*1 such, Ap- denied properly MORAN, Appellant Joseph F. motion as matter became one
pellant’s Cross-Appellee, credibility for the finder which nev- fact question. er this reached final claim is 19 Appellant’s MORAN, Appellee M. Joan court in admitting
that the trial erred evi Cross-Appellant. permanency Appellee’s dis dence of the Pennsylvania. Superior Court ability prognosis prospects and of his or recovery. preclusion or admission May Argued 2003. of evidencе another matter within sound discretion the trial court whose Filed Nov. 2003. not
decisions will be reversed this Reargument Denied Jan. an abuse of discretion or an absent of law. Cacurak v. St. Francis Med. error
Ctr., (Pa.Super.2003). A.2d argues that
Appellant policy because provide payments
“does not for benefit future, provide nor
into the does payments
automatic benefit based permanent disability,” (Appellant’s
claim of 29), concerning
Brief at evidence future prejudicial.
benefits was irrelevant and language
fact as the from the quoted above indicates,
policy efficacy or otherwise
of “future or care” is at continued least
contemplated, suggests Appel proving
lee bore the burden of nature
of the condition which such care could Accordingly,
could ameliorate. the ev properly
idence was admitted.
¶ 20 Order affirmed.4 appeal, event the trial order disposition our of this Iution in the new In view of Appel- address raised in need not the issues were reversed. require appeal, cross would reso- lee’s *2 Chester, Lamb,
Madeline H. West Joseph F. Moran. $279,189.14 mortgage. Chester, for balance Barry Buckley, West C. property also is encum- The Stone Harbor M. Moran. Joan which, as of equity loan a home bered TODD, GRACI, and BEFORE: 27, 2001, had a balance September *3 TAMILIA, JJ. Har- $35,359.41. In addition the Stone own a and Wife property, bor Husband TODD, BY J.:
OPINION Exton, Pennsylvania, which residence in $175,000. ¶ in 1998 (“Husband”) they purchased for Joseph F. and Moran has separation, the Husband (“Wife”) parties’ Since cross-appeal Moran the Joan M. house, paid in Exton and resided the hаs 21, 2002 by order entered November the and taxes and mortgage payments the the County Chester Court of Common Pleas the residence. The balance on insurance respect cross-exceptions to their as of on the of the Exton house mortgage and Report the Recommendations of the $173,208.93. 14, November 2001 was 19, April master entered on special equitable following hearing. ¶ distribution proceed- initiated Husband divorce follow, in For the reasons that we affirm 19,1999. ings against on October On Wife in and vacate part part. 2001, 3, an Answer December Wife filed Lynn A. Alimony. and Counterclaim for ¶ 2 Husband were and Wife married appointed Snyder, Esquire, special 3, February During marriage, the master, hearings and conducted on Decem- children, they had two both of whom are 5, 19, 6, 12, 2001. April On ber At they now adults. the time were mar- 2002, Snyder Report a and Recom- issued ried, Husband as a worked director mendation, recommended that wherein she Industries, engineering Upland Inc. property, Wife recеive 63% marital engineer' He also worked as an industrial $1,134,127, at and that Husband valued Sons, Inc. In for A.P. DeSanno & June receive 37% of the company, Husband started a Pacer Hus- proposed distribution would allow Industries, which specialty manufactures property, band to the Harbor keep Stone grinding paper wheels steel $560,937 required pay him to Wife but industry. Husbánd owns 100% of the distribution, lump a including corporation presently stock of the and he $250,000. payment of The master sum manages the company’s oрerations. Wife recommended that Husband refinance as a for the secretary worked Common- Indus- Stone Harbor house Pacer and/or Pennsylvania wealth of she when married make tries order to obtain funds to Later, Husband. worked a de- Wife Wife, lump and that payment sum store, working partment stopped after holder secondary Wife be listed as hen the birth of the first In parties’ child. Harbor once the Stone began working part- 1988 or Wife In complete. the event Hus- refinancing is selling jеwelry. stopped time work- lump to make sum band unable however, in ing, 1993 or 1994 has not payment, the master recommended outside of home since that worked Final- the Stone be sold. Harbor time. ly, the that the Hus- master recommended July $310,937 pay remaining Husband to Wife band Harbor, monthly pay- purchased house Stone New 120 consecutive making $275,000. interest, and that Jersey for The Stone Harbor ments which include 6% $725,000, policy a life property presently is valued Husband maintain insurance beneficiary and, 14, 2002, listing there a on himself as of November failing § minimum 3706 and find amount of what is owed to 23 Pa.C.S.A. Wife. that she was entitled to receive alimony. reimbursement lieu of excep- both filed 5 Husband excep- report. tions to the master’s argued in his alia, included, following: tions inter recommending the master erred 3. As to the Master’s award of the required that he to execute favor of Husband, Harbor Stone Harbor Wife note secured recognizing Master erred in first in not property; the master erred Husband would like to retain the Stone allowing apportion Husband to the liens determining that property and between the Stone Harbor *4 not clear that his desire was feasi- estate, the Pacer Industries real where option, following ble which the Master apportionment give greater such would inconsistently then determined Wife; protection to and that the master opportu- “Husband will be afforded the amortizing in the dis- erred not nity [purchase property.]” to the of payout to Wife the amount tribution specific error averred is the Master’s $310,936,91 of 120 months. period over a reconcile her concern failure to over 22, 2002, the Honor- 7 On November feasibility retaining of Husband’s opin- B.L. Platt entered an able Katherine her property expressed as earlier and granting ion order Wife’s clearly award of same to Husband when respect property, to the Stone Harbor is, fact, practical the latter is not to effectu- stating that “I find in order prejudicial to Wife. justicе, parties ate economic must sell in awarding 4. The Master erred to the net the Stone Harbor property, Husband the Harbor Stone proceeds awarded to Wife.” Court subject pay to the condition that he (footnote omitted).) 11/22/02, at 17 The conse- offset amount to. Wife. denied, however, The trial court quence of the Master’s award is that recommenda- exceptions to the master’s will in essence have to loan Hus- Wife regarding alimony. the award of tions $310,936.91 necеssary band the sum of complete payment the offset below Subsequently, Husband Wife market interest rates and without suffi- cross-appeals filed to this Court. Husband security. cient following questions: asks us to consider the 5. The Master erred in accommodat- I. the lower court erred Whether ing to retain the Husband’s desire Stone allowing not to retain of her own Harbor the face property when the Stone Harbor so; feasibility to do concerns about his of have fur- retention same would ordеred rather the Master should have policies of the Divorce thered delivery of a the sale of same assure Code. larger portion of Wife’s distribution court erred in II. the lower Whether cash, her in which would reduce prejudice finding that would payment offset to her and lessen her pay to have Husband risk. in the over time for her interest (citations (Wife’s Exceptions, omitted).) alleged also to record court erred finding III. Whether lower the master erred finding that distribution would be receiving рursuant from barred consider given the fullest sory, if the were be greater shore house ation, of credi question particularly sold. witnesses, has the master bility of because Husband, if awarded IV. Whether and assess the to observe opportunity Stone Harbor should Si parties. and demeanor of the behavior option refinancing allowed Simeone, meons and/or (1988). 219, 225 A.2d Pacer Industries in order to allow securing fi- flexibility him more argu- now address Husband’s 10 We more nancing provide also to recog- This has appeal. ments security for Wife in terms nized against liens which she would divorcing parties methods which [t]he respective properties. justice are familiar effectuate economic court erred [Whether] V. lower equita- settled. The process and well continuing master’s recom- is an in mar- ble distribution exercise pay mendation to Hus- marital shalling, valuing dividing the band from share of the every piece in a fair manner. Not pot $9,703.65, sum assets the *5 can or in half. property sрlit should be represented her to Hus- payment spouse one to is entitled Sometimes for her marital band share of the In property than is the other. more liabilities. instances, property some sale (Husband’s 7.) at Brief raises the that can re- spouse must occur so each appeal: following issues on rightful his or her amount. ceive I. the trial court erred its Whether instances, spouse may allocat- other interpretation of 23 Pa.C.S.A. item of and the specific property ed a § when that stat- ruled said credit spouse will cash or a other receive alimony can an ute bar award of item. for his or her share in that same prior entry to the a final decree (Pa.Su Miller, 783 A.2d Miller in divorce. per.2001). II. the trial court erred Whether failing equitable to reim- award ¶ acknowledged 11 The trial court of ali- bursement lieu [Wife] keep that Husband desires to the Stone mony. property so that his children
(Wife’s
1.)
at
Brief
(Trial
grandchildren
enjoy
can
it.
Court
16.)
11/22/02,
at
trial court
Opinion,
The
9 Husband’s
of trial
assertions
by the
also noted that the house was used
pertain
court error
distri
(Id.)
not rented
There is
family and
out.
parties’
property.
bution of
as to
or net
dispute
appraised
also no
reviewing an
When
order of
dis
Nevertheless, the trial
tribution,
value of the house.
“our standard
is limit
of review
couii;
sold.
ed,
ordered
the house be
and will not
the trial court’s
disturb
trial court’s
an
contends
decision absent
abuse of discretion
Husband
by
comply
policy
law which is
failed to
with the
error of
demonstrated
order
the harm
convincing
“[mjitigate
Code
clear and
evidence.” Gilliland
the Divorce
(Pa.Su
Gilliland,
caused
spouses
their children
(Hus
(citation omitted). Additionally,
marriage”,
by the dissolution
per.2000)
15),
noted,
prejudiced
Brief at
and indeed
a master’s
band’s
recommendation,
re-
only
by potentially
and Wife
although
advi- both Husband
that the trial
lastly argues
during
the value of the
due to
Husband
including in its final
court erred in not
related to
realtor fees and various taxes
in the amount оf
order a credit to Husband
any
property.
sale of the
$9,703.65,
represents
setting
12 In
forth its
for or-
reasons
marital debt as determined
property be
dering that the Stone Harbor
that neither
points
master.
out
sold,
“I
trial court stated
find
objection
this issue in
party raised an
jus-
that in order to effectuate economic
report,
their
to the master’s
tice,
Har-
parties
must sell the Stone
and, further,
recog-
trial court
the net
award-
bor
part
this amount as
of the master’s
nized
(Trial
Opinion,
ed to Wife.”
Court
opinion
recommendation
its
17.)
not,
11/22/02,
trial court did
6),
neglected
however,
why
justice
explain
equita-
for it in the final decree of
account
could not be served under the master’s
appears
As it
this
ble distribution.
recommendations,
trial
oversight
would allow Hus-
been an
court,
we instruct the court to address
to refinance the
opportunity
band
on remand.
issue
erty
retain the
so
he could
desired,
compensate
but would also
¶ 14
now turn to Wife’s
We
for her interest in the
As
alleges
first
appeal
wherein she
claims
above,
noted
under the master’s recom-
to award
that the
failed
mendation,
lump
receive a
sum
Wife would
regarding
of review
to her. Our standard
$310,937
$250,000,
payment of
as well as
alimo
pertaining to the award of
questions
including a 6% rate
payments,
scheduled
its
ny is whether the trial court abused
*6
interest,
years.1
of
over the next ten
We
Isralsky
Isralsky,
v.
824 A.2d
discretion.
further note that under the master’s rec-
1178, 1188
previously
(Pa.Super.2003). We
ommendation, if Husband is unsuccessful
purposе
that
of ali
explained
“[t]he
refinancing
the
the
and to
mony
party
is not to reward one
Finally,
ultimately will be sold.
other,
rather to ensure that
punish the
are
via a life insurance
protected
interests
person
needs of the
who is
the reasonable
policy on Husband under the master’s rec-
himself or herself
support
unable
ommendation.
the
are
through
appropriate
employment,
explain
offer reasons to
its conclu-
failed to
Twilla,
86,
Pa.Super.
v.
445
met.” Twilla
must
that the Stone Harbor
(1995) (citations
sion
1020,
omit
1022
664 A.2d
be sold
order to effectuate
ted). Alimony
“is
reasonable
based
that the
justice,
are constrained to hold
lifestyle and
needs in accordance with the
discretion in this
trial court abused its
living
by
par
standard of
established
por-
respect. Accordingly,
marriage,
we vacate
as well as the
during
ties
re-
pay.”
(quoting
distribution order
Id.
Perl
payor’s ability
tion of the
245,
Perlberger,
Pa.Super.
426
berger
quiring
denied,
(1993), appeal
626 A.2d
1203
immediately
sold.2
five-year
pаyments
a
term
argument
a
amortized
over
support
his
is
As
6%
interest,
interest.
6%
that the
of
Husband notes
fair rate
receive the dif-
trial court ordered that Wife
disposition, we need not
In view of our
mar-
of the recalculated
ference between 37%
ap-
next three issues on
address Husband's
amount she realizes from
ital assets and the
pertain
peal,
to the Stone
which
the shore house in
of the sale of
erly.
A.2d at 1023.
(1993)).
the marital
More
tion. Wife herein asserts investigators, one Stone private two receiving alimony precluded from because Harbor, other in Lansfоrd. relationship she ended her with Martinko- evidence, overwhelming, was which was vic, concluding after that he was interested Har- residing Stone Wife (Wife’s money. Brief only Lansford, in her for her PA. with bor, rather but 8.) rela- argues further her doing Wife so boyfriend and had been her tionship with Martinkovic did not meet further cor- early 2000. This was since utility definition of cohabitation because Harbor by the Stone roborated that there was eco- cashing failed to establish check usage as well Wife’s and Martinko- nomiс bond between Wife usage. pattern and MAC vic. denied noted that Wife It should be
¶
rath-
Twilla,
Joseph Martinkovic but
living with
that in
this Court
noteWe
visiting.
just
that she was
re-
er testified
not entitled to
held that the wife was
clothes at
keeping her
also denied
to co-
She
alimony because she admitted
ceive
testimo-
residence. Wife’s
Martinkovic’s
opposite
habitating
person
with a
to be
is not found
ny
regard
in this
final decree
entry
sex before
residing
Clearly
was not
Wife
credible.
equitable distribution
divorce and the
to the
spouse
for his or her contribution
only
Harbor and she
testified
Stone
in-
marriage
was with
where the
assets are
couple
of occasions when she
Twilla,
A.2d at
visiting
or
her brother. The
to do so.
her mother
sufficient
year
noted
majority
opinion,
of Wife’s time over
two
1023. In its
the trial court
span
spent
time
with Martinkovic.
to address this issue in her
that Wife failed
almost
accompanied
support
Martinkovic
of her
brief
related
everywhere including
report,
implicitly
business
nevеrtheless
master’s
but
claim,
vacations.
trips,
outings
rejected
concluding
weekend
that “the
of the Stone Harbor
immediate sale
no comin-
may
While there
have been
erty
distribution of the
funds,
accounts,
joint
gling of
such as
provide her
assets for
should
interdependence
there was
financial
security.”
Opin-
her future
respect
to Wife and Martinkovic.
24.)
ion, 11/22/02,at
In view of our deter-
residing
yet
Wife was
with Martinkovic
mination that the trial court erred in or-
paying
she was not
rent
utilities. She
immediate sale of the
dering the
occasionally
only
testified that she would
will not address her
we
they
that if
out to
pay for food and
went
claim,
in-
equitable reimbursement
expenses
eat the
would be shared.
struct
to reconsider
acknowledged a sexual relation-
appel-
seek
issue
remand. Wife
with Martinkovic not
ship
of that
thereafter.
late review
issue
[in]
Answer and Counterclaim but also
living
testimony.
That Wife was
reasons,
foregoing
For all of the
two
approximately
with Martinkovic
equi-
of the trial court’s
vacate
years
commitment on
demonstrates a
im-
requiring
distribution order
table
part of
and Martinkovic to the
mediate sale of the Stone Harbor
relationship.
qualities
Present are the
entry of a new order con-
and remand for
in-
stability, permanence
and mutual
sistent with this memorandum.
terdependence.
part
AFFIRMED in
20 Order
(Master’s
Recommendation,
Report
REMANDED.
part.
Case
VACATED
(citations
4/19/02, at 31-32
to record omit-
RELINQUISHED.
Jurisdiction
ted).) The trial court determined that the
findings
sup-
mastеr’s
were reasonable and
¶ GRACI,
Concurring and
J. files a
not-
ported by
previously
the record. As
Dissenting Opinion.
ed,
recommendation
a master’s
AND DISSENTING
CONCURRING
consideration,
given
are to be
the fullest
GRACI,
BY
J.:
OPINION
credibility of
especially on the issue of the
Simeone,
551 A.2d at
witnesses. See
always
I am
most reluctant
to dis-
*8
Accordingly, we find no abuse of discretion
and,
my
colleagues
to
agree with
learned
that
determining
the trial court in
able,
join
I
to
that I am
hasten
the extent
that,
as
cohabitated with Martinkovic
brought before us for
them in matters
result,
eligible
a
she was not
case, I
present
In the
am
disposition.
under Section 3706.
majority
to
agreement
full
trial court order of
it affirms the
argues
next
that
extent
18 Wife
21,
agree
I
con
also
failing
properly
to
November
trial court erred
trial
necessary in order for the
remand is
claim for
reimburse
sider her
to
an
appears
be
reim
court to address what
alimony. Equitable
ment
lieu
including in its final order
oversight
in not
compensate
to
designed
is
bursemеnt
discretion
in the amount of ed
the sound
a credit
to Husband
above,
con-
which,
give
must
due
$9,708.65,
as noted
represents
by the
the master’s recommenda-
marital debts as determined
sideration to
determi-
join
I
review the trial court’s
Accordingly,
readily
Master.
tions. We
discretion.
Opinion
it addresses those matters.
nation for abuse of
sizable
merely
¶2
4 “An
of discretion is not
abuse
unable, however,
join my
I am
misap
judgment, but rather
an error of
colleagues
majority
in the
to the extent
or an unreasоnable
plication of
law
they
vacate the trial court’s order as
Isral
judgment.” Isralsky
v.
exercise
it
relates
1178,
(Pa.Super.2003)
sky, 824 A.2d
It
to me that
the learned trial
is clear
(discussing abuse of discretion standard
report the “fullest
gave
court
the master’s
scheme).
reviewing equitable distribution
consideration” on this as well as all of the
explained,
distribution, As we
concerning equitable
matters
observes,
synonymous
majority
obligato-
which as the
is
abuse of discretion “is
[a]n
sound,
While,
ry.
the ma-
a failure to exercise a
rea
Opinion, at
observes,
sonable,
It
is a
jority
legal
the trial court did not ex-
discretion.
justice
ap
plain “why
legal
indicating
economic
could not be
strict
term
[an]
pellate
opinion
served under the master’s recommenda-
court
is of [the]
relating
tions”
commission of an error of law
Stone Harbor
there was
1096,
erty,
imply
am
It
at
I
aware of no
the trial court.
does
faith,
authority
mis
requires
explana-
wrong
such an
intentional
or bad
or
conduct,
majority
judgе
tion and the
any
cites none. On
nor
reflection
hand,
seems,
least, implicit
clearly
other
means the
erroneous conclu
rejecting
clearly
judgment
the master’s recommendations
sion and
that is
—one
regard
devising
this
own distri-
of such
against
logic
[the]
effect
scheme,
presented
support
bution
the learned trial court ex-
facts as are
why
justice
plained
being
application
against
the reasonable
drawn
(although, again,
probable
served
I am not sure that
dеductions
be
mandated).
explanation
such an
the hear
is
Given
from the facts disclosed
of discre
ing;
improvident
our limited standard of review which the
exercise
1095,
majority
tion;
Myers,
I
v.
recognizes, Opinion,
Myers
an error of law.”
(1991),
agree
Pa.Super.
cannot
that the learned trial court
requires.
Id.
(1991).
there
“Where
“
support
the trial
is insufficient evidence
‘Al-
explained:
3 As the trial court
order,
manifestly
judgment
court’s
though
the master’s
is entitled
and must be reversed.”
unreasonable
great weight,
responsibility
that final
Myers,
1100 Nevertheless, the trial soundly, reasonably, legally. The or- bursement. as indicated, clearly logic. not if against der was That court even the merits of this addressed, master a different reached conclusion issue were to be Wife would relief, amounts no abuse of discretion any for the afforded trial court. the fact if we Nor does proper- from of the the sale Stone Harbor sitting the initial decision-makers were ty compensate arе sufficient to a contrary have reached result. marriage. to the Accord- contribution “Our review the ... court’s of distribution ingly, also issue on the I would resolve this necessarily is limited to a determination of basis trial court’s opinion. distribution, of the entire light whether therefore, I on the foregoing, Based considering factors set all the forth Opinion dissent from that legislature, oc- an abuse discretion equitable which vacates the distribution Diament, curred.” Diament v. requires order extent (citation оmitted). 256, 263 (Pa.Super.2003) imme- be sold ¶ Moreover, recog- diately. Opin- I further dissent from the nized, report the master’s “[ajlthough ion address to the extent it does not great weight, responsi- entitled to the final been Wife’s claim that she should have bility of the distribution making rests in- equitable awarded reimbursement the court. Our review is thus based consider that structs the property.” court’s distribution instead, would, I af- claim remand. McNaughton McNaughton, 412 Pa.Su- firm equitable the order of distribution (1992) (citations per. A.2d entirety. its omitted). trial Requiring а court to ex- view, why, plain its master’s justice
did not achieve smacks
this court recom- reviewing master’s
mendation rather than the distribution or- by the court.
dered trial
¶ Here, the trial court considered all of factors legislature which the has di- HARTDEGEN, Appellant, Antoinette arriving rected distribu- tion scheme. at 26-29.
Though I reached a may have different BERGER, M.D., Appellee. Bruce if exercising my conclusion I the one were instance, I cannot discretion the first Pennsylvania. Superior Court say on this record that the learned trial Sept. Argued I Accordingly, court abused her’s. would Filed Dec. all of resolve those issues relate the sale of the
(including majority those which the did not of its of Hus-
address because resolution issue) first trial basis of the
band’s opinion.
court’s
¶ Moreover, agree I with the trial
court that Wife waived the claim that she awarded reim-
should been