Gordon, M. v. Gordon, M.

• Court: Superior Court of Pennsylvania
• Decided: November 23, 2016
• Docket: 2190 MDA 2015
• Status: Unpublished

Opinion

J-A22026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MELANIE D. GORDON IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MATTHEW B. GORDON

Appellant No. 2190 MDA 2015

Appeal from the Decree January 22, 2015 In the Court of Common Pleas of Franklin County Civil Division at No(s): 2013-951

MELANIE D. GORDON IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

Appellant No. 290 MDA 2016

Appeal from the Decree January 22, 2016 In the Court of Common Pleas of Franklin County Civil Division at No(s): 2013-951

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 23, 2016

Appellant, Matthew B. Gordon (“Husband”), appeals from the decree in

divorce ending his marriage to Appellee, Melanie D. Gordon (“Wife”). On

appeal, Husband raises seven challenges to the trial court’s equitable

distribution order, which after amendment, acted as the final divorce J-A22026-16

decree.1 After careful review, we conclude that Husband is due no relief, and

therefore affirm.

Husband and Wife had been married for 24 years when Wife filed for

divorce in 2013. On July 15, 2014, the first equitable distribution hearing

was held before a master. Only one witness testified at the hearing, Wife’s

pension valuation expert. That master subsequently recused himself from

the case.

After the appointment of a substitute master, a second hearing was

held on November 10, 2014. At this hearing, Wife presented her own

testimony, as well as further testimony from her pension expert and the

testimony of an expert in home valuation. The next hearing date was set for

January 26, 2015.

Shortly before the scheduled hearing, Wife filed a petition for special

relief seeking access to money in marital accounts. Husband requested a

continuance of the equitable distribution hearing, which was granted. A

hearing on Wife’s petition was subsequently held February 13, 2015, and

testimony was limited to the issue of whether Wife was entitled to access to

a marital stock account prior to a final resolution of the equitable distribution

claims. The master ultimately concluded that no relief was due to Wife, but ____________________________________________

1 Husband’s appeal from the equitable distribution order was premature. See Pa.R.A.P. 341(b)(1). However, we may treat his premature appeal as a timely appeal of the subsequently entered amendment. See Pa.R.A.P. 905(a)(5).

-2- J-A22026-16

ruled that Husband would not be allowed another continuance of the

hearing.

The third hearing was held on March 23, 2015. Husband and Wife

testified and both parties rested. The master issued a report and

recommendation on May 20, 2015, awarding Wife 50.5% of the marital

estate. Husband’s pension from his service as a Pennsylvania State Police

officer, valued at $1,180,097, from which Husband was currently drawing a

monthly income, was by far the largest asset in the marital estate. The

master determined that there were insufficient assets to permit an “in-kind”

distribution to offset Wife’s claim on the pension, and therefore

recommended that the pension be split by a qualified domestic relations

order (“QDRO”), providing that Wife would receive 47.4%2 of Husband’s

monthly payment from the pension.

Husband subsequently filed thirty exceptions to the master’s report,

while Wife filed five. After receiving argument from the parties, the trial

court issued an order adopting the master’s report in whole, with minor

exceptions regarding certain payments made by Wife during the pendency of

this matter, as well as requiring Wife’s pension expert to update the present

value of Husband’s pension.

____________________________________________

2 The master determined that the marital portion of Husband’s pension constituted 93.92% of the value of the pension.

-3- J-A22026-16

Husband filed a notice of appeal from this order. Pursuant to a rule to

show cause issued by this Court, Husband filed a motion for clarification

from the trial court, seeking the inclusion of a divorce decree in the equitable

distribution order. On January 20, 2016, the trial court issued an amended

order of court finalizing the decree in divorce.

On appeal, Husband seeks to raise seven challenges to the trial court’s

equitable distribution award. Initially, we note that the substantive portion of

Husband’s brief on appeal is 45 pages. Therefore, Husband was required to

certify that his brief did not exceed 14,000 words. See Pa.R.A.P. 2135(a)(1).

No such certification is present in his brief.

Furthermore, pursuant to Pa.R.A.P. 124(a)(4), Husband’s brief was

required to be typed in a font no smaller than 14 point in the body. An

examination of Husband’s brief reveals that the body is typed in 12 point.

Briefs … shall conform in all material respects with the [Rules of Appellate Procedure] as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and if the defects … in the brief … of the appellant … are substantial, the appeal … may be quashed or dismissed.

Pa.R.A.P. 2101. A party wishing to exceed the length limits set forth in the

Rules of Appellate Procedure must request leave of court prior to the

submission of the non-conforming brief. See DeMasi v. DeMasi, 530 A.2d

871, 874 n.1 (Pa. Super. 1987).

Husband’s intentional violations of the Rules of Appellate Procedure do

not hamper our ability to dispose of the matters on appeal, and we therefore

-4- J-A22026-16

will not quash or dismiss the appeal. However, we cannot condone such

conduct, especially when it is detrimental to an opposing party who

endeavors to remain compliant with the Rules. We therefore conclude that

all content of Husband’s brief beyond page 30 (as numbered) is waived for

failure to abide by the Rules.

Turning to the merits of Husband’s arguments, we note that his

challenges all concern the award of equitable distribution. Our standard of

review in equitable distribution matters is as follows.

A trial court has broad discretion when fashioning an award of equitable distribution. 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. We 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 was 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.

Moreover, it 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. We are also aware that a master’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.

-5- J-A22026-16

Childress v. Bogosian, 12 A.3d 448, 455 (Pa. Super. 2011) (citations and

quotation marks omitted).

There is no simple formula by which to divide marital property; the

method of distribution derives from the facts of the individual case. See

Gaydos v. Gaydos, 693 A.2d 1368, 1376 (Pa. Super. 1997). In fashioning

an equitable distribution award, the trial court must consider, at a minimum,

the eleven factors set forth in 23 Pa.C.S.A. § 3502, Equitable division of

marital property, (a) General rule. “The courts attempt to split property

equitably, instead of equally, taking into consideration such factors as length

of marriage, the contributions of both spouses, ages and health of each

spouse.” Taper v. Taper, 939 A.2d 969, 974 (Pa. Super. 2007) (citation

omitted).

Husband’s first challenge concerns the transcripts of the February 13,

2015 hearing on Wife’s petition for special relief. Husband contends that the

master did not have access to this transcript, and as a result, she did not

consider all the circumstances of the case when she issued her report and

recommendation. He contends that the master’s failure to review the

February 13 transcript deprived the master of important evidence regarding

a stock account owned by Mother.

We need not reach the procedural issue raised by Husband, as we

conclude that any possible error arising from the master not having the

transcript to review was utterly harmless. The petition for special relief dealt

-6- J-A22026-16

with Wife’s Edward Jones account, which was an investment and retirement

account. See N.T., Hearing, 2/13/15, at 6. The history of this account was

the subject of extensive questioning during the equitable distribution

hearings. See, e.g., N.T., Hearing, 11/10/14, 220-233; N.T., Hearing,

3/23/15, 22-24, 29-33, 39-41, 177-179, 213-220. Husband does not

identify any crucial evidence that was presented at the special relief hearing

that was not presented during the equitable relief hearing. We thus conclude

that Husband’s first issue on appeal merits no relief.

In any event, we note that the substitute master heard the petition for

special relief on February 13, 2015. She also heard the second equitable

distribution hearing on March 23, 2015. Finally, she issued her report and

recommendation on May 20, 2015, slightly more than three months after the

hearing on the petition for special relief. There is no indication in the record,

nor does Husband cogently argue, that the master had forgotten the

testimony that she heard on February 13, 2015, in three months’ time. The

trial court did not err or commit an abuse of discretion in concluding that the

substitute master “was well aware of the testimony from the special relief

hearing held on February 13, 2015.” Trial Court Opinion, 11/13/15, at 18.

In his second issue on appeal, Husband contends that the trial court

erred in handling his pension. The crux of Husband’s argument concerns the

present valuation of Wife’s share of his pension. Important to this question is

the fact that, during the marriage, and with Wife’s signed consent, Husband

-7- J-A22026-16

chose to have his pension paid out only for the remainder of his life. Should

Husband predecease Wife, the pension payments to both parties would end.

Husband’s argument focuses on the converse scenario where Husband

outlives his actuarially determined life expectancy under the pension plan. If

that happens, Husband argues, Wife would receive a “windfall” of pension

payments over and above the present value assigned to her share of the

pension by the master. However, Husband’s argument fails to acknowledge

that, under the circumstances set forth by Husband, Wife would not receive

a “windfall” at Husband’s expense. Rather, Wife would receive a share of the

“windfall” Husband received from his pension plan. As the pension is

primarily marital property, Wife is entitled to an appropriate share of any

“windfall” derived from the pension. Thus, Husband’s second argument on

appeal merits no relief.

As noted above, we find the remaining five arguments raised by

Husband waived due to Husband’s failure to abide by the Rules of Appellate

Procedure. However, even if we were to reach these issues, we conclude

that none would entitle Husband to relief.

Husband’s third issue amounts to a challenge of the master’s

credibility determinations regarding the use of marital funds for marital

purposes. The trial court gave proper deference to these credibility

determinations, and therefore we would find that the trial court did not err.

-8- J-A22026-16

Husband’s fourth issue attacks an error made by the master in

describing certain accounts that were at issue. The trial court reviewed the

record and concluded that the error was merely clerical in nature, and that

the master’s report indicated that the master was aware of the different

accounts at issue. Our review of the record and the master’s report

comports with the trial court’s, and therefore, had we reached this issue, we

would have concluded that the trial court did not err.

In his fifth issue, Husband argues that the master’s finding of a

disparity in non-marital assets was not supported by the record. However,

our review of the record comports with the trial court’s, and we find ample

support for the master’s recommended findings.

Next, Husband asserts that the trial court did not properly weigh the

evidence concerning the tax consequences that apply to his deferred

compensation program. Once again, the trial court was entitled to rely upon

the credibility determinations recommended by the master. Husband’s sixth

argument would merit no relief.

Finally, Husband argues that the trial court erred when it amended the

equitable distribution order pursuant to Husband’s request for clarification.

As noted above, this Court observed that a final decree in divorce had not

been entered when Husband filed this appeal. In response to our rule to

show cause, Husband moved for the trial court to amend its order to include

entry of a decree of divorce. Wife responded by noting that she had no

-9- J-A22026-16

objection to the entry of the decree, so long as alimony pendente lite (“APL”)

was continued pending resolution of the appeal.

The trial court amended the equitable distribution order to include the

entry of a divorce decree, but also included a requirement that APL continue

during the appeal. Husband contends that the trial court erred by including

the provision of APL in the amended order. However, Husband’s motion for

clarification noted that Wife concurred with “the filing of this Motion provided

that [Wife’s] award of APL remains in place pending the appeal in this

matter.” Motion for Clarification, 1/19/16, at ¶ 12. Husband’s motion does

not assert any objection to the continuance of APL. This argument would

therefore have been waived on appeal.

Decree affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/23/2016

- 10 -