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HomeMy WebLinkAbout93-229 civil (shipe)IRENE SHIPE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V NO. 93-229 CIVIL DEAN B. SHIPE, Defendant · IN DIVORCE IN RE: EXCEPTIONS TO MASTER'S REPORT ORDER OF COURT AND NOW,'~~.- , 2000, upon careful consideration of both parties' briefs and the record, the case is remanded to the Divorce Master for rehearing and deliberation consistent with this opinion. By the Court, P. Richard Wagner Mancke, Wagner, Hershey & Tully 2233 North Front Street Harrisburg, PA 17110 For the Plaintiff Ronald E. Johnson Andrews & Johnson 78 West Pomfret Street Carlisle, PA 17013 For the Defendant IRENE SHIPE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA : V. : NO. 93-229 CIVIL DEAN B. SHIPE, Defendant : IN DIVORCE IN RE: EXCEPTIONS TO MASTER'S REPORT OPINION HOFFER, P.J.: Wife filed a divorce complaint on August 4, 1994, raising the grounds of irretrievable breakdown of the marriage. The Divorce Master, E. Robert Elicker, II, was appointed on January 6, 1997. In a hearing on February 3, 1998, counsel and parties appeared and entered into a comprehensive agreement conditioned on Husband providing proof that he had elected a survivor benefit option when he retired from the Pennsylvania State Police. Subsequently, it was determined that Husband had not elected a survivor benefit option and instead, had chosen the maximum monthly benefit. Consequently, the case returned to the Master. At a hearing on March 17, 1999, the parties placed on the record a comprehensive stipulation. On April 30, the Master filed with the prothonotary a report and recommendations. Both parties have signed affidavits of consent and waivers of notice of intention to request entry of a divorce decree so the divorce may be concluded under Section 3301(c) of the Domestic Relations Code (23 Pa. C.S.A. §3301(c). 93-229 CIVIL The parties were married on September 28, 1969, and separated in September 1985. The parties have an emancipated daughter, Lisa, born October 19, 1976, who attends college, and lives with Wife. Wife was 51 years of age and employed at the time of hearing. Husband was also 51 years of age at the time of the hearing and is retired. He had lived with a female companion prior to her death in July of 1997, and continues to reside in her home, in which he has a life estate interest. In his report, the Master made the following relevant findings of fact: 1. The marital residence was valued at $125,000, less mortgage payoffs of $31,277.88 at Harris Savings and $38,828.12 at Dauphin Deposit. The remaining equity in the house is $54,894.01. 2. Husband paid $9,046.67 out of his refund of contributions to buy back military time. The Master applied the coverture fraction~ to that sum to determine that Wife should receive $2,811.71 of that payout. Discussion Both parties have filed timely exceptions to the Master's Report. In her brief objecting to the Master's report, Wife raises several exceptions. First, Wife maintains that she agreed to a 50/50 division of property with the understanding that Husband had disclosed all of his assets. Wife asks the court to equitably ~ The coverture fraction is a percentage used to determine the amount of pension earned by each party during the marriage. Each party submitted expert testimony as to what the fraction should be. As the numbers were close, the Master averaged the two estimates and arrived at 62.16%, or 31.08% distributed to each party. 2 93-229 CIVIL distribute the marital assets in light of Husband's possibly valuable life estate interest and pending litigation. Second, Wife excepts to the Master's finding that she derived some benefit from the accoutrements to an antique fire truck. Additionally, Wife asks the court to reconsider her claim for attorney's fees and costs. Husband also raises several exceptions. First, Husband objects to the Master's deduction of the second mortgage from the equity of the home. Husband claims that the second mortgage, in the form of a line of credit primarily benefited Wife. Second, Husband objects to the Master's finding that Husband owes Wife a percentage of the refund of contributions that he used to buy back military time in order to increase his monthly pension payment. Third, Husband claims that the Master should have deducted voluntary child support payments made by Husband from the total sum due to Plaintiff. The court will consider each of these exceptions in turn. During the Master's hearing, Husband testified that he had a life estate in the home of his deceased female companion, Barbara J. Brown. (M.R. at 61) Husband did not testify with any certainty as to the value of the life estate. (M.H. at 61) However, Wife believes that the estate may be of some value. (Plaintiff's Brief at 5). Husband also testified that he represented Brown's estate as a co- executor in a lawsuit in which he expected to receive only a nominal fee. (M.H. at 62) However, Wife contends that Husband has misrepresented his interest in 3 93-229 CIVIL the suit, having filed a lawsuit seeking 50% of the proceeds of an action on behalf of Brown. (Plaintiff's Brief at 5). Although the parties had previously agreed to a 50/50 division of the marital property, Wife now seeks an equitable distribution of the property pursuant to section 3502 of the Divorce Code. See 23 Pa.C.S.A. § 3502(a). Wife does not claim that the life estate or lawsuit is marital property, but only that it should be considered as a possible source of Husband's future income in the master's determination of property distribution. In light of the parties' previous agreement to a 50/50 division of property, the Master was not required to consider the life estate and pending litigation, since these assets were acquired after the parties separated. Therefore, the Master's report is silent as to the life estate and pending litigation. The record supports a finding that the parties stipulated that the property would be divided 50/50 with the understanding that each party had disclosed all assets. (M.R., stipulations) However, whether Husband ever notified the court of the life estate and lawsuit prior to the March 17 hearing is unclear. It should be noted that neither party filed an inventory pursuant to Rule 1920.33(a). See Pa.R.C.P. 1920.33(a). Although the life estate and lawsuit are not marital property, the trial court may consider them in determining equitable distribution. See Ressler v. Ressler, 434 Pa. Super. 563, 644 A.2d 753 (Pa. Super. 1994). To ensure that all the parties' assets are taken into consideration, the court remands the case to the Master to determine whether the life estate and the lawsuit have any value. 4 93-229 CIVIL Additionally, the Master may call for further testimony to determine the effect of the life estate and the lawsuit on the distribution of marital property. The second issue involves the question of whether Wife received a benefit from the accessories to the fire truck. In his report, the Master declined to include the truck in considering the distribution of property between the parties. (M.H. at 7,8). The record does not conclusively show that Wife is in possession of the brass fittings. (T. at 35). Therefore, the court directs the Master to further investigate the issue of who owns the brass fittings and, if appropriate, to evaluate their worth in light of the distribution of property. Third, Wife asks the court to reconsider her request for attorney's fees and costs. In support of her request, Wife cites that Husband has engaged in misrepresentation that has prolonged the property distribution process. In his report, the Master found that Wife's fees and costs were reasonable and that Husband had not intentionally caused Wife to incur further legal fees. (M.H. at 13). The Master found no clear evidence that Husband intentionally misled the court. (M.H. at 13). Therefore, the court concurs with the Master in denying Wife's request for legal fees. We now reach Husband's exceptions. Husband first claims that the Master should not have deducted the line of credit with Dauphin Deposit (a mortgage of $38,828.10) from the equity in the home. In support of his claim, Husband states that although he co-signed for the mortgage with Wife, she 5 93-229 CIVIL primarily received the benefit of the funds. (T. at 46). Husband further testified that he and Wife had agreed orally that Husband would not be liable to Wife for those funds at the time of divorce. (T. at 46). The Master concluded that since Husband had obligated himself on the loan equally with Wife and with full knowledge of the legal ramifications of signing for the loan, the Husband and Wife were equally liable for the amount of the loan. (M.H. at 6). The court agrees with the Master's finding. Secondly, Husband claims that the Master should not have awarded to Wife a percentage of the funds that Husband used to buy back his military time in order to ultimately increase his monthly pension payments. Husband paid $9,046.67 from his refund of contributions from his retirement to buy back military time, which, in turn, increased his monthly pension benefits, of which Wife receives a percentage. (M.H. at 9). Husband argues that paying Wife a percentage of the funds he paid in exchange for higher monthly benefits as well as paying her a percentage of the higher monthly benefits results in Husband paying her twice. The court agrees that requiring Husband to pay from both funds requires him to pay twice, as Wife is already receiving the benefit of the military time buy-back in the form of higher monthly benefits. Therefore, the court reverses the Master's award to Wife of $2,811.71, the sum attributable to 31.08% of the Husband's $9.046.67 military time buy back. 6 93-229 CIVIL Husband's third and last claim is that the Master erred in not crediting him for voluntary child support payments totaling $15,280 made after the child had been emancipated. Husband claims that he made these payments because he knew at some point he would have to either pay alimony or pension payments to his wife. (T. at 53.) However, Wife testified that the payments were used for their daughter, and not for herself. (T. at 17). Considering that these payments were voluntary and supported the parties' daughter, the court agrees with the Master's refusal to reduce the amount owed by Husband to Wife by the voluntary child support payments that Husband has already been paid. See, e.g., Jayne v. Jayne, 443 Pa. Super. 664, 663 A.2d 169 (Pa. Super. 1995). In conclusion, the court directs the Master to rehear testimony concerning the value of Husband's life estate and pending lawsuit to determine whether these assets may affect the equitable distribution of the marital assets. Additionally, the Master will determine whether Wife has received the benefit of the fire truck accessories, and calculate the benefit of the truck and accessories attributable to both parties. Wife's claim for counsel fees is denied. Further, the court directs the Master to withdraw his award of $2,811.71 to Wife, the sum attributable to Husband's military buy back. The Husband's claims regarding credit for voluntary child support payments and the Dauphin Deposit line of credit are denied. 7