liability incurred during the marriage.”

Id. at 10. Husband was awarded all interest in the business and would be

responsible for any business debts or liabilities. The court also awarded Wife

$2500 per month in alimony until the time the youngest child graduates

from high school.

      Wife appealed from the June 18, 2015 decree/order, and now raises

the following issues for our review:

      [1.] Whether the court can make and render a fair and equitable
      property distribution determination absent complete discovery as
      required under the provisions of 23 Pa.C.S. § 3501 et seq.;
      Pa.R.C.P. 1920.33; Fed. R.Civ.P. 26(b)(1); Richlin v. Sigma
      Design West, Ltd., 88 F.R.D. 634, 637 (E.D. Cal. 1980)[?]

      [2.] Whether the court is allowed to assign a zero value to an
      existing, on-going and profitable business[?]

      [3.]   Whether the court can determine a reasonable and
      unbiased alimony award absent full and fair financial
      disclosure[?]

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     [4.] Whether the court, aware of financial inconsistencies and
     financial falsehoods, can use fabricated data in rendering sound
     decrees[?]

     [5.] Whether the court is allowed to overlook an admitted claim
     of forgery that was used to deceive [Wife] as to the true
     financial condition of the parties[?]

     [6.] Whether the court is allowed to ignore evidence of duress
     and its impact on adequate representation and equal treatment
     under the law[?]

Wife’s brief at 9-10 (citations appended to issues 2 through 6 have been

omitted).

     Generally, when addressing issues concerning equitable distribution,

we are guided by the following:

           “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.” Harasym v. Harasym, 418 Pa. Super.
     486, 614 A.2d 742, 746 (Pa. Super. 1992). “An abuse of
     discretion is not found lightly, but only upon a showing of clear
     and convincing evidence.” Zollars v. Zollars, 397 Pa. Super.
     204, 579 A.2d 1328, 1330 (Pa. Super. 1990), appeal denied,
     527 Pa. 603, 589 A.2d 693 (1991).

           Pursuant to 23 Pa.C.S.A. § 3502(a), when fashioning
     equitable distribution awards, the trial court must consider: the
     length of the marriage; any prior marriages; age, health, skills,
     and employability of the parties; sources of income and needs of
     the parties; contributions of one party to the increased earning
     power of the other party; opportunity of each party for future
     acquisitions of assets or income; contribution or dissipation of
     each party to the acquisition, depreciation or appreciation [of]
     marital property[;] value of each party's separate property[;]
     standard of living established during the marriage; economic
     circumstances of each party and whether the party will be
     serving as custodian of any dependent children. 23 Pa.C.S.A. §
     3502(a)(1-11).     The weight to be given to these statutory

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J-A12015-16


     factors depends on the facts of each case and is within the
     court's discretion. Gaydos v. Gaydos, 693 A.2d 1368, 1376
     (Pa. Super. 1997) (en banc).

Mercatell   v.   Mercatell,   854   A.2d   609,   611   (Pa.   Super.    2004).

“Furthermore, the trial court has ‘the authority to divide the award as the

equities presented in the particular case may require.’”       Id.      We also

recognize that 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

the property rights.” Hayward v. Hayward, 868 A.2d 554, 559 (Pa. Super.

2005). Moreover, “[t]he law is … well settled that the trial court can accept

all, some or none of the submitted testimony in determining the value of

marital property.” Isralsky v. Isralsky, 824 A.2d 1178, 1185 (Pa. Super.

2003).

     With regard to Wife’s first issue, she claims that discovery was

incomplete because Husband failed to timely respond and that the

documents he eventually provided were prepared to mislead her.             Wife

further claims that the court abused its discretion in concluding that the

parties had been given sufficient time to complete discovery.        Wife also

appears to blame her attorneys for resigning at inopportune times, leaving

her “improperly represented.” Wife’s brief at 29. She argues that although

the court granted an extension to complete discovery, a further delay was

denied, thus, “tacitly favoring [Husband] in the matter of [e]quitable


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[d]istribution.”   Id.   Additionally, Wife asserts that the court’s refusal to

grant more time for discovery violated 23 Pa.C.S. § 3505(b), which requires

the parties to file inventories. Also, with reliance on Hein v. Hein, 717 A.2d

1053 (Pa. Super. 1998), she contends that Husband should have been

sanctioned.    See Hein, 717 A.2d at 1056 (stating the imposition of

discovery sanctions is within the discretion of the trial court).

      The trial court provided an extensive discussion concerning this issue,

noting a number of conferences scheduled and held by the court with

counsel. The court also cited the order it issued on October 9, 2014, setting

out the final discovery procedure and the documents each party was

required to bring to the hearing scheduled for January 21, 2015. The court

also cited its order, dated April 8, 2014, granting the request by Wife for the

appointment of a forensic accountant to examine and value Husband’s

business and earning capacity.        However, Wife never hired a forensic

accountant. The court also noted that by the time the hearing was held on

January 21, 2015, the “case had been pending for about 32 months.” Trial

Court’s Rule 1925(a) Opinion (TCO), 9/10/15, at 8.              Thus, the court

concluded that ample time had been provided to complete discovery.

      We agree and recognize that the court found Wife herself had not

complied with some of the discovery requests directed to her.           Simply

stated, more than sufficient time had elapsed. Additionally, Wife’s reliance

on Hein is misplaced in that that case concerns the appropriateness of


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J-A12015-16


discovery sanctions imposed, not whether sanctions should be imposed in

the first instance. Accordingly, we conclude that the court did not abuse its

discretion by not further extending discovery and in not sanctioning

Husband. Wife’s first issue is without merit.

      The second issue raised by Wife concerns the valuation of Husband’s

business. She argues that the court erred by assigning it a zero value for

distribution purposes. Wife relies on Verholek v. Verholek, 741 A.2d 792

(Pa. Super. 1999), Litmans v Litmans, 673 A.2d 382 (Pa. Super. 1996),

and Johnson v. Johnson, 529 A.2d 1123 (Pa. Super. 1987), for the

proposition “that a business valuation must be conducted when it impacts on

the matter of equitable distribution….” Wife’s brief at 32. Essentially, Wife

claims that because the court did not consider the section 3502 equitable

distribution factors, the distribution plan must be set aside.       She further

argues that the court failed to weigh the evidence and make credibility

determinations or that it made them in favor of Husband.               Wife also

contends that in valuing the business, the court overlooked her contribution

and claims that merely because Husband is the breadwinner he was not

entitled to more favorable treatment.          Underlying these allegations, Wife

believes that the court was biased and that its actions were “demeaning and

insulting.” Wife’s brief at 35.

      The   trial   court’s   response    to   this   argument   centers   on   its

determination that Husband’s “business ha[s] no value for [Equitable


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Distribution]   purposes[,]”   because    “[a]ny   value   is   tied   directly   to

[Husband].” TCO at 10. Specifically, the court stated:

      [Husband] presented testimony, which we find credible, that the
      business depends on him as principal. The business has no
      value in the event that [Husband] becomes separated from the
      business. “Goodwill value which intrinsically ties to the attributes
      and skills of certain individuals is not subject to equitable
      distribution because the value thereof does not survive the
      disassociation of those individuals from the business.” Baker v.
      Baker, 861 A.2d 298, 302 (Pa. Super. 2004) (citation omitted).

Id. at 10-11.    The trial court further explained that Wife had been given

more than enough time to complete any discovery she wished in regard to

Husband’s business including hiring a forensic accountant, which Wife chose

not to do. Moreover, the court found that no “formal business evaluation”

was completed. Id. at 11. Therefore, based upon the record before it, the

court concluded that the business had no value for equitable distribution

purposes and Wife has not convinced us otherwise.          Thus, Wife’s second

issue does not provide her with relief.

      Wife’s next issue relates to the court’s award of alimony until the time

the parties’ youngest son graduates from high school Wife claims that the

court erred by substantially reducing the alimony award from the amount

she received as alimony pendente lite (APL). She claims that the purpose of

alimony is to allow a former spouse to live the lifestyle she lived during the

marriage, and that her earning capacity has been affected by her

contribution to the family and to Husband’s business. Moreover, Wife argues

that because evidence in the record reveals that Husband earns about

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$100,000 per month, the reduction of the APL amount down to a $2500

payment per month does not do economic justice between the parties. See

Wife’s brief at 39.3

       We conduct our review of this issue according to the following

standard:

           The role of an appellate court 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 support
       order, this Court will not interfere with the broad discretion
       afforded the trial court.

       Smith v. Smith, 904 A.2d 15, 20 (Pa. Super. 2006). Likewise:

                   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. In determining
              the nature, amount, duration and manner of
              payment of alimony, the court must consider all
              relevant     factors, including  those     statutorily
              prescribed for at 23 Pa.C.S.A. § 3701. 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.

       Isralsky, [824 A.2d at 1188].

Dalrymple v. Kilishek, 920 A.2d 1275, 1278-79 (Pa. Super. 2007).

____________________________________________


3
  Wife does not provide a citation to the record to support the amount of
income she claims Husband earns per month. Rather, we note the court
found that pursuant to the support order, Husband’s net monthly income
was $16,137.56.



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      In arriving at its conclusion about alimony, the court noted Husband’s

mismanagement of the business, in particular his failure to pay taxes.

However, the court also pointed out that the parties rented a house at the

shore for a number of summers that cost $38,000 per year. Thus, the court

concluded that “[b]oth parties benefitted from a comfortable lifestyle as a

result of [Husband’s] failure to pay taxes.” TCO at 5. Additionally, the court

stated:

      [Wife] argues that she cannot “live off of alimony.” The record
      demonstrates otherwise. In deciding that an award of alimony
      was appropriate until the parties’ youngest child graduates from
      high school, we carefully reviewed each of the alimony factors.

      [Wife] has a college degree. She was only 47 years old at the
      time of hearing on 1/21/15. Her earnings history reflects that at
      one point during the parties’ marriage, she earned
      approximately $90,000/year in a sales position with Yellowbook
      (sometime during the period 2004-2008). [Wife] does not have
      any serious health complications that would prevent her from
      maintaining gainful employment.

TCO at 12-13.

      Following our review, we conclude that the trial court adequately

examined the specific facts of this case and properly analyzed the

appropriate statutory factors in determining Wife’s reasonable needs and

Husband’s ability to pay.    The court’s findings and conclusions are not in

error. The record supports the findings and, therefore, we conclude that the

court did not abuse its discretion in its award of alimony to Wife.

      Wife’s next two issues are directed at the trial court’s credibility

determination in connection with Husband’s testimony and specifically

                                     - 11 -
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relating to Husband’s signing of Wife’s name on “tax submissions to the

IRS.” Wife’s brief at 43. Wife suggests that Husband’s action was a forgery

and if not considered a crime, it should have at a minimum impacted the

court’s credibility determinations concerning Husband’s testimony.

     In response to this issue, the court’s opinion that set forth the

equitable distribution award explained:

     Husband’s signature of Wife’s name onto tax returns which
     effectively removed her liability from the tax debt is not a
     forgery in light of Wife’s indication to Husband that he should
     remove her name from this debt by whatever means necessary.
     The [c]ourt may have looked upon this differently if the
     signature of Wife’s name caused her any additional debt, but
     under the circumstances, his signature thereof cannot reflect on
     his credibility.   The crime of Forgery (18 Pa.C.S. § 4101)
     requires specific “intent to defraud or injure” someone. In the
     instant case, evidence indicated that Husband’s signature of
     Wife’s name on tax returns actually benefitted Wife, and
     therefore, there is no forgery.

TCEDO at 8-9. Also, in the Rule 1925(a) opinion, the court reiterated this

reasoning and further pointed out that Wife’s claim that Husband concealed

information about his assets could have been rebutted by Wife by her

producing evidence contrary to Husband’s testimony.        See TCO at 9-10.

Because Wife failed in this regard, we conclude that the trial court properly

relied solely on evidence of record and did not abuse its discretion. Again,

Wife has failed to convince us otherwise.

     In Wife’s final issue, she claims that the court did not consider the fact

that she “was exposed to an extensive campaign of hostility, threat,

intimidation, and physical/mental/emotional abuse[,]” which “allow[ed]

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Husband to use the court proceedings to abuse the Wife, and harm her

financially, and deprive her of her children well into the future.” Wife’s brief

at 45-46. To support this contention, Wife cites two protection from abuse

orders that were entered in 2013 and 2014. She also again mentions her

attorneys’ withdrawals, which she claims impaired her ability to discover

documents to support her position that Husband used coercive tactics that

amounted to fraud.

      In addressing this issue, the court recognized Wife’s argument as an

allegation   “that   she   was   subjected   to   threats   of   bodily   harm   and

psychological pressure by [Husband].”        TCEDO at 12.        However, the court

stated that “[t]here [was] no evidence on the record relating to these

claims.” Id. The court also noted any allegations that Husband attempted

to alienate the children were properly raised in a custody proceeding.

      Although Wife claims that she submitted into evidence a lengthy

accounting of Husband’s conduct toward her, she has not provided any

indication where in the extensive record this accounting can be found.

Moreover, our in-depth review of the record failed to locate the document

Wife claims she submitted.        Without evidence of record to support her

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

refusing to accept Wife’s assertions that Husband threatened her or applied

psychological pressure. Again, we resolve that Wife’s last issue is without

merit.


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     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2016




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