Omer v. Omer

34 Pa. D. & C.4th 460, 1996 Pa. Dist. & Cnty. Dec. LEXIS 125
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedJune 13, 1996
Docketno. 826 of 1989 C.A.
StatusPublished

This text of 34 Pa. D. & C.4th 460 (Omer v. Omer) 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
Omer v. Omer, 34 Pa. D. & C.4th 460, 1996 Pa. Dist. & Cnty. Dec. LEXIS 125 (Pa. Super. Ct. 1996).

Opinion

PRATT, J.,

— The plaintiff has filed exceptions to the master’s report relative to the economic claims attendant to the parties’ divorce action.

The plaintiff, Albert Raymond Omer, and the defendant, Kathleen Ann Omer, were married on September 13, 1969. The plaintiff filed for divorce on August 26, 1989, and a decree in divorce was granted to the plaintiff on September 15, 1995. The parties’ economic claims were referred to a master, who conducted hearings on March 16 and April 11, 1995. The master filed his report on July 19, 1995. The plaintiff timely filed exceptions to the report in accordance with Pa.R.C.P. 1920.55.

Before addressing the exceptions, the court notes the standard by which the court is guided when reviewing the master’s report. While a master’s report is advisory only, it is to be given great deference. Fiorilli v. Fiorilli, 202 Pa. Super. 529, 198 A.2d 369 (1964); Morschhauser v. Morschhauser, 357 Pa. Super. 339, 349-50, 516 A.2d 10, 15 (1986). In reviewing the master’s recommendations, the report should be given “fullest consideration,” particularly on issues of credibility. Kohl v. Kohl, 387 Pa. Super. 367, 564 A.2d 222 (1989), affirmed, 526 Pa. 263, 585 A.2d 463 (1991).

However, a reviewing court has a duty to make a complete and independent review of the evidence presented to the master and to determine whether the master’s recommendations are appropriate based upon the evidence. Rollman v. Rollman, 280 Pa. Super. 344, 421 [462]*462A.2d 755 (1980). This includes a complete review of the weight and credibility to be given to the testimony of witnesses. In reviewing the record, the court should look for inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias, interest, patent falsehoods, opposition to incontrovertible physical facts, and other facts by which credibility may be ascertained. Id. at 351, 421 A.2d at 758-59. However, because the master is the one hearing the testimony and observing the demeanor and appearance of the witnesses, any issue of credibility must be resolved by giving the master’s findings the fullest consideration. Rorabaugh v. Rorabaugh, 302 Pa. Super. 1, 448 A.2d 64 (1982).

EXCEPTION I.

The plaintiff’s first exception is that the master abused his discretion when he determined that the defendant has dire needs because of the parties’ separation.

In determining the equitable division of marital property pursuant to 23 Pa.C.S. §3502, the master must consider “The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.” 23 Pa.C.S. §3502(a)(3). In considering these factors in this case, the master found:

“The parties’ income, vocational skills, employability and respective needs are drastically different. Mr. Omer’s position pays $2,530 per month gross. His job is very secure and he has a generous pension and health care plan. He can retire in eight years with 30 years service. Mrs. Omer has a very limited income of $5.90 [463]*463per hour and she averages 35 hours per week and will likely be reduced in the future. Her age, education level, lack of vocational skill and bleak job market, all indicate a lack of future employability and opportunity to increase her income. The needs of the defendant as opposed to plaintiff are significant with $570 net monthly income, with standard expenses, the defendant has dire needs due to the parties’ separation.” (Master’s report, pp. 2, 3.)

A review of the record reveals the following evidence which supports the master’s finding that the defendant has dire needs because of the separation of the parties:

(1) The plaintiff has been employed by the Pennsylvania Turnpike Commission for approximately 22 years and his monthly gross income is approximately $2,530.

(2) The plaintiff has health care benefits and a pension plan through his employment.

(3) The defendant is employed by Thrift Drug and earns $5.90 per hour. The defendant works between 24 and 36 hours per week. Therefore, the defendant earns a gross monthly income ranging from $566 to $850.

(4) Thrift Drug is steadily decreasing the amount of hours that the defendant works.

(5) The defendant does not have health care benefits or pension plan.

(6) The defendant is 52 years old, does not have a high school diploma, and has no vocational skills. For most of the defendant’s adult life, she was not employed because she was a homemaker and caretaker [464]*464of the parties’ children. Consequently, the defendant’s opportunity for more lucrative employment is limited.

In summary, the defendant’s current unstable income, lack of health benefits and pension plan, and lack of opportunity for more lucrative employment, support the master’s finding that the defendant is in dire need because of the separation of the parties. Furthermore, the plaintiff is receiving the same secure monthly income as he was during the marriage and continues to have health care benefits and a pension plan.

Because the record supports the master’s finding that the defendant is in dire need because of the separation of the parties, the plaintiff’s first exception shall be denied.

EXCEPTION II.

Next, the plaintiff excepts to the master’s finding that the defendant’s standard of living has been reduced because of the parties’ separation.

In determining the equitable division of marital property pursuant to 23 Pa.C.S. §3502, the master must consider the standard of living of the parties established during the marriage. 23 Pa.C.S. §3502(a)(9). In considering this factor, the master in this case found that the “parties had a middle class standard of living during the marriage and after the separation, the defendant’s standard of living has been significantly reduced.” (Master’s report p. 3.)

The evidence presented to the master revealed that the parties had a combined gross monthly income of over $3,000 during the marriage and, via the plaintiff’s employment, had health care benefits and a pension [465]*465plan. However, since the separation of the parties, the defendant’s standard of living has been reduced because her gross monthly income was reduced to between $566 and $850, she no longer has health care benefits or the benefit of a pension plan, and her opportunity for more lucrative employment is limited.

Therefore, the record supports the master’s finding that the defendant’s standard of living has been reduced because of the separation of the parties, and the plaintiff’s second argument must fail.

EXCEPTION III.

The plaintiff’s third exception raises two issues:

(1) Whether the master erred in concluding that the parties’ final separation was at the end of November of 1993?

(2) Whether the master erred in determining that the defendant should receive 55 percent of the plaintiff’s pension from July of 1974 through November of 1993?

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Related

Wayda v. Wayda
576 A.2d 1060 (Supreme Court of Pennsylvania, 1990)
Kohl v. Kohl
564 A.2d 222 (Supreme Court of Pennsylvania, 1989)
Rorabaugh v. Rorabaugh
448 A.2d 64 (Supreme Court of Pennsylvania, 1982)
Morschhauser v. Morschhauser
516 A.2d 10 (Supreme Court of Pennsylvania, 1986)
Fiorilli v. Fiorilli
198 A.2d 369 (Superior Court of Pennsylvania, 1964)
Britton v. Britton
582 A.2d 1335 (Supreme Court of Pennsylvania, 1990)
Rollman v. Rollman
421 A.2d 755 (Superior Court of Pennsylvania, 1980)
Thomas v. Thomas
483 A.2d 945 (Supreme Court of Pennsylvania, 1984)

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Bluebook (online)
34 Pa. D. & C.4th 460, 1996 Pa. Dist. & Cnty. Dec. LEXIS 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/omer-v-omer-pactcompllawren-1996.