Kimmel v. Kimmel

34 Pa. D. & C.5th 66
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedOctober 31, 2013
DocketNo. 11135 of 2010, C.A.
StatusPublished

This text of 34 Pa. D. & C.5th 66 (Kimmel v. Kimmel) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kimmel v. Kimmel, 34 Pa. D. & C.5th 66 (Pa. Super. Ct. 2013).

Opinion

HODGE, J.,

Before the court for disposition are competing exceptions to the report and recommended order entered by the equitable distribution master. The plaintiff, Susan L. Kimmel (hereinafter, “wife”), and the defendant, Randall D. Kimmel (hereinafter, “husband”), were married on September 15, 1984 and separated in October, 2008. Wife is currently 52 years old. During the course of the parties’ marriage, wife served primarily has a homemaker and caregiver for the parties’ minor children. Following the parties’ separation, wife began working in the retail sector, which eventually resulted in working for Nordstrom’s Department Store as a personal stylist. Wife receives a minimal base salary, and her compensation is largely dependent on her commission. Husband is currently 55 years old. Husband initially worked in a family owned business with his father and brother, Big K Liquidators. Following the parties’ separation, husband began his own business, SBK Liquidators. In July 2011, husband was no longer able to run SBK Liquidators at a profit, and he attempted to work for various companies. Husband ultimately obtained employment with Family Dollar as a store manager.

The majority of the parties’ marital assets subject to equitable distribution include their marital residence [69]*69and various IRAs, savings and investment accounts and vehicles. The marital debt is comprised of a mortgage on the marital residence and a home equity line of credit. Following several days of equitable distribution hearings, the master entered a report and recommended order dividing the marital estate. Pursuant to the master’s recommendations, wife was awarded the marital residence, provided wife made a lump sum payment to husband. The IRA and savings accounts were liquidated and distributed to the parties. Additionally, wife was awarded alimony and counsel fees.

The parties each filed timely exceptions to the master’s report and recommendations. Wife contends that the master committed the following errors:

1. The master erred in permitting husband to testify as to his reasonable monthly expenses.

2. The master erred in his determination of husband’s reasonable and necessary monthly expenses.

3. The master erred in his valuation of the manulife account, the Pioneer IRA, Big K and SBK Liquidators.

4. The master erred in determining that a post separation withdrawal in the amount of $15,908.00 was used for marital purposes and by assigning this debt to wife.

5. The master erred in his valuation of the fair rental value of the marital home.

6. The master erred in his determination of husband’s annual earning capacity.

7. The master erred in recommending that wife borrow additional money when refinancing the marital residence to provide husband with a lump sum equitable distribution [70]*70payment.

8.The master erred in limiting wife’s alimony award to $1,000.00 per month for one year and $800.00 per month for the following six years.

Husband asserted the following sixteen exceptions to the master’s report and recommendations:

1. The master erred in his valuation of the marital portion of the Pioneer IRA account.

2. The master erred in his valuation of the marital portion of the Manulife account.

3. The master erred in his valuation of the SBK Liquidator’s account.

4. The master erred in determining the Schneider Roth IRA is partially non-marital property.

5. The master erred in determining that wife took $10,709.42 from a marital account and used the funds to open a separate IRA.

6. The master erred in failing to provide husband with a $2,293.75 offset for additional funds wife withdrew from the parties’joint Janney Montgomery account.

7. The master erred in awarding the entire Schneider Roth IRA account to wife.

8. The master erred in awarding wife a portion of the SBK Liquidator account.

9. The master erred in determining that the 2007 BMW has any marital value.

10. The master erred in determining that the 2011 Mercedes has any marital value.

[71]*7111. The master erred in determining that the 2003 Audi has any marital value.

12. The master erred in his valuation of the marital residence.

13. The master erred in awarding wife 62.5% of the equity from the marital residence.

14. The master erred in awarding wife alimony.

15. The master erred in awarding wife counsel fees.

16. The master erred in requiring husband to obtain life insurance to secure wife’s alimony award.

In disposing of these exceptions, the court observes that while a master’s report is advisory only, it is to be given great deference. Fiorelli v. Fiorelli, 195 A.2d 369 (1964); Morschhauser v. Morschhauser, 516 A.2d 10 (1986). A reviewing court has a duty to make a complete and independent review of the proceeding below. Rollman v. Rollman, 421 A.2d 755 (1980).

In reviewing master’s considerations, the report should be given “fullest consideration” particularly on issues of credibility. Kohl v. Kohl, 564 A.2d 222 (1989). The review is intended to discover inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias, interest, and opposition to incontrovertible physical facts by which credibility may be ascertained. Rollman, supra. However, because the master is the person hearing the testimony and observing the demeanor and appearance of the witness, any issue of credibility must be resolved by giving the master’s findings the fullest consideration. Rorabaugh v. Rorabaugh, 448 A.2d 64 (1982). With this standard in mind, the following is a discussion and [72]*72disposition of the parties exceptions.

Wife’s Exception 1

Wife’s first exception contends that the master erred in permitting husband to testify as to his reasonable monthly expenses because husband failed to include an expense statement in his pre-trial statement. Rule 1920.33 of the Pennsylvania Rules of Civil Procedure precludes a party from offering testimony or evidence regarding his or her monthly expenses if they fail to file a rule 1910.27 (c) (2) (B) expense statement. Rule 1920.33 is mandatory in nature, and leaves little discretion for the trier of fact to circumvent the rule’s requirements. This court has established a strict adherence to Rule 1920.33 in prior cases. See e.g. Wetzel v. Wetzel, No. 11925 of 2009, C.A. (a party who fails to comply with rule 1920.33 shall be precluded from offering any testimony or introducing evidence in support of his or her economic claims).

The court concludes that it was error for the master to permit husband to testify as to his reasonable monthly expenses.

Wife’s Exception 2

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Related

Kohl v. Kohl
564 A.2d 222 (Supreme Court of Pennsylvania, 1989)
Fidelity Bank v. Carroll
610 A.2d 481 (Superior Court of Pennsylvania, 1992)
Rorabaugh v. Rorabaugh
448 A.2d 64 (Supreme Court of Pennsylvania, 1982)
Barner v. Barner
527 A.2d 122 (Supreme Court of Pennsylvania, 1987)
Smith v. Smith
653 A.2d 1259 (Superior Court of Pennsylvania, 1995)
Morschhauser v. Morschhauser
516 A.2d 10 (Supreme Court of Pennsylvania, 1986)
Rollman v. Rollman
421 A.2d 755 (Superior Court of Pennsylvania, 1980)
Busse v. Busse
921 A.2d 1248 (Superior Court of Pennsylvania, 2007)
Gee v. Gee
460 A.2d 358 (Superior Court of Pennsylvania, 1983)
Verholek v. Verholek
741 A.2d 792 (Superior Court of Pennsylvania, 1999)

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Bluebook (online)
34 Pa. D. & C.5th 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimmel-v-kimmel-pactcompllawren-2013.