J-A29010-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

WILLIAM RONALD TROUT,                   : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                   Appellant            :
                                        :
           v.                           :
                                        :
JOAN A. TROUT,                          :
                                        :
                   Appellee             : No. 2036 WDA 2013

                   Appeal from the Order November 20, 2013,
                 Court of Common Pleas, Westmoreland County,
                       Civil Division at No. 2005 of 2008-D

BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED NOVEMBER 26, 2014

     William Ronald Trout (“Husband”) appeals from the November 20,

2013 order of court dividing the parties’ marital property.    Following our

review, we affirm.

     Husband and Joan A. Trout (“Wife”) married on January 28, 1961 and

separated on February 27, 2004. During the marriage, Husband worked as

a mechanic primarily on large machinery and eventually opened a business

servicing such equipment. Wife stayed at home and raised their children, 1

but also assisted Husband in establishing and running his business by

performing the functions of a bookkeeper and occasionally helping Husband

in the garage.




1
  The parties are the parents of three children, all of whom were adults at
the time of separation.


*Retired Senior Judge assigned to the Superior Court.
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        In 1967, the parties purchased the marital residence, which is located

on approximately thirty-seven acres of land and includes not only the

residence but also a garage, which Husband used for his business, and a

barn.     During the marriage, the parties restored and remodeled the

residence. There are two gas wells located on this property, from which the

parties receive royalty payments. In 1994, the parties purchased a parcel of

land in New Stanton, Pennsylvania, with the intention of moving Husband’s

business operations to that location. In 2000, the parties erected a building

to house Husband’s business operations on that parcel and Husband’s

business began operating from there. In 2004, Wife left the marital

residence and ultimately settled in Florida, where she continues to reside.

Husband has remained in the marital residence.

        Husband filed a complaint for divorce in 2008. In July 2011, the trial

court appointed a special master for purposes of equitable distribution

proceedings.     Following preliminary meetings between the parties, their

counsel and the master, a hearing was set for two days in August of 2012.

Husband requested a continuance, claiming that he required surgery on his

hip.    Although Wife objected, the master continued the hearing until

September 14, 2012. At the hearing, Wife offered appraisals of the marital

residence and the New Stanton property, valuing them at $225,000 and

$400,000, respectively.      The master subsequently filed his report and

recommendation, and Husband filed multiple exceptions thereto. Following



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oral argument, the trial court denied Husband’s exceptions. The trial court

adopted the master’s recommendations and on November 20, 2013, entered

an order dividing the parties’ marital property. The trial court awarded each

party fifty percent of the marital estate. Of relevance to this appeal, the trial

court awarded Husband the marital residence and ordered that Wife be paid

her share of the marital estate from the sale of the New Stanton property.

The trial court ordered that this be accomplished as follows:

            In order to achieve an equal division of the marital
            estate, the Wife is awarded exclusive title and
            possession of the the [sic] commercial property
            known as 250 W. Pennsylvania Ave., New Stanton,
            PA subject to the following:

                  a. The Husband shall be granted a period of
            150 days in which to have a person or entity of his
            choosing at his sole expense remove all personal
            property from the premises. Husband shall refrain
            from any actions to or attempts to cause damage
            and/or affect the existing condition of the business
            property. In the event that Husband fails or refuses
            to remove the personalty during the 150 day period
            set forth above then said personalty shall be deemed
            abandoned by the Husband and the Wife at her sole
            discretion may choose to dispose of it by any means
            available. In the event that Wife sells any such
            personalty after the expiration of the 150 days the
            Husband and Wife shall equally divide the net
            proceeds from the sale. If the Wife is required to
            expend sums for removal of such personalty from
            the business property the Wife shall receive
            reimbursement through an increased division of the
            marital estate following the sale of the business
            property. In the event that any such items of
            personalty of the business property are not removed
            by Husband within the 150 day period and to the
            extent that any such items of personalty are not
            owned by the Husband, then Husband shall


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           indemnify and hold Wife harmless from any and all
           costs, expenses, lawsuits, claims, or damages
           including but not limited to reasonable counsel fees
           for the sale of any such items of personalty.

                 b. The transfer of the title of the commercial
           property to the Wife shall occur 150 days from the
           date of this order.

           5. Wife shall be permitted immediately to place [the]
           business property for sale with a licensed realtor of
           her choosing and without the interference of the
           Husband. The listing price shall be no less than the
           appraised value of $400,000.00. Wife is permitted to
           solely execute any and all documents associated with
           the listing or selling of the business property.

           6. Husband shall maintain at his sole expense
           insurance on both the marital residence and the
           business property until such time as title are
           transferred in accordance with the proposal for
           distribution.

           7. At the time of the sale of the commercial property
           in New Stanton, a calculation is to be performed so
           as to determine the extent of the marital estate and
           the sums necessary to effectuate a 50-50 split of the
           marital estate. In the event that the net proceeds
           from the sale of the business property is an amount
           in excess of the marital estate owed to Wife, the
           Wife shall pay the Husband within 30 days of the
           closing of the commercial property an amount
           necessary to effectuate a 50-50 split of the marital
           assets which will include only the marital residence
           and the 37 acres upon which it is situate and the
           commercial real estate in New Stanton. In the event
           the net proceeds from the sale of the business
           property equals an amount less than a 50-50 split of
           the marital estate owed to Wife the Husband shall
           pay the Wife within 30 days of the date of the
           closing upon the business property an amount
           necessary to effectuate an equal split.

Trial Court Order, 11/20/13, at 2-4.


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      This appeal follows, in which Husband presents four issues for our

review:

            1. The [trial] court erred by awarding [W]ife
               exclusive possession of the parties [sic] business
               property after a period of 150 days elapsing from
               the date of the order of court, along with the sole
               discretion as to the sale of the aforementioned
               property, including but not limited to the listing
               price and decision upon the sale of the property.

            2. The [trial] [c]ourt erred by not defining the total
               value of the marital estate, although a 50/50
               division had been ordered. The [trial] [c]ourt
               abused its discretion when ordering [H]usband to
               make payment to Wife if she does not receive her
               50 percent [] award division from the sale of the
               business property.

            3. The [trial] court erred by not applying a discount
               for the cost of sale to the value of the real estate
               located at 461 Hecla Road, Southwest, Pa 15685
               (the prior in time marital residence) which was
               awarded the [sic] Husband.

            4. The master and subsequently, the trial court,
               erred and abused their discretion by awarding
               [W]ife reimbursement in the amount of $1,250.00
               for appraisal fees, and $1,000.00 in counsel fees
               to be paid by [H]usband.

Husband’s Brief at 2.

      “Our standard of review when assessing the propriety of an order

effectuating the equitable distribution of marital property is whether the trial

court abused its discretion by a misapplication of the law or failure to follow

proper legal procedure.” Balicki v. Balicki, 4 A.3d 654, 662-63 (Pa. Super.

2010) (citation omitted). Further,



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            [w]e 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. 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.

Id. at 663 (internal citations omitted).

      Husband first takes issue with the manner in which the trial court

ordered the sale of the New Stanton property. Husband complains that the

trial court abused its discretion by giving Husband only 150 days to empty

the property and by giving Wife sole control over the listing and sale of the

property. Husband’s Brief at 6. Husband argues that 150 days is not long

enough for him to remove all contents from the property, especially the

items that belong to customers, which he must fix, reassemble, and return

to the rightful owners. Id. at 7, 9. He also argues that he has no assurance

that Wife will not sell the property for “a significantly reduced price” because

she lives out of state and is in dire need of the money she will receive from

the sale. Id. at 7-8. Husband is also concerned that Wife will not be able to

maintain the property during its listing. Id. at 9.

      Despite this catalog of concerns, Husband cites no authority to support

his contention that the trial court abused its discretion by ordering that



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Husband remove the contents of the New Stanton property within 150 days

(rather than his proposed timeline of one year) and giving Wife unilateral

control over the sale of the New Stanton property. As stated above, we will

find an abuse of discretion only where “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.” Balicki, 4 A.3d at 663. Husband has not presented any

argument or citation to authority to support a conclusion that the trial court

misapplied the law. To the extent that Husband is attempting to prove that

the trial court’s order is manifestly unreasonable, or the result of partiality,

prejudice or bias or ill will, we disagree. There is no evidence of record to

support Husband’s claims that Wife will sell the New Stanton property at a

less than optimal price; in fact, the evidence of record reveals that Wife is

depending on the money she receives from the sale of this property to

support her for as long as possible. Wife testified that her expenses exceed

her income and that she has nearly depleted her IRA, her only other source

of funds, to make up the difference.       Husband has not paid Wife spousal

support or alimony pendente lite, and Wife made no claim for alimony as

part of the divorce action.     See N.T., 9/14/12, at 127-28, 130-32, 136.

Pursuant to the trial court’s order, Wife is to receive her fifty percent of the

marital estate from the sale of the New Stanton property. Trial Court Order,

11/20/13, ¶ 7. Accordingly, it is unreasonable to think that Wife would sell



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the New Stanton property for a reduced price, when she is depending on the

proceeds of the sale to support herself. Husband’s argument is, in essence,

that he would have preferred the trial court to order different terms

regarding the sale of the New Stanton property. This does not establish an

abuse of discretion.

      In his second issue, Husband argues that the trial court erred by not

defining the total value of the marital estate before awarding a fifty/fifty split

thereof, or explaining what calculations should be performed to achieve this

fifty/fifty split. Husband’s Brief at 11-12. Husband has failed, however, to

provide any citation to, or discussion of, authority to support his claim that

the trial court erred in these respects.2    The Rules of Appellate Procedure

require an appellant to support his argument with citation to pertinent

authorities.   See Pa.R.A.P. 2119(a).     The failure to include such citations

results in waiver of that issue. Hayward v. Hayward, 868 A.2d 554, 558

(Pa. Super. 2005); Estate of Lakatosh, 656 A.2d 1378, 1381 (Pa. Super.

1995) (holding that waiver of claim results where argument section in

support thereof consists of general statements unsupported by any citation

of authority).   However, we note that the trial court clearly explained the

manner in which the calculation should occur.           See Trial Court Order,

11/20/13, ¶ 7.     Husband’s real quarrel is, again, with the trial court’s

2
  Husband cites only one decision from the Court of Common Pleas in the
entirety of his argument on this issue. Husband’s Brief at 14. Decisions of
the Court of Common Pleas are not binding authority on this Court. Sysco
Corp. v. FW Chocolatier, LLC, 85 A.3d 515, 520 n.2 (Pa. Super. 2014).


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decision to allow Wife to unilaterally control the sale of the New Stanton

property. See Husband’s Brief at 12-13 (claiming that Husband stands to be

injured if Wife accepts a price for the New Stanton property that is

significantly lower than its appraised value of $400,000). Husband’s concern

is   pure   conjecture   and   speculation,   and,   as   discussed   above,   an

unreasonable assumption, as Wife has a significant interest is maximizing

the sale price of the New Stanton property, as the greater its sale price, the

greater the amount she receives as her share of equitable distribution.

      Next, Husband contends that the trial court was required by law to

apply a discount for the cost of sale to the value assigned to the marital

residence, and that it erred by not doing so. Husband’s Brief at 15. In his

one-paragraph argument on this issue, Husband begins with the premise

that the trial court must consider the costs of sale when awarding property

in equitable distribution proceedings.   Husband also contends that our law

requires that when awarding the marital residence to a party, the trial court

must deduct the cost of sale from its assigned value, even if the residence

will not be sold. Id. Husband relies on Zeigler v. Zeigler, 530 A.2d 445

(Pa. Super. 1987), for this proposition, but this reliance is badly misplaced.

Ziegler is immediately distinguishable from the present case, in that the

wife, who was awarded the former marital residence, intended to sell it

immediately. Zeigler, 530 A.2d at 447. On appeal, the wife argued that

the trial court should have reduced the value of the residence by seven



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percent to account for a realtor’s commission and another one percent for

realty transfer tax, and urged this Court to make a rule requiring such

deductions when the recipient intends to sell the property immediately. Id.

This Court refused Mother’s plea, stating the following:

            We decline to adopt such a rule for all cases, or even
            for all cases in which an immediate sale is intended.
            First, such an intention is not easily susceptible of
            proof. More importantly, the proper amount to
            deduct for costs of sale would be a matter of
            speculation. Although it is common practice to
            employ the services of a realtor in selling a home, it
            is not uncommon for an owner to undertake a sale
            without the assistance of a realtor. In the latter
            instances, no commission is involved. Moreover,
            although a commission of seven percent is common,
            it is by no means universal. Similarly, although realty
            transfer taxes are routinely split equally between
            buyer and seller, the practice is not universal.

            Adjustment in the value of a residence for
            expenses associated with a contemplated sale
            may be an appropriate consideration in some
            equitable distribution cases. We neither forbid
            nor require the practice. In this case, however, we
            hold that the trial court's refusal to deduct the costs
            of sale was a proper exercise of its discretion. The
            record does not establish the expenses incident to
            the contemplated sale with sufficient specificity to
            require that such expenses be deducted.

Id. (emphasis added). Thus, not only does Zeigler not support Husband’s

position, it expressly refutes it. There is simply no requirement that the cost




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of sale be deducted from the value of the marital residence, and so

Husband’s claim fails.3

      Finally, Husband argues that the trial court erred in awarding Wife

$1000 in counsel fees.4

            [O]ur ability to review the grant of attorney's fees is
            limited, and we will reverse only upon a showing of
            plain error. Plain error is found where the decision is
            based on factual findings with no support in the
            evidentiary or legal factors other than those that are
            relevant to such an award.

Biese v. Biese, 979 A.2d 892, 900 (Pa. Super. 2009) (internal citations

omitted). Furthermore, we are mindful that “[c]ounsel fees are awarded only

upon a showing of need[]” and that “in determining whether the court has


3
  Husband also cites Section 3502(a)(10.2) as support for the general
proposition that the trial court must consider the costs of sale when
awarding property in equitable distribution. See Husband’s Brief at 15.
Husband is incorrect. Section 3502 provides only that a trial court must
“equitably divide” marital property “in such percentages and in such manner
as the court deems just after considering all relevant factors[.]”
23 Pa.C.S.A. § 3502(a). The statute then lists a number of factors relevant
to the equitable distribution of marital property, one of which is “[t]he
expense of sale, transfer or liquidation associated with a particular asset,
which expense need not be immediate and certain.” 23 Pa.C.S.A. §
3502(a)(10.2). Section 3502 does not mandate that a trial court must
consider the cost of sale of an asset that will not be sold; it therefore does
not advance Husband’s argument.
4
  In his statement of the question involved, Husband includes a challenge to
the trial court’s decision that he must reimburse Wife $1250 for one-half of
the cost of the appraisals of the marital residence and the New Stanton
property. Husband provides no discussion relevant to the reimbursement of
appraisal fees, and so we find this aspect of his issue waived. See Owens
v. Mazzei, 847 A.2d 700, 705-06 (Pa. Super. 2004) (holding that the
Superior Court will not address an issue presented in the statement of
questions involved where no corresponding analysis is included in the brief).


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abused its discretion, we do not usurp the court's duty as fact finder.” Id. at

899-900.

      Husband argues that the counsel fee award was improper because his

income is less than Wife’s and his health is worse than Wife’s, and therefore

she has the capacity to work for a longer time and out-earn him. Husband’s

Brief at 16-18. Husband argues, essentially, that Wife is in a better position

to be able to pay her counsel fees than he is, and therefore that she has

failed to establish need.

      The master found that Wife incurred additional counsel fees because of

Husband’s refusal to cooperate with Wife’s efforts to have the properties

appraised, which required Wife’s counsel to seek a court order.       Master’s

Report, 11/1/12, at 9-10.      The master also found that Wife incurred

additional counsel fees because of Husband’s last-minute continuance

requests for a surgery that Husband claimed was essential, but that he still

had not undergone at the time of the hearing. Id. at 10. The master found

that Husband is able to contribute to Wife’s counsel fees, as he has a higher

income (which includes social security payments) and because he is living in

the marital residence, which is owned free and clear, whereas Wife must pay

rent for her apartment.      Id.    Based upon these factors, the master

recommended that Husband pay $1000 towards Wife’s counsel fees.            Id.

The trial court adopted this recommendation and included it in the equitable

distribution order. Trial Court Order, 9/20/13, ¶ 14.



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     The evidence of record supports the trial court’s finding that Wife

incurred counsel fees over a period of approximately seven months related

to attempts to have appraisals performed of the marital residence and New

Stanton property, which Husband refused to allow. N.T., 9/14/13, at 149.

There is also evidence of record that Wife incurred counsel fees due to

Husband’s belated request to postpone proceedings for surgery that did not

ultimately take place.   Id. at 149-50.     With regard to need, the record

supports a finding of need on Wife’s behalf, as it reflects that Husband’s

social security income alone ($21,606) is nearly as much as Wife’s income,

which is comprised of earnings ($17,715) and social security benefits

($9,474). See Husband’s Exhibit 1; Wife’s Exhibit L.5 Wife testified that at

seventy years of age, she does not feel able to work more than the part-

time schedule she currently has and she is unsure for how much longer she

will be able to work. N.T., 9/14/12, at 135, 161-62. Although each party

was awarded a $35,000 retirement account, Wife has had to make

withdrawals from her account to provide for her living expenses, which

include rent.   Id. at 117, 127-28, 130-32, 137.    In contrast, there is no

encumbrance on the marital residence, where Husband resides. Id. at 166-

67; Husband’s Exhibits 4,6.


5
  The parties also receive income in the form of royalty payments from the
gas wells on the property surrounding the marital residence, and the gas
company sends one-half of each payment to each party; however, the
amount of these payments has been dwindling in recent years. N.T.,
9/14/13, at 159.


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      As the evidence of record supports the trial court’s determination, we

cannot find plain error by the trial court, and so we may not disturb the

counsel fee award.      See Biese, 979 A.2d at 900.   Husband has failed to

establish a right to relief on this claim, as well.

      Having found no merit to the issues raised by Husband, we affirm the

trial court’s order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2014




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