Carney v. Carney

30 Pa. D. & C.5th 1
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedFebruary 15, 2013
DocketNo. 793 DR 2010; 7123 CV 2010
StatusPublished

This text of 30 Pa. D. & C.5th 1 (Carney v. Carney) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carney v. Carney, 30 Pa. D. & C.5th 1 (Pa. Super. Ct. 2013).

Opinion

HIGGINS, J.,

— These are exceptions filed by Donald R. Carney (hereinafter “husband”) from the recommendations of Robert C. Lear, Esquire, Divorce Master (hereinafter “master”). The Carneys were married [3]*3on April 3, 1987. No children were bom of the marriage. Kathy M. Camey (hereafter “wife”) filed a complaint for divorce on July 30, 2010. The parties attended three hearings before the master on June 22,2011, October 26, 2011, and November 22, 2011. Concurrently, an APL de novo hearing was held before the support master on January 28,2011 and an expert trial deposition was taking on July 12,2011. Since alimony is an issue in this case, it was agreed that the testimony before the support master would be incorporated in this proceeding. The master filed his report and recommendations on June 20, 2012. The master’s report recommended equitable distribution of the assets. Husband filed timely exceptions to the report on July 10, 2012. Husband submitted his brief in support of defendant’s exceptions to the master’s report on August 17, 2012. Wife filed her brief in opposition to defendant’s exceptions on the same day that argument was held before this court on October 1, 2012. Husband filed his reply brief to wife’s brief on October 11, 2012.

DISCUSSION

When evaluating the merit of any exceptions filed to a divorce master’s recommendation, this court must first examine the master’s report. In Pennsylvania, “a master’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly to the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.” Moran v. Moran, 839 A.2d. 1091, 1095 (Pa. Super. 2003) (citing Simeone v. Simeone, 551 A.2d 219, 225 (Pa. Super. 1988)). However, the master’s report “is advisory only...and the reviewing court is not bound by it and it does not come to the Court with any preponderate weight or authority which must be overcome.” Rothrock v. Rothrock, 765 A.2d 400, 404 (Pa. Super. 2000) (citing Arcure v. Arcure, 281 A.2d 694, 695 [4]*4(Pa. Super. 1971)). In determining issues of credibility, the master’s findings must be given the greatest weight because “it is he who heard and observed the witnesses.” Mott v. Mott, 453 A.2d 1038 (Pa. Super. 1982). “[Ajlthough the master’s report is entitled to great weight, it is the responsibility of the court to make the final equitable distribution.” Trembach v. Trembach, 615 A.2d 33, 35 (Pa. Super. 1992) (citing Morschhauser v. Morschhauser, 516 A.2d 10 (Pa. Super. 1986)).

Husband filed eighteen exceptions to the report of the master, contending that the master erred (1) in valuing Brother’s Auto Transport at either $963,922 or $849,888 based on alternate tax effected values which were based on a calculated value, not a fair market value; (2) by rejecting the fair market value of Brothers Auto Transport (before tax effecting) at $ 1,000,000 based upon a valuation report; (3) in rejecting the tax effected value of a net loss of $497,464 dollars for Brothers Auto Transport which was based upon a valuation report which established a fair market value; (4) to the extent that it was determined that the ESSA joint checking account was utilized for a large number of husband’s bills; (5) to the extent that it was determined that wife was totally disabled (master’s report, p. 9); (6) in failing to account for husband’s contribution to acquisition of assets (equitable distribution factor 7); (7) in considering an agreement of sale to purchase a property as evidence of stand of living of the parties during the marriage (equitable distribution factor 9); (8) in considering that wife is the primary caretaker for her eighty-five (85) year old mother and sixty-two (62) year old mentally challenged disabled brother as a factor in the standard of living of the parties (equitable distribution factor 9); (9) in recommending a transfer of the formal marital home to wife and recommending husband satisfy the mortgage or obtain a release of wife from the mortgage; [5]*5(10) in recommending that husband pay the taxed on the Ameriprise 401(k) which was awarded to wife; (11) in recommending that Husband contribute towards wife’s counsel fees; (12) in recommending a skewed distribution scheme which transfers assets to Husband at improper values and requires him to assume all martial debt; (13) to the extent that there was a finding that wife is totally disabled (alimony factor 2, master’s report, p. 15); (14) in finding as an alimony factor that wife’s earning power, expenses or financial obligations are affected by her care for her eighty-five (85) year old mother and her sixty-two (62) year old mentally challenged disabled brother (alimony factor 7, master’s report, p. 16); (15) in finding as an alimony factor that husband’s standard of living during marriage is affected by an agreement of sale to purchase a residence (alimony factor 8, master’s report, p. 16); (16) in recommending that husband pay permanent alimony; (17) in recommending that Husband pay $8,000 per month in permanent alimony; and (18) in recommending that husband procure life insurance in the amount of $500,000. We will now address each exception.

I. MASTER’S ACCEPTANCE OF PLAINTIFF’S VALUE OF BROTHER’S AUTO TRANSPORT BASED UPON A CALCULATED VALUE, AS OPPOSED TO A MARKET VALUE. (Exceptions 1-3).

We will now dispose of exceptions 1-3. Husband is the one-hundred percent (100%) owner of a business known as Brother’s Auto Transport. (Master’s report, page 5). Brother’s Auto Transport picks up new and used vehicles and transports them to various locations across the country. (Master’s report, P. 5). Brother Auto Transport owns approximately forty (40) auto carrier tractors and trailers, most of them highly specialized for the transport business and has had average gross sales of nearly $9,000,000 annually over the past four (4) years. (Master’s report, p. [6]*65). The parties differ as to the valuation of the business and presented evidence in support of each side. (Master’s report, p. 6).

Husband contends the master erred by adopting the wife’s valuation evaluation, specifically, (1) in valuing Brother’s Auto Transport at either $963,922 or $849,888 based on alternate tax effected values which were based on a calculated value, not a fair market value; (2) by rejecting the fair market value of Brothers Auto Transport (before tax effecting) at $ 1,000,000 based upon a valuation report; and (3) in rejecting the tax effected value of a net loss of $497,464 for Brothers Auto Transport which was based upon a valuation report which established a fair market value.

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 the property. Smith v. Smith, 2006 PA Super 175, 904 A.2d 15, 22 (Pa. Super. 2006) (citing Litmans v. Litmans, 449 Pa.Super.

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Related

Perlberger v. Perlberger
626 A.2d 1186 (Superior Court of Pennsylvania, 1993)
Moran v. Moran
839 A.2d 1091 (Superior Court of Pennsylvania, 2003)
Buckl v. Buckl
542 A.2d 65 (Supreme Court of Pennsylvania, 1988)
Aletto v. Aletto
537 A.2d 1383 (Supreme Court of Pennsylvania, 1988)
Trembach v. Trembach
615 A.2d 33 (Superior Court of Pennsylvania, 1992)
Simeone v. Simeone
551 A.2d 219 (Supreme Court of Pennsylvania, 1988)
Litmans v. Litmans
673 A.2d 382 (Superior Court of Pennsylvania, 1996)
Arcure v. Arcure
281 A.2d 694 (Superior Court of Pennsylvania, 1971)
Morschhauser v. Morschhauser
516 A.2d 10 (Supreme Court of Pennsylvania, 1986)
Edelstein v. Edelstein
582 A.2d 1074 (Supreme Court of Pennsylvania, 1990)
Smith v. Smith
904 A.2d 15 (Superior Court of Pennsylvania, 2006)
Busse v. Busse
921 A.2d 1248 (Superior Court of Pennsylvania, 2007)
Teodorski v. Teodorski
857 A.2d 194 (Superior Court of Pennsylvania, 2004)
Verdile v. Verdile
536 A.2d 1364 (Supreme Court of Pennsylvania, 1988)
Harasym v. Harasym
614 A.2d 742 (Superior Court of Pennsylvania, 1992)
Plitka v. Plitka
714 A.2d 1067 (Superior Court of Pennsylvania, 1998)
Rothrock v. Rothrock
765 A.2d 400 (Superior Court of Pennsylvania, 2000)
Mott v. Mott
453 A.2d 1038 (Superior Court of Pennsylvania, 1982)

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Bluebook (online)
30 Pa. D. & C.5th 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carney-v-carney-pactcomplmonroe-2013.