Lizik v. Lizik

3 Pa. D. & C.5th 484
CourtPennsylvania Court of Common Pleas, Indiana County
DecidedDecember 3, 2007
Docketno. 11290 CD 2003
StatusPublished

This text of 3 Pa. D. & C.5th 484 (Lizik v. Lizik) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Indiana County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lizik v. Lizik, 3 Pa. D. & C.5th 484 (Pa. Super. Ct. 2007).

Opinion

HANNA, J.,

This matter comes before the court on defendant’s exceptions and plaintiff’s [486]*486counter exceptions to the report and recommendation of the divorce master. For the reasons set forth in this opinion, the court grants defendant’s exceptions 1, 3 and 5, and denies exceptions 2, 4 and 6. Plaintiff’s exceptions 4 and 7 are granted, and 2, 5, 6, 8, 9 and 10 are denied.1

FACTUAL AND PROCEDURAL HISTORY2

Anne Catherine Lizik (Wife) and John Gerald Lizik Jr. (Husband) were married on August 28, 1976. Three children were born of the marriage, all of whom are now adults.3 The parties separated on May 3,2003. Wife filed for divorce on July 29,2003. Husband filed a motion for appointment of master on August 11,2006. In response, Wife filed a motion to quash appointment of master, which was denied by this court on October 25, 2006. Following a pre-hearing/settlement conference on December 7,2006, a master’s hearing was held on December 14, 2006 before Divorce Master Sharia Coughlin, Esquire. Based on the testimony presented, the master filed a report on March 5, 2006. She recommended: equitable distribution in a 55 percent-45 percent split in Wife’s favor,4 holding Wife responsible for outstanding and future Parent PLUS loans, and denial of alimony and counsel fees. (Master’s report at 29, 38, 39.)

[487]*487On April 25,2007, Husband filed six exceptions to the master’s recommendations.

(1) Master erred by including as marital debt preseparation Parent PLUS loans incurred on behalf of parties’ adult children.

(2) Master erred by including as a factor for equitable distribution post-separation Parent PLUS loans incurred by Wife (as expense of Wife).

(3) Master erred by determining the Husband retained household contents having value of $16,000.

(4) Master erred by considering as a factor for equitable distribution that Wife paid $800 per month in rent.

(5) Master erred by not giving Husband credit for post-separation payoff of the Pontiac Grand Am in the amount of $4,430.

(6) Master erred by awarding Wife 55 percent of the marital assets.

On May 14, 2007, Wife filed 10 counter exceptions.

(1) The master’s recommendations are against the weight of the evidence.

(2) Master erred in determining value of marital residence to be $140,000 (by splitting difference between parties’ appraisals) — master should have found it to be $145,000.

(3) Master erred in reducing value of marital residence by sales commission when there was no evidence that Husband intended to sell the property.

[488]*488(4) Master erred in not granting Wife’s request for fair rental value.

(5) Master erred in finding that Wife received parties’ 2002 income tax refund.

(6) Master erred in finding that Husband did not dissipate value of Pontiac Grand Am.

(7) Master erred in failing to consider Husband’s preseparation, individual checking account as a marital asset.

(8) Master erred in finding that Husband had only $85,000 in separate property.

(9) Master erred in not awarding Wife 60 percent of the marital property.

(10) Master erred in not granting Wife alimony (failed to consider needs of parties and difference in income; failed to find Husband committed indignities; failed to allow testimony re: Husband’s discipline of the parties’ children as evidence of indignities.

Wife withdrew exception 1 and 3 at the argument before this court on September 26, 2007. This withdrawal was confirmed in a letter to the court dated November 27, 2007. For the purpose of consistency and clarity, the court will continue to refer to the remaining exceptions by their original numbers in this opinion.

DISCUSSION AND ANALYSIS

Each party’s exceptions will be discussed in turn below. As Husband filed his exceptions first, they will be addressed first.

[489]*489 Husband’s Exceptions

(1) Master erred by including as marital debt preseparation Parent PLUS loans incurred on behalf of parties’ adult children.

The master gave Wife credit for the pre-separation Parent PLUS loans because they were “apparently something the parties may have agreed to DURING the marriage and was their ‘joint’ responsibility.” (emphasis added) (Master’s report at 8.) Husband argues that he never agreed to pay for the children’s college education, and he should not be penalized for Wife’s gratuitous decision. Wife contends that Husband was untruthful in his testimony.

It is first important to note that parents are under no obligation to pay for their children’s college education. See Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992). Therefore, the issue before the court is strictly whether or not the Parent PLUS loans are a marital debt. Debts that accrue jointly before separation are marital debts. However, a debt accrued during this time may be a non-marital debt where the other spouse did not take part in incurring the debt and received no benefit therefrom. Without documentation to support a spouse’s allegations regarding marital debts, the court is not required to accept those allegations. Litmans v. Litmans, 449 Pa. Super. 209, 236-37, 673 A.2d 382, 395 (1996).

In the present case, Wife testified that Husband told her to take out loans for the children’s college education because he did not want to use the money in the trust accounts. (Hearing transcript at 40.) She further testified that Husband knew she was taking out the loans because [490]*490he was standing in the kitchen when she made the phone call to obtain the loans. (Hearing transcript at 41.) Wife also testified that Husband told her that it was her department to find the tuition money. (Hearing transcript at 41-42.) Husband testified that, while he was aware that Wife took out Parent PLUS loans, he did not approve of the loans and had nothing to do with them. (Hearing transcript at 116.)

Based on the master’s use of the words “apparently” and “may” in crediting Wife with the Parent PLUS loans, the court believes that the master did not definitively find that the parties agreed to take out the loans. Further, the master was in the best position to determine truthfulness of the witnesses, and her report gave the court no reason to distrust Husband’s testimony. Therefore, the court finds that the contradictory testimony of the parties does not depict a meeting of the minds necessary to establish an oral agreement regarding the Parent PLUS loans. The loans are not marital debt and Husband’s exception 1 is granted.

(2) Master erred by including as a factor for equitable distribution post-separation Parent PLUS loans incurred by Wife (as expense of Wife).

Husband argues that the master should not have taken the post-separation Parent PLUS loans into consideration as a debt incurred and paid by Wife.

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3 Pa. D. & C.5th 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lizik-v-lizik-pactcomplindian-2007.