Tagnani v. Tagnani

654 A.2d 1136, 439 Pa. Super. 596, 1995 Pa. Super. LEXIS 274
CourtSuperior Court of Pennsylvania
DecidedFebruary 15, 1995
StatusPublished
Cited by21 cases

This text of 654 A.2d 1136 (Tagnani v. Tagnani) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tagnani v. Tagnani, 654 A.2d 1136, 439 Pa. Super. 596, 1995 Pa. Super. LEXIS 274 (Pa. Ct. App. 1995).

Opinions

[599]*599CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Luzerne County. We affirm.

The parties, appellant Ellen Tagnani (‘Wife”) and appellee, Sylvano Tagnani (“Husband”) were granted a bifurcated divorce on June 22,1989. Economic claims were heard before a Master. Husband filed exceptions to the Master’s report and Proposed Order. The trial court upheld the Master’s recommendations with the exception of the following: (1) the cash award to Wife in the amount of $50,793.23 was reversed; (2) the alimony award to Wife was reduced to $750.00 dollars per month, indefinitely; and (3) the award of $10,000.00 in counsel fees to Wife was reversed. Wife filed this appeal and raises the following issues for our review:

1. Did the trial court commit reversible error by failing to defer to the Master on the following issues of credibility:
a. finding that two Northeastern Bank accounts were not marital assets,
b. including in the marital estate $60,000.00 that Wife holds in trust for her daughter and granddaughter,
c. rejecting the Master’s finding that Wife borrowed $66,000.00 from Thomas Maher, and
d. rejecting the Master’s findings regarding Wife’s medical condition.
2. Did the trial court commit reversible error by modifying Wife’s alimony award to $750.00 per month?
3. Did the trial court commit reversible error by eliminating the $50,793.00 cash award to Wife?
4. Did the trial court commit reversible error by eliminating counsel fees and costs awarded to Wife?

Wife contends that the trial court erred in reversing some of the Master’s recommendations, where those recommendations were based on findings of credibility. Wife argues that where the credibility of the parties is in issue, the trial court is bound by the Master’s findings.

[600]*600Notwithstanding the fact that the Master observes and hears the testimony of the witnesses, the trial court is not bound by the master’s recommendations. Murphy v. Murphy, 410 Pa.Super. 146, 153-54, 599 A.2d 647, 651 (1991), appeal denied, 530 Pa. 633, 606 A.2d 902, cert. den., — U.S. -, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992). “In reviewing the trial court’s determination, we must keep in mind that the court was free to accept or reject the parties’ testimony.” Sergi v. Sergi, 351 Pa.Super. 588, 597, 506 A.2d 928, 933 (1986) (citation omitted). “Although the master’s report is entitled to great weight, that final responsibility for making the [equitable] distribution [of property] rests with the court. Our review is thus based on the court’s distribution of property.” Trembach v. Trembach, 419 Pa.Super. 80, 86, 615 A.2d 33, 36 (1992) (citing Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986)).

The determination of whether an asset is part of the marital estate is a matter within the sound discretion of the trial court. Perlberger v. Perlberger, 426 Pa.Super 245, 263-64, 626 A.2d 1186, 1196 (1993) (citing Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983)). An abuse of discretion is only found where the trial court does not follow legal procedure or misapplies the law. If supported by credible evidence, we will not reverse a trial court’s findings of fact. Perlberger, supra.

Wife contends that the Master erred: in finding two Northeastern Bank accounts were not marital assets; by including in the marital estate $60,000.00 that Wife holds in trust; by rejecting the claim that Wife received a $66,000.00 loan; and by eliminating the $50,793.00 cash award to Wife.

Wife testified as to the existence of a Northeastern Bank account, a Northeastern Bank certificate of deposit, and a trust fund for her daughter and granddaughter in the amount of $60,000.00. Wife further testified that she received a $66,000.00 loan. The trial court found no corroborating documentation in the certified record to support these contentions. Husband denied that the two bank accounts existed at the [601]*601time of separation, that a trust fund existed, and that Wife received a $66,000.00 loan.

In Wayda v. Wayda, 395 Pa.Super. 94, 104-05, 576 A.2d 1060, 1065 (1990), the court declined to accept the undocumented testimony of wife that she had an agreement with her father to do work around the house in exchange for a reduction in a debt owed to him. In the absence of written evidence, the trial court is “free to assign whatever weight it chose to this testimony.” Wayda, 395 Pa.Super. at 106-07, 576 A.2d at 1066. See also Sergi v. Sergi 351 Pa.Super. 588, 597-98, 506 A.2d 928, 933 (1986) (where husband and wife disagreed as to the amount of premarital cash contributed by wife to their joint account, the trial court was free to accept or reject either parties’ testimony).

In the instant case, as in Wayda, the trial court chose not to acknowledge the existence of the bank accounts, the trust fund, or the loan in the absence of other written documentation. “In the absence of an error of law or an abuse of discretion, this court is bound by the findings of fact of the lower court.” Wayda, 395 Pa.Super. at 106-07, 576 at 1066 (citation omitted). After a careful review of the record, we find no abuse of discretion. Wayda, swpra.

Wife next contends that the trial court erred by eliminating the $50,793.00 cash award to her. The trial court found that this cash award, in addition to the assets retained at the time of separation as well as the amount of money and assets received from the distribution of property, was not equitable.1 [602]*602“Absent an abuse of discretion on the part of the trial court, we will not reverse an award of equitable distribution.” Murphy, 410 Pa.Super. at 158-59, 599 A.2d at 653. After a careful review of the record, we find no abuse of discretion. Murphy, supra.

Wife further asserts that the trial court erred in rejecting the Master’s findings regarding her medical disability. The issue of physical impairment and the ability to earn money is a factual one. O’Callaghan v. O’Callaghan, 530 Pa. 176, 180-81, 607 A.2d 735, 737 (1992). Evidence was presented that Wife had worked as a private duty nurse, earning $140.00 per day. Wife was also a licensed real estate agent.

Wife offered no medical testimony regarding her alleged medical disability. Wife’s condition “did not concern matters with which a lay person would be familiar,” nor was the identity of Wife’s physician(s) known to Husband so that her testimony could have been refuted. Verdile v.

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Tagnani v. Tagnani
654 A.2d 1136 (Superior Court of Pennsylvania, 1995)

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Bluebook (online)
654 A.2d 1136, 439 Pa. Super. 596, 1995 Pa. Super. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tagnani-v-tagnani-pasuperct-1995.