Li, M. v. Pan, L.

• Court: Superior Court of Pennsylvania
• Decided: September 30, 2019
• Docket: 93 WDA 2019
• Status: Unpublished

Opinion

J-A18039-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MING LIANG LI, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : LIXIA PAN : No. 93 WDA 2019

Appeal from the Decree Entered December 19, 2018 in the Court of Common Pleas of Allegheny County Family Court at No(s): FD-16-007099-008

BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 30, 2019

Ming Liang Li (“Husband”) appeals from the Order equitably distributing

the marital assets of Husband and Lixia Pan (“Wife”), which was made final

by the entry of the December 19, 2018 Divorce Decree. We affirm.

Husband and Wife married on August 3, 2014, in a traditional Chinese

wedding ceremony, in New York. During the wedding, Husband and Wife

received over $135,000.00 in U.S. currency, Chinese currency (RMB) worth

approximately $28,000.00 in U.S. currency, and several pieces of gold

jewelry. The funds also included a $50,000.00 check from Wife’s mother,

which was intended to be used as a down payment for a marital home.

Two days after the wedding, Husband returned to Pittsburgh,

Pennsylvania, while Wife remained in New York to complete her

undergraduate degree. Husband and Wife visited one another occasionally J-A18039-19

until February 2015. During the approximately 6 months that they were

married, Husband and Wife spent less than 30 days together.

Husband filed a Complaint in Divorce on January 14, 2016, asserting

that the marriage was irretrievably broken. On March 18, 2016, Wife filed a

Petition Raising Claims, seeking equitable distribution, alimony, and counsel

fees and expenses. Following a procedural history that is not relevant to the

instant appeal, the trial court conducted a hearing, and determined the date

of separation to be February 17, 2015.

On August 31, 2017, Husband filed an Affidavit pursuant to Section

3301(d) of the Divorce Code, asserting that the marriage was irretrievably

broken, and that the parties had lived separate and apart for at least two

years. Wife filed a Counter-Affidavit on September 8, 2017, opposing the

entry of a divorce decree, and indicating her wish to pursue claims for

economic relief. The trial court referred the matter to a Hearing Master,

scheduled a hearing, and directed the parties to file pre-trial statements.

Husband and Wife timely complied.

Following a hearing, the Master issued a Report and Recommendation.

The Master first described the process by which Husband and Wife received

their wedding gifts as follows:

The parties had a traditional Chinese wedding at a restaurant in New York City’s Chinatown. Gifts (usually money contained in a traditional red envelope) [were] brought by the 200 guests and were collected at the door by Husband’s uncle.[FN] Members of the family, first Husband’s and then Wife’s, [were] called individually to present their gifts directly to the bride and groom. These gifts

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may include cash, checks, [RMBs] [] or jewelry. A member of [Husband’s] family collected the gifts given by [Husband’s] family[,] and a member of Wife’s wedding party collected the gifts given by Wife’s family. There [was] a Master of Ceremonies who call[ed] each of the family members to come up[,] and then announce[d] the gifts as they [were] presented. A video showing this gift[-]giving ceremony was provided at the hearing[,] and a translation of the Chinese [testimony] was read into the record. … The Master of Ceremonies announced that the $100,000 check given to the parties by Wife’s [m]other was in American dollars. Husband’s uncle paid for the Master of Ceremonies and for the videographer.

[FN] When all of the guests [had] arrived, the envelopes [were] opened and the gifts [were] detailed and recorded in a red book. … The total amount recorded was $29,655. A portion of this money [was] applied to the costs of the ceremony, banquet, etc.[,] and the remainder [was] … gifted to [Husband and Wife]. $20,300 was paid to the restaurant, $1[,]100 to a wedding center, $660 to a bakery, leaving $7,595 for distribution to [Husband and Wife].

Master’s Report and Recommendation, 4/6/18, at 2-3 (footnote in original).

The Master also outlined the following evidence and testimony:

 In total, Husband and Wife received checks totaling $135,500.00

in U.S. currency, and RMBs worth approximately $28,217.05;

Wife received 16 gold bracelets, 5 gold rings and 12 gold

necklaces; Husband received 1 necklace. Id. at 3.

 In addition to the check Wife’s mother gave to Husband and Wife,

Wife’s Mother gave a $50,000.00 check to Husband’s father, to be

used as a down payment on a marital home. No house was ever

purchased for Husband and Wife, but the money was never

returned to Wife’s mother. Id.

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 Wife’s brother later drove her to Pittsburgh to pick up her

belongings (including cash she had left during a previous visit),

but Husband would not allow them to enter his apartment. When

Wife called the police, Husband stated that he had thrown away

Wife’s things, and did not have her money. Id. at 4, 7.

 Wife testified that Husband had been unwilling to make plans for

her to move to Pittsburgh, even after she had graduated. Id. at

6.

 After Husband filed the Complaint in Divorce, his ownership in his

beer distributorship was transferred to his aunt; however,

Husband continued to manage the store, complete the ordering,

and pay the bills. Id.

Additionally, the Master made the following conclusions and credibility

findings:

 The Master discredited Husband’s assertions that the checks

presented during the wedding were strictly “ceremonial.” Id. at

3 n.3.

 Although Wife’s mother gave Husband’s father a $50,000 check

to use as a down payment for a marital home, no home was

purchased. The Master believed that Husband’s father and mother

used the money to purchase their own home, just a few months

after the wedding, or for their own personal use. Id. at 3-4, 8.

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 The refusal of Husband’s father to appear at the hearing indicates

the truth of the allegations. Id. at 5.

 Husband threw away Wife’s belongings, but did not throw away

the cash. Id. at 4, 7.

 “The Master found Wife credible and Husband evasive….” Id. at

9.

Based upon the foregoing, the Master recommended that (1) Husband owes

Wife $6,506.00, to be paid in 12 installments, for her personal items; (2)

Husband will be responsible for any legal fees Wife incurs incident to collecting

these payments; (3) Husband must pay Wife $14,208.30 in U.S. currency, in

28 installments, for his father’s use of the couple’s Chinese currency; (4)

Wife’s gold jewelry must be returned to her, or Husband must pay Wife $750;

and (5) Husband owes Wife $50,000, in the form of a Judgment Note in

alimony,1 for the remaining money the couple received as wedding gifts, to

be paid in installments of $5,000 per year. See id. at 7-9.

On April 25, 2018, Husband filed Exceptions to the Master’s Report and

Recommendation, asserting that the Master erred in identifying and valuing

the marital property subject to distribution. The trial court conducted a

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1The Master also recommended that “[a]ny money not paid in that single year or any subsequent single year … shall be added to the funds required for the next year and those funds shall accrue interest at 4.5% annually.” Master’s Report and Recommendation, 4/6/18, at 9.

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hearing on the Exceptions. By an Order entered October 19, 2018, the trial

court dismissed Husband’s Exceptions, and adopted the Master’s Report and

Recommendation.2

Husband filed a Notice of his intention to seek entry of a final divorce

decree on October 31, 2018, after which Wife again filed a Counter-Affidavit

pursuant to Section 3301(d) of the Divorce Code, opposing entry of a divorce

decree, asserting that the marriage was not irretrievably broken, and

indicating her wish to pursue economic claims. The trial court entered a

Divorce Decree on December 19, 2018. Husband filed a timely Notice of

Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

Husband raises the following issues for our review:

I. Did the trial court err when, as part of the equitable distribution scheme, it ordered Husband to execute a judgment note for $50,000[.00] against his will and in violation of his constitutional right to due process of law?

II. Did the trial court err when, as part of the equitable distribution scheme, it ordered Husband to pay each of the cash awards of $50,000[.00], $14,108.30, $6,455.75, $6,506[.00], and $750[.00] to Wife[,] without making any finding[s] of fact, and without any proof[] that any marital property existed on the date of separation, or that Husband dissipated any marital property?

Husband’s Brief at 4.

2In its Order, the trial court also dismissed the Cross-Exceptions filed by Wife. However, no Cross-Exceptions appear in the certified record, nor does the docket reflect that any were filed.

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In his first claim, Husband argues that the trial court erred by ordering

him to execute a $50,000.00 Judgment Note as part of the equitable

distribution scheme. Id. at 9. Husband claims that a court may not enter

judgment and award interest in a divorce proceeding, without first conducting

a hearing on an alleged failure to comply with an equitable distribution order.

See id. at 10-14. Husband also contends that judgment notes may not be

entered against natural persons, and may not be used in a divorce proceeding.

See id. at 14-20. Additionally, Husband argues that he cannot be forced to

execute a judgment note against his will. See id. at 20-22.

The trial court deemed Husband’s first issue waived, because he failed

to raise it in his Exceptions. See Trial Court Opinion, 4/1/19, at 5. Our review

reveals that Husband’s Exceptions include a bald allegation that the Master

erred in awarding Wife $50,000.00 (a portion of the total funds received

during the wedding), and ordering Husband to execute a Judgment Note in

that amount, in the nature of alimony. However, Husband failed to identify in

the Exceptions why he believes the Master erred. In his Concise Statement,

Husband raised, for the first time, his claim that the directive to execute the

Judgment Note violates his constitutional right to due process. Concise

Statement, 2/13/19, at 1 (unnumbered). Because Husband did not raise his

due process claim in the trial court prior to appeal, we agree that Husband’s

first claim is waived. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised

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in the lower court are waived and cannot be raised for the first time on

appeal.”).

In his second claim, Husband challenges portions of the trial court’s

equitable distribution scheme ordering him to pay Wife various cash awards.

See Husband’s Brief at 22-72. As to each of the contested cash awards,

Husband asserts that, prior to including such awards in its equitable

distribution scheme, the trial court failed to make factual findings that (1)

marital property existed on the date of separation; (2) Husband was in

possession of any marital property on the date of separation; and (3) Husband

dissipated any marital property. See id.

[O]ur standard for reviewing awards of equitable distribution are well settled. The trial court has broad discretion in fashioning such awards, and we will overturn an award only for an abuse of that discretion. To assess whether the trial court abused its discretion, we must determine whether the trial court misapplied the law or failed to follow proper legal procedure. Further, 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, 557-58 (Pa. Super. 2005) (citations

omitted). Further, “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.” Childress v.

Bogosian, 12 A.3d 448, 455 (Pa. Super. 2011); see also id. at 455-56

(explaining that “a master’s report and recommendation, although only

advisory, is to be given the fullest consideration, particularly on the question

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of credibility of witnesses, because the master has the opportunity to observe

and assess the behavior and demeanor of the parties.” (citation omitted)).

Initially, as the trial court aptly noted in its Opinion, Husband’s Concise

Statement “is neither clear nor concise[,]” and “assails virtually every aspect

of [the trial court’s] decision[.]” Trial Court Opinion, 4/1/19, at 2.

Nevertheless, in its Opinion, the trial court set forth the legal and factual basis

for its decision, and addressed the sufficiency of the evidence supporting its

decision as to the equitable distribution scheme. See id. at 7-10; see also

id. at 6 (wherein the trial court reiterated that it adopted the Master’s Report

and Recommendation); Master’s Report and Recommendation, 4/6/18, at 1-

9 (wherein the Master summarized the relevant testimony, and set forth her

relevant findings, credibility determinations, and conclusions). We agree with

and adopt the trial court’s Opinion regarding Husband’s broad challenge to the

propriety of the equitable distribution scheme. See Trial Court Opinion,

4/1/19, at 7-10. We specifically point out, as did the trial court, that “[t]here

was a video introduced showing the gifts[;] there were contemporaneously

prepared lists of the gifts which were counted by the couple[; and] there were

endorsed checks….” Id. at 8. The trial court also specifically credited the

evidence presented by Wife and her witnesses, and found Husband’s

testimony to be incredible. See id. at 8, 9. We decline to reassess the

credibility of the witnesses, see Childress, 12 A.3d at 455, and we otherwise

discern no abuse of the trial court’s discretion. Therefore, Husband is not

entitled to relief on this claim.

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Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/30/2019

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