J-S05039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LISA A. GEBHART, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
STEVEN A. GEBHART,
Appellant No. 1014 MDA 2016
Appeal from the Decree May 23, 2016 in the Court of Common Pleas of Adams County Civil Division at No.: 2010-S-642
LISA A. GEBHART, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
Appellee No. 1089 MDA 2016
Appeal from the Decree May 23, 2016 in the Court of Common Pleas of Adams County Civil Division at No.: 2010-S-642
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 30, 2017
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S05039-17
Appellant, Lisa A. Gebhart, now known as Lisa A. Harner (Wife), and
Appellee, Steven A. Gebhart (Husband), cross-appeal from the divorce
decree of May 23, 2016. The parties dispute various aspects of the order of
equitable distribution. We affirm on the basis of the trial court opinion.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them at length here.
For the convenience of the reader we note briefly that Husband has
remained steadily employed in his family’s business, the acquisition,
construction, and sale of real property. Husband also owns property which
generates additional income.
Wife owns a portion (one-third) of a large (210 acres) farm, jointly
with her siblings. She was formerly employed as the bookkeeper in the
construction business owned and operated by Husband and other members
of his family. Wife has a bachelor’s degree but is not currently employed.
In addition to serving as the bookkeeper in the construction business of
Husband’s family, Mother has also worked as a counselor and a claims
examiner. The Master found that Wife was employable but may need further
education to assist her in obtaining employment comparable to what she has
had in the past.
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The Master recommended that Wife receive 65% of the net marital
estate, and that Husband receive 35%. The Master determined the net
marital estate was $380,526.00.
The trial court observes that neither party had any of the marital
property professionally appraised. The court, after adjusting the marital
debt associated with one of the key marital properties (Wheatland Acres),
increased the net marital estate from $380,526.00 to $747,369.00.
Therefore, Wife’s 65% of the net marital estate increased (from
$247,342.00) to $485,789.00. Based on this revision, Husband owed Wife a
cash payment of $262,509.00. The trial court, accepting the
recommendation of the Master, declined to award attorney fees and related
costs to either party. Both parties timely appealed.
Wife presents five issues for our review.
1. Whether the [trial c]ourt erred when it did not conclude that the parties’ [g]ross [m]arital [a]ssets subject to equitable distribution are $1,614,417.40 and that the [g]ross [m]arital [d]ebts are $619,398.00, thus making the [n]et [m]arital [e]state for distribution between the parties $995,019.40?
2. Whether the [trial c]ourt erred in awarding Wife a mere 65% of the net marital estate though the Master found only one unknown and incalculable statutory factor to favor Husband and five absolutely known and factual statutory factors to favor Wife[?]
3. Whether the [trial c]ourt erred in failing to award Wife reasonable attorney’s fees and costs and expenses in this matter?
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4. Whether the [trial c]ourt erred in failing to require Husband to turn over specific items of personal property as requested and set forth in [Wife’s] Exhibit 21[?]
5. Whether the [trial c]ourt erred in failing to consider or award fair rental value for the rental properties [Husband] operated throughout the duration of this matter[?]
(Wife’s Brief, at 4-5).
Husband disputes the claims made by Wife and presents two of his
own issues for our review:
1. Did the [t]rial [c]ourt err when it entered an[ ] order in equitable distribution without reviewing the [d]ivorce Master’s [t]ranscript?
2. Did the [t]rial [c]ourt err when it reduced the debt associated with Wheatland Acres from the $605,496.00 found by the Master to the $128,730.00 figure in the December 22, 2015 Order?
(Husband’s Brief, at 8).
Our role in reviewing equitable distribution awards is well-settled.
Our standard of review in assessing the propriety of a marital property distribution is whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure. An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.
McCoy v. McCoy, 888 A.2d 906, 908 (Pa. Super. 2005) (internal quotations omitted). When reviewing an award of equitable distribution, “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.” Hayward v. Hayward, 868 A.2d 554, 559 (Pa. Super. 2005).
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Smith v. Smith, 904 A.2d 15, 18 (Pa. Super. 2006). “In determining the
propriety of an equitable distribution award, courts must consider the
distribution scheme as a whole.” Morgante v. Morgante, 119 A.3d 382,
387 (Pa. Super. 2015).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court we conclude
that there is no merit to the issues cross-Appellants have raised on appeal.
The trial court opinion properly disposes of the questions presented. (See
Trial Court Opinion, 8/19/16, at 7-15) (concluding: (1) trial court properly
determined the value of the net marital estate; (2) trial court did not err in
awarding Wife 65% of the net marital estate; (3) trial court properly
declined to award attorney’s fees, costs and expenses to either party; (4)
trial court has already ordered Wife may obtain return of her personal
property; and (5) trial court acted within its discretion in choosing not to
award Wife rental value of marital rental properties where Husband has paid
all expenses and debts associated with those properties).
Furthermore, the trial court properly found (1) that it was Husband’s
responsibility to enter and order divorce master’s transcript, if he wished to
challenge any award based on actions contained in transcript; if there is a
cross-appeal, the cross-appellant shares this responsibility; and (2) trial
court acted within its discretion in reducing the valuation of the debt
associated with one of the properties (Wheatland Acres) for the purpose of
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effectuating economic justice between the parties. (See id.). Accordingly,
we affirm on the basis of the trial court’s opinion.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/30/2017
-6- FILE COPY 3/8/2017 PrintDocument Circulated 03/13/2017 05:02 PM
ORf Gf NAL IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA CIVIL
Lisa A. Gebhart, ,··· ···'. ~ (now Lisa A. Harner), Plaintiff, No. 10-S-642 -0 ;:.)· CJ v. ::::!'1 .s» ,tr ::::r.:r,-r Steven A. Gebhart, ACTION IN DIVORCE o- -1Y. Defendant -.;.:,-. ;,r)
OPINION PURSUANT TO Pa.R.A.P. 1925( a) ~ !!!:; Defendant/Appellant Steven A. Gebhart ("Husband") appeals and Plaintiff/Appellee Lisa
A. Gebhart, n/k/a Lisa A. Hamer ("Wife") cross appeals from the Divorce Decree entered on May
23, 2016 which incorporates portions of the Master's Report and Recommendation and the Court's
December 22, 2015 Order revising portions of said Master's Report. This Opinion pertains to both
Husband's Appeal, Superior Court Case# 1014 MDA 2016, and Wife's Cross-Appeal, Superior
Court Case# 1089 MDA 2016.
STATEMENT OF FACTS AND PROCEDURALHISTORY
The parties were married on September 24, 1994. Wife filed a Divorce Complaint on April
15, 2010, which was served on Husband on April 17, 2010 by Certified Mail. On November 3,
2011, Wife filed a Motion for the Appointment of Master. By Order of Court dated November 9,
2011, a Master was appointed with respect to the claims of Divorce, Alimony, Distribution of
Property, Counsel Fees, and Costs and Expenses.
A Master's Hearing was held on May 6, 2015, at which time Wife withdrew her claim for
Alimony. The hearing concluded on June 30, 2015. The Master requested submission of Post-
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Hearing Memoranda, which were filed by Wife on July 31, 2015 and by Husband on August 3,
2015. The Master's Report and Recommendation, which was prepared without a transcript of the
proceedings, was filed on September 18, 2015.
The Master recommended that Wife receive 65% of the net marital estate and that Husband
receive 35% of the net marital estate. The Master recommended that each party pay their respective
counsel fees and that the parties share the costs associated with the Master's Hearing. Master's
Report at 24. The Master determined the parties' date of separation to be April 17, 2010, which is
when Wife filed for divorce and served Husband. Master's Report at 4. The parties did not have
any of the marital property professionally appraised, so the Master derived the properties' values
by multiplying the Adams County tax assessed values by the Pennsylvania Common Level Ratio
factor in effect at the time of the Master's Hearing, which was 0.82. Master's Report at 6.
The Master determined the value of and distributed the property as follows:
Gross Marital Estate: $1,495,497.00
Marital Debt $1,114,971.00
Net Marital Estate $ 380,526.00
Wife's Distribution:
Pre-distributive share of 275 West Crestview $ 50,916.00 Increase in marital value of Freedom Township land $162, 125.00 Life insurance $ 3,628.00 Wife's Vehicle $ 7,331.00 Cash payment $ 23,342.00 TOTAL $247,342.00
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Husband's Distribution:
Increase in value of pre-marital home $ 28,674.00 All remaining assets, holding Wife harmless from $104,510.00 all associated debts TOTAL $133,184.00
On October 8, 2015, Wife filed Objections and Exceptions to Master's Report and
Recommendation. Oral Arguments on Wife's Objections and Exceptions were held on December
17, 2015. The Court issued an Order on December 22, 2015 that granted three of the Wife's
Exceptions and denied the rest. In its Order, the Court ruled that the value of marital debt associated
with Wheatland Acres, one of the marital properties, should have been determined as of 2012 ( date
when Wife was released from liability for that debt) instead of utilizing the date of the Master's
Hearing. This decreased the marital debt from $1, 114,971.00 to $748, 128.00 and increased the net
estate from $380,526.00 to $747,369.00. Therefore, Wife's 65% of the estate increased to
$485,789.00, which meant that Husband owed her a cash payment of $262,509.00.
Husband filed a Motion for Reconsideration of the December 22, 2015 Order.
Reconsideration was granted by the Court on January 22, 20161• The Motion for Reconsideration
was denied on May 23, 2016 and this Court entered a Divorce Decree that incorporated the
Master's Report and Recommendation and the December 22, 2015 Order of Court revising said
Master's Report. On June 21, 2016, Husband timely filed his Notice of Appeal of the Decree of
Divorce dated May 23, 2016. Wife timely filed her Notice of Cross-Appeal on July 5, 2016.
Husband timely filed his Statement of Matters Complained of on Appeal on July 18, 2016 and
Wife timely filed hers on July 28, 2016.
1 The Honorable Robert G. Bigham (now Senior Judge) presided over this matter until it was reassigned by the
President Judge to the undersigned by Order of Court dated March 30, 2016. 3
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Matters Complained of on Appeal
Husband has filed nine matters in his Statement of Matters Complained of on Appeal
Pursuant to Pa.R.A.P. 1925(b):
1. The Court of Common Pleas abused its discretion by entering an Order of Equitable
Distribution, and a Divorce Decree that incorporated that Order without the benefit
of either in court testimony or a transcript of the record before the divorce master.
2. The Court of Common Pleas committed an en-or in calculating the marital estate.
3. The Court of Common Pleas committed an error in calculating the marital debts.
4. The Court of Common Pleas committed an error in awarding Wife $485,789.00 as
a result of incorrectly calculating the marital debts and consequently the net marital
estate.
5. The Court of Common Pleas was incorrect in using separate points in time for
calculating the value of Wheatland Acres as an asset and the liabilities associated
with Wheatland Acres.
6. The Court of Common Pleas was incorrect in stating that Wife was released by the
bank from any liability on Wheatland Acres in 2012.
7. The Trial Court was incorrect in its statements contained in the Order dated
December 22, 2015, Paragraph 5, where it calculated the debt associated with
Wheatland Acres at $605,946.00 at the time of separation, and it being $321,827.00
at the time of the master's report. Additionally, the Court of Common Pleas was
incorrect in stating that two years of the debt amounted to $128,730.00.
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8. The Court of Common Pleas was incorrect in stating that only $128,730.00 would
be the appropriate amount of debt attributable to Wheatland Acres in using it in the
calculation of the net marital estate.
9. The Court of Common Pleas was incorrect and made an unjust and unfair award to
Wife by giving her 65% of the net marital estate based on only a few factors being
in her favor, and Wife has a college education and makes no efforts to support
herself. The error is only amplified by the fact that the net marital estate calculation
disregarded a marital debt that Husband is still responsible for and will still have to
pay. This result is Husband is responsible for paying Wife over $240,000:00, plus
paying back a marital debt of similar value, without any credit for it in the
calculation of the marital estate. Essentially, Husband is penalized twice, and Wife
rewarded twice.
Wife has filed eleven errors in her Concise Statement of Errors Complained of on
Appeal Pursuant to Pa.R.A.P. 1925(b):
1. The Trial Court erred when it did not conclude that the Gross Marital Assets subject
to equitable distribution are $1,614,417.40 and that the Gross Marital Debts are
$619,398.00, thus making the Net Marital Estate for distribution between the
parties $995,019.40.
2. The Trial Court erred in awarding Wife a mere 65% of the net marital estate though
the Master found only one unknown and incalculable statutory factor to favor
Husband and five absolutely known and factual statutory factors to favor Wife.
3. The Trial Court erred by failing to conclude that there was no marital value
attributable to Wife's non-marital property in Freedom Township, PA; in applying
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the incorrect assessed value to the property; and by incorrectly and inconsistently
concluding that this asset increased significantly in value between the time it was
acquired and the date of separation and incorrectly concluding that Husband's
Wheatland Acres property lost significant value during a substantially similar time
period.
4. The Trial Court erred by failing to at all account for or include non-marital gifts as
assets possessed and able to be utilized by Husband, thereby affecting the overall
distribution scheme.
5; The Trial Court erred by failing to conclude that the Husband's Wheatland Acres
assets presents no actual or real loss to Husband in that any monies paid on debts
associated with Wheatland Acres are expenses on taxes and/or the debt is in
constant forbearance.
6. The Trial Court erred by including any of Husband's Wheatland Acres debt in
calculating the net marital estate subject to equitable distribution and by concluding
that Husband will eventually have to pay taxes on depreciated values and losses
that he has carried over.
7. The Trial Court erred through concluding that there was no testimony regarding
any marital property set apart to either of the parties and additionally failing to
account for the non-marital property that each party possesses and by failing to
consider this statutory factor when this factor heavily weighs in Wife's favor and
against Husband.
8. The Trial Court erred by concluding that the tax and expense statutory factor weighs
in Husband's favor as a statutory factor when the actual amount to possibly be paid
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is unknown and the actual effect is unknown, particularly when Husband enjoys a
significant tax benefit by perpetually carrying over losses and depreciating
expenses and continually keeps the debt in forbearance.
9. The Trial Court erred in failing to award Wife reasonable attorney's fees and costs
and expenses in this matter and incorrectly stating that an award of spousal support
is made for bringing or defending against a lawsuit.
10. The Trial Court erred in failing to require Husband to turn over specific items of
personal property as requested.
11. The Trial Court erred in failing to consider or award fair rental value for Husband's
rental properties throughout the duration of this matter.
DISCUSSION
The first issue Husband complains of on appeal is that the Court did not have the benefit
of either a transcript of the Master's Hearing or in-court testimony when it entered its Order.
Husband argues that the Court is required to either hear testimony or review the transcript of the
Master's Hearing. Husband bases his argument on a 1992 Superior Court case which held that if
there is no transcript filed subsequent to a hearing by master, then the trial court must instead hear
testimony itself. Pavie v. Pavie, 606 A.2d 1207 (Pa. Super. 1992). However, the rule relied upon
by the court in Pavie v. Pavie was subsequently modified and the divorce master is no longer
required to file the transcript from the master's hearing. See Pa.R.C.P. 1920.51. It is the
responsibility of an appellant to order all transcripts necessary to resolve the issues appellant has
raised. If there is a cross-appeal, the cross-appellant shares this responsibility. Any issue which
cannot be resolved due to an incomplete record may be waived. Commonwealth v. Preston, 904
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A.2d 1, 7 (Pa. Super. 2006) (citation omitted). Transcripts of the Master's Hearing were not
ordered by either party.
The Husband's next three issues can be disposed of together. Husband states that the Court
erred in its calculations to arrive at the values for the marital estate and the marital debts and in
determining the equitable distribution percentages. These blanket assertions do not allege the
Court's error with enough specificity for the Court to determine what issue Husband is raising.
"When a court has to guess what issues an appellant is appealing, that is not enough for meaningful
review." Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super.2001) (citation omitted).
Husband next complains that the Court was incorrect in using separate points in time for
calculating the value of Wheatland Acres as an asset and as a debt. However, the Divorce Code
does not require a specific date for calculating the value of marital assets and debts. McNaughton
v. McNaughton, 603 A.2d 646, 649 (Pa. Super. 1992) (citation omitted). Instead, the Court "has
within its discretion to adopt a date for valuation which best works economic justice between the
parties." Id. Additionally, the same date may not work economic justice for all assets. Id.
In the instant case, the Master calculated the value of the Wheatland Acres property as an
asset in 2010, the date of separation. Master's Report at 11. The Master calculated the value of the
debt on the property at the.time of the Master's Hearing in 2015. The Master's calculation of the
marital property debts at a different date than the marital property assets allowed the Wife some
relief from the date of separation debt and gave both parties credit for the post-separation pay-
down of the debt. Master's Report at 16. In the Court's Order of December 22, 2015, the Court
recalculated the debt associated with Wheatland Acres, as discussed infra, and instead calculated
the value of the Wheatland Acres debt in 2012. The Master's decision to use separate dates for the
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valuation of the marital debt and of the marital assets, as revised by the December 22, 2015 Order
of Court, effectuated economic justice for the parties.
The next three matters that Husband complains of in the instant appeal concern the
valuation of the assets and debts associated with Wheatland Acres. Husband complains that the
Court was incorrect in stating that the Wife was released from liability for this property in 2012,
the Court was incorrect in calculating the debt at the time of separation and at the time of the
Master's Report, and the Court was incorrect in its calculation of the amount of debt Wife owed
for a two year period. Additionally, Husband complains that the Court is incorrect in stating that
Wife is only liable for two years' worth of debt.
The Court's December 22, 2015 Order indicated that the bank released Wife from the
liability associated with the Wheatland Acres property in 2012. The Master made this finding in
her Report but chose not to use 2012 as the date for calculation of the debt. Master's Report at 14.
In the December 22, 2015 Order the Court granted Wife's Exception to the Master's Report
regarding this issue. The Court agreed with Wife's position that she was no longer liable for the
debt after 2012 because she had been released from liability for this debt by the bank. The Court
calculated 40% of the Master's determination of the value of the marital debt in Wheatland Acres.
Thus, the Court arrived at the figure it assigned as marital debt for Wheatland Acres, $128,730.00.
The final issue raised by Husband is that this Court was incorrect to award Wife 65% of
the net marital estate. Husband argues that only a few of the equitable distribution factors favor
Wife and that Wife is capable of working but chooses not to do so. Conversely, Wife raises this
issue on appeal, arguing that she should have received more than 65% of the net marital estate
because the Master found that five of the statutory equitable distribution factors favor her while
only one incalculable factor favors Husband.
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In her Report and Recommendation, the Master discussed the statutory equitable
distribution factors as they applied to the parties. 23 Pa. C.S.A. §3502(a). She found that factors
3,5,6, 10, and 11 favored Wife and factors 10.1 and 10.2 favored Husband, and that factors 1 (length
of marriage ), 2 (prior marriages ),4 ( contribution of a party to the education, training or increased
earning capacity of the other party),7 (contribution or dissipation of each party in the acquisition,
preservation, depreciation or appreciation of the marital property, including the contribution of a
party as a homemaker),8 (value of property set apart to each party), and 9 (standard of living
acquired during the marriage) were neutral or did not apply.
With respect to the factors found to favor Wife, the third factor concerns the age, health,
station,' income, skills, employability, estate, liabilities and needs of each of the parties. Both
parties were found to be in good health and were of similar ages. Wife has a Bachelor's degree but
had not worked steadily since 1999, whereas Husband is has remained steadily employed in his
family's construction business and has a consistent source of income. The Master found Wife to
be employable, but felt she may need further education to assist her in engaging employment
similar to such as she has had in the past. Master's Report at 17. The Master found that Wife
owned a portion of a large farm jointly with her siblings and Husband owned properties from
which he occasionally received additional income. Master's Report at 17-19.
The fifth factor, the opportunity for future acquisitions of each party, was found to favor
Wife, as Husband was found to be more likely to acquire additional assets and income in the future
due to his ongoing involvement in his family's construction business. The sixth factor, the sources
of income of both parties, including medical, retirement, insurance, or other benefits was found to
favor Wife, as Wife had no separate income at the time of hearing and Husband had a consistent
source of income. The Master found the first portion of the tenth factor, the economic
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circumstances of each party at the time the division of property is to become effective, to favor
Wife. The Master found that once the parties divorced, the Husband would stop paying spousal
support to Wife, which would improve his circumstances slightly while Wife's circumstances
would worsen slightly. Master's Report at 21-22.
The Master found the second portion of the tenth factor to be in Husband's favor. This
factor concerns the tax ramifications associated with assets to be distributed and the expense
associated with the sale, transfer or liquidation of assets. There are approximately 20 real estate
properties in the marital estate and the expenses, sales and liquidation costs associated with these
properties change daily. Master's Report.at 22. The Master found that while the tax ramifications
and expenses are unknown at this time, the Husband will ultimately receive any gains or losses
associated with the many assets distributed to him in parties' equitable distribution. Master's
Report at 22-23. Finally, the eleventh factor was found to favor Wife. This factors concerns which
party is the primary custodian of any dependent minor children. The Master found that the Wife
had been primary custodian of the parties' remaining minor child since the parties' separation.
Master's Report at 23.
It is within a trial court's discretion to decide how heavily to weigh each of the statutory
factors. Mercatell v. Mercatell, 854 A.2d 609, 612 (Pa. Super. 2004). The facts of each case
determine how the court weighs each factor. Id. at 611 ( citations omitted): There is no presumption
that an equitable distribution will yield an equal division of property. Id. at 612 (citations omitted).
The Court did not find error in the Master's determination, and chose not to disturb it.
In her appeal, Wife first argues that this Court erred in its calculation of the net marital
estate. As discussed, supra, regarding Husband's similar allegation of errors, the Court finds that
this alleged error does not contain the enough specificity to merit a response.
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Wife's next issue is that the Court erred in finding an increase in the marital value of the
Freedom Township property and in determining the amount of that increase in value. Wife believes
· that Freedom Township property should not have been found to have increased substantially in
value during the same period of time when Wheatland Acres was determined to have decreased
substantially in value. Because the Divorce Code does not specify a method for the valuation of
assets, a court may "accept all, none, or portions of the testimony regarding the true and correct
value of property" or may instead use its own method of valuation. Verholek v. Verholek, 741
A.2d 792, 796 (Pa. Super. 1999) ( citations omitted).
In her Report, the Master explained that the parties did not obtain any professional
appraisals for the value of the properties, including Freedom Township and Wheatland Acres.
Being so constrained, the Master applied the tax assessment value for the various properties
. multiplied by the common level ratio factor. Master's Report at 8. Wife argued that the Master
should have used the "clean and green" value assigned to the Freedom Township property.
Master's Report at 8. The Clean and Green Act was established to allow a preferential tax
assessment for landowners whose land is devoted to agricultural use or open spaces. 7 Pa. Code §
137b.1. However, this decrease in assessed value of property applies only for tax purposes. Sher
v. Berks County Bd. of Assessment Appeals, 940 A.2d 629 (Pa.Cmwlth.2008). If Wife chose to
sell the property, she would sell it for the fair market value, not the lesser "clean and green" value.
Thus, the Master was correct to use the tax assessment value of the land instead of the lesser "clean
and green" value.
Wife next complains that the Court erred by failing to include Husband's non-marital gifts
as assets possessed by him. Wife's argument lacks merit. In her analysis of the equitable
distribution factors the Master considered that Husband had $22,000 in savings bonds, and she
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found the third factor to favor Wife based in part on Husband's savings bonds. Master's Report at
19.
The next issue Wife raises on appeal is that the Court erred in finding that there was no
testimony regarding marital property set apart to either of the parties, by failing to account for the
non-marital property that each party possesses, and by failing to consider this statutory factor when
it weighs heavily in Wife's favor. While it is true that the Master did not consider this factor, she
did not err in so doing. Master's Report at 21. The Master instead accounted for all of this property
in her distribution. Additionally, the Master accounted for the non-marital property in her analysis
of the equitable distribution factors, as discussed previously. If the Master erred in failing to
consider this factor separately, it was cured by the Master addressing it in her recommended
distribution.
Wife's fifth, sixth and eighth matters complained of on appeal concern the debt and taxes
associated with Wheatland Acres. Wife argues that tax benefits Husband receives from the
Wheatland Acres property plus the constant forbearance status of the property should result in zero
debt assigned to that property. Wife argues that the Court should therefore not have included the
Wheatland Acres mortgage debt in its calculation of the net estate and that the Court erred when
it concluded that Husband will eventually have to pay taxes on the values and losses that he has
carried over. Wife further argues that the tax-related equitable distribution factor should not have
been weighed in Husband's favor.
When equitably dividing marital property, a trial court must consider the tax liabilities
associated with each asset to be divided, regardless of whether those liabilities are "immediate and
certain." 23 Pa.C.S. §3502(a)(10.l). In the instant case, then, it was proper for the Master to
consider the tax ramifications associated with the assets to be distributed between the parties.
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Master's Report at 22. The Master found that Husband will eventually have to pay taxes on the
assets he has thus far been able to depreciate. Master's Report at 15. Master additionally
acknowledged that Husband would incur all tax losses and gains for the sale of all marital assets.
Master's Report at 22. The Master had to account for the tax ramifications that Husband would
incur without the benefit of expert testimony to provide an estimation of the ramifications. The
Master found this equitable division factor to favor Husband, and this Court was within its
discretion in not disturbing this finding.
Wife next complains that the Court erred by not awarding Wife reasonable counsel feels
and costs and expenses and by stating that spousal support is made for bringing or defending
against alawsuit. While it is true that it is alimony pendente lite, not spousal support, that is made
for bringing or defending a lawsuit, this scrivener's error is de minimis. Wife received $550 per
month in spousal support for over five years, which totals more than $30,000.00. Master's Report
at 24. The purpose of spousal support is to allow the party receiving support reasonable living
expenses. Krakovsky v. Krakovsky, 583 A.2d 485, 488 (Pa. Super. 1990).
A trial court has the discretion to award counsel fees, costs and expenses. Butler v. Butler,
621 A.2d 659, 667 (Pa. Super. 1993) (citations omitted). The purpose of an award ofcounsel fees
in a divorce action is to promote justice by ensuring that dependent spouse may defend the action
without being disadvantaged financially. Counsel fees are awarded on a case-by-case basis. The
court considers a variety of factors in making this decision, including "payer's ability to pay, the
requesting party's financial resources, the value of the services rendered, and the property received
in equitable distribution". Per/berger v. Per/berger, 626 A.2d 1186, 1206-07 (Pa. Super. 1993). In
the instant case, Wife received 65% of the marital estate, which includes a $50,196.00 pre-
distributive share and a cash payment of $262,509.00 Due to the amount Wife received in the
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equitable distribution, the Master found that Wife had the financial resources to pay her own
attorney's fees and her portion of the costs and expenses associated with the Master's Hearing.
Master's Report at 24. Thus, the Court did not err when it did not award counsel fees, costs and
expenses to Wife.
The Wife next complains that the Court failed to require Husband to turn over personal
property that she requested. On the contrary, this Court issued an Order on November 7, 2011
which provided an opportunity for Wife to obtain her personal items. Additionally, in its Order of
Court revising the Master's Report, this Court indicated that Wife could obtain relief by seeking
enforcement of the 2011 Order.
Finally, Wife complains that the Court erred when it failed to consider the income Husband
received from his rental properties throughout the duration of this matter. This Court has the
disci·etionto include a grant of rental value of marital property in an equitable distribution order.
Trembach v. Trembach, 615 A.2d 33, 37 (Pa. Super. 1992) (citations omitted). A court may
consider "the contribution or dissipation of each party in the acquisition, preservation, depreciation
or appreciation of the marital property". 23 Pa.C.S.A. § 3502(a)(7).
In the instant case, the Court did not award rental value to the Wife because it relied on the
Master's valuation of the various marital properties. Additionally, Husband was paying all
expenses associated with the marital properties as well as paying on the debts associated with these
properties. Husband has reported a loss on the monthly rents of $22,939.00 from 2010 to 2014.
Master's Report at 15. Thus, this Court acted within its discretion when it chose not to award Wife
rental value for the marital rental properties during the pendency of this matter.
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Therefore, for all the reasons stated herein, it is respectfully requested that the Divorce
Decree dated May 23, 2016 be affirmed.
BY THE COURT:
DATE: August 19, 2016 ,~&ir Judge
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