HomeMy WebLinkAbout2016-01738 (2)
J.S.B., : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
S.C.B., :
DEFENDANT : 16-1738 CIVIL TERM
IN RE: DEFENDANT’S EXCEPTIONS TO DIVORCE MASTER’S REPORT
OPINION AND ORDER OF COURT
Masland, J., December 11, 2019:--
I. Introduction
No one can discern with total accuracy the motives of another. At times,
in legal proceedings, it is not necessary to do so, while at other times, it is
essential. Indeed, in appropriate criminal trials, we instruct jurors that motive is
not an element of the crime. Significantly, after pointing that out, we note:
However, you should consider the evidence of motive or lack of
motive. Knowledge of human nature tells us that an ordinary
person is more likely to commit a crime if he or she has a motive
than if he or she has none. You should weigh and consider the
evidence tending to show motive or absence of motive along with
all the other evidence in deciding whether the defendant is guilty or
not guilty. It is entirely up to you to determine what weight should
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be given the evidence concerning motive.
To be sure, no crimes were committed in this case; however, the nature
of this conflict requires us to look at motives and determine what weight to assign
to any we find. This is often true in divorce cases where complex emotions and
relationships are the norm. Had we presided over the three days of testimony in
this case, our task might have been slightly easier. The Divorce Master, who
sees and hears nothing but contention, characterized this case as being “highly
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Pa. SSJI (Crim) 3.3.
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contentious.” From a far less advantageous perch, our Superior Court
described the procedural history of the parties’ custody case as being “lengthy
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and tortuous.” The parties’ support action has likewise been up on appeal.
These divorce proceedings have proven to be no different.
All of which brings us to the 19 exceptions that Wife filed on May 15, 2019.
It appears that Wife takes issue with every substantive and non-substantive
matter addressed by the Master. We understand the need to preserve issues;
however, the “shotgun approach” rarely worked in a law school exam, and is not
generally effective in a divorce case. Ultimately, it brings to mind the wisdom of
the Honorable Ruggero J. Aldisert. Having served on the United States Court of
Appeals for the Third Circuit, the following observation by Judge Aldisert has
been quoted by wise appellate judges in this Commonwealth:
With a decade and a half of federal appellate court experience
behind me, I can say that even when we reverse a trial court it is
rare that a brief successfully demonstrates that the trial court
committed more than one or two reversible errors. I have said in
open court that when I read an appellant’s brief that contains ten or
twelve points, a presumption arises that there is no merit to any of
them. I do not say that it is an irrebuttable presumption, but it is a
presumption that reduces the effectiveness of appellate advocacy.
Appellate advocacy is measured by effectiveness not
loquaciousness.
United States v. Hart, 693 F.2d 286, 287 n.1 (3d Cir. 1982).
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Divorce Master’s Report, April 25, 2019, at 20, (hereafter, Master’s Report at ___).
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J.S.B. v. S.C.B., ___ A.3d , at 1, 2019 WL 3925978 (Pa. Super. 2019). Although the
custody case was handled by a colleague, we had hoped that the Superior Court opinion, filed on
August 20, 2019, would spur the parties to take a fresh look at their circumstances and reach a
global resolution. In light of the fact that the Master had several settlement conferences leading
up to these hearings, that hope was somewhat naïve.
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J.S.B. v. S.C.B., 1464 MDA 2017 (quashed in part and affirmed in part).
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Not coincidentally, the only other case that compelled us to share Judge
Aldisert’s wisdom was a divorce litigant’s exception explosion. Perhaps,
anticipating the lengths Wife might go to, the Master noted the scope of their
disputes when he described “the most telling” argument that Wife asserted – her
claim for compensation for wear and tear on the eight-year-old hot water heater
in the marital residence. While that may appear to be picayune, we have come
to recognize that what looks minor to the court can be quite significant to the
litigants.
More revealing is Wife’s final exception that “the Divorce Master erred in
finding the parties share custody.” To be precise, the Divorce Master found that
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“the parties share custody of the child, although Wife has primary custody.” In
short, this exception either demonstrates a narrow view of the word “shared” or a
fundamental refusal to accept that the parties share anything. Certainly, counsel
is aware of numerous orders where custody is “shared” on a 60/40 or 70/30
basis. There is no prohibition on using the term “shared” when the division of
rights or responsibilities is not 50/50.
Based on our review of the record, the shared-custody exception points to
far deeper issues than we can address or resolve. These issues have generated
multiple appeals and, with a decade of common pleas experience behind us, an
appeal of this order is all but guaranteed. It is a rare case where either party to a
divorce has totally clean hands. That is why we are seldom called upon to
address allegations of fault. More often, we handle “no fault” divorces, which
more aptly should be called “shared fault” divorces. Here, the parties appear
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Master’s Report at 3.
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inclined to live in denial that they ever shared anything. They might want to write
off the marriage as if it was a mistake that can be forgotten, but that option was
lost when they brought a child into the world. Obliterating the other side might
provide brief, cathartic relief, but it will make co-parenting, something they must
learn to do, exponentially difficult.
The motivations of the parties do not directly impact their substantive
arguments, but what little substance we found was lost in the morass. In the
end, Wife’s shotgun approach missed the target altogether. None of the
exceptions made their intended impact on the target. Instead, they revealed a
pattern that leads to a simple conclusion. As further explained below, all of the
exceptions will be dismissed.
II. Facts
Preliminarily, and based on our review of the record, we adopt the
Master’s findings of fact in toto. In the interest of brevity, we will not set forth all
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of his findings, but provide the following for context:
1. The parties were married on October 12, 2013 and separated
on February 8, 2016. This was the second marriage for both
parties.
2. Husband is 39 years of age and resides at 112 B. Ross Avenue,
New Cumberland, Pennsylvania 17070. Husband is employed
by DHL Supply Chain as a Quality Assurance Manager. He
receives a salary of $74,883.00 per year. He may also be
entitled to bonuses each year. In 2018, Husband received a
bonus of approximately $11,000.
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Given the parties’ litigious inclinations and penchant for parsing, we are compelled to note what
would otherwise be obvious from the term “context” – we considered, not only all of the Master’s
findings, conclusions and recommendations, but also the record itself in reaching our
conclusions.
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5. Wife is 41 years of age and resides at 1328 Sagamore Court,
New Cumberland, Pennsylvania, 17070. She is employed by
the Federal Aviation Administration as an Air Traffic Controller.
She receives a salary of $116,703.00. Wife has been awarded
$1,066.48 per month in child support.
11. Wife brought the marital residence into the marriage and had
approximately $27,300 in cash at the date of marriage.
12. Husband had approximately $1,600 in cash at the time of
marriage.
13. Both Husband and Wife contributed to the maintenance of the
household, though Wife contributed slightly more.
15. The parties received $1,543.57 in gifts from family and friends at
the birthday party for their minor child. This money was held in
a joint account for the benefit of the child until Wife unilaterally
withdrew the funds and invested them in Disney stock in her
name alone. Wife claims that this money belongs to their child
and does not belong to either party and is not subject to
equitable distribution.
18. Wife is in possession of a Thrift Savings Plan with a marital
value of $63,959.50 and a federal pension with a present marital
cash value of $26,961.00.
24. Both parties have incurred substantial debt as a result of
litigating this divorce action.
One cannot summarize a marriage, even a brief one, in a few paragraphs.
Inevitably, one or both parties will be disgruntled by the tone or totality of the
findings regardless of the result. Nevertheless, we find the Master’s findings and
analysis to be persuasive. Indeed, as will be manifest in our decision, we find no
error or abuse in his reasoning.
III. Standard of Review
It is axiomatic that a divorce master’s report is advisory. Further, “it is
within the province of the trial court to weigh the evidence and decide credibility
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and \[the Superior Court\] will not reverse those determinations so long as they are
supported by the evidence.” Childress v. Bogosian, 12 A.3d 448, 455 (Pa.
Super. 2011). Nonetheless, although the report is only advisory, “\[it\] is to be
given the fullest consideration particularly on the question of credibility of
witnesses, because the master has the opportunity to observe and assess the
behavior and demeanor of the parties.” Moran v. Moran, 839 A.2d 1091, 1095
(Pa. Super. 2003).
Accepting the recommendations of the Master does not equate with
acceding to his analysis in the absence of a thorough review. We have weighed
all the evidence independently. However, we do not intend to elongate this
opinion with a detailed discussion of the less significant points. As such, our
brevity should not be mistaken for a failure to deliberate. Indeed, we have
deliberated at great length, perhaps more tediously than necessary, regarding
the issues raised by Wife.
IV. Discussion
Wife has invited us to get into the weeds on her exceptions. We decline to
do so for two reasons: we have no desire and it is not necessary. Legally, we will
rest on the latter, but note the former because cases like this make us worry for
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the future of our profession. If the Superior Court has the inclination to delve
more deeply and finds that Wife was right in some or all of her complaints, so be
it. As for us, this case represents an unnecessary drain of limited resources with
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When parties engage in internecine warfare over limited resources, the attorney fees render any
result unpleasant. We do not cast aspersions on either counsel – our reading of the record could
be faulty, but managing client expectations needs to be prioritized. To be sure, managing
expectations is a task this jurist never relished nor excelled in, but we attempt to do so for litigants
whenever we can. Therefore, we suggest that more needs to be done by counsel to spare the
parties and their child from the desolation that looms ahead.
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no end in sight. Therefore, we will address Wife’s exceptions summarily and
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seriatim.
1. The Court cannot contradict Federal Law and order an immediate
offset payment of Wife’s FERS benefit and the Master’s calculation of
the immediate offset payment is over-inflated.
The bottom line with respect to the testimony on the pension issues is that
Wife’s expert fell short. We concur with the Master that the valuation by
Husband’s expert offered a preferred methodology and ultimately a more
accurate result. We find Wife’s FERS benefit to have a present cash value of
$26,961.00.
Perhaps, the most substantive issue raised by Wife is whether there
should be an immediate offset payment of Wife’s FERS benefit. We are satisfied
that the Master’s analysis is on point. First, an immediate offset is “preferred
where the estate has sufficient assets to offset the pension, because it does not
require the court to retain jurisdiction indefinitely.” DeMarco v. DeMarco, 787
A.2d 1072, 1077 (Pa. Super. 2001). Likewise, a decision to offset the value now
avoids undue speculation on Wife’s future employment decisions and allows the
parties to move forward with minimal contact outside the custody arena. This
Gordian knot must be cut now.
2. The Master erred by valuing a non-marital asset as a marital asset and
adopting Husband’s expert’s Thrift Savings Plan (TSP) value, when
Husband’s expert over-valued the account by including growth beyond
the date of separation, not crediting Wife for premarital funds used to
repay a premarital loan against her TSP, and double counting for
values in his report.
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Although Wife filed 19 exceptions, counsel had the wisdom to compress a few in his brief. So
that we will only address the 10 issues raised therein, which is easier than trying to distill them
further herein.
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We can dispose of this exception with fewer words than those in the
exception itself. We concur with the Master’s finding that Wife’s expert’s
valuations were neither accurate nor convincing. Hence we value the marital
portion of Wife’s TSP at $63,959.50.
3. The Master erred in not allowing Wife to Stipulate to the Date of
Separation Value of the marital residence and concluding that the
marital residence increased in value.
The Master aptly pointed out the inconsistencies in Wife’s argument,
which we deem to be an attempt to have her cake and eat it too:
In essence, Wife is claiming that Husband’s expert
incorrectly valued the property on the date of marriage but,
utilizing the same facts, opinions, and methodology,
somehow arrived at the appropriate value of the property at
the date of separation. She did not employ her own expert
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to corroborate this valuation.
The Master found this contention to be “untenable.” We find it to carry the
elusive endeavor of arguing in the alternative to the absurd. Therefore, using our
common sense, we accept the Master’s recommendation that the increase in
value of the non-marital house was $13,000.00.
4. The Divorce Master erred by not considering Husband’s premarital
debts paid with marital funds.
In short, the Master did consider the debts and so noted in his report.
However, considering something and accepting a litigant’s argument as accurate
are two separate things. Obviously, from Wife’s perspective, anything short of
adopting her valuations and her preferred distribution amounts to a lack of
consideration. We find that contention to be untenable.
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Master’s Report at 16.
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5. The Divorce Master erred in not considering Wife’s premarital asset of
accrued leave.
Again, it is not a matter of failing to consider Wife’s contention, it is a
question of adopting it as valid. Ultimately, we are unconvinced that Wife should
be compensated for using her leave.
6. The Master’s equitable distribution fell short in fairly compensating
Wife for her contribution towards the marital estate.
As with the previous exceptions, unlike Wife, we accept and adopt the
Master’s analysis of the factors set forth in Section 3701(b) of the Domestic
Relations Code. Wife may not like how the numbers turned out, but that does
not mean her facts were not considered. Despite all the experts who make a
living off of our Divorce Code, at the end of the day equitable distribution is an art
not a science. Our review of the record and the Master’s analysis leads to our
common sense acceptance of his recommendations.
7. The Divorce Master erred by not considering Wife’s Spousal
Support/APL payments made to Husband and in not terminating
Spousal Support or ordering that Spousal Support will not convert to
APL upon entry of the divorce decree based on the length of the
marriage.
As noted in Wife’s brief, alimony pendente lite “can” be part of the analysis
for equitable distribution. Husband’s argument is persuasive that it is a non-
factor in this case and need not be considered. Practically, we have the parties’
support exceptions looming when we put this to rest so we suggest they stay
tuned.
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8. The Divorce Master erred in equitably dividing marital debt.
The Master found the total marital debt to be $604.16, and assigned 60%,
or $360.50, to Husband. Wife’s share of the debt was found to be $241.66. This
splitting of hairs is not unlike Wife’s assertion that Husband should compensate
her for any wear and tear he placed on their hot water heater. We are neither
impressed nor persuaded.
9. The Divorce Master erred in finding the parties share custody.
As noted at the outset, we find this exception to be illustrative of the
parties’ relationship challenges. It adds nothing to the substance of the issues
before us.
10. The Divorce Master erred in ordering distribution of personal property.
Specifically, the Master’s recommendation was that “If Wife is still in
possession of Husband’s baby blanket, table leaf, electrical cords, and laptop,
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these items shall be returned within sixty days.” Given the Master’s use of the
conditional tense, we can fathom no legitimate reason for this exception.
V. Conclusion
This court appreciates the individual trees, but endeavors to not lose sight
of the forest. Therefore, we note one of our favorite quotes, which comes from a
sociologist, William Bruce Cameron, though it might just as easily have been
professed by a psychologist, a theologian or even a divorce master:
Not everything that can be counted counts,
and not everything that counts can be counted.
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Master’s Report at 23.
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Based on the entire record, we find the Master’s recommendation to be
eminently fair and will not alter it in any way. Should the parties appeal this
attempt to lay their conflict to rest, no umbrage will be taken. Nevertheless, the
means by which they move forward should involve more than a financial
calculation. No doubt, the parties are weary of our sermonizing. Perhaps, they
are wearier of this internecine struggle? Therefore, we conclude with some final
food for thought. As a wise jurist pointed out, ultimately, every settlement is
about values; the question is how are you using your time on earth? We cannot
answer that for anyone, but we hope our decision presents the parties with an
opportunity to reflect … and find some light at the end of their tunnel.
ORDER OF COURT
AND NOW, this day of December, 2019, Defendant’s
exceptions to the Divorce Master’s Report are DISMISSED. The Master’s
Recommendations on Equitable Distribution are adopted in their entirety.
By the Court,
/s/ Albert H. Masland
Albert H. Masland, J.
Todd M. Mosser, Esquire
Mosser Legal, PPLC
th
448 N. 10 Street, Suite 502
Philadelphia, PA 19123
Tabetha A. Tanner, Esquire
Tanner Law Offices, LLC
2145 Market Street
Camp Hill, PA 17011
:sal
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