author: MELLON, J.,

text:
    Dalinsky v. Hasiuk

      C.P. of Bucks County,
    no. 1999-07/7.
    April 14, 2005

      Richard Seidel, for plaintiff.

      Joan Orsini Ford, for defendant.
   MELLON, J.,

Plaintiff Michelle Dalinsky appeals the jury verdict in favor of defendant, Aaron Hasiuk M.D., on November 23, 2004. The jury determined that Dr. Hasiuk was not negligent and did obtain Dalinsky’s informed consent before he scheduled an induced vaginal delivery of Dalinsky’s third child.

FACTUAL AND PROCEDURAL HISTORY

Many of the facts in this case are undisputed. Both Dalinsky and Dr. Hasiuk essentially agree to the following: Dalinsky had been a patient of Dr. Hasiuk’s, a licensed obstetrician and gynecologist, for approximately nine years. During the nine years prior to this incident, Dr. Hasiuk delivered Dalinsky’s first two children. The first delivery was in 1988. Dalinsky was in labor for approximately 17 hours, and, to accomplish the vaginal delivery, Dr. Hasiuk had to perform a second-degree episiotomy in the midline and employ a vacuum extractor. A known complication with a second-degree episiotomy is a tear of the vagina that extends downward into a fourth-degree episiotomy. Said deliveiy was successful, but the second-degree episiotomy performed on Dalinsky did in fact extend into a fourth-degree tear.

Dalinsky became pregnant for a second time in 1994 and once more Dr. Hasiuk was her obstetrician. Having already undergone a vaginal delivery with episiotomy, Dalinsky was at an increased risk for complication and need for a second episiotomy if she chose a vaginal delivery for the second child. Aware of this risk, Dalinsky elected to forego a caesarian section and have a second vaginal delivery. Again she was in labor for approximately 17 hours. Dr. Hasiuk successfully performed the second vaginal delivery, although it required that he cut a mediolateral episiotomy and employ forceps.

The disputed facts from which this case was brought are as follows: Dr. Hasiuk recorded in his chart that he would perform a caesarian section rather than another vaginal delivery if Dalinsky became pregnant for a third time. He explained that he would rather perform a caesarian delivery because of the difficulties Dalinsky experienced with her previous two deliveries. In April 1997, Dalinsky became pregnant and was again under the care of Dr. Hasiuk. During a prenatal visit Dr. Hasiuk explained to Dalinsky the increased risk for another episiotomy during a third vaginal delivery due to the two prior episiotomies. Further, Dr. Hasiuk explained the risk associated with birth by caesarian section. Dalinsky elected to have Dr. Hasiuk schedule an induced vaginal delivery for November 20, 1997.

On that date Dalinsky arrived at the hospital with her husband at approximately 7:20 a.m. to proceed with the induction and delivery. Dr. Hasiuk did not arrive until 4 that afternoon, at which point induction had already begun under Dr. Hasiuk’s associate, Dr. Smith. When Dr. Hasiuk arrived at the hospital he met with Dalinsky and her husband. Dr. Hasiuk testified he would not have scheduled the induction or induced delivery without having first discussed all risks with Dalinsky.

After numerous hours of labor, Dalinsky’s third child was birthed on November 21, 1997. To facilitate the delivery, Dr. Hasiuk was required to perform a mediolateral episiotomy of at least the second-degree. Unfortunately this procedure caused severe damage to Dalinsky’s rectum and vagina, and she was left with total fecal incontinence. Subsequent attempts to repair the damaged rectum were unsuccessful and further created scar tissue within Dalinsky’s vagina that makes sexual intercourse extremely painful. It is apparent that Dalinsky will suffer from permanent fecal incontinence as a result of the damage caused from multiple episiotomies.

Dalinsky brought this suit alleging that Dr. Hasiuk was negligent, failed to properly inform her of pertinent information regarding her medical condition, ignored her medical history and failed to get proper consent before performing a vaginal birth of Dalinsky’s third child, thereby causing the aforementioned defects.

MATTER COMPLAINED OF

On March 15, 2005, pursuant to Bucks County Rule of Civil Procedure 287, Dalinsky filed with this court her concise statement of matters complained of on appeal. Each matter shall subsequently be examined on an individual basis, although, before reciting Dalinsky’s matters complained of verbatim, the court wishes to note the following: (a) matters no. 1 and 2 shall be addressed together as both allege the same error, that the court should have granted a directed verdict in favor of Dalinsky; (b) matters no. 3-10 are statements of Dalinsky’s opinion of the evidence presented. The court believes that Dalinsky is attempting to aver that the court erred in failing to enter a judgment n.o.v., and that shall be the issue addressed by the court; and (c) matter no. 11 is, in the court’s opinion, an attempt to allege an error by the court in its failure to grant a new trial. Therefore it is that issue that shall be addressed.

The matters complained of as submitted by Dalinsky are as follows:

(1) The court erred by denying plaintiff’s motion for directed verdict on the issue of informed consent.

(2) The court improperly permitted the jury to decide an issue that the law required a verdict in favor of the plaintiff.

(3) A judgment n.o.v. can be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law, or (2) the evidence was such that no two reasonable minds could disagree that the verdict should have been rendered for the movant.

(4) The defendant admitted that he did not obtain a specific consent form from the plaintiff and that he failed to discuss the increased risks involved in performing a third episiotomy on the plaintiff.

(5) The court ruled that the defendant was required to obtain the specific consent of the plaintiff after informing her of the increased risks of the procedure.

(6) The defendant testified that he did not need to get the plaintiff’s informed consent because the episiotomy is covered under the general delivery consent form.

(7) The court determined that the defendant was required to obtain the specific consent from the plaintiff in order to perform an episiotomy.

(8) Therefore, since the court ruled that the defendant was wrong as a matter of law, no two reasonable minds could disagree that the verdict should have been rendered for the plaintiff on the issue of informed consent.

(9) Both the defendant and his expert, Dr. Gerson, agreed that the defendant deviated from the standard of care in the treatment and care that the defendant rendered to the plaintiff.

(10) Therefore, since there was no factual dispute over the negligence theory, no two reasonable minds could disagree that the verdict should have been rendered for the plaintiff.

(11) The verdict of the jury on the issues of informed consent and negligence is so contrary to the evidence that it shocks one’s sense of justice.

(12) The jury never considered the issues of causation or damages.

(13) The above-mentioned errors by the trial court resulted in the jury’s verdict in favor of defendant, rendered on March 7, 2005.

DISCUSSION

The Trial Court Did Not Err When It Failed

To Grant Plaintiff’s Request for a Directed Verdict on the Issue of Informed Consent

It is established in Pennsylvania that “only in a case where the facts are all clear, and there is no room for doubt, should [a] case be removed from the jury’s consideration, and a motion for a directed verdict ... be granted.” In reaching a determination of whether or not the directed verdict should be granted, the court must “accept as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made and must reject all testimony and inferences to the contrary.”

In this case Dalinsky alleges that a directed verdict should have been entered because no evidence was presented that indicates Dr. Hasiuk received Dalinsky’s informed consent prior to the vaginal delivery of November 21, 1997. The court contends that this assertion is incorrect.

In examining the court’s contention on this issue, it must first be made clear what constitutes and defines “informed consent.” In Pennsylvania, consent is informed “if the patient has been given a description of a procedure ... and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure.” During trial the court was presented with the question of whether a vaginal delivery with episiotomy requires informed consent. This court ruled that, as a general rule, an obstetrician does not have to obtain a patient’s informed consent prior to performing a vaginal delivery and episiotomy.

However, this case is different from the normal circumstances in which a vaginal delivery and episiotomy would be performed. In this case, Dr. Hasiuk specifically planned to do a caesarian section if Dalinsky became pregnant with her third child. This was intended to avoid the known risks associated with multiple episiotomies. Given the evidence presented that indicates Dr. Hasiuk had initially intended to perform a caesarian section on Dalinsky, the court ruled that the unique circumstances of this case made it necessary for Dr. Hasiuk to prove he did in fact have informed consent to perform a vaginal delivery with episiotomy to birth Dalinsky’s third child.

Having determined that Dr. Hasiuk was required to obtain informed consent, it is necessary to examine the evidence presented at trial to determine if the court properly denied a directed verdict. Dr. Hasiuk testified as follows in regard to conversations he had with Dalinsky:

“Dr. Hasiuk: At the time I scheduled Michelle’s induction [for the birth of Dalinsky’s third child] on November 6,1 had a discussion with her about the induction.

“Plaintiff counsel: Sir, you have absolutely no specific recollection — at least it is true that you’ve testified previously you have no recollection of any meeting that took place on the 11th, but, rather, you assumed that a conversation took place because you scheduled her for an induction? Isn’t that your prior testimony, sir?

“Dr. Hasiuk: I’m not sure if that is my prior testimony.

“Plaintiff counsel: Is that true?

“The Court: Is what true?

“Plaintiff counsel: Is it true that you have no recollection of any conversation, and, in fact, the only reason that you believe you had a conversation with Ms. [Dalinsky] is because you scheduled the induction, and you wouldn’t have scheduled an induction without having a conversation with her?

“Dr. Hasiuk: That’s correct, I wouldn’t have scheduled—

“Plaintiff counsel: That’s correct?

“The Court: Excuse me, answer the question, then explain, doctor.

“Dr. Hasiuk: I would not have scheduled the induction with [Dalinsky] without explaining to her about the induction.”

Dr. Hasiuk further testified that he and Dalinsky had a discussion on November 6,1997, in which they discussed that she was going to have a scheduled induction for vaginal delivery on November 13 because “the plan had changed.” Further, Dr. Hasiuk had a conversation with Dalinsky after he arrived at the hospital and before vaginal induction was performed on November 20, 1997, about what was going to occur.

Given this evidence alone, it is clear that a question exists as to whether or not the conversations between Dr. Hasiuk and Dalinsky prior to the birth of Dalinsky’s third child constituted informed consent by Dalinsky, and therefore it was proper for the court to deny Dalinsky’s motion for directed verdict. Further, it should be noted that the determination of whether said conversations between Dalinsky and Dr. Hasiuk constituted informed consent is not one that should have been made by the court; rather that decision was properly placed in the hands of the jury.

The Court Did Not Improperly Permit the Jury To Decide an Issue That the Law Required To Be a Verdict for Plaintiff

In addressing this contention it should first be noted that number two of Dalinsky’s matters complained of is overly concise since it fails to state exactly what “issue” was allegedly improperly decided by the jury.

If the court goes so far as to assume that the alleged “issue” is the court’s decision to allow the juiy to decide whether Dr. Hasiuk had informed consent from Dalinsky instead of granting a directed verdict on the matter, it is the court’s contention that such an allegation is without merit for the reasons examined in detail supra.

It Is Possible That Two Reasonable Minds Could Disagree That the Verdict Should Have Been Rendered for the Plaintiff

Dalinsky’s concise matters complained of are improperly drafted; however, it is reasonable for the court to infer that numbers three to 10 of their matters complained of are Dalinsky’s attempt to allege that the court erred by failing to enter a judgment n.o.v. This contention by Dalinsky is incorrect.

Case law and the Supreme Court of Pennsylvania have clearly stated that granting a judgment n.o.v. is only proper when: (1) movant is entitled to judgment as a matter of law; or (2) there is no sufficient, competent evidence to support the verdict and no two reasonable minds could disagree that the moving party is entitled to relief when viewing the evidence in a light most favorable to the verdict winner.

With regard to the first standard, i.e., that Dalinsky is entitled to judgment as a matter of law, it is the court’s contention that the reasons for which Dalinsky was not entitled to judgment as a matter of law were explained in detail supra and therefore will not be re-examined.

In regard to Dalinsky’s contention that no two reasonable minds could disagree that a verdict should have been entered in favor of Dalinsky, this court finds such a contention to be without merit. As explained previously, there was evidence presented by Dr. Hasiuk that conversations took place between he and Dalinsky during which he alleges to have informed Dalinsky of what the differenees between a caesarian section and vaginal birth would entail. He further presented evidence that indicated he would not have proceeded with a vaginal delivery of Dalinsky’s third child without first getting informed consent from Dalinsky. In addition, it is indisputable that Dalinsky consciously underwent a vaginal birth of her third child, thereby making her claim that she unswervingly believed she was having a caesarian section less credible.

The aforementioned evidence is clearly enough to prove that reasonable minds could disagree as to whether Dr. Hasiuk properly procured informed consent from Dalinsky prior to inducing labor on November 21,1997. Based on the evidence presented, the jurors made factual determinations, as was their function.

Additionally, the court wishes to address the factual statement made by Dalinsky in number nine of her matters complained of, specifically the assertion that Dr. Hasiuk’s expert, Dr. Andrew G. Gerson, agreed “that [Dr. Hasiuk] deviated from the standard of care in the treatment and care that [Dr. Hasiuk] rendered to [Dalinsky].” The court finds such a statement to be entirely untrue.

In regard to the standard of care for Dalinsky, Dr. Gerson testified as follows:

“Defense counsel: Doctor, if a patient has two fourth-degree episiotomies that are repaired, what is the standard of care as to how a subsequent delivery should be conducted and what was the standard of care in 1997?

“Dr. Gerson: The standard of care for a patient who had had two episiotomies that had extended into a fourth-degree tear was one of individualization. And that means evaluating the patient for how the patient had healed, the presence or absence of any symptoms related to having had fourth-degree extensions of a midline episiotomy, as well as doing some evaluation of the size of the particular baby. There was a judgment where you put together the patient’s recovery, the appearance of physical examination of the tissues between the vagina and rectum, the perineal body, the perineal area, as well as some idea or getting some sense about the size of the baby that may impact on your plan of delivery.

“Defense counsel: And was vaginal delivery a safe alternative for this patient in November of 1997?

“Dr. Gerson: Absolutely.”

Additionally, Dr. Gerson testified that there was “not any contraindication” to vaginal delivery of Dalinsky’s third child in 1997.

The aforementioned testimony by Dr. Gerson completely contradicts Dalinsky’s assertion that Dr. Gerson and Dalinsky’s expert agreed that Dr. Hasiuk deviated from the standard of care in his methods of preparing to deliver and actually delivering Dalinsky’s third child. It is for that reason that such a contention has no merit.

The Verdict of the Jury on the Issues ofInformed Consent and Negligence Are Not So Contrary to the Evidence That It Shocks One’s Sense of Justice

Dalinsky alleges, by stating the standard under which a new trial is granted, that the court effectively erred by failing to grant a new trial. This contention is without merit.

Common law has established that the weight of evidence is strictly within the province of the fact-finder, “who is free to believe all, part, or none of the evidence” presented and determine the credibility of a witness. It is also established that once the fact-finder has reached its determination, a new trial is warranted only where a “jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice.” An appellant is not entitled to a new trial “where... evidence is conflicting and the finder of fact could have decided either way.”

As previously examined, there was sufficient evidence presented by both sides to determine Dr. Hasiuk either was or was not negligent and that he did or did not have informed consent prior to facilitating the birth of Victoria. It is for the jury to resolve the conflicting testimony and the court cannot substitute its judgment for that of the jury. The testimony and evidence was sufficient to prove Dr. Hasiuk was not negligent and did act with informed consent, and such a conclusion is exactly what the jury found. By no means does the jury’s verdict meet the standard of “shocking one’s sense of justice.”

The Court Cannot Insist That the Jury Consider the Issues of Causation and Damages When It Has Already Found That No Negligent Actions Were Taken

In number 12 of her matters complained of, Dalinsky states factually that “the jury never considered the issues of causation or damages.” Dalinsky is admittedly correct in this proposition. However, it is beyond the court’s understanding of why, or upon what basis, the jury’s failure to consider these issues can now be a matter upon which Dalinsky appeals. It stands to reason that the jury did not examine the issues of causation or damages since they found that Dr. Hasiuk was not negligent and did have informed consent from Dalinsky prior to beginning a vaginal delivery of Victoria. Such a finding made the issues of causation and damages moot and irrelevant, and therefore the jury never took them into consideration.

CONCLUSION

It is for all of the above reasons that this court denied Dalinsky’s request for a directed verdict and judgment n.o.v. and failed to grant Dalinsky’s request for a new trial.

      . An episiotomy is a surgical enlargement of the vaginal opening for obstetrical purposes. It enlarges the opening of the vagina, thereby providing a larger area through which the baby can pass during birth. A midline episiotomy occurs when the incision made goes in a straight line from the innermost lining of the vagina down towards the rectum. Episiotomies vary in degree, a first-degree being the smallest incision and a fourth-degree being a tear or incision from the innermost wall of the vagina down to the rectum.

      . A vacuum extractor is a suction device that is placed on the baby’s head while the mother is having a contraction. The extractor is then gently pulled on by a doctor to help bring the baby down the birth canal.

      . A mediolateral episiotomy cuts at an angle from the middle of the vagina towards the left or right as opposed to the midline episiotomy which is a straight cut down towards the rectum.

        .Id.

        . See N.T. 11/17/04 pp. 139-41.

      . Id.

      . See N.T. 11/17/04 pp. 85-86.

      . The personal records of Dr. Hasiuk indicate that it was a fourth-degree incision while the hospital records indicate it was only a second-degree incision. See N.T. 11/18/04 pp. 64-66.

      . See Stephens v. Carrara, 265 Pa. Super. 102, 105, 401 A.2d 821, 822 (1979).

      . See Cox v. Equitable Gas Co., 227 Pa. Super. 153, 155, 324 A.2d 516, 518 (1974).

      . See 40 P.S. §1303.504.

      . See N.T. 11/17/04 pp. 85-86.

      . See N.T. 11/17/04 p. 134.

      . See N.T. 11/19/04 p. 91.

      . See Janis v. AMP Inc., 856 A.2d 140 (Pa. Super. 2004).

      . See “Videotape deposition of Andrew G. Gerson M.D.” trial exhibit D-10, pp. 60-62.

      . Id. at 55, 56.

      . See Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003).

      . See Martin v. Evans, 551 Pa. 496, 711 A.2d 458, 461 (1998).

      . See Odato v. Fullen, 848 A.2d 964, 966 (Pa. Super. 2004).


source: Caselaw Access Project

author: GRIM, P.J.,

license: Public Domain

text:
    Commonwealth v. J.A.K.

      C.P. of Berks County,
    no. 571-J-2005.
    August 18, 2005

      Douglas J. Waltman, Aaron J. Bell and Eric Winter, for Commonwealth.

      Keith A. McConnell, for defendant.
   GRIM, P.J.,

On July 5, 2005, the court granted the motion to suppress the physical evidence filed by the juvenile, J.A.K. The Commonwealth appeals the granting of the motion. This opinion is filed pursuant to Pa.R.A.P. 1925. The following are the pertinent facts.

The Reading Police Department in Berks County, Pennsylvania, received a seat belt enforcement grant. On May 13,2005, the police department conducted seat belt surveys to determine compliance with seat belt usage at the locations where the photographic safety checkpoints were to be held. These surveys were taken between 9:30 a.m. and 11:45 a.m. The police department employs written guidelines for the checkpoints that were developed in conjunction with the National Highway Safety Administration.

The police department issued a media release announcing that it would be conducting traffic safety checkpoints within the City of Reading to coincide with a national and state effort to encourage seat belt usage. The release further stated that the officers would conduct a systematic checkpoint with a sequence number to be determined. It closes with the following statements:

“The commonsense fact remains that utilization of all restraints provided in vehicles can help to prevent injuiy and/or death, and in those extremely violent collisions can help to reduce the level of injury by preventing the driver or occupants from being thrown around inside the vehicle.

“The City of Reading Police Department wishes that all the citizens of Reading and Berks County, and visitors, have a safe and happy holiday season, and that we will be doing our part to encourage utilization of vehicle restraint systems and enforcing violations.

“We are asking for the cooperation of all to achieve the desired result of increased restraint system usage and a lessening of the incidence of injury and death through this effort.” Commonwealth’s exhibit number 12.

On May 25,2005, the police department conducted a checkpoint in accordance with the provisions of the grant, and in conjunction with the “Click It or Ticket” state awareness program. According to the written guidelines, every third car or those with obvious violations, such as invalid inspections, would be checked. The safety checkpoint began at 11 p.m.

Officer Jose Gonzalez was one of the officers who worked at the checkpoint on May 25, 2005. He was not the officer who directed the vehicles. At 11:40 p.m. the juvenile was driving a vehicle that was diverted to the checkpoint stop. Since Officer Gonzalez did not direct the vehicles he is uncertain if the juvenile’s vehicle was a third vehicle in the sequence to pass the checkpoint. Three passengers were also in the car. The owner of the vehicle was not present.

Officer Gonzalez does not remember if the juvenile used a seat belt. He did not cite the juvenile for not wearing a seat belt. He did not observe the juvenile make any moving violations.

Officer Gonzalez approached the rear passenger’s side of the car with a flashlight. He looked inside the vehicle and observed a clear plastic bag of suspected marijuana on the floor of the vehicle on the right side of the rear passenger seat. He immediately removed the passengers and the juvenile. Officer Gonzalez then observed a clear bag of suspected marijuana between the juvenile’s legs as he was exiting the vehicle. He arrested the juvenile and placed him in handcuffs. He subsequently found 46 bags of suspected crack and two additional bags of suspected marijuana in the juvenile’s right pocket. A preliminary Valtox test showed positive reactions to the suspected illegal substances.

Sergeant Michael Kalin went to the checkpoint to assist the uniformed officers with the car. Prior to getting into the vehicle, Sergeant Kalin looked under the front driver’s seat to ensure his safety and found a Remington .32 caliber pistol loaded with the clip in, and one round in the chamber.

Criminal Investigator Joseph Walsh obtained a search warrant to search the vehicle. Nothing additional was found in the car.

The juvenile was charged with the acts of possession of a controlled substance [35 P.S. §780-113(a)(16)], possession with the intent to deliver a controlled substance [35 P.S. §780-113(a)(30)], firearms not to be carried without a license [18 Pa.C.S. §6106(a)(1)], and possession of a firearm by a minor [18 Pa.C. S. §6110.1]. Neither he nor any of the passengers were charged with violating any of the provisions of the Motor Vehicle Code, including the provisions of the seat belt laws.

Based on the foregoing evidence, the court granted the juvenile’s motion for the suppression of the physical evidence. The instant appeal followed. In its concise statement of matters complained of on appeal the Commonwealth contends that the court erred in granting the juvenile’s motion because the record does not support a finding that the juvenile’s arrest was unlawful.

In the case sub judice it is undisputed that the police department was supposed to have been conducting a seat belt safety awareness program. All of the Commonwealth’s exhibits disclose that this was the purpose of the grant, the subject of the media release, and the ostensible purpose of the checkpoint. It is questionable that the real goal of the police department was to raise seat belt awareness, since the checkpoint began at 11 p.m. Clearly, if education of the public had been the true goal, it would have made more sense to have the checkpoint begin earlier in the day or evening when traffic would have been heavier. The prior surveys were all taken during the day. By beginning the checkpoint only at 11 p.m., the police department was more likely to find criminal activity afoot and less need for vehicular safety.

No witness testified as to the reason the juvenile was stopped at the checkpoint. It is uncontroverted that he had not engaged in any moving violations. It is uncertain if the juvenile’s vehicle was a third vehicle in the predetermined sequence. Apparently the juvenile wore a seat belt because he was not cited for his failure to do so. The front seat passenger also was not cited for failing to wear a seat belt. Hence, the Commonwealth did not establish that compliance with the seat belt checkpoint was the reason for the stop.

Assuming arguendo that compliance with seat belt usage had been the basis for the stop, the failure to comply with the mandatory seat belt law, in and of itself, was never intended to be a violation of the Motor Vehicle Code for which a motor vehicle could be stopped by a police officer. The police lack the authority to stop motor vehicles solely because their drivers and/or front seat passengers over the age of four are not using seat belts. Commonwealth v. Henderson, 444 Pa. Super. 170, 663 A.2d 728 (1995).

Prior to the stop, the police officers were without reasonable suspicion or probable cause to stop the vehicle. The facts and circumstances within the arresting officer’s knowledge were insufficient to warrant a man of reasonable caution to believe that the juvenile had committed, or was committing, an offense. An officer’s reasonable and articulable belief that criminal activity is afoot must be linked with his observation of suspicious or irregular behavior on the part of the particular defendant whom he stops. Commonwealth v. Wilson, 440 Pa. Super. 269, 655 A.2d 557 (1995), appeal granted, 543 Pa. 509, 673 A.2d 864 (1996).

Since there was no basis for the stop, the court had to grant the juvenile’s motion to suppress the physical evidence. For the foregoing reasons, the court submits that its suppression order should be affirmed.


author: JOHNSON, J,

text:
    Holum v. West
    C.P. of Lehigh County,
    no. 2003-FC-1163.

      Melissa P Rudas, for plaintiff.

      Melissa I Pavlack, for defendant.

      December 15, 2005
   JOHNSON, J,

This matter is before the court on the plaintiffs petition for contempt and modification of custody order filed on November 15,2005 by the plaintiff, Dean G Holum (Father), with respect to custody of the parties’ minor child. Father seeks primary custody of the parties’ minor child, Alyssa K. Holum, bom March 25,2003 (the Child). Mother seeks to retain primary physical custody of the Child. The parties have been operating under the final custody order of May 10, 2005, entered after custody trial, in which primary physical custody was awarded to Mother and partial physical custody on alternating weekends was awarded to Father.

A custody trial was held on December 5, 2005. The following individuals testified: Mother; Father; Father’s parents, Ronald and Elaine Holum; Barbara Collarafici, paternal grandmother of Karysa Schlichting; Salina Schlichting, stepmother of Karysa Schlichting; Steven Brunner of the Baltimore, Maryland Children and Youth Services; and Tracy Chado, Mother’s sister. The court did not interview the Child due to the Child’s age of 2 years.

Based on the evidence presented, the court finds that the best interests of the Child require that she be placed in the primary custody of Father.

FINDINGS OF FACT

(1) The parties are the parents of Alyssa K. Holum, age 2 years (Child).

(2) The parties were never married and their relationship ended in June of 2003.

(3) Plaintiff, Dean G. Holum, (Father) is an adult individual and currently resides with his parents at 1842 Timber Lane, Hellertown, Northampton County, Pennsylvania 18055.

(4) Defendant, Christine K. West, (Mother) is an adult individual and currently resides in Maryland.

(5) On May 10, 2005, after a full custody trial, the Honorable J. Brian Johnson entered a court order regarding custody of the Child.

(6) Pursuant to the court order, the parties were to have joint legal custody of the Child, and Mother was to have primary physical custody of the Child. Further, Father was to have partial physical custody of the Child every other weekend from Friday at 6 p.m. until Sunday at 6 p.m.

(7) Mother allows several different people to care for the Child.

(8) Mother has another child, Karysa Schlichting, by another father. Karysa Schlichting is 9 years old.

(9) On June 17, 2005, the Child, Alyssa Holum, was left alone with her 9-year-old half-sister, Karysa, at Mother’s apartment while Mother was at work. At approximately 12:30-1 p.m., Karysa Schlichting’s stepmother, Salina Schlichting, and paternal grandmother, Barbara Collarafici, went to Mother’s house and found the children alone. They also found trash all over the house, a sharp knife laying on the floor, empty beer bottles on the table, dirty dishes piled up around the sink and very little food in the house. The apartment was in disarray and was filthy and smelly. The Child and Karysa started to cry immediately when they saw Salina and Barbara. Barbara was there for 20 minutes and no adult showed up.

(10) Mother was evicted from her apartment on October 3,2005, and now resides in another apartment at 4208 White Avenue, Overlea, Maryland, Apartment A.

(11) Mother still does not have a valid driver’s license although she has been driving a vehicle with the Child as a passenger and has made a number of trips from Maryland to Pennsylvania while driving a car without a license with children, including the Child, as passengers.

(12) Over the past few months, Mother has transported the Child in a motor vehicle without using a car seat.

(13) Over the past few months, Mother allowed her new boyfriend, who she only knew for five months, to transport the Child alone to Pennsylvania.

(14) Father has continued to maintain stable and steady employment and housing.

(15) It is in the best interests of the Child to reside primarily with Father, as Father is the more stable and responsible parent at this time and can provide for the Child’s needs.

(16) Mother is unable to adequately care for the Child. On at least two occasions, Mother failed to produce the Child to Father for Father’s weekend visitation, including November 4 and 5,2005. The parties shared custody of the Child on an alternating weekly basis up until this court’s order of May 10,2005 entered after custody trial. Since May 10,2005, the child has resided primarily with Mother, but has had regular periods of partial physical custody with Father.

(17) Mother’s quality of life in Maryland has deteriorated over the past nine months.

(18) Karysa has been removed from Mother’s primary custody by the Maryland courts and, thus, Karysa no longer resides with Mother.

(19) Since Mother’s quality of life has deteriorated over the past nine months, the Child’s quality of life has deteriorated and she no longer is able to reside with her half-sister.

CONCLUSIONS OF LAW

1. Best Interests of the Child

The best interests of the child are the paramount consideration in a custody proceeding. Constant A. v. Paul C.A., 344 Pa. Super. 49, 496 A.2d 1 (1985).

The most important issues in a custody dispute are the child’s physical, intellectual, moral and spiritual well-being. Cardamone v. Elshojf, 442 Pa. Super. 263, 274, 659 A.2d 575, 580 (1995).

2. Stability

Stability is an important factor in establishing custody of the child. The stability of an individual, economic, emotional, psychological or otherwise, has great impact on the life of a minor child. The value of stability is a factor which should be accorded great weight. Snarski v. Krincek, 372 Pa. Super. 58, 77, 538 A.2d 1348, 1358 (1988). The court has viewed maintaining continuity and stability in custody arrangements as important elements in a young child’s emotional development. Commonwealth ex rel. Jordan v. Jordan, 302 Pa. Super. 421, 448 A.2d 1113 (1982).

3.Ability to Care for the Minor Child

In child custody proceedings there is no preference for keeping male children with the father and female children with the mother. Hugo v. Hugo, 288 Pa. Super. 1, 430 A.2d 1183 (1981); Brooks v. Brooks, 319 Pa. Super. 268, 466 A.2d 152 (1983). Further, the court must view the conditions as provided by the evidence and testimony at the time of the custody hearing when determining the proper custody of the minor child. Brooks v. Brooks, 319 Pa. Super. 268, 466 A.2d 152 (1983).

4.Best Interests and Permanent Welfare of the Minor Child

The court is required to consider what is in the minor child’s best interests and permanent welfare in deciding custody cases. The court should view each parent’s ability to provide for the child’s physical, intellectual, moral and spiritual well-being. In re Davis, 502 Pa. 110, 465 A.2d 614 (1983); In Interest of Tremayne Quame Idress R., 286 Pa. Super. 480, 429 A.2d 40 (1981).

5.Child Custody

The Pennsylvania Superior Court has consistently held that, in custody proceedings, the paramount concern is the welfare of the child, and all considerations, including the rights of the parents, are subordinate to the child’s physical, intellectual, moral, spiritual and emotional well-being. Plowman v. Plowman, 409 Pa. Super. 143, 154, 597 A.2d 701, 707 (1991).

6. Primary Caretaker

The parent who has served as a primary caretaker for the minor child is a substantial factor which the trial judge must weigh in adjudicating a custody matter. Commonwealth ex rel. Jordan v. Jordan, 302 Pa. Super. 421, 448 A.2d 1113 (1982); Brooks v. Brooks, 319 Pa. Super. 268, 466 A.2d 152 (1983). “[Tjhis court has long recognized that the removal of a young child from his environment is a factor which bears upon its emotional well being .... Therefore, continued residence of children with one parent may be controlling.” Hugo v. Hugo, 288 Pa. Super. 1, 6, 430 A.2d 1183 (1981).

7. Continuity of Current Custodial Arrangement

The potential harm that may result from the disruption of an established pattern of care and emotional bonds confirms the need for continuity, stability and finality in the establishment of a custody order. Modification of an existing custody arrangement is not warranted merely because one parent is unhappy with the existing arrangement. The parent who is requesting to modify the current custody arrangement has the burden to establish that alteration of the existing custody arrangement is in the child’s best interest. Jackson v. Beck, 858 A.2d 1250 (Pa. Super. 2004).

FURTHER FINDINGS AND DISCUSSION

The “ultimate guidepost” in a child custody case is the child’s best interests. Meyer-Liedtke v. Liedtke, 762 A.2d 1111, 1114 (Pa. Super. 2000). Our focus in this case, therefore, must be on what is best for the Child rather than on doing justice between the parties. English v. English, 322 Pa. Super. 234, 469 A.2d 270, 273 (1983).

The determination of a child’s best interests must be done on a case-by-case basis, based upon a “consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.” McAlister v. McAlister, 747 A.2d 390, 391 (Pa. Super. 2000).

One of the key facts in this court’s decision on May 10, 2005, to award primary custody of the Child to Mother was the fact that Mother had primary custody of the Child’s half-sister, Karysa, and this court invoked the “Separation of Siblings Doctrine” and kept the children together. Mother now does not have primary custody of Karysa, so that doctrine does not apply now.

Mother’s quality of life has deteriorated over the past nine months. What appeared to this court at the time of trial in March 2005 did not, in fact, take place.

Mother now shows a pattern of unreliability and instability, whereas Father shows stability.

Mother has shown poor judgment by driving a motor vehicle without a driver’s license, by allowing her temporary boyfriend to drive the Child to Pennsylvania from Maryland, and by not insuring the Child’s safety in making certain that she is in the care of a responsible adult at all times when Mother is unavailable.

The evidence demonstrates that Father is better able to provide a stable home for the minor child. Father has a steady and lucrative job with Verizon that he has had for a number of years. He resides with his parents. Father has a valid driver’s license and a motor vehicle.

At the March 2005 trial, Mother indicated that she would be obtaining a valid driver’s license in the near future. Nine months later, Mother’s driving privileges are still suspended.

At the time of the March 2005 trial, Mother had primary physical custody of her older daughter, Karysa. However, on June 17,2005 — less than two months after that trial, Mother left the Child and Karysa alone together in a filthy apartment while she went to work without making arrangements for them to be cared for by a responsible adult.

The two children were discovered in the apartment alone with each other by Karysa’s stepmother and paternal grandmother. Mother left these two children in a dangerous situation.

It is curious that Irene Counts, the next door neighbor who Mother said was to be caring for the Child and Karysa on June 17,2005, was not offered as a witness in this trial. Other out-of-town witnesses testified via telephone. She could have done so as well.

At this point in her life, Mother does not have the means necessary to care for the Child and, if the Child is left in Mother’s custody, the Child’s health and well-being are at great risk.

On the other hand, Father appears to have the means necessary to care for the Child. He is the more stable parent at this point and has the help of his parents, particularly his mother, who expresses a great love for the Child, in the same household.

CONCLUSION

Based upon all of the factors and reasons set forth above, the court concludes that it is in the Child’s best interests to grant the relief requested in the Father’s petition for contempt and modification of custody order and vest primary physical custody in the Father, with partial physical custody to the Mother, as set forth in the accompanying order.


author: WORTHINGTON, J,

text:
    Zegan v. Zegan

      C.P. of Monroe County,
    nos. 172 DR 2004, 982 CV 2004.
    November 4, 2005

      ErikJ. Conrad, for plaintiff.

      Donald M. Leeth, for defendant.
   WORTHINGTON, J,

Plaintiff, Arlene M. Zegan (Wife) and defendant, Alan G. Zegan (Husband) were married on September 5,1981. Master’s report, at 2. On February 10, 2004, Wife filed a complaint requesting a divorce pursuant to sections 3301(a)(6), 3301(c) and 3301(d) of the Pennsylvania Divorce Code. In her complaint, Wife also requested equitable distribution, alimony, alimony pendente lite, counsel fees, and costs and expenses. The parties filed affidavits of consent at the master’s hearing.

Both parties and their respective counsel attended the master’s hearing in front of Robert C. Lear, Esquire on March 28, 2005. The master filed a report and recommendations on May 2, 2005. Wife filed exceptions to the report on May 12,2005. Wife filed a supporting brief on July 14, 2005. Husband filed a brief in opposition to Wife’s exceptions on July 28, 2005. Wife’s exceptions are now before us for disposition.

At the time of the hearing, Wife was 55 years of age and Husband was 59 years of age. Both parties had been married previously. N.T., at 11. Husband has two adult children from a previous marriage. Id. There was one child bom of this marriage, Jenny Hellen Zegan, 20 years of age. Id.

Throughout the marriage, Husband was employed as a respiratory therapist at Bellevue Hospital. Report, at 12. Husband retired from Bellevue Hospital on Decernber 31,2002. N.T., at 129. He is currently employed part-time at Long Island College Hospital and, in 2004, he earned the sum of $27,345. Report, at 11. In addition, Husband’s annual pension earnings are $54,742.58. Id.

During the parties’ 22-year marriage, Wife engaged in part-time employment on a sporadic basis. Report, at 11. Since moving to Pennsylvania in 2001, Wife was employed as a part-time receptionist at a chiropractor’s office for approximately six months. N.T., at 18. Wife earned $7 per hour and she worked approximately 15 hours per week. Id. From 1982 until 2001, Wife was employed by the Union City Parks and Recreation Bureau as a receptionist working between four to 15 hours per week. Report, at 12. From 1990 until the present, Wife’s average annual salary was $5,000 or less. Id. Wife is currently unemployed.

The marital assets consist of the former marital residence located at R.R. 6 Box 6399B in Stroudsburg, Pennsylvania, which has a stipulated value of $149,000. Report, at 4. At the time of the hearing, the residence was encumbered by a mortgage that had a balance of $94,000, resulting in $55,000 of marital equity. Id. Husband retained a 2002 Ford Ranger valued at $11,965, and Wife retained a 1997 Ford Taurus worth $4,425. Id. at 4-5.

The parties have a Massachusetts Mutual Joint Annuity, which had a value of $66,206.56 as ofMarch 31,2005; an American National Insurance Company Joint Annuity, which had a value of $ 109,03 8.20 as ofMarch 31,2005; a Primerica IRA, which had a value of $2,499.76 as of December 31,2004; a Primerica Roth IRA, which had a value of $3,882.08 as of December 1, 2004; and a Prudential Retirement Account, which had a balance of $29,445.91 as of December 14, 2004. Report, at 5. Wife also had a savings account worth $6,357, a checking account in the amount of $843.97, and a Citizen’s Bank savings account worth approximately $25,000. Id. at 6.

Husband has a pension from the New York City Employees Retirement System by virtue of his employment with Bellevue Hospital. Report, at 5. The master found that the annual pension benefit, which was worth $54,742.58, was completely marital, and he recommended that it be divided on a 50-50 percent basis between the parties through a Qualified Domestic Relations Order. Id. at 15-16.

In his report, the master recommended that the remaining marital assets be allocated 55 percent to Wife and 45 percent to Husband, since there was a significant disparity between the parties’ incomes. Report, at 13-14. As a result, Wife was awarded $ 184,077.41 and Husband was awarded $130,586.07. Id. Wife received the marital residence, the Citizen’s Bank savings account, the two IRAs, her savings and checking accounts, the assignment of the Massachusetts Mutual Joint Annuity, and a portion of the Prudential Retirement Account pursuant to a Qualified Domestic Relations Order. Id. at 15. Additionally, Wife was awarded rehabilitative alimony in the amount of $300 per month for the duration of one year. Id. at 18. Husband retained the American National Joint Annuity and the balance of the Prudential Retirement Account. Id. at 15.

When we review the recommendations of the master, they are entitled to great consideration because the credibility of the witnesses is an issue. Herwig v. Herwig, 279 Pa. Super. 65, 420 A.2d 746 (1980). However, those findings are not binding on the court. Butler v. Butler, 423 Pa. Super. 530, 621 A.2d 659 (1993). If the court feels it should deviate from a recommendation, it has authority to do so, Morschhauser v. Morschhauser, 357 Pa. Super. 339, 516 A.2d 10 (1986), because the final responsibility for making the equitable distribution of property rests with the court. Tagnani v. Tagnani, 439 Pa. Super. 596, 654 A.2d 1136 (1995). We will, however, affirm the master if the recommendations are supported by the record. Furthermore, equitable distribution need not be equal, only equitable. Williamson v. Williamson, 402 Pa. Super. 276, 586 A.2d 967 (1991).

Section 3502 of the Divorce Code sets forth the factors to be considered by the master in any equitable distribution. The section states in pertinent part:

“(a) General rule. — Upon the request of either party in an action for divorce or annulment, the court shall equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such percentages and in such manner as the court deems just after considering all relevant factors. The court may consider each marital asset or group of assets independently and apply a different percentage to each marital asset or group of assets. Factors which are relevant to the equitable division of marital property include the following:

“(1) The length of the marriage.

“(2) Any prior marriage of either party.

“(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

“(4) The contribution by one party to the education, training or increased earning power of the other party.

“(5) The opportunity of each party for future acquisitions of capital assets and income.

“(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

“(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.

“(8) The value of the property set apart to each party.

“(9) The standard of living of the parties established during the marriage.

“(10) The economic circumstances of each party at the time the division of property is to become effective.

“(10.1) The federal, state and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.

“(10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.

“(11) Whether the party will be serving as the custodian of any dependent minor children.” 23 Pa.C.S. §3502. With these standards in mind, we turn to Wife’s exceptions.

WIFE’S EXCEPTIONS TO THE REPORT

Wife’s first and second exceptions consider the master’s decision to apply different percentages to certain marital assets. In her first exception, Wife argues that the master erred in not awarding her 55 percent of the $22,025 that Husband removed from the marital accounts for non-marital purposes. Plaintiff’s brief in support of her exceptions, at 3. After applying the relevant equitable distribution factors to the facts of the case, the master recommended that marital assets be allocated 55 percent to Wife and 45 percent to Husband; however, the master did not apply this allocation scheme to the marital assets Husband used for non-marital purposes. Id. at 4.

At the hearing, Husband acknowledged that during the marriage he utilized $22,025 of the parties’ marital assets for non-marital purposes. Report at 7-8. In particular, Husband withdrew $10,000 from the parties’ Prudential Retirement Account in order to loan money to his son from a previous marriage. Id. at 7. Husband also testified that he drew $12,025 on a line of credit from the parties’ home equity loan in order to lend money to his daughter from a previous marriage. Id. at 8. In his report, the master concluded that half of the funds utilized by Husband for non-marital purposes were his, and the remainder belonged to Wife. Id. at 14. As a result, the master deducted one half of these assets, $11,012.50, from Husband’s share of the equitable distribution, and increased Wife’s share by the same amount. Id.

In Wife’s second exception, she avers that the master erred in not awarding Wife 55 percent of Husband’s pension. Plaintiff’s brief in support of her exceptions, at 5. In his report, the master recommended that Husband’s pension be divided equally between the parties. Report at 15-16.

Section 3502(a) of the Divorce Code clearly states that “[t]he court may consider each marital asset or group of assets independently and apply a different percentage to each marital asset or group of assets.” 23 Pa.C.S. §3502(a). In divorce proceedings, a trial court is under no obligation to distribute each individual asset according to a determined formula, as long as the scheme of distribution coincides with the court’s decided-upon assessment. Cerny v. Cerny, 440 Pa. Super. 550, 556, 656 A.2d 507, 510 (1995).

After considering the distribution scheme in its entirety, it is evident that the overall scheme favors Wife. The master found a significant difference between the parties’ incomes and awarded Wife 55 percent of the marital assets, resulting in an award of $184, 077.41. Report at 13-14. Additionally, Wife will receive $28,871.28 per year, which represents Wife’s share of Husband’s annual pension distribution. Id. at 15-16. The master also recommended that Wife receive rehabilitative alimony in the amount of $300 per month for the duration of one year. Id. at 18.

We do not find that the master altered the overall distribution scheme by applying a slightly different percentage to the marital assets used by Husband for non-marital purposes. Master awarded Wife 55 percent of the marital assets and then increased her equitable distribution share by $11,012.50 in order to compensate her for her half of the funds used by Husband for non-marital purposes. Wife’s first exception is dismissed.

With regard to Husband’s pension, Husband worked for 33 years in order to earn his pension; therefore, we do not find it unfair or unjust that the master decided to award Wife only 50 percent of this marital asset. As such, Wife’s second exception is dismissed.

Wife’s third exception is that the master erred in failing to recommend that Husband maintain a life insurance policy with, her as the designated beneficiary. Plaintiff’s brief in support of her exceptions, at 7. Husband chose to receive his pension under the Maximum Benefit Allowance. Plaintiff’s exhibit no. 33. As a result, Husband’s pension allowance is payable to him throughout his life; however, his pension will cease upon his death and there will be no subsequent allowance provided for any of his survivors. Plaintiff’s exhibit no. 32. A post-retirement lump sum benefit will still be payable upon Husband’s death to his designated beneficiary. Id. In his report, the master recommended that Husband’s beneficiary be changed to reflect the couple’s daughter. Report at 16.

Under section 3502(d) of the Divorce Code, a trial court “may direct the continued maintenance and beneficiary designations of existing policies insuring the life or health of either party which were originally purchased during the marriage and owned by or within the effective control of either party. Where it is necessary to protect the interests of a party, the court may also direct the purchase of, and beneficiary designations on, a policy insuring the life or health of either party.” 23 Pa.C.S. §3502(d). (emphasis added)

The master took into account the disparity between the parties’ incomes in fashioning an equitable distribution scheme that favored Wife. “Even if Wife were employed on a full-time basis, her income would probably be in the neighborhood of $25,000 per year, while Husband, on a part-time basis, earns $27,000 per year, and in all probability, could earn $60,000 to $80,000 per year if he were re-employed on a full-time basis.” Report at 13. However, the master also noted that, “It is clear from [Wife’s] employment pattern, especially since the date of separation, that Wife, while capable of full-time employment and with no child care responsibilities in the residence because of the daughter’s enrollment in college in Arizona, is severely under-employed.” Id. at 12. The master awarded Wife rehabilitative alimony for one year, “which should give her sufficient time to find full-time employment....” 7J. at 18.

After reviewing the record and the report, we find that the master awarded Wife sufficient marital assets in light of the disparity between the parties’ incomes. Wife has failed to establish the need for Husband to obtain a life insurance policy with her as a beneficiary.

Wife contends that the “master has again rewarded Husband by allowing him to reap the maximum pension benefit allowable during his lifetime with no corresponding obligation to Husband to purchase term life insurance to secure Wife’s interest in this income stream.” Plaintiff’s brief in support of her exceptions, at 8. Wife’s assertion fails to take into account that she is also rewarded by Husband’s decision to receive the maximum pension benefit allowable since she is entitled to half of Husband’s annual pension earnings during his lifetime. Wife’s third exception is dismissed.

We shall now address Wife’s fourth, fifth, eighth, and ninth exceptions concurrently since they all concern Wife’s allegations that, during the parties’ marriage, Husband withdrew funds from various marital accounts without her knowledge and subsequently used these funds for non-marital purposes. Wife’s fourth exception is that the master erred in not including in the marital estate the lump sum distribution that Husband received from his pension in the 2003 tax year. Plaintiff’s brief in support of her exceptions, at 8.

At the hearing, Husband explained that throughout the marriage he borrowed money from his pension plan. N.T. at 144. Specifically, Husband borrowed approximately $12,000 from his pension in order to purchase the parties’ timeshare in Virginia. Id. Husband further testified that eveiy couple of years the parties would find themselves in need of money, and it was convenient for Husband to obtain the needed funds from his pension plan. Id. at 145. During the course of the parties’ 22-year marriage, the small amounts that Husband borrowed from the pension plan gradually accumulated.

When Husband attained payment status on his pension, the total amount borrowed throughout the marriage, $41,319.88, was deducted from his pension. Report at 9. Due to the taxes involved for the liquidation of the funds, a 1099R was necessary. Id. The 1099R form that Husband received from the New York City Employees Retirement System for 2003 indicated that the $41,319.88 was a loan against the pension account. Defendant’s exhibit no. 10. Contrary to Wife’s assertion, Husband never received a lump sum distribution in 2003; rather, the amount indicated on the 1099R form was a tax liability incurred from removing funds from his pension throughout the parties’ marriage.

In exceptions five, eight, and nine, Wife contends that the master erred in not including in the marital estate monies that Husband withdrew from certain marital accounts and allegedly used to pay marital debt and expenses. Specifically, Wife avers that Husband removed $3,750 from ajointbank account, $7,000 from the American National Insurance Company account, and $6,000 from the Mass Mutual Joint Annuity. Plaintiff’s brief in support of her exceptions, at 10-11, 16-17. At the hearing, Husband testified that he used these withdrawals to pay marital credit card debt. N.T. at 143.

After hearing extensive testimony from both parties regarding the various withdrawals made by Husband, the master determined that assets removed by Husband during the marriage were used for marital purposes, and he excluded all of these assets from the marital estate. “If a spouse uses marital funds to satisfy the parties’ joint obligations, this constitutes a disposition in good faith and the spouse does not have to account for such marital funds. These marital funds are properly excluded from the marital estate.” Smith v. Smith, 439 Pa. Super. 283, 305, 653 A.2d 1259, 1270 (1995).

Wife argues that Husband failed to prove that he used marital assets to satisfy marital debts since he did not comply with the best evidence rule.

“Despite Husband having the full ability to obtain documents to substantiate the disbursements of the pension funds, he has failed to do so. Husband did not produce any documentation to show when he obtained loans from the pension. Husband did not produce any documentation to evidence debt owed by the parties. Husband did not produce any cancelled checks or receipts to evidence payment of debt. Husband produced absolutely nothing but his own self-serving testimony that the money was used by him to pay marital debt.” Plaintiff’s brief in support of her exceptions, at 9-10.

“The ‘best evidence’ rule limits the method of proving the terms of a writing to the presentation of the original writing, where the terms of the instrument are material to the issue at hand, unless the original is shown to be unavailable through no fault of the proponent.” Warren v. Mosites Construction Co., 253 Pa. Super. 395, 402, 385 A.2d 397, 400 (1978). The Pennsylvania courts tend to use the “best evidence” rule when the contents of a document are directly at issue. Id.

In the instant case, the contents of a document were never material to the issue at hand; therefore, Wife’s reliance on the best evidence rule is misplaced. The central issue before the master was whether Husband used the marital assets for legitimate marital purposes. Although Husband could have produced documentation, such as cancelled checks or receipts to prove that he used the borrowed funds for marital purposes, he was not restricted to that method of proof. At the hearing, Husband offered his recollections as to how the money was utilized as evidence that the withdrawals were used to satisfy joint obligations. Although it is true that documentary evidence may have been more persuasive, the best evidence rule does not mandate that Husband use the most persuasive evidence to prove his claim. Banks v. Banks, 275 Pa. Super. 439, 446 n.4, 418 A.2d 1370, 1374 n.4 (1980).

Since neither party produced any documentation to support his/her claims, the master was forced to make his determinations based solely upon the testimony of the parties. As such, the master’s findings depended upon the credibility of the witnesses. “The master’s report, although advisory only, is to be given the fullest consideration as regards the credibility of witnesses whom he has seen and heard, and in this respect, his report should not be lightly disregarded.” D’Alessandro v. D’Alessandro, 187 Pa. Super. 194, 197, 144 A.2d 445, 446 (1958), citing Boyer v. Boyer, 183 Pa. Super. 260, 263, 130 A.2d 265, 267 (1957).

In his report, the master thoroughly addressed the credibility of Husband’s testimony regarding the withdrawals he made from marital assets.

“While defendant Husband was unable to supply a detailed itemization of the small loans that comprised the $41,000 sum, the master feels that what has happened is veiy similar to people drawing on a home equity line of credit — $2,000 here, $3,000 there and finally, after a number of years, a person realizes that the line needs to be liquidated.

“A review of the testimony of the defendant Husband, which was not shaken during cross-examination, leads the master to the conclusion that Husband’s explanations for the various withdrawals from the investment vehicles are truthful and, for the most part, exceedingly logical.” Report at 9.

As mentioned previously, Husband admitted that he loaned marital funds to his daughter and son from a previous marriage. Husband took full responsibility for his actions and acknowledged that Wife should not be held accountable for these loans. N.T. at 153, 155. With the exception of these two loans, the master found that Husband’s “withdrawals from the investment vehicles were for marital purposes” and not an attempt to willfully dissipate the marital assets without Wife’s knowledge. Report at 9.

Although the master was free to accept all of Husband’s testimony, portions of his testimony, or none of his testimony regarding the use of the marital funds, the master chose to accept all of Husband’s testimony as truthful. Aletto v. Aletto, 371 Pa. Super. 230, 242, 537 A.2d 1383, 1389 (1988). Although Wife made numerous allegations that Husband had removed marital funds for non-marital purposes, she produced no substantive evidence to support her claims. Wife’s primary argument was that she was not aware that the couple had any marital debt; therefore, she did not believe that Husband used the withdrawals to pay such debts. Both parties’ testimony revealed that “Husband basically controlled the family finances and Wife had very little input in regard to the same.” Report at 10. It could be easily argued that the reason Wife was unaware of certain marital debts was not because they did not exist, but rather, because she did not take part in managing the family finances.

After reviewing the record and the report, we find that the master’s decision to exclude the withdrawals from the marital estate was not an abuse of discretion. The master thoroughly considered the testimony presented by both parties and ultimately concluded that the marital assets were removed to satisfy marital obligations; therefore, he properly excluded the full amount of the withdrawals, $58,069.88, from the marital estate. Wife’s fourth, fifth, eighth, and ninth exceptions are therefore dismissed.

Wife’s sixth exception is that the master erred in failing to include in the marital estate the $10,000 that Husband allegedly used to pay their daughter’s college tuition. At the hearing, Husband testified that he removed $ 10,000 from the parties’ Prudential Retirement Account in order to pay the parties’ daughter’s college tuition for the spring semester. N.T. at 135. According to Husband, he and Wife had discussed their daughter’s educational expenses. Id. at 149. Husband testified that Wife was aware that he intended to use marital funds to pay for their daughter’s college tuition. Id. However, Wife testified that she and Husband never discussed taking responsibility for their daughter’s educational expenses and, it is her position, that she never would have agreed to Husband’s use of the Prudential funds to pay their daughter’s tuition. Id. at 122-23, 112-13.

Once again, the master was forced to make a determination based upon the credibility of the witnesses. After listening to Husband and Wife’s contradicting testimony, the master accepted Husband’s testimony on the matter.

Wife alleges that Husband provided no documentation to substantiate that he made a tuition payment. Plaintiff’s brief in support of her exceptions, at 12. At the hearing, the master agreed to keep the record open for 30 days to allow Husband to produce documents to support some of his assertions, including his claim that he used the Prudential distribution to pay their daughter’s college tuition. N.T. at 125. On April 24,2005, Husband provided the master and Wife with a copy of the can-celled check issued to their daughter’s college as evidence that he used the funds to pay her tuition.

After reviewing the evidence before the master, we agree with the master’s determination that marital assets were used to pay an obligation that the couple had agreed to undertake; therefore, the master properly excluded the $10,000 from the marital estate. Wife’s sixth exception is dismissed.

Wife’s seventh exception is that the master erred in not including in the marital estate the money that Husband removed from the Prudential Retirement Account in order to pay the parties’ 2003 income taxes. In or around April 2004, Husband received a net distribution of approximately $12,000 from the parties’ Prudential account. N.T. at 57-58. Both Husband and Wife testified that this money was used to pay income taxes for the 2003 taxable year. N.T. at 109, 138-39.

In her brief, Wife contends that the tax liability was due, in part, to distributions Husband received and used for non-marital purposes. Plaintiff’s brief in support of her exceptions, at 13. Specifically, Husband’s son from a previous marriage needed $8,500 for his wife’s upcoming oral surgery and he asked Husband if he could borrow the money from him. N.T. at 137. Husband borrowed $ 10,000 from the parties ’ Prudential Retirement Account in order to loan the money to his son. Id. Unfortunately, Husband’s son defaulted on the loan and the default was treated as a distribution in the amount of $10,103. Id. at 137-38. Husband acknowledged that this loan was for a non-marital purpose and the master appropriately included this amount in the marital estate. Id. at 153.

Wife argues that she should not be responsible for the tax liability that was attributable to the $10,103 distribution, since it was used by Husband for non-marital purpose. Plaintiff’s brief in support of her exceptions, at 13. Wife further contends that the portion of the marital funds used by Husband to pay the tax liability attributable to the distribution should have been included in the marital estate. Id. We agree with Wife’s assertion that she should not be responsible; therefore, the portion of the marital assets used to pay the tax liability on the distribution should have been included in the marital estate.

We will now determine the portion of the tax liability in 2003 that was attributable to the non-marital distribution. Husband’s adjusted gross income for the 2003 taxable year was $122,483. Plaintiff’s exhibit no. 34. In particular, $116,754 ofHusband’s income was from pension and annuity distributions. Id. Husband’s form 1040 Worksheet indicates that Husband received a $41,320 distribution from his pension; another $54,069 distribution from his pension; a $10,000 distribution from Prudential; and a $10,103 distribution from Prudential. Id.

After Husband’s itemized deductions were subtracted from his adjusted gross income, his taxable income in 2003 was $101,968. Plaintiff’s exhibit no. 34. Based upon his taxable income, Husband owed the federal government $11,811 in taxes. Id.

In order to determine what portion of the tax liability was due to the distribution used for non-marital purposes, we must first subtract the $10,103 distribution from Husband’s taxable income. Husband’s taxable income minus the distribution is $91,865. The amount of tax owed on $91,865, after subtracting the federal income taxes that had previously been withdrawn, is $9,009.25. If we subtract $9,009.25 from the 2003 tax liability, the difference is the tax liability attributable to the distribution used for non-marital purposes. Therefore, the portion of the 2003 tax liability attributable to the non-marital distribution is $2,801.75. This amount is included in the marital estate and, as a result, Husband owes Wife $2,801.75. Wife’s seventh exception is granted.

Wife’s final exception is that the master erred in awarding Wife only one year of nominal monthly alimony. Plaintiff’s brief in support of her exceptions, at 17. Wife argues that the master committed an abuse of discretion when he failed to appropriately consider the relevant factors enumerated in 23 Pa.C.S. §3701(b).

Alimony after the dissolution of a marriage is not an absolute right, but rather is discretionary in the court. Grandovic v. Grandovic, 387 Pa. Super. 619, 564 A.2d 960 (1989). The purpose of alimony is not to reward one party and punish another, but rather to ensure that the reasonable needs of a person who is unable to support himself or herself through appropriate employment are met. Plitka v. Plitka, 714 A.2d 1067, 1069 (Pa. Super. 1998), citing Twilla v. Twilla, 445 Pa. Super. 86, 90, 664 A.2d 1020, 1022 (1995). In determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony, a trial court must take into consideration the seventeen factors enumerated in section 3701 of the Divorce Code. 23 Pa.C.S. 3701.

After considering the factors in light of the specific circumstances of the instant case, the master determined that Wife was entitled to alimony in the amount of $300 per month for the duration of one year. The master’s recommendation to award Wife alimony was largely based upon the inequality between the parties’ earning capacities and sources of income. Report at 17. The master determined that one year of rehabilitative alimony would give Wife sufficient time to find full-time employment which would provide Wife with benefits. Id. at 18.

As previously noted, Husband’s relative earnings and earning capacity are significantly higher than Wife’s. If Husband continues to work part-time and receive his share of the annual pension earnings, he will receive approximately $56,000 per year. In his report, the master states that “Wife is grossly underemployed and is capable of earning approximately $25,000 per year if she were working full-time even as a receptionist. This combined with the division of the pension affords her an income stream of approximately $53,000 per year.” Report at 18.

Wife disagrees with the earning capacity assigned to her by the master. During the course of the last 10 years, Wife has only held receptionist positions. “She has not earned more than $7 per hour and she has not worked more than 15 hours per week. Even if Wife was able to obtain full-time employment there is absolutely no evidence to support that she would be able to command more than $7 per hour. This gives her an annual gross earning of approximately $14,500.” Plaintiff’s brief in support of her exceptions, at 18.

Although we agree with the master’s determination that Wife is underemployed, we do not find that the record supports his assertion that Wife is capable of earning $25,000 per year; rather we are more persuaded by Wife’s argument that she is capable of earning approximately $14,500.

In his report, the master also failed to take into consideration the length of the parties’ marriage in determining the duration of Wife’s alimony award. The parties have been married for 22 years. Wife testified that Husband preferred that she not be employed on a full-time basis; therefore, her work experience has been limited to sporadic part-time employment. N.T. at 118. “The parties were fortunate enough to be able to sustain themselves on Husband’s income and a contribution by Wife to the income was simply not needed. As a result, she has not, and has not needed to pursue an education or training and has obtained a work history that most employers will not find appealing.” Plaintiff’s brief in support of her exceptions, at 18.

We agree with Wife’s assertion that one year of alimony is insufficient; therefore, Wife’s tenth exception is granted. Wife shall be awarded alimony in the amount of $400 per month for the duration of five years.

ORDER

And now, November 4, 2005, upon consideration of Arlene M. Zegan’s (Wife) exceptions to the master’s report and recommendations of May 2,2005, we enter the following order:

(1) Alan G. Zegan (Husband) and Wife are divorced from the bonds of matrimony.

(2) Wife’s seventh exception is granted. The $2,801.75 removed from the parties’ Prudential account by Husband shall be included in the marital estate. As such, Husband shall pay Wife $2,801.75 within 90 days of the entry of this order.

(3) Wife’s tenth exception is granted. Wife shall be awarded alimony in the amount of $400 per month for the duration of five years.

(4) Wife’s first, second, third, fourth, fifth, sixth, eighth and ninth exceptions are dismissed.

(5) The remaining recommendations of the master are affirmed and the parties are directed to carry out the terms thereof.

      . As previously addressed in Wife’s fourth exception, the $41,320 was a tax liability incurred from Husband’s removal of funds from his pension throughout the marriage. We determined that the $41,320 was used by Husband for marital purposes; therefore, the total amount was excluded from the marital estate.

      . As previously addressed in Wife’s sixth exception, the $10,000 was used by Husband to pay the parties’ daughter’s college tuition. We found that Husband used this distribution for a marital purpose; therefore, this distribution was also excluded from the marital estate.

      . This is the amount Husband owed after he subtracted the federal income taxes that had previously been withheld.

      . Since Husband’s income is between $56,800 and $114,650, we begin by subtracting $56,800 from $91,865, which equals $35,065. Revised 2003 Tax Rate Schedules, Internal Revenue Service, Department of Treasury, available at http://www.irs.gov/formspubs/article/ 0,.id=109877,00.html. We then multiply $35,065 by 25 percent, which equals $8,766.25. Id. The 2003 tax rate schedule then instructs us to add $7,820 to the $8,766.25, which equals the amount of taxes Husband owed, $16,586.25. Id.