Fekety, M. v. Fekety, J.

• Court: Superior Court of Pennsylvania
• Decided: December 9, 2021
• Docket: 1344 MDA 2020
• Status: Unpublished

Opinion

J-S26040-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MELINDA FEKETY : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN FEKETY : : Appellant : No. 1344 MDA 2020

Appeal from the Decree Entered September 29, 2020 In the Court of Common Pleas of Tioga County Civil Division at No(s): 0289-FS-2018

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: DECEMBER 9, 2021

John Fekety (“Husband”) appeals from the Order equitably distributing

the marital assets of Husband and Melinda Fekety (“Wife”), which was made

final by the entry of the September 29, 2020, Divorce Decree. We affirm.

Husband and Wife were married in 1968. Relevant to the instant appeal,

Husband and Wife owned a home in Mainesburg, Pennsylvania (“the marital

residence”) and a home in Winter Haven, Florida (“the Florida property”).

Additionally, Husband had inherited two properties: a farm located on Wilson

Hill Road (the “Wilson Hill Road farm”), in Morris, Pennsylvania; and a home

located on Canada Road (the “Canada Road property”), in Covington,

Pennsylvania.

The parties separated in September 2018, when Wife left the marital

home and relocated to the Florida property. Wife filed a Divorce Complaint J-S26040-21

on December 4, 2018, citing mutual consent, irretrievable breakdown, and

indignities.1 Wife also requested equitable distribution of marital property,

alimony, alimony pendente lite, attorneys’ fees and costs of litigation.

Husband filed an Answer, contesting the divorce, and requesting a court order

directing the parties to engage in counseling. Husband separately filed a

Petition for Marriage Counseling on December 7, 2018. Wife filed an Answer

and a Motion to Dismiss. Following a hearing, the trial court denied Husband’s

Petition for Marriage Counseling.

On February 11, 2019, Husband filed a Petition for Exclusive Possession,

arguing that the parties should be required to share the Florida property until

equitable distribution is completed. After the trial court entered a Rule to

Show Cause why the Petition for Exclusive Possession should not be granted,

Wife filed an Answer, arguing that Husband’s intention was to harass and

inconvenience her. Wife also filed a Counter Petition for Exclusive Possession

and a Petition for Special Relief, to which Husband filed an Answer. Following

a hearing, the trial court denied Husband’s Petition for Exclusive Possession,

and granted Wife’s Counter Petition.

On January 2, 2020, the trial court ordered Wife to obtain appraisals of

the marital residence, the Wilson Hill Road farm, and the Canada Road

property, to be valued at both the date of acquisition and date of separation.

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1 See 23 Pa.C.S.A. §§ 3301(c), (d), and (a)(6), respectively.

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The Order also authorized Husband to obtain his own appraisals. The cost of

the appraisals was to be paid using one of the couple’s joint bank accounts.

On June 19, 2020, the trial court entered an Order scheduling trial.

The trial court conducted an equitable distribution hearing on September

18, 2020. On September 25, 2020, the trial court issued an Order equitably

distributing Husband and Wife’s assets, and entered a Divorce Decree. In its

Order, the trial court stated the following:

[Wife] is now 70 years of age. She describes her health as declining, she is in need of a hip replacement, suffers from severe arthritis, and has an issue with a kidney. [Husband] is 71 years of age. He is under the care of a neurologist who has suggested surgery. [Husband] suffered a significant injury with lasting neurological consequences during a 2006 assault. Both parties have retired from their prior occupations and are not expected to return to work. Neither party testified to particular needs and neither carries debt beyond month[-]to[-]month bills. Both parties primarily rely upon Social Security for income. [Husband] receives $860.00 per month, [Wife] $382.00. [Husband] receives annual rent from the [Wilson Hill Road] farm of $4,500.00. He also receives annual payments from the USDA under the [Conservation Reserve] Program of $6,841.00. Finally, [Husband] receives rent and royalty payments from Repsol Oil & Gas, which totaled $9,683.00 in 2018[;] royalty payments have significantly decreased and based upon deposits, reflects an average between $100.00 and $150.00 per month. Neither party expects to inherit additional property, nor does either party have retirement assets in any form. Neither party is likely to acquire additional capital assets from any source. Each party will likely be entirely reliant on their Social Security Benefits and the assets described below to support themselves for the rest of their lives.

The parties have accumulated substantial assets during their marriage. A significant portion of the assets are in the form of real estate[;] the balance is in cash on deposit at several banks. The real estate assets include[:] 1) the marital residence …, purchased by the couple in 1970; 2) [the Florida property, purchased] several years ago; 3) [the Wilson Hill Road farm],

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inherited by [Husband] in 2004; and 4) [the Canada Road property], inherited by [Husband] in 2003. Appraisals were made of the three properties in Pennsylvania and admitted as part of the hearing. The martial residence has a current appraisal value of $145,000.00[;] the Wilson Hill Road farm has a current value of $808,000.00 and appraised as worth $339,000.00 at the time [Husband] received it. The Canada Road property was valued at $145,000.00 at [Husband’s] acquisition and is now valued at $180,000.00. The only value presented for [the Florida property] is based on a Comparative Market Analysis indicating a value of $79,900.00. Based upon the evidence submitted, the total value of real estate is $1,212,900.00[;] of this, $484,000.00 is the value of the properties gifted to [Husband] at the time he received them.

The balance of the property possessed by the litigants is in the form of deposit accounts. Based upon the evidence presented, the parties held the following accounts in September 2018 (time of separation)[:] 1) a joint account at Center State Bank [] with a balance of $77,201.00; 2) an account in [Wife’s] name at Center State Bank with a balance of $61,413.00 []; 3) a joint account at First Citizens Community Bank (FCCB) with a balance of $56,526.00 []; 4) a joint account at C&N bank with a balance of $56,366.00 []. These accounts had an aggregate balance of $251,506.00, al of which would be marital property. Transfers were made by each party[,] and [Husband] apparently opened individual accounts at FCCB and C&N[,] between December 2018 and February 2019[,] using funds from the above accounts. [Wife] transferred $31,000.00 from the joint Center State account to the joint account at FCCB. She also transferred $41,000.00 from the joint Center State account to her own Center State account in December 2018. [Wife] testified, credibly in the determination of [the trial c]ourt, that she has not otherwise transferred or withdrawn funds from the accounts in Pennsylvania. [Husband] has had control and use of the Pennsylvania accounts since separation. … [T]he parties sold rental property and the proceeds of the sale, which are clearly [m]arital [p]roperty[,] have been deposited in these accounts, and are included as the now existing funds, which total approximately $204,079.00.

Having considered the evidence, the [trial c]ourt determines that the value of the marital estate now available for distribution is $932,979.00. This valuation includes the values of the [marital home] and [the Florida property], the increase in value of the inherited properties ([$]504,000.00), and the funds remaining in

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the deposit accounts ($204,079.00). Given the circumstances addressed above, including the fact that [Husband] will retain nearly $500,000.00 in separate property, the marital estate shall be divided with [Wife] receiving fifty-seven and one-half (57.5%) percent of the marital estate, or $536,463.00. The distribution of the marital estate recognizes the fact that [Husband] indicated he wished to retain the farm and his mother’s home. These inherited assets have significantly increased in value[,] and a forced sale would likely result in substantial tax implications and incur significant selling costs.

Order, 9/25/20, 2-4 (unnumbered).

The trial court awarded Wife sole ownership of the Florida property, the

individual and joint accounts at Center State Bank, the joint account at FCCB,

and the joint account at C&N Bank. Id. at 4 (unnumbered). Further,

[t]he remaining balance due to [Wife] shall be payable by installment or lump sum, no later than September 1, 2021. The lump sum payable to [Wife] shall be adjusted, based upon the actual funds remaining in the bank accounts awarded to her. The lump sum shall be calculated by deducting $79,900.00[, the value of the Florida property,] and the actual balances in the above accounts from the total award of $536,463.00.

Id. The trial court denied Wife’s request for attorney fees and alimony. Id.

at 5 (unnumbered). Additionally, the trial court awarded Husband sole

ownership of the marital home, the Canada Road property, the Wilson Hill

Road farm, and his individual accounts at FCCB and C&N Bank. Id.

On October 22, 2020, Husband filed a Motion for Reconsideration,

challenging the distribution scheme. Husband filed a Notice of Appeal on the

same date. The trial court denied Husband’s Motion for Reconsideration on

November 11, 2020. Husband subsequently filed a court-ordered Pa.R.A.P.

1925(b) Concise Statement of errors complained of on appeal.

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Husband now raises the following issues for our review:

1. Whether the trial court abused its discretion in determining the increase in value of non-marital assets acquired during the marriage[?]

2. Whether the court’s findings (opinion) support[] the equitable distribution of the majority of the liquid assets to [Wife?]

3. Whether the court’s finding that a forced sale would result in substantial tax implications and incur significant selling costs (factor 10.2) is contradicted by the direction to pay the balance of $253,528 within one year[?]

Husband’s Brief at 8.

In his first claim, Husband argues that the trial court erred in accepting

the appraiser’s opinion of increased value on the appraised properties. Id. at

16. Husband emphasizes the appraiser’s testimony that no improvements

had been made on the two inherited properties, i.e., the Wilson Hill Road Farm

and the Canada Road property. Id. at 17. Husband also argues that, though

the appraiser stated that the value increase was based on the oil and gas

“boom,” the oil and gas leases were not renewed after 2011. Id. Husband

contends that “[t]he appraiser[’]s testimony fails to support the increased

value testified to with regard to the inherited properties.” Id. at 18.

We begin with the following standard of review:

We review a challenge to the trial court’s equitable distribution scheme for an abuse of discretion. We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence. We 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. … If we fail to find an abuse of discretion, the order must stand.

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… [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.

Conner v. Conner, 217 A.3d 301, 309 (Pa. Super. 2019) (citations and

quotation marks omitted).

In its Opinion, the trial court set forth the relevant law concerning the

equitable distribution of the increased value of nonmarital assets, addressed

Husband’s claim, and concluded that it lacks merit. See Trial Court Opinion,

12/23/20, at 2-5. In particular, the trial court credited the appraisal submitted

by Wife’s expert, and noted that Husband had failed to complete and submit

his own appraisal. Id. at 3. We discern no abuse of the trial court’s discretion

in this regard, and affirm on the basis of its Opinion as to Husband’s first claim.

See id. at 2-5.

In his second claim, Husband asserts that the trial court abused its

discretion in awarding Wife a majority of the liquid assets. Husband’s Brief at

18. Husband notes that his health has declined. Id.

Preliminarily, we observe that this claim is largely underdeveloped, and

is unsupported by citation to relevant case law. See Pa.R.A.P. 2119(a)

(providing that the argument shall include “such discussion and citation of

authorities as are deemed pertinent.”). Significantly, beyond a cursory

statement that “23 Pa.C.S.[A.] § 3502 sets forth the factors to be considered

in Equitable Distribution of Property[,]” Husband’s Brief at 16, Husband does

not provide any discussion of the factors, or specify how he believes the trial

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court erred in evaluating them. Husband’s claim is therefore waived. See

Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super. 2005) (concluding that

appellant’s failure to cite any pertinent authority in support of his argument

resulted in waiver of his claim).

Even if Husband had adequately developed this claim for our review, we

would conclude that it lacks merit, for the reasons stated by the trial court in

its Opinion. See Trial Court Opinion, 12/23/20, at 5-6. In particular, the trial

court noted that Husband had requested to keep a majority of the real

property, and the trial court granted his request. Id. at 5; see also Order,

9/25/20, at 4 (unnumbered) (wherein the trial court indicated that Husband

wished to retain the Wilson Hill Road farm and the Canada Road property).

In his third claim, Husband challenges the trial court’s determination

that a forced sale of property was not warranted. Husband’s Brief at 19.

Husband claims that to pay the amount due to Wife, he would have to sell the

Wilson Hill Road farm. Id. Husband argues that, based on the increase of

value determination, “the [trial c]ourt is for all intents and purposes forcing a

sale of the property in contradiction of its Order” equitably distributing the

marital assets. Id. at 20; see also id. (claiming, again, that the increase of

value determination is unsupported by the evidence).

This claim is likewise unsupported by adequate discussion or any citation

to relevant case law, and therefore, is waived. See Pa.R.A.P. 2119(a);

Hayward, supra. Further, even if Husband had developed this claim, we

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would conclude that it lacks merit for the reasons stated by the trial court in

its Opinion. See Trial Court Opinion, 12/23/20, at 6-7. In particular, the trial

court stated that a forced sale of the real property “would result in substantial

tax implications and incur selling costs.” Id. at 7.

Based upon the foregoing, we affirm the Order equitably distributing

Husband and Wife’s marital assets.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/09/2021

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