source: Caselaw Access Project

author: KELLER, J.,

license: Public Domain

text:
    Springborn v. Springborn

      Jill Gehman Koestel, for plaintiff.

      Alan B. Ziegler, for defendant.
    February 23, 2009
   KELLER, J.,

The defendant/appellant in the above captioned case appeals this court’s order of November 25,2008 granting the parties a divorce and equitably dividing the marital property. The current appeal was filed by appellant’s counsel, Alan B. Ziegler, Esquire on December 26, 2008.

On January 7,2009, this court issued an order pursuant to Pa.R.A.P. 1925(b) directing the appellant in the above captioned case to file of record and serve upon this court a concise statement of errors complained of on appeal no later than 21 days after the date of that order. The concise statement was filed on January 21,2009 and raises a multitude of issues on appeal, indeed, it is not so concise a statement at all. Those issues, though long and containing run-on sentences that would cause an English professor to shudder on sight, are set forth fully below. They are:

“(1) Did the master and the lower court err in failing to fix the value of the marital home at 40 Beach Road, Mohnton, Berks County, Pennsylvania in the amount of $23 8,000 as established by the expert testimony of James McDevitt, the value being fixed in October 2005 when the husband repaired said property and moved out of the property so that it could be sold when the market in October 2005 to sell real estate was very good, but thereafter Wife changed her mind, refused to sell the property, moved back into the marital property, brought cats into the property which urinated on the rugs in the property and delayed the sale of the marital property until she again changed her mind and desired to sell the property, at which time the real estate market had substantially weakened?
“(2) Did the master and the lower court err in concluding ‘the master has averaged the (oral) offers that have been made on the house, and has determined that the average is $213,000. The master therefore believes it would be equitable that the parties accept an offer for the house that meets or exceed [sic] the market value. The master believes that $213,00 [sic] is the market value of the home since it represents the results of five (oral) offers from five prospective buys in the open market?’
“(3) Did the master err in finding ‘Husband has refused to agree to sell the property because he wants more money than potential buys are offering’ and that Husband was ‘at fault’ in causing the property to have been on the market for an extended period of time?
“(4) The master and the lower court [erred] in finding ‘regarding the $6,000 escrow account that was to be funded by Wife, the master realizes that the $6,000 is Wife’s money, and not marital funds’ when the above sum was the estimated equity in the marital property, where the Wife was deeded sole title to the marital property in return for escrowing the sum and sold said marital property for a profit and therefore Husband received no equity from sale of the marital residence.
“(5) Did the master and the lower court err in concluding ‘the master therefore finds that since the payoff of the loans resulted in the $ 17,000.17 value as of April 20, 2005, the actual marital value of Wife’s 401k plan as of the date of final separation is $13,256.23’ rather then [sic] $27,000 as valued at time of trial?
“(6) Did the Honorable Scott Lash, the divorce master, and the Honorable Scott Keller err in failing to grant defendant’s motion for summary judgment and err in failing to grant defendant’s request for reasonable attorney’s fees when the plaintiff filed a petition for special relief to force the specific performance for the sale of the marital property at 40 Beach Road, Mohnton, Berks County, Pennsylvania without enclosing therein a written agreement of sale for the purchase of said property in violation of the statute of frauds and when she withdrew the petition for special relief to avoid the court granting the motion for summary judgment and when the master failed to award attorney’s fees pursuant to the June 29, 2007 order of court?
“(7) Did the master and the lower court err in failing to award reasonable attorney’s fees to defendant by using an improper analysis for whether to award attorney’s fees? The factors to be reviewed in fixing attorney’s fees are the payer’s ability to pay, the requesting party’s financial resources, the value of the services rendered and the property received in equitable distribution.
“(8) Did the master and the lower court err in considering the testimony of Ann Springborn, North West, Lee Savant and Rita Savant concerning alleged martial misconduct concerning arguments that the plaintiff and defendant had and other alleged incidents more thoroughly enumerated herein since the testimony did not rise to the level of being marital misconduct as set forth in section 3701 of the Divorce Code, was not relevant to the case and was the basis for the mater’s [sic] justification of disregarding the testimony of the wife’s continual sexual infidelity to Husband during the marriage?
“(9) Did the master and the lower court err in refusing to direct Lee J. Savant and Rita Savant to testify whether Linda Springborn, plaintiff, was a beneficiary of their will, a beneficiary of their life insurance policy, a beneficiary of their retirement, a beneficiary of their Keogh plan and/or a beneficiary of their pension plan?
“(10) Did the master and the lower court err in limiting the defendant/husband’s alimony from his wife to two years based on the circumstances of the case where Husband showed an overwhelming case for alimony and when the master and the lower court considered improper testimony presented by the wife and because the master and the lower court refused to admit and consider relevant testimony?
“(11) Did the lower court violate due process and equal protection under the Pennsylvania and United States Constitutions after the defendant filed a ‘motion to order production of transcription of record and refund of overpayment of transcription costs’ when the court did engage in the following:
“(a) signed an ‘order rule to show cause’ scheduling an ‘evidentiary hearing in disputed issues of material fact ... to be held on May 6, 2008, at 1:30 o’clock p.m., in courtroom 9 of Berks County Courthouse,’ but did not require the other parties to file an answer to the ‘motion to order production of transcription of record and refund of overpayment of transcriptions costs’ so that one could not determine what disputed facts had to be determined at the hearing;
“(b) failed to accept in the ‘motion to order production of transcription of record and refund of overpayment of transcription costs’ as admitted fact herein since no answers were filed to said motion;
“(c) failed to take testimony under oath;
“(d) failed to give the defendant credit in the transcription costs, appearance fee paid by plaintiff and defendant for July 17, 2007, August 17, 2007 and September 13, 2007 hearings so the defendant paid an excessive fee to have these records transcribed;
“(e) failed to set down the procedures for transcription costs of the master’s hearing in Berks County so that the attorneys can have access to the same by setting them forth in the Berks County Rules of Courts and instead permit the stenographers randomly in each case to set their own fees;
“(f) placing the defendant with very limited funds in a difficult position to get the records transcribed so he can proceed with his appeal of the master’s rulings by not setting forth a clear procedure to be followed in paying the stenographer’s fee, in fixing how the stenographer’s rate shall be set, and giving the parties credit for the appearance fees paid to the stenographers and did not permit defendant to present subpoenaed witnesses in this case?”

PROCEDURAL HISTORY

Not unlike many cases this court has become accustomed to hearing, the Springboms’ adventure began with nuptial bliss and ended with accusations and divorce. And, as it did with the lives contained in those tales, this court finds itself, yet again, in the unhappy circumstance of having to navigate the tumultuous waters between two warring parties, seeking to find equilibrium between Husband, Wife, and Lady Justice.

The divorce proceedings commenced on October 27, 2004 when Jonathan Batdorf, Esq. filed a complaint in divorce on behalf of Wife. Husband answered Wife’s complaint with a counterclaim, including requests for equitable distribution of the marital property, and for spousal support and/or alimony pendente lite on April 28,2005. Thereafter, Atty. Batdorf withdrew his appearance on behalf of Wife and Jill Gehman Koestel, Esq. entered her appearance. Both parties then filed their inventory. On February 21,2007 Atty. Koestel motioned for appointment of a regular/special master after which Gary S. Fronheiser was appointed on February 26,2007. On June 22,2007 Atty. Koestel filed a petition for special relief on behalf of Wife requesting this court order Husband to agree to the reduced price offered by a prospective buyer of the marital residence and to allow settlement to occur. She further requested this court order that any deficit paid by Wife at settlement be contained in the master’s hearing scheduled for July 19, 2007, and that Husband pay Wife’s attorney’s fees for the filing of the petition for special relief. The court issued a rule to show cause and scheduled a hearing for June 29, 2007. Attorney Ziegler then promptly filed an answer to said petition. Subsequently, Husband filed a motion for summary judgment to dismiss petition for special relief on grounds that that parties were before Judge Scott Lash on Friday June 22, 2007 where Judge Lash indicated to Atty. Koestel that a proposed written agreement of sale must be provided, and that Atty. Koestel responded that Atty. Ziegler would have the proposed agreement the following Monday. No agreement arrived. It should be noted that the report of the special master later indicated that Mr. Whitman, a realtor presented by Wife, testified that he only had an oral offer from the prospective buyers, and no down payment, thus indicating that there was no agreement of sale for Ms. Koestel to forward to Mr. Ziegler. Mr. Whitman also noted that though he informed Husband of the offer, Husband never responded. Nonetheless, the following Tuesday another petition for special relief did arrive where again Wife requested the court order Husband to sign an agreement of sale. Atty. Ziegler further alleged that the petition was filed in bad faith and again should be dismissed. Judge Lash issued an order on June 29, 2007 whereby he dismissed the petition for special relief as moot because the offer of sale had been withdrawn, and stated that any issue of attorney’s fees could be raised with the equitable distribution master. Still seeing a need for the marital residence to be sold immediately, Atty. Koestel again filed a petition for special relief on July 26, 2007. Ms. Koestel requested this court order Husband to execute the agreement of sale at the price of $238,000 and to proceed to settlement, as well as award her $1,000 in attorney’s fees. A rule to show cause was issued by this court and a hearing was scheduled for August 23, 2007. On September 4, 2007 this court issued an order providing that Wife should transfer to her counsel $6,000, and said funds should be held in an interest bearing account by Wife’s attorney and Husband’s attorney, and could not be withdrawn without the signature of both counsel. Further, Husband and Wife should execute a deed to the marital residence transferring the marital residence to wife with a receipt for the monies held in escrow, allowing wife to sell the property as she chose. Lastly, we ordered that the master should determine the distribution of the escrow account funds after the conclusion of testimony upon his submission of a report and recommendation. On December 10, 2007 Atty. Fronheiser filed his report and recommendation as special master.

Atty. Ziegler then filed 26 exceptions to the report and recommendation of the special master as well as a motion to extend time for paying for transcribing testimony before divorce master. This court issued an order scheduling a hearing for January 31, 2008 at 10:30 a.m. On that date we denied defendant’s motion to extend time for paying for transcribing testimony before divorce master. On February 7,2008 Atty. Koestel filed a petition to dismiss defendant’s exceptions for failure to comply with B.C.R.P. 1920.55. We granted said petition and dismissed defendant’s exceptions for failure to comply with the rule. Thereafter, Atty. Ziegler filed defendant’s motion to reconsider February 13, 2008 order of Scott D. Keller, J., dismissing exceptions to the master’s report, noting therein that defendant had made a good faith effort to have the record transcribed but had contacted the wrong court reporting organization, as well as pointing out that Atty. Ziegler’s mother passed away causing him to be out of the office for several days. By order of March 4,2008 this court reinstated defendant’s exceptions. On that same date, upon considering defendant’s answer to petition for payment of divorce master, we granted the defendant six months to pay the master’s fee.

On or about April 21,2008 Atty. Koestel filed a motion to credit alimony pendent lite (APL) payments toward the final alimony award. On April 22, 2008 we ordered a rule returnable hearing to be held at the time of the exceptions date as would be set by further order of court. Ahearing was held on May 6,2008 after which we denied defendant’s motion to order production of transcription of record and refund of overpayment of transcription costs. Never ceasing to file more lengthy documents, Atty. Ziegler filed an addendum to exceptions to the report/recommendation of Gary S. Fronheiser, Esq., divorce master on June 19,2008, making the total number of exceptions filed 43, with some of those exceptions having multiple subparts. In response, we issued an order granting the motion to extend time for “paying for transcribing testimony before divorce master and ordered Husband to pay the transcription costs within 90 days. We issued a briefing schedule on July 23,2008, never expecting the massive briefs we would encounter in response. Attorney Ziegler filed his 77-page brief in support of his 43 exceptions on August 12,2008 and Atty. Koestel filed her response brief on August 26,2008. On September 24, 2008 Atty. Koestel filed a praecipe for argument. We scheduled argument on the exceptions on November 13, 2008. Subsequently, on November 21,2008 we issued our discussion and order where we stated:

“Before the court were numbers [sic] exceptions filed by defendant to the report and recommendations of the master in divorce. This court has painstakingly reviewed every exception filed, the master’s report, testimony presented, briefs of counsel and argument of counsel and have [sic] determined that the master performed his function thoroughly and in detail and applied the appropriate law and arrival at ‘equitable’ recommendations with regard to the division of property, counsel fees and alimony as well as a host of collateral issues raised primarily by defendant. We believe NONE of defendant’s 40-plus exceptions have any merit and accordingly, we will sign the recommended divorce decree, however, due to intervening events we will order the following: And now, November 21, 2008, it is hereby ordered and decreed that Husband shall receive 65 percent of the actual proceeds from the sale of the marital residence and Wife shall receive 35 percent. Additionally, we find Husband’s delay in failure to promptly pursue post-hearing procedures, delaying an ultimate decision by this court for a significant period of time to his benefit relative to APL, we order that Wife shall receive a credit toward alimony payments ordered by the decree for three months of APL payments at $1,106.50 per month, total: $3,319.50. The domestic relations section is directed to effectuate an order for alimony for two years payable pursuant to the terms of the recommended divorce decree with Wife receiving the above credit. Additionally, the $6,000 es-crowed by the parties with monies supplied by Wife shall be returned to Wife.” (Discussion and order, 11/21/08 at 1-2.)

We signed the divorce decree onNovember 21,2008. Thereafter, we signed an amended divorce decree on November 25, 2008. The decrees were identical except that the amended decree stated the correct year, 2008, whereas the original stated 2007. Defendant appealed the entry of the amended divorce decree to the Superior Court on December 26,2008. On January 7,2009, more than four years after the initial divorce complaint was filed, we directed the defendant to file a concise statement of matters complained of on appeal. Defendant did so on January 21,2009, where he complained of the 11 issues aforementioned. We now address those issues.

DISCUSSION

At the outset this court would like to voice its displeasure with Husband’s failure to follow the Rules of Pennsylvania Appellate Procedure. Pa.R.A.P. 1925(b) states, “[i]f the judge entering the order giving rise to the notice of appeal (judge) desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal (statement).” The notes to that same rule indicate that such statements must also comply with Pa.R.A.P. 2116, which states, “[the] statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.” (emphasis added) There is some appellate case law on this issue which suggests that complex cases may require more space than that prescribed by the rule, however this is not one such case. See Eiser v. Brown & Williamson Tobacco Corporation, 595 Pa. 366, 938 A.2d 417 (2007). Here, Husband simply appeals the signing of the divorce decree. We find it quite unnecessary for husband to raise 11 issues on appeal, some with multiple subissues to effectuate his purpose, as most of Husband’s issues are copied word for word from the exceptions Husband filed, and we denied, to the report and recommendation of the special master. Unlike in Eiser, we do not have a “complicated [case] that involve[s] multiple issues worthy of arguing on appeal.” Id. at 372, 938 A.2d at 420. On the contrary, we have a divorce involving a relatively small marital estate. Nonetheless, we will address the issues Husband has raised, but implore him to be more cognizant of the Pennsylvania Rules of Appellate Procedure before filing any documents.

(1) Did the Master and the Lower Court Err in Failing To Fix the Value of the Marital Home at 40 Beach Road, Mohnton, Berks County, Pennsylvania in the Amount of $238,000 As Established by the Expert Testimony of James McDevitt, the Value Being Fixed in October 2005 When the Husband Repaired Said Property and Moved Out of the Property So That It Could Be Sold When the Market in October 2005 To Sell Real Estate Was Very Good, But Thereafter Wife Changed Her Mind, Refused To Sell the Property, Moved Back into the Marital Property, Brought Cats into the Property Which Urinated on the Rugs in the Property and Delayed the Sale of the Marital Property Until She Again Changed Her Mind and Desired To Sell the Property, at Which Time the Real Estate Market Had Substantially Weakened?

Husband first argues that the master and this court erred in failing to fix the value of the marital residence at $238,000, as he blames Wife for stalling the sale of the residence until the market softened. However, contrary to Husband’s allegations, this court notes the time line provided by the master in his report which indicates that both parties, at one point or another, were responsible for failing to sell the residence in a timely manner. The master stated:

“[B]oth parties have acted at time to stymie a sale of this house. While Husband emphasized Wife’s having cats in the house, which caused cat urine odor that would make the house less saleable, it appears that the cat odor problem, and the fixing of that problem, all occurred before the listing agreement was signed by both parties on September 17, 2006. There is no direct evidence as to when exactly Wife replaced the urine-stained carpets, but Wife said no offers on the house were received until she replaced the carpets. Wife did not provide an agreement of sale to Husband when she filed a petition for special relief on June 20,2007. However, it appears that an agreement of sale did not exist, and there was only a verbal offer which Wife said, in her petition that Husband had rejected. The court denied Wife’s request for special relief, but not because an agreement of sale was not provided as Husband averred — it was denied because the offer to buy the house had been withdrawn. Husband has refused to agree to a sale because he wants more money than potential buyers are offering, ignoring the advice of the parties’ listing agent. . . The master does not believe that one party or the other is more ‘at fault’ in causing this property to have been on the market for an extended period of time. Both parties have done things which have caused the property to be on the market for an extended length of time.” (Report and recommendation of Gary S. Fronheiser, 12/10/07, at 9-10.) (emphasis added)

Thus, while Wife did contribute to the delay of sale, Husband did also. This court did not, and will not, sanction Husband’s attempt to put all of the blame on Wife for the failure to sell this residence when the housing market was at its peak, noting again Husband’s contribution to that delay, including but not limited to an offer to purchase the property for $238,000 gross on July 6,2007, when Wife agreed to sign the agreement of sale and Husband did not respond to the offer. Had he done so he would have received the $23 8,000 he so ardently desires. Mountains of testimony were taken at the master’s hearing, as to who did what, and who stalled the sale when, and whether oral offers were reduced to writing, yet we remain unconvinced that fixing the price on the house would be the proper thing to do. The fact of the matter is, the house needs to be sold, and delaying that sale in any way would do little to serve either party’s interests. This court endorses the master’s findings and submits that neither the master nor the court erred in refusing to brand Wife as the only party who delayed the sale of the marital residence, thus not agreeing to “fix” the sale of the marital residence at $238,000.

Further, in considering the master’s report this court notes that it has given the master’s recommendations and reasoning great weight, as it is well settled that “a master’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.” Moran v. Moran, 839 A.2d 1091, 1095 (2003) (citing Simeone v. Simeone, 380 Pa. Super. 37, 50 n.3, 551 A.2d 219, 225 n.3 (1988)).

(2) Did the Master and the Lower Court Err in Concluding “The Master Has Averaged the (Oral) Offers That Have Been Made on the House, and Has Determined That the Average Is $213,000. The Master Therefore Believes It Would Be Equitable That the Parties Accept an Offer for the House That Meets Or Exceed [sic] the Market Value. The Master Believes That $213,000 Is the Market Value of the Home Since It Represents the Results of Five (Oral) Offers From Five Prospective Buys in the Open Market? ”

Husband next argues that the master and the trial court erred in calculating the market value of the marital residence, reaching that value by averaging the offers made by five prospective buyers. We do not agree. The master’s analysis is on point and states the following:

“ [B]oth parties hired Mr. Whitman as their listing agent in April 2007, and the property was then listed at $238,900. Mr. Whitman testified that real estate prices slumped by 5 percent since April, and 5 percent of $238,900 is $11,945, which means, using the original listing price as a guide, the current marketable price would be $226,955. The parties actually received an offer as of July 6, 2007 in an agreement of sale signed by prospective buyers for $238,000 gross/$223 [sic] net. Wife agreed to accept the offer, but Husband said he wanted to receive $235,900 [sic]. Further, Mr. Whitman said that since April, he has received and communicated to both parties verbal offers of: $210,000, $206,000, $220,000, $206,000, and the last offer of $223,000 (net). On June 29, 2007 Mr. Whitman prepared a market analysis (exhibit P-2) stating the house should be listed between $220,000-$225,000. However, it is not the listing price, but the market value of the house that must be determined, and there is nothing better in determining that value than actual offers from prospective buyers.
“The master has averaged the offers that have been made on the house, and he has determined that the average is $213,000. The master therefore believes that it would be equitable that the parties accept any offer for the house that meets or exceeds the market value. The master believes that $213,000 is the market value of the house since it represents the results of five offers from five prospective buyers in the open market____” (Report and recommendation of Gary S. Fronheiser, 12/10/07, at 11.)

The testimony of two appraisers was also submitted. James Williams testified that the value of the marital residence was $225,000 in November 2005, and Michael McDevitt testified that it was $238,000 in October 2005. (Divorce hearing, 9/13/07, at 125; divorce hearing, 8/30/07, at 214.) However, as witnesses for both parties testified the housing market has substantially softened. Thus, at the time the master issued his report and recommendation in 2007, and after considering the testimony of the parties’ listing agent, it is a fair and reasonable assessment to calculate the market value of the property by averaging the figures that were actually offered for said property and not those values that the parties hoped they would receive. This court finds that Mr. Springbom’s visions of grandeur as to the value of his property are completely unsubstantiated as it appears that the highest offer only netted $223,000, with two other offers netting as little as $206,000.

Further, the 2007 valuation by the master was indeed much more current than the appraisals done in 2005 soon after the parties separated, or even the value of the home as listed by the realtor in 2007. In Sutliff v. Sutliff, 518 Pa. 378, 380-84, 543 A.2d 534, 535-37 (1988), the Pennsylvania Supreme Court affirmed the decision of the Pennsylvania Superior Court, noting that “stale valuation data could lead to an unjust distribution of property” and moreover that “the valuation of marital assets should reflect values as of the distribution date, rather than the separation date.” The Pennsylvania Supreme Court pointedly observed that:

“If... marital property values were to be fixed as of the date of the parties’ separation, or as of the date of filing a complaint in divorce, severe injustices would at times be inflicted upon the parties concerned. Volatile market conditions and changing economic circumstances can render assets that had been valuable months or years earlier virtually worthless in the present, and vice versa. Publicly traded securities may be worth a fortune one day, and a pittance the next. Privately owned business interests may be valued as a gold mine, or as a scrimption, depending on the times.... In view of these commonly recognized aspects of valuation it is difficult to conceive justification for the view that stale valuation data, i.e., data that does not reflect values reasonably proximate to the date of distribution, should be used by the court in setting a distribution scheme.” Id. at 383-84, 543 A.2d at 537.

If the parties were to choose a valuation sum higher than that suggested by the master, as Husband intimates, there is little question that parties would see an even greater loss in the value of their property as, based on the actual offers of five different parties, no one was willing to pay the sum hoped for by Husband and the marital residence would have remained on the market even longer. Instead, as the Supreme Court notes, stale valuation data creates an unjust distribution. Here, the more current value of the property is that offered by the five prospective buyers and averaged by the master, and not any other higher value previously suggested. Even Mr. Whitman, the parties’ listing agent, stated “the fact that there have been five offers on the table, we’re seeing a pattern of what the public is willing to pay for this property. And it seems to be in the 208 to 215 range, basically, is where it has been.” (Divorce hearing, 7/19/07, at 29.) The fact of the matter remains that the true market value of a property is that which the public is willing to pay for it. And what the public is willing to pay for the marital residence, is that sum suggested by the master. For that reason, we agree with the master’s findings and recommendation.

(3) Did the Master Err in Finding “Husband Has Refused To Agree To Sell the Property Because He Wants More Money Than Potential Buys Are Offering” and That Husband Was “at Fault” in Causing the Property To Have Been on the Market for an Extended Period of Time?

Husband’s next issue misstates the master’s report and recommendation and thus is entirely without merit. At the risk of being repetitive, though it appears that Husband requires such repetition as this issue is substantially similar to his first issue, the master stated:

“/B]oth parties have acted at time to stymie a sale of this house. While Husband emphasized Wife’s having cats in the house, which caused cat urine odor that would make the house less saleable, it appears that the cat odor problem, and the fixing of that problem, all occurred before the listing agreement was signed by both parties on September 17, 2006. There is no direct evidence as to when exactly Wife replaced the urine-stained carpets, but Wife said no offers on the house were received until she replaced the carpets. Wife did not provide an agreement of sale to Husband when she filed a petition for special relief on June 20,2007. However, it appears that an agreement of sale did not exist, and there was only a verbal offer which Wife said, in her petition that Husband had rejected. The court denied Wife’s request for special relief, but not because an agreement of sale was not provided as Husband averred — it was denied because the offer to buy the house had been withdrawn. Husband has refused to agree to a sale because he wants more money than potential buyers are offering, ignoring the advice of the parties’ listing agent. The master does not believe that one party or the other is more ‘at fault’in causing this property to have been on the market for an extended period of time. Both parties have done things which have caused the property to be on the market for an extended length of time.” (Report and recommendation of Gary S. Fronheiser, 12/10/07, at 9-10.) (emphasis added)

As we discussed previously, Flusband does appear to want more money for the property, as evidenced by the testimony of Mr. Whitman, the parties’ listing agent, who said that he contacted Husband in regards to an offer of $238,000 with a net amount of $223,000 and received no response. (Divorce hearing, 7/19/07, at 27.) Further, it is clear misreading of the text of the master’s report and recommendation to suggest that the master blamed only Husband for the property being on the market for such an extended period of time. The facts speak for themselves. As much as Husband might like to shy away from the limelight in regards to this issue, the curtain impedes his departure from the stage. Initially, it is true that Wife delayed listing the house while she lived there, however, since the house has been listed, Husband too has delayed the sale by not responding to proposed offers and seeking to gain more money in an already depressed market. We decline to support Husband’s disingenuous attempt to censure Wife when he too bears some fault.

(4) The Master and the Lower Court [Erred] in Finding “Regarding the $6,000 Escrow Account That Was To Be Funded by Wife, the Master Realizes That the $6,000 Is Wife’s Money, and Not Marital Funds” When the Above Sum Was the Estimated Equity in the Marital Property, Where the Wife Was Deeded Sole Title to the Marital Property in Return for Escrowing the Sum and Sold Said Marital Property for a Profit and Therefore Husband Received No Equity From Sale of the Marital Residence.

Husband next argues that he is entitled to a portion of the funds that Wife contributed to the escrow account. We disagree. We note that in Schenk v. Schenk, 880 A.2d 633, 639 (Pa. Super. 2005), the court stated:

“[OJur standard for reviewing awards of equitable distribution is 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)”

Further, the law regarding what is, and is not, marital property is well settled in 23 Pa.C.S. §3501(a)(4), and states that, “ ‘marital property’ means all property acquired by either party during the marriage and the increase in value of any non-marital property acquired pursuant to paragraphs (1) and (3) as measured and determined under subsection (a.1). However, marital property does not include... (4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.”

Here, Wife was ordered by this court in its order of September 4,2007 to contribute the funds to the escrow account by August 28, 2007, long after the parties’ final separation on Februaiy 1, 2005. As the funds used to contribute to that account were not marital funds when contributed, they are likewise funds that Husband is not entitled to a portion thereof. The master provided in his report and recommendation that the $6,000 should be used to pay the mortgage balance and costs of sale that exceed the selling price of the marital residence, with Wife being liable for 65 percent and Husband being liable for 35 percent. (Report and recommendation of Gary S. Fronheiser, 12/10/07, at 28-29.) However, if the house sold for a profit Wife would receive her contribution back and the funds over and above the $6,000 would be divided according to the distribution scheme. Id. at 29. Evidentially, the parties have sold their residence, and sold it for a profit, though it does not appear that that profit exceeded $6,000; as such Husband did not receive anything from that sale. However, we also note that the record does not indicate that Husband contributed any funds to said escrow account, perhaps if he had, he would have received the share he contributed back as well. We believe that the $6,000 in the escrow account is non-marital because it was contributed after the parties’ final separation, and therefore Husband is not entitled to any share of said funds.

(5) Did the Master and the Lower Court Err in Concluding “The Master Therefore Finds That Since the Payoff of the Loans Resulted in the $17,000.17 Value As of April 20, 2005, the Actual Marital Value of Wife’s 401k Plan As of the Date of Final Separation Is $13,256.23 ” Rather Then $27,000 As Valued at Time of Trial?

Husband next argues about the valuation of Wife’s 401(k) plan. Again, we cite well-settled law regarding what is, and is not, marital property. 23 Pa.C.S. §3501(a) (4), states that, “ ‘marital property’ means all property acquired by either party during the marriage and the increase in value of any non-marital property acquired pursuant to paragraphs (1) and (3) as measured and determined under subsection (a. 1). However, marital property does not include... (4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.” (emphasis added) Husband is not entitled to any increase in value of Wife’s 401(k) plan after the parties’ final separation in 2005. We see no reason why Husband should receive the benefits of Wife’s hard work nearly two years after separation. We note with disapproval Husband’s attempts to thwart Wife at each turn of the road, and to circumvent well-settled legal principles to effectuate his own interests.

(6) Did the Honorable Scott Lash, the Divorce Master, and the Honorable Scott Keller Err in Failing To Grant Defendant’s Motion for Summary Judgment and Err in Failing To Grant Defendant’s Request for Reasonable Attorney’s Fees When the Plaintiff Filed a Petition for Special Relief To Force the Specific Performance for the Sale of the Marital Property at 40 Beach Road, Mohnton, Berks County, Pennsylvania Without Enclosing Therein a Written Agreement of Sale for the Purchase of Said Property in Violation of the Statute of Frauds and When She Withdrew the Petition for Special Relief To Avoid the Court Granting the Motion for Summary Judgment and When the Master Failed To Award Attorney’s Fees Pursuant to the June 29, 2007 Order of Court?

Next, Husband raises the issue of attorney’s fees. We do not believe Husband is entitled to said fees, but instead believe that Husband should be held responsible for the fees and filings of his own attorney, as Wife is responsib le for hers. In Diament v. Diament, 816 A.2d 256, 270 (Pa. Super. 2003) the Superior Court stated:

“Our ability to review the grant of attorney’s fees is limited, and we will reverse only upon a showing of plain error. Gilmore v. Dondero, 399 Pa. Super. 599, [606,] 582 A.2d 1106, 1109 (1990). Plain error is found where the decision is based on factual findings with no support in the evidentiary or legal factors other than those that are relevant to such an award. Id. When reviewing the grant of attorney’s fees, this court must take into consideration, the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was ‘created’ by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or the value of the property in question. Id. [at 606, 582 A.2d] at 1109 (citing LaRocca Estate, 431 Pa. 542, 546, 246 A.2d 337, 339 (1968)).”

Further, we do not believe that Husband has set forth justification for an award of attorney’s fees under 42 Pa.C.S. §2503. Moreover, in reference to attorney’s fees the master noted, “The master believes that Husband is under-employed, and that he could find other, more lucrative employment than his safe-selling business. His low income [of approximately $2,000 yearly] seems to be self imposed. It is with this in mind that the master is reluctant to award Husband attorney fees. Husband contracted with Atty. Ziegler to have Atty. Ziegler represent him. The contract is the first page of exhibit D-25, and dated April 25, 2005. The contract sets forth the fees Atty. Ziegler charges Husband. There is no indication in the fee letter that attorney fees would be sought from another source. Husband squarely took on that responsibility.” (Report and recommendation of the special master, 12/10/07, at 18.)

We agree with the master’s recommendation, and affirm our own decision that attorney’s fees are not warranted in this instance.

(7) Did the Master and the Lower Court Err in Failing To Award Reasonable Attorney’s Fees to Defendant by Using an Improper Analysis for Whether To Award Attorney ’s Fees? The Factors To Be Reviewed in Fixing Attorney’s Fees Are the Payer’s Ability To Pay, the Requesting Party’s Financial Resources, the Value of the Services Rendered and the Property Received in Equitable Distribution.

Next, Husband again argues the issue of attorney’s fees, but in a different capacity. Quite to the contrary of Husband’s assertion, this court indeed knows the standard for awarding attorney’s fees as we are faced with the issue on a daily basis. However, in this instance, no attorney’s fees were warranted. We believe no further discussion is necessary.

(8) Did the Master and the Lower Court Err in Considering the Testimony of Ann Springborn, North West, Lee Savant and Rita Savant Concerning Alleged Marital Misconduct Concerning Arguments That the Plaintiff and Defendant Had and Other Alleged Incidents More Thoroughly Enumerated Herein Since the Testimony Did Not Rise to the Level of Being Marital Misconduct As Set Forth in Section 3701 of the Divorce Code, Was Not Relevant to the Case and Was the Basis for the Master’s Justification of Disregarding the Testimony of the Wife’s Continual Sexual Infidelity to Husband During the Marriage?

Husband appears to be intent on branding the scarlet “A” upon his wife’s breast while at the same time seeking to shirk his own responsibilities for the parties’ failed marriage, hoping to profit thereby. We disagree. Husband has misstated the master’s report and recommendation, and has omitted the fact that the master not only addressed the issue of marital misconduct in regards to the award of alimony, but also addressed the other 16 factors pursuant to 23 Pa.C.S. §3701, considering all of the factors in making his recommendation. The master clearly did not disregard Wife’s infidelity as he specifically discussed it in his report. (See report and recommendation of the special master, 12/10/07, 33-35.) However, the master also states, “It is clear that both parties committed marital misconduct. However, despite all the testimony and evidence about marital misconduct by both parties, the master does not believe that issue is controlling.” (Id. at 37.) As the master did not find that this issue was controlling, but instead considered all relevant factors in regards to the award of alimony, we sanction his recommendation and reaffirm our own denial of Husband’s exceptions pursuant to this issue.

(9) Did the Master and the Lower Court Err in Refusing To Direct Lee J. Savant and Rita Savant To Testify Whether Linda Springborn, Plaintiff, Was a Beneficiary of Their Will, a Beneficiary of Their Life Insurance Policy, a Beneficiary of Their Retirement, a Beneficiary of Their Keogh Plan and/or a Beneficiary of Their Pension Plan?

Husband now asks this court to award him a portion of Wife’s alleged and speculative inheritance, though there is no indication that Wife’s parents suffer from ill health. Husband notes that the master prevented Wife’s parents from testifying about their pension, retirement plan, life insurance policy and will. However, when considering the factors set forth in 23 Pa.C.S. §3701 the master clearly addresses the topic of expectancies and inheritances of the parties saying “Wife’s parents are still alive, and they testified at the master hearing. They appear healthy. There is no indication that any inheritance Wife might expect from them would be imminent. To decide about any inheritance or expectancy she might receive from them, even if their current wills were before the master, would only be speculation. See Powell v. Powell, 395 Pa. Super. 345, 577 A.2d 576 (1990); Mazzei v. Mazzei, 331 Pa. Super. 432, 480 A.2d 1111 (1984). In Gruver v. Gruver, 372 Pa. Super. 194, 198, 539 A.2d 395, 397 (1988), the court states:

“[A] court may not consider the mere possibility of an inheritance by a spouse as a factor in the equitable distribution of marital property.
“The possibility of an inheritance, even if property inherited during marriage were marital property, and it is not, should not be a factor in making equitable distribution. Any possibility of an inheritance is too tenuous to attribute any weight to it. Parents have no legal obligation to leave property to their children and no matter what a person’s intent concerning his will is today, it may change at any time and a subsequent will is essentially the revocation of an earlier will. Crooks Estate, 388 Pa. 125, 130 A.2d 185 (1957). See also, Franey Estate, 436 Pa. 94, 257 A.2d 515 (1969). Every person has the right to dispose of his or her estate in any way that he or she sees fit. Paul Estate, 407 Pa. 30, 180 A.2d 254 (1962). It must also be recognized that in the face of ever increasing costs for the care of the elderly that even what appears to be a substantial estate today, may be quite diminished or even totally dissipated at the time of death, and finally, the actual life expectancies of both parents and child are unknown.”

We believe this rule and rationale to be entirely on point. Wills can easily be changed, and we further note that beneficiaries of pensions and retirement accounts can also be easily changed. (Report and recommendation of the special master, 2/10/07, at 30.) While Husband continues to try to pry every penny from Wife’s purse we cannot allow him to take this one. While Gruver discusses inheritances and expectancies in reference to equitable distribution, we believe the same rule applies to alimony. To increase Wife’s alimony payments to husband based on speculative amounts of money that she may or may not receive sometime in the distant future would be inequitable and unfair to Wife. We agree with the master, as we did when we denied exception in the identical form as set forth above.

(10) Did the Master and the Lower Court Err in Limiting the Defendant/Husband’s Alimony From His Wife to Two Years Based on the Circumstances of the Case Where Husband Showed an Overwhelming Case for Alimony and When the Master and the Lower Court Considered Improper Testimony Presented By the Wife and Because the Master and the Lower Court Refused To Admit and Consider Relevant Testimony?

The ambiguity of this issue prevents this court providing an in depth analysis when we are unsure of what Husband considers to be “improper testimony presented by the wife,” as well as what Husband believes to be “relevant testimony.” However, we will address the soundness of the decision to limit alimony to two years. We are at a loss to determine what Husband believes is an “overwhelming case for alimony.” The facts as presented to the master indicate that the parties were married for 13 years, and produced one child from the marriage. The child was then 12, but we assume he is 14 to 15 at this time. Further, that there is a clear differential in earning capacity between the parties, largely because of Husband’s “apparent dedication to pursuing a floundering home business, using as a reason for his dedication to that business that Aaron[, the parties’ high functioning autistic son,] needs him at home all the time, when the evidence shows that Aaron does not need his father near him every minute.” (Report and recommendation of the special master, 12/10/07, at 37.) The master also pointed out two other controlling factors in that Husband needs healthcare, and that Dr. Rotenberg concluded that Husband would increase his job prospects through counseling. We support the master’s analysis regarding the two-year recommendation of alimony. The master states:

“The master believes that Husband needs alimony, but for a shorter period of time and at a different amount, than Husband requests.
“Extrapolating from what Dr. Rotenberg said, and from what Husband said about his job interviews, the master projects that Husband would probably need about six months counseling as he looks for and finds a job. He may then need counseling for possibly another six months as he becomes settled into a job, helping him become secure in his employment.
“After one year of counseling, the master believes that Husband may still need some financial support since he most likely will be receiving base-line wages. He may also have to secure a caretaker for Aaron at times, and he may also need some counseling during the second year. However, since Husband should by that time have been working for at least six months, his need for alimony will lessen.
“The master also sees no reason why Husband could not continue to pursue his safe-selling business while he pursues and starts a new j ob. It could become a part-time job for him. However, the master is convinced that Husband can hold a full-time job with benefits, which is important to his future.
“The master therefore believes that Husband should receive alimony for a period of two years, during which time the master anticipates that Husband would receive counseling and secure a job. In fact, the master anticipates that Husband would be able to get a job within six months, and that further counseling would help him maintain the job.” (Report and recommendation of the special master, 12/10/07, at 38.)

We support the master’s recommendation and analysis noting that after two years we see no impediment as to why Husband should continue to use Wife as a crutch, when, with counseling, he will be able to obtain his own gainful employment.

(11) Did the Lower Court Violate Due Process and Equal Protection Under the Pennsylvania and United States Constitutions After the Defendant Filed a “Motion To Order Production of Transcription of Record and Refund of Overpayment of Transcription Costs ’ When the Court Did Engage in the Following:

(a) Signed an “Order Rule To Show Cause ” Scheduling an “Evidentiary Hearing in Disputed Issues of Material Fact... To Be Held on May 6, 2008, at 1:30 o’clock p.m., in Courtroom 9 of Berks County Courthouse, ” But Did Not Require the Other Parties To File an Answer to the “Motion To Order Production of Transcription of Record and Refund of Overpayment of Transcriptions Costs ” So That One Could Not Determine What Disputed Facts Had To Be Determined at the Hearing;

(b) Failed To Accept in the “Motion To Order Production of Transcription of Record and Refund of Overpayment of Transcription Costs ” As Admitted Fact Herein Since No Answers Were Filed to Said Motion;

(c) Failed To Take Testimony Under Oath;

(d) Failed To Give the Defendant Credit in the Transcription Costs, Appearance Fee Paid by Plaintiff and Defendant for July 17, 2007, August 17, 2007 and September 13, 2007 Hearings So the Defendant Paid an Excessive Fee To Have These Records Transcribed;

(e) Failed To Set Down the Procedures for Transcription Costs of the Master’s Hearing in Berks County So That the Attorneys Can Have Access to the Same by Setting Them Forth in the Berks County Rules of Courts and Instead Permit the Stenographers Randomly in Each Case To Set Their Own Fees;

(f) Placing the Defendant With Very Limited Funds in a Difficult Position To Get the Records Transcribed So He Can Proceed With His Appeal ofthe Master’s Rulings by Not Setting Forth a Clear Procedure To Be Followed in Paying the Stenographer’s Fee, in Fixing Flow the Stenographer’s Rate Shall Be Set, and Giving the Parties Credit for the Appearance Fees Paid to the Stenographers and Did Not Permit Defendant To Present Subpoenaed Witnesses in This Case?

Before addressing this issue we again would like to direct the appellant to the Pennsylvania Rules of Appellate Procedure as it is utterly clear that he has failed to read and comply with them. In the above issue, it is apparent that Husband has couched six issues in what should be only one issue. However, we will address this plethora of issues.

Husband first argues that this court erred by not directing Wife to file an answer to Husband’s “motion to order production of transcription of record and refund of over payment of transcription costs.” Husband is mistaken. Pa.R.C.P. 206.7(a) states, “if an answer is not filed, all averments of fact in the petition may be deemed admitted for the purposes of this subdivision and the court shall enter an appropriate order.” The explanatory comment to that same rule notes that “[i]n the case of the failure to file or to timely file an answer, an appropriate order may not necessarily be one which is adverse to the defaulting party.” Here, we thought an answer unnecessary, and issued our ruling accordingly. As we have properly followed the Pennsylvania Rules of Civil Procedure there has been no violation of either the Pennsylvania Constitution or the United States Constitution.

Husband next argues that we erred by not deeming all averments in Husband’s “motion to order production of transcription of record and refund of over payment of transcription costs” as fact because Wife did not file an answer to Husband’s petition. Husband again fails to properly read the Pennsylvania Rules of Civil Procedure. Pa.R.C.P. 206.7(a) states, “[i]f an answer is not filed, all averments of fact in the petition may be deemed admitted for the purposes of this subdivision and the court shall enter an appropriate order.” (emphasis added) Again, this court did not feel an answer by Wife was necessary. We held a hearing on the issue, heard argument, and denied Husband’s motion because it lacked merit. We do not fault Wife’s counsel for failing to file an answer to a clearly non-meritorious motion on behalf of Husband, saving Wife’s counsel time, and Wife money. We also note that we did not require, nor request Wife file an answer to Husband’s motion, but instead set a date for argument. Proper procedure was followed by this court and by Wife and her counsel, Jill Gehman Koestel.

Husband now argues that this court erred by not taking testimony under oath on Husband’s “motion to order production of transcription of record and refund of over payment of transcription costs,” however, this was not required by the Pennsylvania Rules of Civil Procedure, nor was it necessary. We held argument on the issue and Husband’s counsel was given an opportunity to state his case. Taking testimony on a motion to order production of record and refund of over payment of transcription costs was unnecessary as there was no need to hear from outside parties on this issue. Doing so would have only served to waste more of this court’s time causing the expenditure of valuable court resources better used in other matters.

In subdivisions (d), (e), and (f) of number 11, Husband turns this court’s attention to stenographer’s fees. He first claims that this court erred by not crediting the funds he paid for the stenographer’s appearance fee, towards the final cost of the transcription of testimony. This assertion appears to this court to be ludicrous. Husband is essentially arguing that the stenographer should appear, work until counsel is satisfied that all relevant testimony is on the record, and then not get paid for said work. We analogize the “appearance fee” to what Husband’s counsel may call a “retainer fee.” Simply, a sum of money paid to a party to handle a case, whether it be as counsel for one of the parties, or as the stenographer transcribing the testimony.

Husband then argues that this court violated the due process clauses of the Pennsylvania and United States Constitutions by not setting forth the costs of transcription in the local rules. However, this would not only be an impossible task, but would also be inefficient. The special master privately contracts with independent court reporting organizations for each hearing. Each of those organizations has their own set fees. Nevertheless, these fees can be easily ascertained by a simple ring of the telephone. Each organization has a set fee for a half day, a full day, and the cost of a transcript, per page, if one is requested. Had Husband done his homework it would have become crystal clear that the fees are not randomly set by each individual stenographer, but are instead set fees put forth by each individual firm in the manner set forth above. For this court, or any court, to mandate that each private firm should charge the same amount, as we would have to for said amount to be memorialized in the local rules of court, hinges on the absurd. It would be the same as this court ordering every doctor to charge his patients the same amount, or every lawyer to charge his clients the same amount, or any other private party running an independent business to charge their clients the same amount. Husband’s due process rights have not been violated and his argument lacks merit.

Finally, Husband argues, that by not setting forth the fees for transcription, he, as a man of limited resources, was put in a difficult position to get the record transcribed so that he could proceed with his appeal. We have already addressed the issue of fees above, thus we will proceed with addressing why a man of “limited resources” is required to pay his own transcription costs on his exceptions to the report and recommendation of the special master as well as on his appeal. First we note that Wife paid Husband alimony pendente lite. As such, besides his safe-selling business, Husband had another source of steady income. Further, Husband never petitioned this court to proceed in forma pauperis. We realize that transcripts are a costly endeavor for any party, however, we question how a court could proceed with its business without said transcripts. It is the burden of the excepting or appealing party to fund these costs, as it is on his exceptions, or appeal that the court halts its business to review the merits of what that party claims. Indeed, we wonder what divorcing party is not restrained by “limited resources” when paying costs and attorney’s fees to litigate a divorce. To make an exception here because Husband claims he has “limited resources” would be economically unjust not only to Wife who has also had to pay to litigate this divorce over a period of several years, but also to all other parties forging ahead in this difficult economic climate.

Because we believe that Husband’s appeal lacks all merit, and for all of the reasons set forth above, we respectfully request that Husband’s appeal be denied.


author: WECHT, J.,

text:
    Geary v. Geary

      Karyn Ashley Rok, for plaintiff.

      Elisabeth Bennington, for defendant.
    February 5, 2009
   WECHT, J.,

Plaintiff Sharon M. Geary (Wife) appeals from this court’s order dated November 5, 2008. That order disposed of the parties’ economic claims in divorce.

BACKGROUND AND PROCEDURAL HISTORY

Wife and defendant Dennis K. Geary (Husband) married on June 23, 2000. Their daughter, Paige, was bom on July 10, 2001. Wife filed her divorce complaint on May 13, 2007. Husband left the marital residence approximately four weeks later.

The parties proceeded to trial on their economic claims on August 19, 2008. The trial did not conclude, and a second day of trial proceeded on September 23, 2008. On November 5,2008, this court issued its order disposing of the economic claims. On December 5, 2008, the divorce decree issued.

On December 5, 2008, Wife filed a notice of appeal. On December 9, 2008, in accordance with Pa.R.A.P. 1925(b), this court directed Wife to file a concise statement of errors complained of on appeal. On December 30, 2008, Wife timely filed her concise statement with the office of court records.

ISSUES RAISED ON APPEAL

In her Pa.R.A.P. 1925(b) statement, Wife averred as follows:

(1) The court erred in failing to award Wife alimony;

(2) The court erred in failing to take into account Husband’s adultery and marital misconduct when considering an award of alimony;

(3) The court erred in failing to take into account the disproportionate income earned by each party when considering an award of alimony and allocation of marital debts and liabilities;

(4) The court erred in failing to take into account Husband’s dissipation of the marital assets;

(5) The court erred in failing to equitably calculate and allocate marital assets and marital debts and liabilities of the parties;

(6) The court erred in failing to correctly calculate Husband’s 401k;

(7) The court erred in allocating 60 percent of marital debt to Wife;

(8) The court erred in requiring Wife to assume full responsibility for the first and second mortgage on the marital residence;

(9) The court erred in failing to allocate a portion of Wife’s student loans to Husband;

(10) The court erred in failing to award Wife counsel fees.

DISCUSSION AND ANALYSIS

Wife’s first three issues on appeal relate to this court’s disposition of Wife’s claim for alimony, namely the allegations that this court erred in failing to award alimony, in not considering Husband’s marital misconduct, and in not considering the disproportionate incomes of the parties. Alimony is only awarded if “necessary.” 23 Pa.C.S. §3701(a). Alimony is a secondary remedy to provide for a spouse who is unable to provide for his or her reasonable needs though self-support. Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004). This court gave consideration to the appropriate statutory factors mandated by 23 Pa.C.S. §3701(b). This court found that some factors supported Wife’s alimony claim, such as Husband’s current higher salary, Wife’s assumption of significant liabilities, and Husband’s marital misconduct.

However, other factors leaned heavily in Husband’s favor on the alimony issue. These included the availability of benefits to Wife that Husband does not have, Husband’s contribution to Wife’s higher education, and Wife’s higher level of education. Wife provided no information about her budget or expenses other than to say that the information in her pretrial statement was accurate. However, this information was never offered, much less admitted, into evidence. Wife also testified that, when she and Husband discussed her taking a teaching job for lower pay, she told him that she would work an additional job during the summer to offset the decrease. Yet Wife failed to do so. From Wife’s testimony, it appeared that Wife could earn more income than she was earning at the time of trial. Considering all relevant statutory factors and the trial evidence, this court could not conclude that Wife was unable to meet her reasonable needs. This court accordingly declined to award alimony.

Wife’s third, fifth and seventh points on appeal relate to this court’s distribution of assets and liabilities. Wife asserts that this court did not consider Husband’s higher income in the distribution, that this court did not equitably calculate and allocate the assets and liabilities, and that this court erred in allocating 60 percent of the liabilities to Wife. Wife’s eighth and ninth points on appeal also relate to distribution of liabilities, particularly the mortgages and Wife’s student loans. This court considered all the relevant statutory factors in determining the distribution of assets and liabilities. 23 Pa.C.S. §3502(a). The marriage was of relatively short duration, less than seven years. Both parties were of similar age and health. Both parties had the opportunity to acquire future assets. Husband had contributed somewhat to Wife’s education. Wife received more employment benefits than Husband. At the time of trial, Husband’s salary was higher than Wife’s salary. This court weighed all of these factors in fashioning its decision to split the marital assets such that Wife received 60 percent and Husband 40 percent.

The parties had substantially more debt than assets. While there were various credit cards and car loans, the vast majority of the debt attached to Wife’s student loans and to the two mortgages on the marital residence. Both parties proposed that Wife should receive the marital residence as part of the distribution. Because Wife was to receive the benefit of the residence, it was appropriate for Wife to assume the mortgage debts. In general, student loans incurred during marriage are marital debt, but are assigned to the student-spouse who has benefited from the loans. Hicks v. Kubit, 758 A.2d 202, 204-205 (Pa. Super. 2000). Here, Wife not only incurred student loan debt, but she deferred the loans repeatedly, so that the original balance of $69,129.02 grew to $88,937.44. Wife testified that she discussed the deferments with Husband. Husband denied that Wife discussed this, and said he was unaware of the amount of the loans until after the divorce action commenced. It was clear that Wife was the sole beneficiary of the loans and that her education will continue to benefit her solely. Therefore, it was appropriate to assign the student loan debt to Wife.

Wife’s fourth allegation of error is that this court did not consider Husband’s dissipation of the marital estate. As stated above, there were more debts than assets in the marriage. Both parties have contributed to the financial problems of the marriage. Husband bought expensive and unnecessary cars, and incurred debt in doing so. Wife started a jewelry “business,” buying inventory on credit and making no profit from it. Husband testified that, during the marriage, he liquidated stock options, and that Wife spent the majority of the proceeds. Wife testified that she believed Husband spent some marital funds on gifts for a paramour. There were allegations of dissipation by both parties. The financial picture of the marriage showed that neither party was particularly careful about money. Against that backdrop, this court concluded that both parties bore responsibility for the financial circumstances to which they had consigned themselves.

Wife’s sixth point on appeal is that this court miscalculated Husband’s 401k. Husband testified that he had cashed in part of his 401k prior to Wife returning to school. As that transaction occurred during the marriage and, according to Husband’s testimony, was used to defray marital expenses, this court did not consider it as part of the marital estate. Husband testified that he closed the 401k after separation, and received $5,606.09. Since this was a post-separation distribution used by Husband, this court treated it as an advance, and charged Husband with it. Husband also took $14,273.61 from a Wells Fargo retirement account between August 2006 and May 2007. Husband then deposited the money into a separate bank account. Husband testified that he used the money for ordinary expenses. Wife claimed that Husband spent part of the funds on his paramour. Husband denied this claim. Since Wife was unable to prove that funds were dissipated, and since Husband was credible concerning the use of the account for ordinary marital expenses, this court did not charge Husband with an advance for these withdrawals.

Wife’s final issue on appeal is that no counsel fees were awarded to Wife. Both parties requested counsel fees. Both were denied. Wife did not testify about her counsel fees, nor were any bills submitted as evidence. Husband testified that he paid $10,000 to his attorney, and that he had an outstanding balance with a payment plan. There were no allegations of obdurate, vexatious or dilatory conduct during the litigation that would warrant an award of counsel fees. 42 Pa.C.S. §2503(7).

Counsel fees may also be awarded upon a showing of actual need. Litmans v. Litmans, 449 Pa. Super. 209, 227, 673 A.2d 382, 391 (1996). Without evidence of Wife’s expenses or the amount of her attorney fees, it was impossible for this court to determine whether she had actual need. Additionally, it is significant that neither party is walking away from the marriage in sound financial health. Both parties are receiving little in distribution by way of assets and much by way of debt. While Husband currently is receiving a higher salary, he lacks a college degree, and his current employment is as a temporary contract employee. Potentially, Husband will be out of work when the one-year contract expires. On the other hand, Wife has a college degree and teacher’s certification. She maintains stable employment as a teacher, with the prospect of increases in both salary and retirement savings as she gains more experience and more years of service. While Husband temporarily earns a higher income, Wife’s long-term financial prospects are considerably more stable and sound.

      . Because Wife’s payment to the court reporter was late, this court has not been provided a trial transcript, and has prepared this opinion without the benefit of same.

      . Contrary to the certificate of service on Wife’s concise statement, a copy was not provided to this court until January 6, 2009.


author: SCHMEHL, P.W., J.,

text:
    In re Adoption of T.M.Z. and A.E.Z.

      Dawn ML. Palange, for mother.

      Mark J. Merolla, guardian ad litem, for children.

      Gary S. Fronheiser, for father.
    February 9, 2009
   SCHMEHL, P.W., J.,

This matter came before the court on the petition of S.M.H. (Mother) to terminate the parental rights of R.G.Z. (Father) to the children, T.M.Z., date of birth July 20,1999, and A.E.Z., date of birth October 10,2001. The petition to terminate Father’s rights was filed on September 4, 2008 on the grounds set forth in 23 Pa.C.S. §2511(a)(1) and (2). After a hearing, at which Father appeared with court-appointed counsel, the court terminated Father’s rights to the children. Father filed a timely appeal.

Paragraph 2511(a)(1) provides that parental rights in regard to a child may be terminated on the grounds that a “parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.” Paragraph (a)(2) provides that parental rights may be terminated on the grounds that “[t]he repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.”

“While incarceration of a parent does not, in itself, provide grounds for the termination of parental rights[,] a parent’s responsibilities are not tolled during his incarceration.” In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999). “Parental rights may not be preserved by waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities.” Id. at 287. The long-standing law of the Commonwealth is that the inability of a parent to perform parental duties makes him or her just as parentally unfit as a parent who refuses to perform these duties. In re B.L.W., 843 A.2d 380, 387 (Pa. Super. 2004). Regardless of inability or refusal, once a parent demonstrates a failure to fulfill his or her parental duties, the child’s right to fulfillment of his or her potential in a permanent, healthy, safe environment with proper parenting supersedes the parent’s basic constitutional right to custody and rearing of the child. Id. at 388. In terminating the rights of a parent, the court must give “primary consideration to the developmental, physical, and emotional needs and welfare of the child.” 23 Pa.C.S. §2511(b).

Both children were bom of the parties’ marriage, which ended upon the realization that Father had been embezzling from his employer, who happened to be Mother’s father. The parties were vacationing at the shore when the embezzlement was revealed. Father returned home but Mother remained at the shore with the children and her family for several more weeks. Upon Mother’s returning to Berks County with the children, she allowed Father to visit with the children and even allowed these visits to occur in her home without her being physically present.

In December 2002, Mother obtained a protection from abuse order against Father. Thereafter, Father was incarcerated from December 2002 until May 2003 for indirect criminal contempt. Father had two other indirect criminal contempt convictions for violation of the protection from abuse order in 2003. After being incarcerated, Father made no contact with Mother in order to see the children. In October 2003, Father filed a petition to modify in the parties’ custody action, which led to a December 2003 order granting Father supervised visits with the girls.

Supervised visits began in February 2004 and ended in February 2006. The supervised visits were the first contact that Father had with the children in well more than a year. At the hearing, the visit supervisor, Sandra Lamma L.C.S.W., testified that she supervised no other parent during custody visits as long as she did Father. Throughout her supervision she had concerns regarding Father’s behavior during visits and his parenting ability. These concerns resulted in interruptions in the visitation schedule and suggestions that Father take parenting and anger management classes, which he apparently was not inclined to do at the time. Ms. Lamma also had concerns that Father did not understand normal child development and that he would become upset that the children were not tuned in to his needs when he should have been more concerned about their needs. She was also concerned about the children’s safety insofar as Father did not always provide adequate supervision. On cross-examination, Ms. Lamma revealed that the children were not always happy to see Father. Sometimes Father brought gifts to the visits, but he turned this positive to a negative by becoming angry at the children for not bringing these gifts with them to future visits. Father put inappropriate pressure on the children, particularly given that they were too young to be expected to do certain things.

For several months after February 2006, Father had unsupervised visits with the children. In December 2006, Father moved to Florida for seasonal employment. Although he returned to Pennsylvania, he has not seen the children since. For a limited period of time following the relocation, Father irregularly telephoned the children; however, he sent no gifts, Christmas cards, or letters.

Upon his return to Pennsylvania in April 2007, Father was incarcerated as a result of convictions for felony criminal trespass and felony intimidation. He was sentenced to a term of incarceration of three to seven years and has a minimum release date of April 2010.

Although Father testified that he attempted to send mail to the children from prison, he believed the mail was not getting through because of not having Mother’s correct address. The credible testimony was clear that at all times Father had an address and phone number for Mother and, furthermore, Mother testified that she did receive a letter from Father in July 2007 that expressed Father’s anger at his ex-girlfriend and had nothing to do in any way with the parties’ children. Regardless of the testimony by Father that he attempted to correspond with the children during the first few months of his incarceration, it is clear that Father made no attempt to contact the children after August 2007.

Father’s failure to fulfill his parental duties has included his failure to pay child support. His incarceration since April 2007 clearly interfered with his ability to pay support; however, he failed to maintain support payments even prior to his incarceration. To make matters worse, on more than one occasion Father offered to abdicate his role as the children’s father in exchange for a monetary payment.

During his testimony, Father denied that his parental rights were for sale as well as other allegations made by Mother. The court found that this and much of Father’s other testimony was incredible. Aside from providing incredible testimony, Father further hurt his case by failing to fully utilize the services of the attorney appointed by the court at Father’s request, conducting much of the examination of witnesses himself and focusing many of his questions and much of his testimony on the parties’ relationship, or lack thereof, and the arrival of Mother’s new husband in their lives. It seemed as though Father’s relationship with the children was an afterthought. Even Father’s sole supporting witness could not verify that Father’s contact with the children while he was in Florida was with his own children or the children of his most recent girlfriend.

It is clear that for well more than a year Father has refused or failed to perform his parental duties thereby permitting the court to terminate his parental rights under 23 Pa.C.S. §2511(a)(1). Aside from Father’s checkered history of involvement with the children prior to August 2007, there is no dispute that Father did not attempt any contact with his children between August 2007 and September 2008, when the petition to terminate his rights was filed. Father did not see the children. He did not call the children. He did not write letters to the children or to Mother asking about the children. He did not send any gifts or support or take any steps in the custody action to enforce any rights of visitation or telephone or other contact. Given that one of the statutory grounds for the termination of parental rights applies, it is unnecessary to conduct further analysis; however, because Mother filed her petition under section 2511(a)(2) as well as section 2511(a)(1), the court makes the further determination that the termination of Father’s parental rights is justified, given that his repeated and continued incapacity, neglect, and refusal to perform parental duties would have caused the children to be without essential parental care, control or subsistence necessary for their physical and mental well-being, but for the provision of the same by Mother and her husband, and the conditions and causes of Father’s incapacity and neglect cannot or will not be remedied by the parent, at least not within a reasonable time. As mentioned above, Father’s relationship with his children took a back seat to his concerns over making money and Mother’s new love interest.

Perhaps the most telling fact of all and the clincher under section 2511(b), which requires the court to give primary consideration to, among other things, the emotional needs of the children, is that when interviewed by their guardian ad litem, the children did not even once mention Father by name, title or otherwise. The children are happy and doing well in their home with Mother and her husband. No bond will be broken or other harm done as the result of terminating Father’s parental rights and allowing the children and Mother’s husband to proceed to establishing legally the relationship that exists in fact.

Turning to Father’s concise statement of matters complained of on appeal, the court’s view is that, despite Father’s complaint to the contrary, the petitioners did present sufficient evidence to terminate Father’s parental rights and that the court did not err by doing so. Father’s third complaint that the court erred by not allowing the admission of an expert report is without merit given Father’s failure to secure the expert at trial so as to allow cross-examination. Even if error, the error would be harmless given the report dates to 2003, well before the more than one-year period of non-involvement of Father in the children’s lives. Also, while the report and testimony of Sandra Lamma were, in the court’s view, properly considered given their relevance to Father’s checkered history, they were but two small straws adding to the weight of Mother’s case given Father’s failure to act as a parent after August 2007.

While Father was granted in forma pauperis status in these proceedings, the court had no valid reason to order the payment of a personal debt of Father in order to secure a creditor as a witness. The petition for the payment did not set forth the manner in which the payment of this 2005 bill would be beneficial to Father’s case, particularly given the passage of time since this person’s involvement and Father’s ability to subpoena this person if the testimony was in fact so critical. As for Father’s complaint number six, the court believes it made proper rulings on Father’s objections and gave proper weight to the testimony of Father’s supporting witness. Furthermore, the court is of the view that it properly considered the report of the guardian ad litem, seeing no bias in the report and hearing no objection to its admission.

Finally, the court gave all the weight that it could to Father’s testimony considering its incredibility and, despite the court’s consideration of the testimony, truthful or not, Father presented no evidence of attempting to maintain contact with the children or otherwise perform his parental duties after August 2007. Additionally, the court heard no credible evidence that Mother or her husband attempted to prevent Father’s contacting the children and certainly not with the goal of permanently removing him from their lives.

For the foregoing reasons, the court entered its order of December 16, 2008 terminating Father’s parental rights to the children, T.M.Z. and A.E.Z.


author: KWIDIS, J.,

text:
    Stewart v. O.C. Cluss Lumber Co.

      Harry Paras, for plaintiff.

      John Zotter, for defendant O.C. Cluss Lumber.

      Bill Haushalter, for defendant Crespo.
    February 9, 2009
   KWIDIS, J.,

Before this court is defendant James Crespo’s, individually and trading and doing business as Crespo Contracting Company, motion for summary judgment. No material issues of fact exist regarding the defendant Crespo’s liability, and therefore, the motion is granted.

Defendant O.C. Cluss Lumber Company Inc., a subcontractor of defendant Kate Inc., subcontracted to defendant Crespo the framing work on building number 1 in a complex of new condominiums, the Fairways at Krendale, being built in Butler, Pennsylvania. In addition to the general framing work, defendant Crespo was subcontracted to construct storage areas and install shingles, weather guard and skylights in building number 1, as well as move and extend walls in the kitchen, bathrooms, and hallways, cut and move doorways in garages, and move studs for electrical panels.

Defendant O.C. Cluss also subcontracted to L. Stewart Homes the painting work at the Fairways at Krendale project. Jeffrey Stewart, now deceased, was an employee of L. Stewart Homes Inc.

On March 29, 2006, Jeffrey Stewart, deceased, was painting the ceiling of unit 206 when he fell from an unprotected second floor landing/balcony approximately nine to 10 feet to the concrete floor below. When he fell, Mr. Stewart struck his head, crushing his facial bones. His injuries led to his death the following day, March 30, 2006.

At the time of the accident, no railings, guard rails, fall protection, and/or other protective barriers were in place to prevent workers along the second floor balcony from falling to the floor below.

On June 17, 2006, plaintiff Renee Stewart, as the administratrix of the estate of Jeffrey Stewart, filed a complaint alleging, in part, that defendant Crespo was negligent because: (1) he failed to install temporary guard rails and/or railings along the balcony and/or removed the same prior to the decedent’s working in that area, in violation of defendant Crespo’s contract, duties, and responsibilities as the framing subcontractor; and (2) he failed to properly supervise, manage, or exercise control over the work site so that it was safe for the workmen.

On September 22,2008, defendant Crespo filed a motion for summary judgment alleging that no material question of fact existed. Specifically, defendant Crespo alleged that he had no contractual obligation to erect a temporary railing during the construction of unit 206. He also alleged that he had completed his work in unit 206 by the end of January 2006, which was approximately two months prior to the accident, and therefore, that he did not have possession or any control of the property on March 29, 2006.

Under the Pennsylvania Rules of Civil Procedure, summary judgment may be entered only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). The Supreme Court explained that “[t]he record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991) (citing Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970)). The Supreme Court further elaborated that “where the facts can support conflicting inferences, it cannot be said that the case is free and clear from doubt and thus ripe for summary judgment.” Washington v. Baxter, 553 Pa. 434, 447 n.10, 719 A.2d 733, 740 n.10 (1998) (citing Marks, supra at 135, 589 A.2d at 206).

For purposes of determining whether the grant of summary judgment is precluded, the court must consider the following factors: (1) whether the plaintiff has alleged facts sufficient to establish aprima facie case; (2) whether there is any discrepancy as to any facts material to the case; and (3) whether granting summary judgment would result in the trial court usurping the role of the jury by resolving material issues of fact. Dudley v. USX Corporation, 414 Pa. Super 160, 606 A.2d 916 (1992); Swords v. Harleysville Insurance Companies, 584 Pa. 382, 883 A.2d 562 (2005).

Under these guidelines, this court has proceeded to analyze the controlling cases involving subcontractor liability.

To establish a cause of action in negligence there must be a duty recognized by the law; breach of that duty by the defendant; a causal connection between the defendant’s breach of that duty and the resulting injury; and actual loss or damage suffered. Reilly v. Tiergarten Inc., 430 Pa. Super. 10, 14, 633 A.2d 208, 210 (1993). In Pennsylvania, a party to a contract has two duties: a contractual duty and a legal duty to act without negligence towards both the other party to the contract and third parties. See Prost v. Caldwell Store Inc., 409 Pa. 421, 425, 187 A.2d 273, 275 (1963); Bisson v. John B. Kelly Inc., 314 Pa. 99, 110, 170 A. 139, 143 (1934); St. Clair v. B&L Paving Company, 270 Pa. Super. 277, 279, 411 A.2d 525, 526 (1979).

Specifically, the Pennsylvania Supreme Court has held that a subcontractor owes to the employees of other subcontractors on the same site the same legal standard of care due to a business visitor from a possessor of land. McKenzie v. Cost Brothers Inc., 487 Pa. 303, 307-308, 409 A.2d 362, 364 (1979). A possessor of land owes to business visitors the duty to protect against conditions that he or she: (1) knows of or by the exercise of reasonable care would discover and should realize they pose an unreasonable risk of harm to such visitors; and (2) should expect that visitors will not discover or realize the danger, or will fail to protect themselves against it; and (3) fails to exercise reasonable care to protect such visitors against the danger. Id. at 308 n.3, 409 A.2d at 364 n.3.

The Superior Court applied these principles in the case of Weiser v. Bethlehem Steel Corporation, 353 Pa. Super. 10, 508 A.2d 1241 (1986). In the Bethlehem Steel case, the plaintiff was injured when he fell down a temporary elevator shaft from the 12th floor of a high rise building in Philadelphia, Pennsylvania. Id. at 13-14, 508 A.2d at 1243. The plaintiff, who was an employee of Fabricated Steel, a subcontractor of the general contractor, slipped and fell down the shaft as no temporary planking was in place to protect him. Id. The plaintiff brought suit against Bethlehem Steel, another subcontractor, alleging that it had acted negligently in removing the planking over the elevator shaft on the 12th floor when it had completed its work on that floor. Id.

Having determined that Bethlehem Steel owed no contractual duty to the plaintiff, the Superior Court analyzed the legal duty owed to the plaintiff. Weiser v. Bethlehem Steel Corp. at 16, 508 A.2d at 1245.The court noted that “at the time of the accident, Bethlehem Steel had completed its operations on the 12th floor, and Fabricated Steel’s employees were the sole occupants of that floor.” Id. at 20, 508 A.2d at 1246. Therefore, the court concluded that because Bethlehem Steel had “relinquished control” over operations on that floor, it owed no legal duty to the plaintiff. Id. Specifically, the court analogized Bethlehem Steel’s situation to that of an owner delivering temporary possession of his land to an independent contractor, as the landowner owes no duty to the independent contractor or its employees “with respect to an obviously dangerous condition on that portion of the land in possession of the contractor.” Id. See also, Hader v. Coplay Cement Manufacturing Co., 410 Pa. 139, 151, 189 A.2d 271, 277 (1963).

In the instant matter, defendant Crespo had no contractual duty to erect temporary railings during the construction of unit 206. None of the four purchase orders, which specified the work defendant Crespo was to perform, include the erection of temporary railings or guard rails. Additionally, Adam Coakley, the O.C. Cluss employee who oversaw work at the Fairways at Krendale project, testified that he could not recall if he at any time prior to March 29, 2006, directed Defendant Crespo to install temporary railings.

Defendant Crespo also owed no legal duty to erect temporary railings during the construction of unit 206. Similar to the defendant in Bethlehem Steel, defendant Crespo had relinquished possession and control of unit 206 prior to the accident giving rise to plaintiff’s claim. Defendant Crespo completed its work in unit 206 by the end of January 2006, at least two months prior to the accident on March 29,2006. Between January 2006 and March 29, 2006, a number of other subcontractors performed work on unit 206 and were in control of the premises. At the time of the accident, unit 206 was occupied by employees of L. Stewart Homes and White Heating.

As defendant Crespo had not contracted to erect temporary railings in unit 206 and had relinquished possession and control of said unit at least two months prior to the accident giving rise to this claim, it owed no contractual or legal duty to plaintiff. Therefore, no material question of fact exists as to whether defendant Crespo was negligent. On that basis, summary judgment is appropriate in this case.

This court enters the following order.

ORDER

And now, February 9, 2009, after argument and consideration of the briefs submitted by both parties in the above-captioned case, the motion for summary judgment of the defendant, James Crespo, individually and trading and doing business as Crespo Contracting Company, is hereby granted.