Case Information
*1 2019 PA Super 177
RODNEY S. HESS IN THE SUPERIOR COURT OF : PENNSYLVANIA v.
JUDY L. HESS
Appellant No. MDA 2018 : Appeal from the Decree Entered July 20, 2018
In the Court of Common Pleas of Columbia County Civil Division at No(s): 2016 -CV -841 -DV
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E. FILED JUNE 03, 2019
OPINION BY DUBOW, J.: Appellant, Judy L. Hess ("Wife"), appeals from the July 20, 2018 Divorce Decree, which, inter alia, provided the equitable of the marital Wife Appellee, Rodney S. Hess ("Husband"). She challenges the court's consideration of Husband's its marital assets. After careful review, we affirm.
The relevant factual procedural history is follows. Husband and married on April 1999, which was second marriage for both parties. couple married for seventeen years separated on July 22, 2016, when Husband filed Complaint Divorce. Husband do not have any children together; however, each party adult children from previous marriage. years old and good health. Husband currently works
part time at the Surplus Outlet Briar Creek, Pennsylvania, unloading trucks
Former Justice specially assigned to the Superior Court. *2 and stocking freezers, and receives health insurance through this employer. Husband served United States Air Force and National Guard prior his previous employment as a police officer and an installer for Direct TV. Husband also worked PennDOT, from which he retired August of 2013. On a monthly basis, Husband earns $600 from the Surplus Outlet, $1,062 from his Pennsylvania State Employee Retirement System ("SERS") pension, which been pay status since August 2013, and $946 Social Security Benefits.
Wife is 51 years old and good health. She worked a pharmacy technician at Giant Markets since 2005, working an average of 32 hours per week, and receives health insurance through this employer. previously worked a school bus driver and a factory. She is a high school graduate and completed additional two years of training to become pharmacy technician. Wife's gross income was approximately $17,180 and for approximately $19,843. comprised of few vehicles, minimal debt, retirement funds, marital residence valued at $101,000, which is unencumbered by any mortgage lien.
On March 2018, after Special Master's Hearing, the Master filed Report Recommendations the Court recommended, inter alia, awarding 53% 47% of splitting the
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SERS equally.' On April 18, 2018, Husband filed Exceptions the Report.
On June 25, after reviewing briefs and hearing argument, trial court issued an Opinion and Order, which granted part Husband's Exceptions and, inter alia, ordered "an overall 55%-45% equitable division in favor other than the SERS pension, 65%- 35% division of the pension" favor of Husband. Trial Court Order and Opinion, filed 6/25/18, On July 20, 2018, the trial court entered Final Decree Divorce. timely appealed. Both Wife the trial complied with
Pa.R.A.P. 1925. raises the following issues on appeal: Did trial court misapply the law and abuse its discretion
I. when it determined the [S]pecial [M]aster's calculation [Husband]'s income, which included [Husband]'s SERS pension, "double dipping[?"]
II. Did misapply the law and abuse its discretion when it rejected the [S]pecial [M]aster's recommendations granted [Husband]'s exceptions? Wife's Brief (some capitalization omitted).
Both issues challenge the trial court's refusal to follow the Special Master's Recommendations with respect Husband's pension. We review challenge court's equitable ' Master also recommended alimony counsel fees were due, neither party raised Exception to those findings.
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distribution scheme an abuse of discretion. Brubaker v. Brubaker, 201 A.3d 180, 184 (Pa. Super. 2018) (citation omitted). "We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence." Id. We will not find an abuse of discretion "unless the law has been overridden or misapplied or judgment exercised manifestly unreasonable, the result of partiality, prejudice, bias, or ill will, as shown by the evidence the certified record." Carney v. Carney, 167 A.3d 127, 131 (Pa. Super. 2017). When reviewing an award of equitable distribution, "we measure the circumstances of the case against the objective of effectuating economic justice between the parties achieving a just determination their property rights." Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super. 2005).
When determining the propriety an distribution award, this Court must consider the distribution scheme whole. Mundy v. Mundy, 151 A.3d 230, 236 (Pa. Super. 2016). "We do not evaluate the propriety order upon our agreement with the court's actions nor do we find basis reversal the court's application of single factor. Rather, we look at the whole light of the court's overall application of the Pa.C.S.[] § 3502(a) factors for consideration awarding equitable distribution. If we fail find abuse discretion, the order must stand." Harvey v. Harvey, 17 (Pa. Super. 2017) (citation internal brackets omitted). Finally, "it within the province of weigh the evidence decide credibility this Court will not reverse those *5 determinations so long as they are supported by the evidence." Brubaker, 201 A.3d at 184 (citation omitted).
In her first issue, Wife avers the misapplied the law and abused its discretion when it "failed consider Husband's pension as income purposes of equitable distribution." Wife's Brief at 8. Specifically, argues erred relying on support cases conclude Master's method of calculating the 50/50 distribution of the SERS impermissibly used "the from marital asset [(the pension)] determine the percentage distribution of the assets, type of 'double dipping.' Trial Ct. Order and Op. See Brief at 8, 10-11. For the following reasons, we find error trial court's equitable scheme.
"A trial court broad discretion when fashioning award of equitable distribution." Brubaker, 201 A.3d 184 (citation omitted). "In making its decision regarding equitable distribution, court must consider at least Isralsky v. the eleven factors enumerated 23 Pa.C.S.[] § 3502(a)." Isralsky, 824 A.2d 1178, 1191 (Pa. Super. 2003). However, there no standard formula guiding the division of the "method of derives from the facts of the individual case." Wang v. Feng, (Pa. Super. 2005) (citation omitted). While the list of factors Section 3502 serves guideline consideration, the list is "neither exhaustive nor specific weight given the various factors." Id. (citation omitted). Accordingly, "the flexibility *6 method concomitantly assumes responsibility in rendering its decisions." Id. (citation omitted).
Section 3502 provides, inter alia, that upon request from either party in divorce action: court shall equitably divide, distribute assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct such percentages such manner the court deems just after considering relevant factors. court may consider each marital asset or group of independently apply different percentage each asset or group of assets.
23 Pa.C.S. § 3502(a). Among other factors, Section 3502 requires trial consider the "sources of income both parties, including, but not limited to, medical, retirement, insurance, or other benefits." 23 Pa.C.S. § 3502(a)(6).
In Pennsylvania, "[t]he amount funds accrued during marriage subject distribution." Hayward v. Hayward, 808 A.2d 232, 237 (Pa. Super. 2002) (citation omitted). Additionally, this Court repeatedly held that an asset awarded equitable may not be included an individual's purposes calculating support payments. See Miller v. Miller, 832,835-36 (Pa. Super. 2001) (holding money received from the sale an asset awarded equitable may not included individual's income purposes of calculating support payments); Rohrer v. Rohrer, 715 A.2d 463,466 (Pa. Super. 1998) (stating this Court does not condone "double
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dipping," i.e., using the same revenue source for "support" "equitable distribution"); Berry v. Berry, 898 A.2d 1100, (Pa. Super. 2006) (holding partnership accrual account and, therefore, erred when it considered it to be income).
In this case, the Master considered all of the Section 3502 factors but put emphasis on the parties' ages and the Husband's income, noting that Husband's income from the SERS pension "leaves him with much greater than Wife." Master's Report, filed March 2018, at Upon considering Husband's Exceptions to the Master's findings, the court opined:
First, in regards the SERS pension, in the first instance, the Master's calculation does not contemplate the Master ordered half of the benefit, $531.09/mo., distributed to Wife. This results in monthly income increasing to $2,184.67, while decreasing Husband's income to $2,126.59. Beyond that, the Master's method uses the income from marital asset (a pension active pay status for years prior separation) determine the percentage distribution of the assets, type of "double dipping." This begs chicken or the egg conundrum: When relative incomes, presently future, major factor driving the determination of the percentages equitable distribution, how does one know the end result incomes of the parties (after distribution) apply this factor without first determining the percentage the pension asset already pay status? Posing the question illustrates impossibility solving the equation.
*** aversion considering income, where the pension been equitably distributed, been extended to
considerations alimony addition to spousal support. The idiosyncrasy of considering the pre -equitable pension *8 income for equitable distribution, where is already in pay status, before one knows post -equitable distribution income to be left each party, illustrates the "double dipping" aversion should be applied the present case.
Trial Ct. Order Op. at 3-4.
This Court long held marital property subject equitable may not be included individual's income purposes calculating support payments, and has characterized such "double dipping." See Miller, 835-36; Rohrer, 715 A.2d at 466; Berry, 898 A.2d at 1105. Here, although there no support ordered, trial analogously characterized the Master's inclusion Husband's SERS Husband's "amount" calculation purposes of pension determining equitable distribution a type of "double dipping" refused follow the Master's recommendation. Instead, trial court declined to include pension, which is marital property subject equitable distribution, Husband's "amount" of income calculation when making the distribution determination. We discern no error.
As stated above, there standard formula guiding the division of "flexibility of method" when making its determination "from the facts of the individual case." See Wang, 888 A.2d at 888. Moreover, we do not "find basis for reversal court's application single factor" but rather look at the whole light of the court's overall application of the Section 3502 factors. See Harvey, 167 A.3d 17.
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The engaged a proper analysis of the Section 3502 factors, including review of the source and amount that each party was receiving, and found "[t]he only factors of any weight are Husband's favor. This bodes favor on an overall 55%-45% equitable division favor Husband as to other than the SERS pension, 65%-35% division of the pension." Trial Ct. Order Op. at 11.
Our review of the record reveals that record supports the trial court's findings. Accordingly, we find abuse of discretion.
In her second issue, Wife presents two arguments. She first avers that misapplied the law and abused its discretion by improperly analyzing number of the Section 3502 factors when equitably distributing marital property. Wife's Brief at 8. Wife argues the failed to consider Husband's part time employment income when considering the Section 3502 factors. Id. 15.
In presenting this argument, does not cite any legal authority or engage discussion of the specific income totals to which she is referring pursuant to Pa.R.A.P. 2119. Instead, Wife engages general discussion of how the trial court erred when it considered when is entitled retire failed consider when, if, able to retire. Brief at 15- Accordingly, extent Wife asserts that the trial court erred when it failed consider Husband's part time employment income, we find this argument underdeveloped and, therefore, waived. See Pa.R.A.P. 2119 (describing briefing requirements); Hayward, (finding that *10 husband waived issue when he failed to cite pertinent authority engage specific discussion of error with citation record).
Wife next argues that calculating its equitable award, the failed consider that possession of the only capital asset the marriage, the marital residence valued at $101,000. Brief Additionally, she argues trial court failed to consider that Wife's fluctuates year year, only one source of income, Wife made significant contribution estate. Wife's Brief at 17-21. essentially challenging the weight placed on different evidence when analyzing the Section 3502 factors to reach its determination. Our review of the record reveals trial engaged analysis of the Section 3502 factors making its distribution determination record supports the court's findings. We decline reweigh the evidence find abuse of discretion. See Brubaker, 201 A.3d 184.
Decree affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 06/03/2019