Pope, R. v. Estate of Pope, H.

• Court: Superior Court of Pennsylvania
• Decided: August 8, 2018
• Docket: 1397 WDA 2017
• Status: Unpublished

Opinion

J-A13012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RUTH M. POPE : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ESTATE OF HOWARD POPE, : No. 1397 WDA 2017 DECEASED, AND ANITA BURROUGHS :

Appeal from the Order September 18, 2017 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD-14-7809-011

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED AUGUST 8, 2018

Appellant, Ruth M. Pope, appeals from the order entered on September

18, 2017, where the trial court amended its final, August 29, 2017, order of

court. We affirm.

The Master thoroughly summarized the underlying facts of this case and

its recommendations regarding the equitable distribution of marital property:

[A.] HISTORY

[Appellant and Howard Pope (hereinafter “Husband”)1] were married on June 26, 1982, and [Appellant] filed her complaint ____________________________________________

1Husband passed away on June 22, 2016. See Suggestion of Death, 6/23/16, at 1. We note that 23 Pa.C.S.A. § 3323(d.1) provides:

In the event one party dies during the course of divorce proceedings, no decree of divorce has been entered and grounds have been established as provided in subsection (g), J-A13012-18

in divorce on September 9, 2014. There were no children born of the marriage although each party has adult children from a prior marriage.

At the time of trial, Husband was 81 years of age. Husband is retired from his employment from the Port Authority of Allegheny County. He is also receiving Social Security Retirement benefits as well as rental income from rental property he owns. Husband's 2014 federal income tax return indicated his gross income (which included his retirement, rental and Social Security income) was $45,234. Husband's net monthly income was determined to be $3,388 at the time of the support hearing.

At the time of trial, [Appellant] was 78 years of age. [Appellant’s] source of income is her income from Social Security as well as her rental income from the rental property she owns. Her pension from AT&T was cashed in sometime after her retirement in 1997. At the time of the support hearing, [Appellant’s] net monthly income was determined to be $1,020. Husband is paying $1,106.81 to [Appellant] as alimony pendente lite, plus $100 toward the arrears.

...

In 2012, Husband was diagnosed with a malignant neoplasm of the spinal cord (a cancerous tumor braided into his spinal cord).

[B.] MARITAL PROPERTY

The parties were able to stipulate to the following marital assets: ____________________________________________

the parties' economic rights and obligations arising under the marriage shall be determined [under the Divorce Code] rather than under 20 Pa.C.S. (relating to decedents, estates and fiduciaries).

23 Pa.C.S.A. § 3323(d.1).

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[1]. The value of [Appellant’s] real estate at 3804 Mountain Road (Middle Alley), South Park, PA acquired by [Appellant] during the marriage is $30,000; it is entirely marital property.

[2]. [Appellant’s] rental home at 2917A Overhill Street, South Park, PA is [Appellant’s] premarital property; the increase in value of this property during the marriage is $6,000.

[3]. As of [September 26, 2014], the balance in Husband's PNC Money Market account ...2308 was $1,000.33.

[4]. As of [September 26, 2014], Husband's PNC checking account ...4171 had a balance of $2,821.22.

[5]. Husband has a NY Life IRA ...8645, which has a cash surrender value of $8,959.03 as of [January 20, 2015].

[6]. Husband has a NY Life Whole Life insurance policy ...4982, which has a face value of $50,000 and a cash surrender value of $32,165.86 as of [September 9, 2014].

[7]. Husband has a NY Life Whole Life insurance policy ...9696, which has a face value of $50,000 and a cash surrender value of $29,591.24 as of [September 9, 2014].

[8]. [Appellant] has an American Equity IRA ...3600 which has a contract value of $41,976.82 as of [January 23, 2015].

[9]. [Appellant] has a NY [L]ife Whole life insurance policy ...4924, which has a face value of $50,000 and a cash surrender value of $28,098.41 as of [July 16, 2015].

[10]. [Appellant] owns a NY Life annuity ...2401 on Husband's life which has a cash surrender value of $9,036.77 as of [February 21, 2016].

[11]. [Appellant’s] Northwest Savings account ...8198 had a balance of $934 as of April 2014.

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[12]. [Appellant’s] Northwest [Savings] checking account ...1105 had a balance of $1,054.69 as of [September 24, 2014].

[13]. The parties acquired a riding mower with a value of $500 which is in Husband's possession.

[14]. The parties acquired a 1995 GMC Silverado truck with a value of $500 which is in Husband's possession.

[15]. Since [September 23, 2013, Appellant] withdrew a total of $11,184 from PNC account ...2308. $5,510 was returned by the bank, leaving a balance of $5,674.

The parties' marital residence located at 3824 Mountain Road, South Park PA 15129 was owned by Husband prior to the marriage. Other than the transfer into the Howard Pope and Ruth M. Pope Irrevocable Catastrophic Illness Trust in March of 2014, the property has always remained in Husband's name. According to [Appellant’s] real estate appraiser, James Audas, Sr., the value of the property as of the time of marriage was $44,500 and the value of the property as of the date near to the date of separation was $116,000. Mr. Audas opine[d] that the marital value of the property is $71,500.

When asked how he was able to ascertain the value of the real estate as of the date of marriage ([June 6, 1982]), Mr. Audas testified that since over 30 years has passed since the parties were married; no reliable databases exist from that time period with respect to the sales comparison approach, such as the multi-list database. As such, Mr. Audas utilized the Marshall and Swift database which is a service that tracks building trends in particular areas. Mr. Audas did testify that he did utilize the Multi-list database and the sales comparison approach with respect to the value of the property as of the time of separation.

Husband's appraiser, J. Matthew Barone, opined that the value of 3824 Mountain Road, South Park, PA 15129 as of the date of marriage was $65,000 and the value of the property as of the time of separation was $120,000. Thus, according to Mr. Barone, the marital value of 3824 Mountain Road is $55,000. Mr. Barone testified that he was able to utilize the

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sales comparison approach in determining the value of the property from the date of marriage because his family has been in the real estate appraisal business for over forty years, and they have maintained an extensive Multi-list database for at least that time.

Given the fact that both experts' valuations from the date of separation were so close, and both utilized the sales comparison approach pursuant to the Multi-list database, it stands to reason that the Multi-list database is reliable. As Mr. Barone utilized the Multi-list database for both valuations, the Master believes his approach to be the most reliable. As such, the Master determines that the marital value of 3824 Mountain Road, South Park PA is $55,000.

Husband also owned another piece of real estate prior to the parties' marriage, known as 2893 Overhill Street, South Park PA 15129. This particular piece of real estate also contains a vacant lot of the same address with a different tax parcel number. [Appellant’s] expert, Mr. Audas chose to appraise each parcel of real estate separately and Husband's expert, Mr. Barone, chose to appraise the vacant lot in conjunction with the property containing the building.

Mr. Audas testified that the vacant lot located at 2893 Overhill Street, South Park PA 15129 had a date of marriage value of $6,900, and its date of separation value was $18,000. Therefore, according to Mr. Audas, the marital value of the vacant lot at 2893 Overhill Street, South Park PA 15129 is $11,100. Mr. Audas further testified that the house located at 2893 Overhill Street, South Park PA 15129 had a date of marriage value of $34,500 and the date of separation value was $90,000, which would make the marital value of the real estate containing the house at 2893 Overhill Street, South Park PA 15129 to be $55,500. Mr. Audas testified that he utilized the same methodology that he applied with respect to 3824 Mountain Road in determining the date of marriage values for both pieces of property located at 2893 Overhill Street. This was the Marshall and Swift economic trending approach as no sales comparisons were available to him from over 30 years ago. Mr. Audas did utilize the Multi- list database and the sales comparison approach with respect to the present valuation of the property.

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The Master notes that the comparable sales that Mr. Audas utilized with respect to the vacant lot were at least three times the size of the lot in question. Also, Mr. Audas did not appear to take this fact into consideration in his report as no adjustments for lot size appear to have been made. It also appears from the map of the property that ingress and egress to the house is by use of the vacant lot.

When Mr. Barone appraised 2893 Overhill Street, he did not separate the vacant lot from the lot containing the house bearing the same address. Mr. Barone testified that the date of marriage value of 2893 Overhill Street was $52,000 and the date of separation value was $75,000. As such, according to Mr. Barone, the marital value of 2893 Overhill Street is $23,000.

Given the reliability of the consistent use of the sales comparison approach to both the date of marriage and the date of separation values, the Master accepts Mr. Barone's valuation of the property. Also, the properties that Mr. Barone utilized for comparison were of similar lot size to 2893 Overhill Street. In the few cases where the comparison properties were not similar in lot size, Mr. Barone made the appropriate adjustments. As such, the marital value of 2893 Overhill Street is $23,000.

The parties own a piece of rental property located at 2900 Highland Road, South Park PA 15129. They purchased it during their marriage and it is entirely marital. Mr. Audas testified that he used two approaches in determining the value of the property. The first approach Mr. Audas utilized was the income producing approach. In using this approach, Mr. Audas opined that the property is valued at $112,050. The next approach utilized by Mr. Audas is the sales comparison approach wherein Mr. Audas values the property at $113,000. Mr. Barone utilized both the income producing approach and the sales comparison approach when he valued the property. On both occasions, Mr. Barone's valuation was $90,000. Given the fact that both appraisers' approaches in valuation of the property yielded nearly identical figures, it appears that both approaches are relatively reliable. As both appraisers appear to be reliable in their respective methodologies, an average between the methodologies would be just as reliable. Therefore, the value of the property

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is $101,025 which is the average between both appraisers' valuations utilizing the sales comparison approach.

Lastly, with respect to real estate, the parties own a piece of real estate located at 1412 ½ Center Street. Mr. Barone values the property at $5,000 while Mr. Audas values the property at $17,000. Mr. Barone testified that the relatively low valuation was due to the distressed area where the property is located as well as the relatively poor condition of the property. Mr. Audas did acknowledge the fact that the property was in need of repairs, and despite this fact, he still values the property at $17,000. While one will never truly know what is the true value of a piece of property unless it sells, it does appear that Mr. Audas is too lofty in his expectations, and Mr. Barone is too pessimistic. Nevertheless, the parties cannot agree with respect to the valuation, as such; the most equitable approach is to average the valuations as set forth by the experts. Therefore, the value of 1412 ½ Center Street, for equitable distribution purposes is $11,000.

There also exists an annuity with EquiTrust Life Insurance Company held by the Additional Defendant, Anita Burroughs for the benefit of Husband. The account was created when Ms. Burroughs was appointed the agent for Husband pursuant to a power of attorney he created. Apparently, after Husband was diagnosed with a malignant neoplasm of the spinal cord there were issues with his mental faculties. Once Husband's medication was adjusted his mental capacity was no longer in question, and the need for Ms. Burroughs to act on his behalf presented itself no longer. Ms. Burroughs acted as Husband's agent pursuant to the power of attorney from May of 2013 through September of 2014. During this time, Ms. Burroughs began working with Mr. Catale to create an irrevocable catastrophic illness trust wherein Husband would become divested of his assets and become eligible for long- term care benefits through the Veteran's Administration. During this process Ms. Burroughs created the annuity as well as the accounts at Dollar Bank which are titled in her name, however, the accounts are marital accounts subject to equitable distribution. As of the time of separation, the Dollar Bank checking account had a balance of $56,010.85 and the Dollar Bank savings account had a balance of $1,064.26. The most recent balance of the annuity is $82,857.47. There was

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also debt associated with the marriage. [Appellant] presented evidence ([Appellant’s] exhibit H) that as of the time of separation the Bank of America account titled in [Appellant’s] name had an outstanding balance of $10,969.80. [Appellant] also presented a statement from Prescription Center Plus that as of October 31, 2014 there was an outstanding balance of $28.00 for what appears to be prescriptions for [Appellant]. Pursuant to [the trial court’s] order of court dated April 21, 2015, effective September 26, 2014, Husband was responsible for 75% of [Appellant’s] unreimbursed medical expenses that exceeded $250 annually. Therefore, pursuant to the April 21, 2015 order of court, Husband is not responsible for this obligation.

[Appellant] presented evidence (Exhibit H) that prior to the parties' separation, [Appellant] had an outstanding balance with Dr. Kristal Izadorczyk in the amount of $1,007. As this obligation existed at the time of the parties' separation, it is a marital obligation.

[Appellant] presented what appears to be an AAA membership renewal. This is not a marital debt subject to equitable distribution. If [Appellant] chooses to continue her membership, then the cost of that membership falls to her.

[Appellant] also presented South Park School District real estate tax bills for three pieces of real estate. The first piece of real estate is 3804 Mountain Road which is titled in [Appellant’s] name and was purchased during the marriage. The statement was dated June 25, 2014 which indicated a balance of $741.84. As the statement predated the parties' separation, no credit is due. The same is true of the tax bills of the same date for the properties located at 2917(A) Overhill Avenue, and 2900 Highland Road in the amounts of $505.80 and $2,000.72 respectively.

[Appellant] also presented evidence (exhibit H) which indicated that the parties had an outstanding IRS obligation from the tax year 2012 in the amount of $12,951 as of July 14, 2014. At the time of trial, the parties learned that their amended 2012 tax return had been accepted by the IRS and instead of the parties owing the IRS; they were now due a refund in the amount of $1,244.28.

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Husband presented copies of checks for various bills paid by him. (Husband's exhibit 11). After reviewing the exhibit in its entirety, it appears that all of the payments made by Husband predated the parties' stipulated date of separation as such; no credit will be given to Husband.

According to the order of court dated April 21, 2015, [Appellant] was held responsible for all expenses related to 3824 Mountain Road. Husband presented evidence (exhibit 15) indicating that he paid the real estate taxes for the property. However, [Appellant’s] obligation to pay the expenses associated with the property, pursuant to the order of court, began September 26, 2014[,]which was the date the order was effective. Therefore, after a more complete review of exhibit 15, it appears that Husband is entitled to credit in the amount of $383.13 for the taxes he paid for the county taxes for the year 2015.

While Husband is not entitled to be entirely reimbursed for the expenses paid by him prior to the effective date of the support order, he is entitled to be reimbursed by [Appellant] for her share of the obligations that the parties shared after separation. In other words, Husband paid $1,972.27 in real estate taxes on September 11, 2014, and he is entitled to be reimbursed $986.13. As the parties were joint owners of the property, they share jointly in the obligations associated with the property. Also, since the parties separated, Husband paid the insurance for the property located at 2900 Highland Avenue in the amount of $707, therefore; he is entitled to be reimbursed $353.50. Husband paid $412.55 to the County of Allegheny for the 2015 taxes for 2900 Road, as such; he is entitled to be reimbursed $210.78. Husband also paid $335.60 in utility bills for the parties' rental property on May 7, 2015, (exhibit 16) therefore, he is entitled to be reimbursed $167.80.

In addition to the expenses previously mentioned, Husband presented additional evidence (exhibit 12) wherein he paid for certain repairs and real estate taxes after the parties separated. Husband paid $320 for roof repairs to 1416 ½ Center Avenue, $64.10 for window cleaning, and $2,200.79 for school district taxes for the property located at 2900 Highland Avenue, and $106.75 for outstanding refuse at the marital residence. Husband paid a total of $2,691.64 of which

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he is entitled to be reimbursed $1,345.82. In total, Husband is entitled to be reimbursed $3,447.16, which represents [Appellant’s] obligations pursuant to the support order as well as her obligations toward the expenses associated with the property advanced by Husband after the parties' separation.

[C]. EQUITABLE DISTRIBUTION OF MARITAL PROPERTY

Even though both parties were previously married, this is a long marriage of over 32 years. Both parties are advanced in age, and their ages are relatively similar. Although Husband's health is worse than [Appellant’s], Husband's separate premarital assets compensate for the difference. Given the parties' respective ages and sources of income, neither has the advantage with respect to the future acquisition of capital assets and income.

In view of the foregoing, the Master recommends an equal division of assets and debts. This means that both parties must receive assets valued at $262,592.92 and pay debts of $7,902.79. As previously mentioned Husband has already paid some of the parties' marital debt which totaled $2,691.64, and is entitled to be reimbursed $1,345.82 for [Appellant’s] portion of these debts. In addition, Husband paid debts which [Appellant] was obligated to pay pursuant to the order of court dated April 21, 2015, and is entitled to receive $2,101.34 from [Appellant]. In order to achieve this result, the Master recommends the following allocation of assets and debts:

[Appellant] is awarded the following marital property:

2900 Highland Road $101,025.00

3804 Mountain Road $30,000.00

2917(A) Overhill Street $6,000.00

Husband's NY Life whole life policy ...4982 $32,165.86

The American Equity IRA ...3600 $41,976.82

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The NY Life whole life policy ...4924 $28,098.41

The NY Life annuity ...2401 $9,036.77

The Northwest Savings ...8198 $934.00

The Northwest Checking account ...1105 $1,054.69

Subtotal (Assets to [Appellant]) $261,291.55

Less [Appellant’s] share of Marital Debts $7,902.79

Subtotal $253,388.76

Less reimbursement to Husband for $2,145.80 [Appellant’s] obligations paid by him

NET TOTAL TO [APPELLANT] $251,242.97

With respect to the $2,145.80 [Appellant] owes Husband, this amount shall first be offset by any existing APL arrears owed by Husband. The remaining difference between the aforementioned $2,145.80 shall be reduced from Husband's NY Life whole life policy [Appellant] is receiving.

[Appellant] shall also receive 50% of the marital portion of Husband's defined benefit pension he is receiving from the Port Authority. [Appellant’s] counsel shall prepare the Qualified Domestic Relations Order.

Husband shall receive the following marital property:

The Marital share of 3824 Mountain Road $55,000.00

The Marital share of 2893 Overhill Street $23,000.00

The PNC Money Market account ...2308 $1,000.33

The PNC Checking Account ...4171 $2,821.22

The NY Life IRA $29,591.24

The Riding Mower $500.00

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The 1995 GMC Silverado $500.00

The PNC Checking account ...8263 $2,589.88

The Dollar Bank Trust checking account $56,010.85

The Dollar Bank Trust savings account $1,064.26

The EquiTrust Annuity $82,857.47

Subtotal (assets) $263,894.28

Less Husband's share of marital debts $7,902.79

Plus reimbursement from [Appellant] for debts advanced by Husband $2,145.80

TOTAL TO HUSBAND $258,137.29

Each party shall pay their own respective counsel fees.

Other than already indicated, each party shall retain whatever property is in their possession.

The parties shall sign their respective affidavits of consent and waivers of notice so a divorce decree may issue.

Master’s Report and Recommendation, 5/24/16, at 2-11 and 14-15 (some

internal capitalization and paragraphing omitted).

Appellant filed her exceptions to the Master’s Report and

Recommendation on June 10, 2016. On August 29, 2017, the trial court

denied Appellant’s exceptions for the most part; however, the trial court

granted two particular exceptions: one that essentially corrected a clerical

error in the Master’s Report and the other that corrected the Master’s “failure

to reduce the value of the real estate.” See Trial Court Order, 8/29/17, at 1-

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7. Excluding these two corrections, the trial court accepted the Master’s

Report and Recommendation and entered a final order based upon the Report

and Recommendation. Id. at 7. The trial court slightly amended its August

29, 2017 order on September 18, 2017 and, on September 27, 2017,

Appellant filed a timely notice of appeal. Trial Court Order, 9/18/17, at 1;

Notice of Appeal, 9/27/17, at 1.

Appellant raises eight claims on appeal:

1. Did the trial court err in refusing to reopen the record to consider changed circumstances after the death of Husband[?]

2. Did the trial court err in denying [Appellant’s] exceptions to the master's rulings on the admission of evidence at the hearing and permitting Husband's "testimony" by summary during the master's hearing[?]

3. Did the trial court [err] by failing to recognize [Appellant’s] contribution to preserving the marital estate in her Orphan's Court action by not skewing the distribution in her favor or awarding her attorney fees[?]

4. Did the trial court err in failing to consider the tax consequences of the respective retirement assets it awarded to Husband and [Appellant][?]

5. Did the trial court err in determining that a 50-50 split of assets and debts were appropriate in this case[?]

6. Did the trial court err in failing to award attorney fees to [Appellant] in the divorce action[?]

7. Did the trial court err in refusing to consider Husband's APL arrears in fashioning its award to [Appellant][?]

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8. Did the trial court err mathematically in calculating the amounts due to [Appellant] as a result of its [equitable distribution] order[?]

Appellant’s Brief at 11-12.

We have reviewed the briefs of the parties, the relevant law, the certified

record, the notes of testimony, and the opinion of the able trial court judge,

the Honorable Mark V. Tranquilli. We conclude that there has been no error

in this case and that Judge Tranquilli’s December 1, 2017 opinion and August

29, 2017 order meticulously and accurately dispose of Appellant’s issues on

appeal. Therefore, we affirm on the basis of Judge Tranquilli’s thorough

opinion and order and adopt them as our own. In any future filing with this

or any other court addressing this ruling, the filing party shall attach a copy

of Judge Tranquilli’s December 1, 2017 opinion and August 29, 2017 order.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/08/2018

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'IN . . . . .. . .. � . . .COMMON . . THE:COURT;OF. . . . . . PLEAS . OF ALLEGJIENY , ' - . ,. . COUNTY,-PENNSYLVANIA . . . . .

1tUTHPOPE, ) FAJ\4li.Y D.I:YISION ) Plaintiff, ) No., FD. l4:.:oovso9 ..011 ). VS,. ) ). HOWARD POPE, ) ) Defendant; . . . ,,.. J J J ANi-tA:BURROUGHS .. .., -., ., ) ) )

.ORDER.OF COURT

A'NP .NOW; .this. £%rAugµst 20J7, upon consideration. of W.ife's· E��eptions to th� Master.7 s.Report and Recommendatior; date-y· 24� 20 l 6::arnl oral atgume·nt thereon argued o.n,Apr.if.iS, '2017 .ir is hereby 0IU)EF.$D, AI>JUI)(iED:amfDECREEO:

J. Th� Plaintiff'argues sixteen (l6� ci_�_hp_s;of'errorin.het Modified: Brfefi.g Support ·qf'.Exceptions:filed:pnAprrt�6, ... . . i0.:lt1 Argµment . on Exc.epffonlett�r.K was:o:rftitted in Plaintiff'·s, 'Modified l3ri'ef and ExceptienJerter P' was· withdrawn. Therefore, neither will

be . addressed b,y this: Court.and/Qr are deemed denied. As some of the remaining. claims, .,

are related.they will be-consolidated, by the Court for. convenience �d clarity;

-- 1·tfie )'iJ�iotiff:'.W.�s -insirt�¢ted.to file a inod1fled btie'f�U¢ tQ th.� fa.c;_tihafthe:original Brlef'ln _S.1JpP9tt o( Exception$ .ftJ�d 'oI!)�nuary 20', 20l7· wits forty.five (45) pag�$. :IQ.pg; This exceeded.the twenty:.five'(2-5) page limi:isei'Jo.rth)ri ,11e Allegheny County Court Manµal '{Qf the Adiilt:Sedion:of the, F.amiiY:Division t>f the'Coui:t 1;>f.C.orii.mon Pleas,.Seclion-III, N; 5.: . . ..

--·-'"""""•'""""••""""""''-"'"""-·"·- ..·-·-- ····-------· 2; Exception letter' A is denied, Wife.assens;-that:the:Master=·ct)fiifilitted:.errot'by· misstating thestipulatlon entered into by the parties .regarding PNC Accouritx2308'. The

$\ip\lJ'.a.iioJt.d.e�.! wJ�b.$1 l ,i �4 fix :f\mds th.al were wilhdrawn �Y Wife·:d.udn.g·the marriage between September:of.'201'3 and Febfuafy.':of'2014. The-parties disagreedas to ·the·.

purpose for withdrawing thefunds, Husband argued fhat'he was ow.e.d a creditand Wife:

argµ�fth.a( theJJ.lOt:i�Y was used to:p,aym�Ha.ld.efos/ ThfM�ster, ci��Jy f9l:ln¢;Wi.fe·

ctedible,J,s, evidenced.by that ·fact :that Husband was notawarded acredit for the lll;l8.4,

Furthermore, :the ·stipuiat¢d yafoe3 w�sfociuded as part of the marital estate and.was

�warded to. Husband. in. rhe.distribution, Thus, this,CQ,µ:t.:finq$ no basis for Wif��-� assertion that the Master-commftted any error and finds no abuse of'discretlon in h'is:

find fogs; regarding this! stipuiatfon, .3. Exceptions, lettered B� 'GandH all.assert a claim ofetrofbytne::tvtastet. f'or failing: to. distribute:marit�l,pr<>perfy·.and/ot a�sig�f�g an Incorrect value. to'a marital. asset; Leiter

a �pe.�Hic.�lly c9nt�nd.s.,-th�qh� M<.l$t�r{�i.l€r9 .tQ. gi�t.ri.bµ.t�l4f6: _Yi C�nter;$t_r��i ·y<,1Jµe� at $l l:,0005 Letters: G and H.address,err.orr¢gatdins.: a NY' Life '.IRA and a Whole Life· NY L1feltj'sura.nc¢i Policy. The-value of these- assetswere stipulated. to at tdal· a,s: $8:�959,.03

. and $29,5.9�l..24 re.sp�9tivil/5 It.iselearftom teadfng the Master··s RecommertdeilAw.ard'jn Section G of the·

· Report.andRecommendation ·thanhe1 property ,10,c.�t�d. at .t4l6; % Center :Street :is not:

listed �in·the column'of'either'party .. Hew.ever, upon closer examination ·ofthe,.awatd.to

_i .Marc�:� -& 9�. 2:0(6:Equitable Pistribution Trial:Transcr.ipi pages 286�290: -� ein;;:-�cct;•J4.�08 l?�l�J1C� �?.f'$1QOQ)·3.; Num�er."4' 9(Siiptil�(ions· filed.on M�y,24;;20 \.6. 4 'T.h� C.o..ijt.t- (lQ�.�s .m��-t��, M!t}l.e.r'�Jte.PQ.it �n_q,R;e,cornmeriqation 'incQrr�ctly. refers fc- this properly as 1412 -�:G�.rjJ¢t$.tfeet, ... · .. ·· .>,$tjpuJ;1tiO.J1$ tJJ�ct:M�r �4;. iQl9:

·---- _.. .,_ _ Wife, it is: evi'dent-thaJ:ihe; $Jl})OQ yqf1:1e :pf.the :pro1terty· was infact.allccatedto -Wife:

.monet�rily despite the fact thafif Is rtot=deHn·eate:d,ht the, columnof assets, A calculation

of theilisted.assefs;and. values rdlect¢cf-in th� award to: Wife. equals �250;291 S5.-; howe�er the·Master':s.:�µptot�J i�:$16t291.=5J;. a diffetence;of:exactly· $1 l:;OO(t

'tb.�: same holds true'for the NY Life'IRA and.Whole Li(� l.osµrance'.Policf assek The actOaLvalue,cjf the assets· listed in ffijsJ:>an.o�s. column is ;$254\,935.25: not$263;894 .2sz

as subtotaled by the Master; The difference between' these subtotals is$8,959i0l,. the 1. ••• -, •••• ·-. • • • • • •• • • • • • • ;•••• •• • •• ·, "

exac; value ofihe NY Life IRA. Thus, after 'ClQse\y :i:e�iewh:ig: the distfibutionfto . · Husband, the C.ourt.fin.ds il)afb9tjl ofthe.se·assets Were in facrmonet�riiy �islribut�d: Jo 'Husband but Jh�fM'ast¢r erred indetailing the award; He �id: so :b.y- '11l.Q��tin� the value ;.cff I·

· the Life, Insurance :Poli�y ($29;5�:1.24} w.hifo i,1:i.coq.ec1ly·titliiig· it as' the.NY 'Life IRA,

and;sirriilarJ.y li'sti:r1g th�JR.Aa�set-Wliile,failirig'to . detail its Vaiue:($8,9:$9;03j .b1Jh�

As such the Courf G-RA,NT$ Wi.f�?-� _Exce,ptions.in part having found that the Master. erred In bow Oit detailed 'theaward .. The-Court finds that JA J6 Yi-Cen.t�r �tr�¢t-was

-awarded to the p�i.�s· in the Master's:Recomtnendatien,and Repprt, the error doesnot

create a.need to recalculate the: .d1stribut1.o,n_.

Exceptfo.n:·C 'is denied, The pertinent exhibits for this Excepticn are Wife�$.

Exhibits H .and 0. ExhibitH represents: various bills Ql.1� of"whi�h. is, a 2012 tax bill' of

$12',9/il comprised o(:�-$l()_J7.(? tax debt and-$.2,.575: in penaltiesand interest, \Vif�

tesli.fied that the ·IRS had seized: one of herbank accounts ill an 'effert to recoup-this debt, N.o;evi;dentiaty pr,oof w.��- offered by Wife regarding the seized bank.aeeount, Exhih1t.O

'is.an amended 201Ztax bill which indicates thatthefaterests@d.pena)tiesiw�r� ' removed, 'the.tax (leot wasreduced'to $1,;35�J and \Vife. would be receiving.arefund of ·1

$1,.244;2_8.. Al.th<;>µgt:i.:ttit::.J4:��ter. did.not attribute 50%,orthis, marital debt .ta 'Husband the Court does: notfind an ..abuse of discretion as Wifo ls xec�f;ving (fie. e.V:tixe refund, QY

virtue :ef th� fa.ct thl:!lit-w&s .Q.Qt in..c.luqed as part ,efthe marltal .estat� ..

4� Exceptions D an:d E and.J'aredenied. The.Master-toek .considerid,.leJime·

re.view.ing;the:imrrrer:ous; exhibits ·prese.llt�d.-by t;l:ie pcll.1jes:r.�g�9ing debts and teq\iests for. ' :cr�gjts .. As the ,pa.rti.�s :owned several pr.opettiesjointly the Master did .norerr.in . . attribtjtingte�ponsibility to· both parties for debts: on those properries; as the.joi1;1t obligation does not cease UpQ,h separation, Thus ftµ�bt,mctwas entitled to a· credirfrom Wl(e for. her share·-of:d�ot paid by: Husband ... Moreover; Wife. provided: qo statutory .Qf I - .

case law.·to, sUppprt tlia.t she ts not responsible for ��p.e.����- op;a,jpin�ly owned rental

. prope�y .as claimed io. i;'.)(ceptio.n E,. :5.: .Ex¢.epiions· lettered F and I both· allege error by the, Master· 111"faH1ng Jo consider

· sfatutes·§3-502(a)(l O� I) andJ l'(h2) which re.quir¢.s ctl).Ot!rttO, qon�ider'th¢, tax, rantificatioiis

. of di'str.•huted.'asseis: lUl.<1 e�p�ns�s; involved' iii the lfale.� transfer or· liquidation associated with a: par.ticulahasset,.which:need not be- immediate-or �ertairn'.Jr:r tbf� (;,@.Sej real �S.(�t�

and:t�eJRA:redrement ;ass�ts. the· statutes cft�d a..bQN� are factorsto be-considered; by a.

court in fa.sb.i:Qn.i;�g -� fair-and eguitable distribution ofamarital, estate. rhe, reasoning is. that these t):pes ofassets have specific costs rassp�r.ated. with IJ'.qµf4�ti9rt and consideration

ofth��e,expense$:wlU �fl�¢ta more accurate Value.. Balicki v... Balicki,.4:AJd 6.54:,;6$4 (Pa,Sµpet:2010), •..:

Wife,·s Exception.F, a.ssi_gni_�g �rr0.r·to'the_ Master's fallureioreduce the value 0.f'

the re�i:estate }s GRANTED, The ·realJ'>roperty awarded to the pa.dies shall be: reduced

by-the; commonly practiced 7%.tat� for cost of-sale· (6% teal estate .commlssion and l% transfer tax). and 'is hereby atttibuted with.the f0Jl9w(n.g values: f.\, �900 Highia,ici Road � $93;953.25

·c� 29l7(A) Overhill ·street - $5;�·80

·cL :3�24 :M.0.u.otain Roa,d (Marital. Share) :� '$5,1,150 e� 2893 Overhill' Street(Matital,sh��}-$i.1)90

Wrn�tsi Excep(ion Lwhich, argues error based on th�· M�stet�: ,f�ilw;�;to c;o. ns1der .

theiax ¢ffectof tpe-IRA aw�.rd.ecl t�Y W.f(e fa DENIED. Unlike, real pfoperty· where.th('·

. tax :ra:mm�adons ate established-and. predictable, .a retirement asset requires -consideration

ofvarious f.c1�tQrs� fr:ic.lu4fog butnetlimited to, a party�.s ,aie, taxable.income.and t� liability. In. this, case, Wife did not off�r \��tiJn911y .evidence; methodology or.a' proposal

. to the' Master OIJ .how the. prospective. •tax ramificati(>n:QfJh� lR_;�,;Should;be calculated,

Therefore, th¢ Master did not errorin fo failing to consider the tax effec.t p_fJJ:ij� asset.as .the·:necessaty ·� evidence: was not.presented. . for consideration,

;6·. Wife':s BxeeptionL'is DENIED·; The telev.�t f�ctor:�fot dec.jdingthe equitable distribution of a m�iJiL¢.l?t�t� are fo4nd .in Title 23 ;§3'502(�)( 1-l 1.) :and'Yio: one (I): f�ct01::

is ent�tled lo mote· Weight.th.Jui .another. W if<�t� E�c�ption.: ''L'':is that the .Master.failed to.

take, into' consi4y.r:atiQn Jl.ij�ban'1':s. substcllltfal non-mariial estat¢.verstis Wife's Hmit�d 0

separate-estate in his; R'.ecommendatiQ�: D.e�pi!�:fhfa b�ing· her; claim oferror, 'the.

m�j9-r.jty . . 'of Wife' s �r1efal'gue: . s tharthe Master erte&byifopro. . ·•. perly, . . .. considering ·,

Husband's, health condition. and, expenses which. 1$ notthe. claim. qf �rror;� Regardless of

\\{jfe? s argument, the Master de.arl'y considered.the parties separate: premarital' assets, stating the Same intSection D of his .R.�comm��clatfon,. titled]�qu1tableDi$lnbution.of

Marital PrQp_erty, · He.re�ogn}zed that ih.er.� was -, a differencein ass�ts.,butin consideration

o.f._�ll pertinent-factors, including. butnot limited to the a��s. ofthe patti'��' ·Wife'-s

eligibility to' receive: a portion. of Husband 's pension .and the stipulat�(i fie·�Ith condition of

Husband, he. recommended thatthe matita):estate: be distributed equally: The.Court finds

·no error 9ra:buse of

:a:wan:LWife. counsel fees. They ;are:QENIEI).

S:. 1$.xceptioh letter Q.'isDENIE.Q .. :9:. Ex"ceptipn R contains ·an overall cl�.im of.error .by the. Master's :n.ilings .on the adrnissiorr of evidence, At:the, out_set;'the, Co.litf-.11ptes thatthe convoluted argument Jot

th.i:s£xce11ti<>nJs. six (6)· p�ges Jo-ng and iJ was difficult to· de.termine �p·ecific claims. of .error, To: the. extentthat the Court was' a'.l?l�'tO. decipher P.lafotiff's -argwnenr it.finds. that:

she. a$s.¢rts. the fo ll9'!-Ving error: l . The 'Masier'°s'rylipgpn a MQtiQq: °in Limine, presented.by t\.ttorney' Miehe] cm behalf of.Anita Burroughs. and a Nqtfoe.·to,.Attepq and Produce f.iiecf by'

:2-. the Master permitting Husband's dire.ct :te�tj._moQy to he offered 'by summary

6 Jli¢ health of'a p,aey isaprcper.statutcry cons.id�niti.on. AlthouglHli�:Mas��r was '1ot-presented-whh .;(ti Qµtlook ofHus��ij�� fu�ur.e·cos��.-.it was b0Jh;re8$.9ii�bie and c1pptopriate for. Jh� Ma�t�McLconsider th.at- ��w�� . . . . . . J.·fo.sbaijd .would.ii:t.�µr unspecified' �edical .costs 'in. tr�atin,g.his cancer; -Any,othertr�tm�nt:w.ould'bt: .

-······-•-"'' __ ,--,-·-··--·-··--- ·--------··- __ , ,,_,, _ -------·-..------------·····---- •·

!l. The Master'..roiHng. on:le�timony·.r��ardi"ng. pr9.perty.and money that-was not

,sti.�Je9tto· �h¢ mcgitai estate . •�. The Master's :rulih$, 4�nying 'the: admission-ofHusband's wHI.:

,lO. E>(ce.ptioµ.lt,, including butno; Irmit.ed to th,� .claims i>uilin�d bytheCourt above, . • isDENIJtP. Wife makesoverreaching-argumentatlia; the Master w.�s:uI�prepa,red:tP. hear.the case arid/or understand the.complexity .pf-the, facts and .arguments, Wife equ.�l�s

.an aqv�tse r.uliQg·with a. lack of'understanding, ana:thj� Courl-'sirrmly. does not.agree�

thi's:was. �·. two :(2) . . daytrial, fraught with more argurneriHhan tesiimony' :· ·. at tim¢s�-·�d:the ,:·

-record s&ows that the. Master took grearpains · to crystalize th¢ positions .of both sides

11 . .All other·ptov'i�.ipns of the:.Ni.�ster' s R�p,Qrt:and Re9ommen,taf!pn dated May 24,.

2016 not' inconsistent with ·.t,h.is1 Order $h�1J remain in �ffect and' �e·made a.Final Order of

Court.

ii. This' constitutes a.:fi.lil�i .order or decree, ff�ppli¢able�: this -otdet .or decree. shal] he

.ertfet�,r asajudgme.nfby tbe-Office0f.Coµ_tt:Recotds ..Rule,13'6.NQticeto be issued oy·th�= . __ , I - . Offic.e ofC01,1rt Records.

'.BY'tHE COURT; JJltJ.HB'COURTOF COMMON PLEAS ,bf A[.LEGHE.NY COUNTY,.PENNSYLVANlA.

RUTH .. .. POPE �· FAMILY ]).IVISION.

No; FD 14.-007809.;QJl ;Stip�r-ior 9ow1 #-i:39-7 WDA 20'.17

vs.

Ot(NJOI�r . JUDGE MA.RI( \t '.UlAJ�QUILLI

ANITA BURROUGHS�

Copies served. by ,fitst class. mail ·upon: ·Couns�JJqr Plaintiff: ·I.

:Barbara Sh�,. Esq. �824 l'.:.ibrory, Road Bethel Par:k!. PA l}I Q4 C.elln$�l forDefendant'Howard Pope: hi -� V¢r.d�{l Dean, Esq� �-. .429; Fprb.es, Ave, · .. J�,· :, . Allegheny-Building; Suite 1609 fitts.b\lrg)l; PA l5Qf9.

Counsel ·�.. - for'Defendant . . . . Anita - . . .. Burroughs: Lisa Michel, Esq; 564 fprb�s-Avenue, Suite .1 J IJ: Pittsburgh, PA l $�'t9

- - --- .. ,,, _,.,_, __ .,. ,,,,., ,----·---·-- -·--···-- - .. .- , __ , , ------·--- IN TH£ CQ\JRT-OF COMMON -PLEA:� OFALLEGHENY'COUNtX, -P�NNSY,LVANlA

RUTH. POPE . . ' ) F.AM.IL Y :DIVISION. ) ) N9 :fD- i4:-007809.:Q.t1 1

} Sup�riorCowt'#l._397 W.DA-2017 vs -, ), ) HOWARD POPE,. (ciecease�)· ) ) ) vs. ) ) ANITA . .. . .. . .. ..BURROUGHS.,. ) ) Defendant ):

-OPINION ·... ,.

MAIU{V•. TRANQUILLl;J� November3'0, 2011."

The;PJ�intiff; hereinafterWife; appeals from theAugµst.29!:40l7,· Order on· ·E�ce.ptfons . and .the Sep,�m;b.er 15;.2017' Otdet enteredon.her '· : . Motion for

Recohsjd�ratip,n. A timely .Notj��.-of Appeal was· filed· on September 2% 20] .7 and cm. October s,,.2017· Wife:was ordered to file.aConcise Statement:o(M.a.tte.rs-C.oroplained of

on:-Appe_aJ. A �qncis� statemen; was fited.on0¢tQ.l)er.�2.6;.20Prw.heteirt Wife complains

ofei�ht {8) errors ..

RELEVANT HISTORY.

The parties·wer� marriedfor thirty-two (32) years, haV.ih$ m@irie,cl:onJune26,

l982 with a stipulated date.of s�p��tion,ofSeptember9., 2Ql4. It is::unconte&ted-that

fiushano wmdn poor health during the divorce Htig�tion, .having been -d1agn6sea in 10 ii

l

--·-------· --·--------·--···--·-----····-·· with canc.�rofthe ·spinal cord. r At;the·· time.ofthe equitable :�i�trfbutionfrial Husband was etghty.;orte .(S l}years old, Wife was ..�:eventy.. eight (78) and b<;>th p�ie.s were retired,

This case .was subj�c( to ,�onstderable Iitigation, which included a: simultaneous action inii.iatefby Wife in Orphan's Cour::treg�rding!aµ-pstfQrm.ed bytheparties ,i11:}Wo.veJJ1ber

.of2013. tl.iat_ was to-include.maritaf assets.. The Orphan 's QQlllt:action was; filed, in :April

:of20l4, frv.�, (�) months prior to Wife. filing for divorce.and while tb�:paoies were still

living together. Thi� (l&tjo,t was, resolved ,during t})� .P�nd'�ncy .of'the. divorcein July. of . . 2015/ ,On:.May JS·, 201-:s:; 'Husband; s. d�1,1ght�r, Anita Burroughs, vv.a� jqine.d. as an a4ditionalparty,-to·the:.Qiv.orce.actiort as she:ser.veµ asHusband'sPowet·of /,\.ttomey arid. . was also � benefi�iary of'c¢.rt�.i:. maritalassets. BfOrder datedOctober 30, zois, the

Master Was 'appqjnt� to he.arequita:ble :c;J.i�tnl>ution. and. a: lW.o {2)' ��y; trial. took place ·Ort

March,8 .and 9, 201� ..Master'Chestel"Beattie iss��d� Report and.Recommendation on

M�y:;24, 20l6�arid WifeJU�d-E��epti�ns on.June J0;,20.16, OnJune 22,:2016 Husband

'passed �:way/ ·Ft1s death, s�rved as the basis for WifeJ>resent.i.ng a Jyiotion: fo Reopen the

Record, which was ,�eQie,d. on .July 15; 201.6 along with requests. forother �lief, . . ,. . � . t'. . . . •. ,. ,. . •

Briefs in sUP,J?Oit ·ah4' cpposition to Wife's: Exceptions were :co·ntinued.n�m�r.ous

times atthe request and consent of �.lw parties and · argument: w�i eventually scheduled cm, April '.28, -2'017 .4 · Du.e Jo �e. volum:e-ai'id :cornplexity of the record and issues •. the Col.lrt 0

issued jt$ Order on. Except.iQn� on A.ugu�t: 29, 2017., On ·$-�pt�mber IS, i2017� :wlfe.

I See $.@l!latioris filed May 24� 2�>l(i_.. (Dqcu"'ent: i ()2). 2· Oi:P.h�ris. Ci:furt docket: No. 201 .t t of:2

,,_,,_ .. ,, ,,.. ,,,.,_,, ,__ ,_,, _ , ,, __ , ,, ·--- pr�sen.ted a;.Mofio·n:fotR��ons.id¢ration of the. Augµ.�t. Order, . It wasdenied, with· the ·exceptioq·o(conecting the:V�!\l� Qf a �ingJe propertythat ha.a not been red·ucedJo reflect- thecost of�l\le consistent.with the c·otµ't's,Aug�st 29./20l7 0r4er:t It-is frem.theseIast ..

two (2) Orders that Wif� has filed the pr�s�mt ijppea:i.

STATEMENT OF ERRORS COMPLAJNEi> ..OF·ON APPEAL

· WiJt.:. outlines =eight {8) �IIors in her. Concise.Statemenrof Matters CornJU�in�.of

.()rfA,ppeal. The Qourt, entered :�i' compr�b,�psi,v.�. Order oh' Augi.l$t 29t 2.017' wherein ·it provided sufntientte��qi)ipgJor many of'therpresentmatters compleined.of.by Wffei To

a:yoi9 redundancy.the Cow:t:i�cor.porates:tb.eA��st:29.,..2Ql7 Order and.to-the extent

:necessary ·to.adgre��re.n:iaining: issues rai$�d by Wife.�. the Court offersJheJollowini -opinion..

the first c-omplaiiit .listed J.n Wife? s C:Oncise, St�t�men:t is. that the Coµn erredjn

r.ef\i$ing to reopen the record 'to .c.ons{c;l�r changed; circumstf!ll�es after the.death of

'f.h.1s.band..6 The! releya11t .. time line; �·for this 'iss:u.e is' as follows: theieq�it�ble distribution ,

trial tQok place on Match 8 �d 9,. '.ZO 16'; the- MastedssQ.�d:)lis Report; and

Recommendation on: May- 24, 2016; a.t:tqll1.1sl>an'd diedon J1.Jn¢ ;i�� .2Ql6. On Jul fl s,

�01 & Wife petitione�f:Jb:is,QQurt Jo :re�perith� .r,ecord:,cfoe to .Husband's death arguingthat

the. v�t;ie hf.certain -marital pr:9pei,ty ,subje.cttb. distribution had: changed and ·��t ih�-

. . .. reconsiderihis Mastershould .. . .. . recommendation .. -· of a '50/5.0 distribution : . : : . ,. . . . .as. the-needs ...· of'the .. ,

:S.See ©r:der d��ed Sep�¢Q'i.t;,e,i:- J.s; 20 i 1-. (Ooctnnent 171) .

....... -···-···.. ,..... ---··-··-···--......_.,_,,, ,,,, ,, ·---- ·---------- ·---- ·-------- The �t�qard for:reviewing:B,;. Court.'.s decision to: dehy.·�fP�(i.tfon to R.e-Q�eh the Record is' abuse·Qf:4i�ci:etion. Aloi». Aloi; 44$ A2d°-81�) 820.:(Pa:�µp_er. }9.82)� Neither

at the.presentatiot; of the· &fotfon 'to Reopernhe,:Recor4; ,norsin; her: :Concis� $t.�ternent; did

Wif� prnvic.l� any-auihority-in sypport:ofher position fu�t:the.record should.be reopened.

Granting. Wiife;�s motion would ha'{e. served.to allow. her to r¢)ltigati:: equitable distribution: a-matterwhich hadbeen fillly'h.earcfand-decid�a t;y the &faster. q:'h(parties.,

were both alive ,at-the,tirp� ,e>f trial. and iss·dance. ohh¢.· Recommendation, wit_� an

expectation that.the decision bfought: finality te the· matter;. The· record does not support ·

tbat the Coµrt abused Hs rauthority iii deriyin,g \Vite; S; motion, arid' therefore should be:

... 'Wife; s second issue. on ..appeal ,c.halfenges the 'Court 's. denial. of the Bxceptions 1.. ..

tefo:i1ve·,fo. the Master' s e.viclentiary rulifi.�$. The .adrnissien or ¢�cfo�iQn .of"evid¢n.c¢; is withiJJJhe 'sound-discrefior; ofthe trial court, and �r.ev�rsal should oti.W occur �po.n ·a

·showi�g of.abuseof disctetion,()n�r.ror o{law•. Zukv. Zuk, ;5$' A;3d:t02-(Pa.Supe.r.�OJ21

"An•ahuse·o'f.4tscr,etion may not be: fo�w

In .addition, tp constitute reversible �rroi;, an. ¢vici'e11tiacy· rtiling'.111:iJ$.t not only be ." ..

.erronecus; but-also harmfu] or prejudicial 'to, fhe. compl_ainfog party," .Jd;,. citing, Jacobs· v:.

.. appeal deni�d. Chdtwan1.. '9. .22 A;2d '.950, 960 (P�:.'Super.;2007),, .· ' ·. ,, . 595- P.a. '708,:93 �- A.�d. .. ..

j 0.5.3 (2001.). r,

-----" ·---- ·---- SpecjJiqa}ly; Wife contends tbat .tfre Court, �tt¢d 'in denying ·her, ExceptionsJo the

Master's .evitlenti�y.TIJli�gs, an

TheCourt.will .address the Jart.er issue first,

In V.li(e?s Brief in 'Sup.port'of Exceptions she .argued thatshe object�cl numerons

times .to,Husb�nd'·s, . .summatized·t��tjrnony. because . . it wi1$'�cl��;; thatthe . testimonywas; . .

not his own, while .simultaneously at�ing that Husband was somehow not corqpetent to · testify, ·7 'Wife's Clainrth�l kltt$band_ was not competent as .a witness' sho�l4 be dismissed

as she did nq\ challenge:his ,c.ompet�:n.cy t6 testify at trial, the ·only' tangential' argument regarding.Husband's competency occurred in"Wife':s .Medifled Brief in .Supp-oh of

. E?(c�ptiQDS; wherein ·sn¢ ·�?\t{apoiated that because ijusband's,cotifi$�1' chose to,

summarize hfa·t�sti't11t>ny sfi¢ mµ$.t haye·questioned hls,�9..�p�tertcy andshould :have

Dl'.O,Ughtthis to the: Court' S attention:8 .However, :simply- put, neither Wife· nor Hus band 1

put Jhe Issue of his, comp�t�ncy before- the, Court, after whfoh a heating w.pµ)d haye'.taken place; With.th¢ burden on· the: ch�Jl�nging,party fo. disest�tili.s.h· com.p.etencfby �l�@.f and

¢.qnvincirtg .evid�n¢�... Commdnwe¢1th v, /Joich, 982 A.2d 104.t 1. 0.9�1 lO (Pa:Super.)!. As this issue was not pro�rly raised 'it should be, deemed waived and .df$mi'�sed·.

As-to her-argument' ttuw t.be: Master-erred in permittingHusband's 'testimony to be;

summarized, Wife. does not demonstrate what prejudice- she suffcr,ed as a result of'this Ionnof'testlmony; -Husband' was subject to cross ,exarri1.natfon by Wif�, ;me} the ,court

sees: no s.upport: for, fi'rtding prejudi��. W.1fe:'.s boilerplate �.IJ.�gatfon of pr¢Judi<;e Is in§.u(fident ·te, s.atisfy fle.r burden oh '.�P.pe�J and as. such, ,should., be dismissed,

7 • Pf�!nt\fr.� M��!fi'!� Br.1enn Sµeport, of,E)(ceptions to the Master's Report.and Recom111e11dali'on;. pg. 24. & Plamt1ff's M.o.d1fie

$'.

..... ,.,,,.__,., . ....., ,,,,., ...... ,,., ,, ,, , ,, ,,. , ,,,, ..... ,_.. ,, ...... -.-. .• As to the remaining ev.i'dentiary rulings detailed irr this. second- appeal Issue, die

Coµn relieson . 'its.Augµst . .. 29,,'.. 2017 Order; �pecificaUy -. wherein . it addresses $���ption . .R

numerous .ttanscnpt pases :ii1,h�r ConciseStaternent, the. vast maJoiity 0£ which.-we.t:� not

referenced �t f.b� dme- thi.s Court ruled on the Exc·�ptions and Motion tor Reconsideration.

To. the contrary� the Court was 'leff to suttrii,�e the: bulk of Wife'-s <;:ompl�i:nts:fr.om a.six

{�)..page protracted diatribe, which '.is not.the Colin' s responsibility. Throughout the trial',

Wife .continye.d to' argue herpositiontha; F.lµsband· and/or his .f®:tllY were:tryiil� to. div.�$t

hef of her share ofthe.marital estate throYigh 'the construction P.f-the,tru.$t and the creation

of:hi$ wfU. A revlewof the record shows· that the Ma.stet either found, this evidence

irrelevant or notcredible, and tne'C9w:):fou11�- nothirigin the recQr.dth�twould supper; thafthe·,Ma,ster·;abi.l$�d l:li�. d1scretipn =in making those .rulings, havillg the 'benefit of

h��jng;the testimony first,. h�n4. Furthermore, ·wif.e gid not demonstrate. the preJucHce

necessary to.constitute revei:sible.�n:Qt.

Thefem;ii_nit1g issues raised. omapp�_aj .�e :asso:ciafod ·wid:i t.b� e.qµitable

.di�tf.U>u.t.ion award. It is w.eJts�ttl¢.d that the scope of'review of an order for equitable distribution i_s limited and.absent a.n abuse ofdisctetiori Wilf nor he disturbed, Litmans v,,

Litmans, 673 A2�f382,,386:(Pa:;S4.per. '1996)-ciiing,_Millerv. Mrllfr� 61.7A2d 375

(PaiSµper.� J.992}. Iris only' if the trial. court failed to follow prQper p.toc�<;l.1J.I'.� ·or

mlsappliedthe 'lawfhatan abiise·ofcli��-r: eth:m will.be found! .f(J,

_Iii her third complain], Wife raises' two (2) .matters related to :the. ·Orphan:'$ Court

action .she iriitla\e.d. 'First; that the (::Qµrt. erred by, failingte award her .attomey feesfor

this action, Seconci.,-tli�t:it erred. in failing:tQ skewequitable cJistrib.aJtion. inher favor, as

6 she asserts the action was Initiated to:.pr�s�f.V¢ the marital esta.t�; At Exceptions, ·wfr� . �rgl.(�.d that the Master · made erroneous findings regardingthe ba�is. for-th� Orphan's

Coiro .case. because he was sornehowmlsinformed .about the action.itself; ffowever; this

-allegationfs, belied' by the, record, whl�h Illustrates that the }Aaster heard.len�y

:testimontfrom Brian .Catale, theindiv.ic,i'ua,I who advised and.assisted in preparation of

the trust: formed.in 2.0l3. Based.on this eyJd.eµce the Mastet)rtaq� a: pr�dibility

determinatiorrthat the trustwasformed.as part ofA.famHy decision to-allowHusband to

be'. eligible for veteran's medical 'benefits, 9 As the' ti1.1st itselfwas 'formed in.November

20f3 and W.ife initi@te.d herOrphan's Court {lctfon.approximate�yfiye (5) months prior to-.

filingJor div.or.ce" the Court did not err in .affirming the Master's. Recommendation net.io

award counse] fees' orskew the. distriJ�µti'on 'based 90· this action",to terminate- the: trµst.:

Wife was· also :denied eounsel fees (9�the divorce. actionitself, 'and 'raises this as an issue, for appeal, as: detai.l�d :tn: -claim number �i�. l6t The standard' ofrev-fow. for an

award or denial -of.counse'l fees is EJ:ouse otdiscretio.n. Busse y; .ausse.i 92:l A2q. 1.'248

(P�:,&uner, :2007), see @IS,o,, -Litm.ttns·,at:390,, Tid� 23. §?.7Q2:pennit�'th� Courtto :�ttarit:th,i� neeefs·base_d. relief. Corisid�rations-include the :p�rty 's ,ai,iiity t6 :pay,� his./her financial resources, the value ofthe ,setvi��s ;u)_d the. property rec�iye�t Jn equitable dj�tribµtion..

·fd.at;l258 (citing,·Teqda,r.sfd:v. Teodot�ki, 851' a�24194,20l.(���Super;. 20:04). In

revi�w.in.g. the record.the Court findsno abuse '.Qfdj'sc_retion: in de,.Qying Wife''s claim, for

;counsel .fees, :Wife was :receiving'$!, ... .. i 06'..8 l in 'alimonypendente .. .litW(APL), .· ·. tID.d, . the

Master- properly considered that.the tiltim�t� 4.is.tribution to the parties provided ;·suffi_9j�nt

.assetsro p�y'thdr'.respectiveLcou_ns.el fees-

9 Repoif�t:I· R.e¢ommertdation oft.he�M.�ter1 Section ,F'"Wif�.1� Counsel Fee .Claim"; 7

··············-······, .. ,, .., .. ,., ,_ - - _..,.._... ,_ ,,._ ,.. ,-.... ,.-.-..,, --,----·----·-..·--·- .....,.,... .,., "' _ , __ ,._ ,_ ._._ _.__. b�µ� four{4) .asserts that:in.e:Court erred in failing. to 'consider the: tax

consequences .. 9.f. retirement �ssets .. awarded. to Husband and Wife, The'. Gournecognizes, -· ,.

that'it must consi9er:-t.1Je·economic.circums�rwes:ofthe. parties at th<:lim� property

distribution becomes: eff�¢ti_ve, including=Federe), State arid focal tax.ramifications

·as·sociat.ed: with.c.ach. asset tcr b� �1vi4�4,· distributed· or �sig�¢d, whi'ch·ramificatiQQ.S

dls�ibution trial took p)ace ov.¢t 'a two (2) d�y per(o'.d; and Wif¢ does .notcite any portion

of.the,r�c<;>rd>where,either party offered' anyevidenee.to the:M�ster as to:What.tlwta"

ramifications woµJq. be or anymethodology for making such a' determination. Thus? any ·�wa.rds,preniised:�pon;t�2:c: r�itications Would .Jiav� 'been speculative, c\\.S. an analysis, Wpµkf'. reqµite . .. considerationef .v.atipus:fa:ctots, . � b.qt .110.t Iirtrited .to, taxable including,

.income, tax bracket,. tax rate: ·apd :a. . p�f s age, .As the :Coutts favor reasonable

predictabiiiiy a.Yet speculation, this .court �fd. not.ertln affirmin�the.;Master's

.R�c.59 .A.2d .125.9· at I'.26.9 (p,a:$µp,er.. 1g,9.5);Anza_lww V.: Anzalone, 8�$ A,2d 77.3 at 782.,.783: (Pa.Super, 2003).

.ln..:})�r fifth ·daim:6.f error, 'Wife 'asserts tha; the ·Q0ur.t'.'etted -in determining that a

fifty�fifty (50/SO) split:ofthe.marita.l estat¢Was·:approptiat¢:. The C.ourrsuffici'entjy-

·a4dr¢ssed this' 'issue i'nJts\A�gust '.29', Order; ·ang. i:es�s· orrthe teas9nfog pr:ovided 'in.

para��P� number 'six (6�: f,(s, tQ<\Vife's Exception L,

Iii her.seventh-complaint, Wif��rg_1,1es that the Mast�nm:edfo refusing to

con�ide:r:.}Iusband':s.APL .��M.s;as pan of the ·eqyltable d1sfribuiiofr aw�(g. Arthe,

outset, th� Clo�rt-:ftrnis that this 'issue ts. W�i.ved as: it..was n9t..r:ijlsed :,n .her ExcepJio.ns filed

··•••"••-·-·····-- _,.,- ·-··---·-··-··-·.. ·--··- . ····----·······-··--- .. ·----·---- .. iJ:iat;it , ls reviewable theclaim should be··cli�mi$sed., as the· Master �id,.. in fact, provide Ji;,r

G. Recommended . Award: .

4.:Witb respect ,q t��·S.2;145�80 Wife ewes J{u,sband, ·this )am.��ntshaU first: be .offse.t: by @�Y- existing· API,,. �rr,.ars. owed by Husb�nct., The remaming differe11,c� between . the· afot�meotioned :$2i145�8o: sha.U be; reduced from 'llµsJ>an.d?s NY Life·whol�l(f.e.;policy W.if� ifre4;.�iy.1ng.rn·

deemed waived; During. Except_i<;ms� Wife claimed thatthe: Nfaster:erred iit determining: what was a marit�l :deb.t,artd which .party : .. entitled to, a . ct�gft,. . . w�s Jt was only. in her M9tiQil for Re¢onsider�tiontliat Wife: raised, fo_rtb.e first time, thatJIJ�,val:ues. of the debts·

and c�e(iits; were miscalculated,' 1. thus, ihis.Couit.di4 not. have. the· oppOqyp.ity.·to' review the record at.the.time of.Exc�ptiort�. relativeto thls'mathemattcal error. Valuation of'the

.marital debt and creditis ·� separate issue that could have, and shotd'd have been, raised �t

Excep\i�msf as 'W1fe .did.-regar<,ti.�g other assets, ·a�· noted in .B, F� ·G,Jind ·I.1{iJi¢r Exception

Brief:, However, to :ine extent that the -S.4peri91: Cotid believes.that. Wife has properly

r�f$�il a. claim, this Coyrt relies.upon the ,t¢asoni!.1& in its,A�g'tl'St 29, 2017' Order:

10 Report.and'Reecmmendatlon.of the Mas(t;f p,g·. B-.f4. 11 111 its September- I.$, :mf 1 '0.rder':on: th�'.�otjQtl .for ,Reconsideration. �11e CQui1 acknowledged itS·QWg fn�thematical er.r

. �·

.....,-...·-··---··.. ·-·--···--- -·--···-·..----··------------ For ali the foregoing;reasons; - th�'. Trial :Com1.'stulin:gs . 'should ·b�. affirmed.

BY 'THE COPRT,

::.

ro

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