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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

SUSAN KATZ,                                ¦   IN THE SUPERIOR COURT OF
                                           ¦         PENNSYLVANIA
                   Appellee                ¦
                                           ¦
              v.                           ¦
                                           ¦
JAMES R. KATZ,                             ¦
                                           ¦
                   Appellant               ¦       No. 1653 WDA 2015

                    Appeal from the Order October 9, 2015
              in the Court of Common Pleas of Allegheny County
                   Family Court at No(s): FD03-000652-008


SUSAN KATZ,                                ¦   IN THE SUPERIOR COURT OF
                                           ¦         PENNSYLVANIA
                   Appellant               ¦
                                           ¦
              v.                           ¦
                                           ¦
JAMES R. KATZ,                             ¦
                                           ¦
                   Appellee                ¦       No. 1723 WDA 2015

                    Appeal from the Order October 9, 2015
              in the Court of Common Pleas of Allegheny County
                   Family Court at No(s): FD03-000652-008


SUSAN KATZ,                                ¦   IN THE SUPERIOR COURT OF
                                           ¦         PENNSYLVANIA
                   Appellee                ¦
                                           ¦
              v.                           ¦
                                           ¦
JAMES R. KATZ,                             ¦
                                           ¦
                   Appellant               ¦        No. 123 WDA 2015
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                    Appeal from the Order December 17, 2014
               in the Court of Common Pleas of Allegheny County
                     Family Court at No(s): FD03-000652-008


SUSAN KATZ,                                     ¦   IN THE SUPERIOR COURT OF
                                                ¦         PENNSYLVANIA
                    Appellant                   ¦
                                                ¦
               v.                               ¦
                                                ¦
JAMES R. KATZ,                                  ¦
                                                ¦
                    Appellee                    ¦        No. 390 WDA 2015

                    Appeal from the Order December 17, 2014
               in the Court of Common Pleas of Allegheny County
                     Family Court at No(s): FD03-000652-008

BEFORE:       SHOGAN, OLSON, and STRASSBURGER,∗ JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:

                                              FILED NOVEMBER 03, 2016

        I join the Majority’s resolution of most of the myriad issues presented

by these parties.       However, I disagree with the disposition of Wife’s issue

concerning Husband’s receiving credit for the Missing Jewelry and Husband’s

issues related to his being saddled with all the costs of the Enclave and

Distinct Coatings lawsuits.

        The trial court declined to omit non-marital items when awarding

Husband his share of the value of the Missing Jewelry, stating that “Wife



∗
    Retired Senior Judge assigned to the Superior Court.


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should not be rewarded for her lack of good faith” in concealing the

whereabouts of the items and testifying incredibly that she forgot.1      Trial

Court Opinion, 8/10/2015, at 21. The Majority declines to disturb the trial

court’s ruling, claiming that a credibility determination, which is “within the

sole province of the trial court,” is “at the core of this issue.”    Majority

Memorandum at 16. I disagree.

      The trial court did not hold that Wife offered incredible testimony to

support her claim that items among the Missing Jewelry were her separate,

non-marital property. The credibility determination went to her excuse for

not disclosing the location of the items. While the trial court has means to

sanction a party for acting in bad faith, it simply does not have the authority

to distribute non-marital property.   See, e.g., Smith v. Smith, 749 A.2d

921, 924 (Pa. Super. 2000) (“Assets that are acquired before the marriage

are not marital property, and therefore are not subject to equitable

distribution under the Divorce Code.”).      Accordingly, I would hold that

Husband’s share of the Missing Jewelry should be limited to 50% of the

marital value of the items.


1
  The trial court also indicated that Wife had filed no exception to the
Master’s ruling that Husband was to be awarded 50% of the value of the
Missing Jewelry upon its being found. Trial Court Opinion, 8/10/2015, at 20.
However, Wife did contest the Master’s ruling with her exceptions filed on
September 16, 2011. Exceptions, 9/16/2011, at ¶ 21 (“The Master erred in
recommending that Husband receive a credit of 50%–or any percentage–of
the values of items on Exhibit 34 [(‘List of Missing Jewelry’)] which … are
Wife’s non-marital property.”).

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       The trial court also determined that Husband should bear 100% of the

costs and expenses of the Enclave lawsuit, as well as all of the damages

arising from the Distinct Coatings lawsuit. Although both liabilities relate to

marital businesses, the trial court reasoned that Wife should bear none of

the Enclave costs because “Wife was excluded from any dealings regarding

the development of The Enclave, which was solely managed by Husband.”

Trial Court Opinion, 8/10/2015, at 15. Similarly, the trial court declined to

distribute to Wife any of the Distincts Coating debt, which resulted from a

painting subcontractor’s dealings with Coventry Estates, because “Wife was

effectively ‘out of the picture’” with regard to the business, and “had no

opportunity to exercise any responsibility over the carrying out of the

contract.” Id. at 19. The Majority summarily concluded that these decisions

were neither error nor an abuse of discretion. Majority Memorandum at 29,

32.

       The Majority recognizes that Coventry Estates and The Enclave are

both   marital    businesses   subject   to    equitable   distribution.   Majority

Memorandum at 5. The fact that Husband was the one who made all of the

decisions for the businesses and handled the businesses’ dealings has not

kept Wife from being awarded a fair share of the assets of those

businesses.      Correspondingly, her lack of participation is not a reasonable

basis for insulating Wife from these debts occasioned by the same



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companies. I would hold that the trial court’s decision to place the entirety

of those debts upon Husband was an abuse of discretion. Accord Aletto v.

Aletto, 537 A.2d 1383, 1385 (Pa. Super. 1988) (indicating that a trial

court’s award of the entirety of a piece of the marital property (the increased

value of the wife’s stock) to the wife for the reason that “[n]one of the

parties' activities during the marriage enhanced the value of the stock”

would be an abuse of discretion).

      Therefore, I respectfully dissent.




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