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HomeMy WebLinkAbout2005-5043 Civil VALERIE D. BEANE, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA : v. : NO. 05-5043 CIVIL : CRAIG D. BEANE, : CIVIL ACTION - LAW Defendant : IN DIVORCE IN RE: HUSBAND’S EXCEPTIONS TO MASTER’S REPORT BEFORE OLER, J., AND EBERT, J. ORDER OF COURT AND NOW , this 19th day of December, 2007, having considered the testimony and evidence presented by both parties, this Court finds that the Master’s Findings of Fact and Recommendations are credible and should be awarded the fullest consideration. IT IS HEREBY ORDERED AND DIRECTED that Defendant’s exceptions to the Master’s Report filed on October 9, 2007 are dismissed and the current Order of Court shall be entered as a Final Order of Court. By the Court, ___________________________ M. L. Ebert, Jr. J. Shane B. Kope, Esquire Attorney for Plaintiff Kope & Associates, LLC 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 Timothy J. O’Connell, Esquire Attorney for Defendant Turner and O’Connell 4415 North Front Street Harrisburg, PA 17110 E. Robert Elicker, II Divorce Master of Cumberland County 9 North Hanover Street Carlisle, PA 17013 2 VALERIE D. BEANE, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA : v. : NO. 05-5043 CIVIL : CRAIG D. BEANE, : CIVIL ACTION - LAW Defendant : IN DIVORCE IN RE: HUSBAND’S EXCEPTIONS TO MASTER’S REPORT BEFORE OLER, J., AND EBERT, J. OPINION and ORDER OF COURT Ebert, J., December 19, 2007 - In this divorce case, Plaintiff, Valerie D. Beane, filed a petition for spousal support from Defendant, Craig D. Beane, and an Order of Court was entered requiring Defendant to pay Plaintiff $600.00 per month in alimony and $1,700.00 as reimbursement for appraisal costs. The parties have been separated since December 2004. The divorce complaint was filed on September 26, 2005, raising grounds of irretrievable breakdown of the marriage and the economic claims of equitable distribution and alimony. A hearing on the issue of cohabitation was conducted on December 18, 2006. Additional hearings for the remaining issues were held on August 17, 2007 and September 14, 2007. On October 9, 2007, the Divorce Master issued his report and recommendations based upon the evidence presented by Plaintiff and Defendant at the hearing. Defendant has now filed exceptions to the Divorce Master’s Report and Recommendations. For the reasons stated in this opinion, Defendant’s exceptions to the Master’s Report and Recommendations are dismissed. 3 STATEMENT OF FACTS Plaintiff, Valerie D. Beane, of 913 Old Silver Spring Road, Mechanicsburg, PA, and Defendant, Craig D. Beane, of 122 North York Road, Dillsburg, PA, were married on February 20, 2004. This marriage was the third for both parties. Plaintiff has two children from a prior marriage, both of whom are emancipated, and Defendant has three children from a prior marriage, all of whom are emancipated, but this marriage produced no children. Their marriage was defined by alcohol abuse; both parties are alcoholics, and Defendant often helped feed Plaintiff’s addiction to alcoholic beverages while she was attempting to recover from her addiction. The parties have been separated since December 18, 2004, when Plaintiff moved away from their marital residence. The Plaintiff has resided at her former brother-in-law’s residence since February 4, 2005. Defendant currently resides at his residence, which he owns. Plaintiff has been unemployed since June 2004 and Defendant works as a foreman for the Pennsylvania Department of General Services earning a net monthly income of $2,671.84. This action was initiated in order to obtain a final decree of divorce. The divorce complaint was filed on September 26, 2005, raising grounds of irretrievable breakdown of the marriage and the economic claims of equitable distribution and alimony. A hearing on the issue of cohabitation was conducted on December 18, 2006. Additional hearings for the remaining issues were held on August 17, 2007 and September 14, 2007. The record was closed and the Master began to prepare his report and recommendations following the hearing on August 17, 2007. While she has testified that alcoholism has had a detrimental effect on her physical health, including problems with her liver and neuropathy in her legs, Plaintiff has been working 4 at improving her physical health through alcoholism treatment. Despite her attempts to improve her health through treatment, Plaintiff has found it difficult to find work and has been unemployed for over three years; however, she testifies that she hopes to return to employment in Spring 2008. Defendant is employed by the Commonwealth of Pennsylvania, Department of General Services, and currently works as a foreman for a maintenance crew. He earns a net monthly income of $2,671.84, and though he is a recovering alcoholic, he has no known health issues that would affect his ability to carry on his employment. Plaintiff is not currently employed due to her current health issues. For purposes of computing his alimony recommendation, the Master considered all of the circumstances surrounding her ability to attract and retain employment and determined that Plaintiff has a current monthly earning capacity of $1,069.00 net income. On October 9, 2007, the Master issued his report and recommendations based upon the evidence presented by Plaintiff and Defendant at the hearing. In considering the factors set forth in the Divorce Code, the support obligation was found to be a $600.00 monthly alimony award to continue for an indefinite duration. On October 17, 2007, Defendant filed the following exceptions to the Master’s Report: 1.) Defendant makes exception to the finding that Plaintiff is not cohabiting with a person of the opposite sex. 2.) Defendant makes exception that Plaintiff is not precluded from an alimony award because of her cohabitation. 23 Pa. C.S. §3706. 3.) Defendant makes exception to the finding that an indefinite alimony award of $600.00 per month is supported by the factors set forth in the Divorce Code. 23 Pa. C.S. §3701. 4.) Defendant makes exception to the finding that Plaintiff is incapable of self- support through employment. 5 5.)Defendant makes exception to the finding that Plaintiff is entitled to an award of alimony for reasons arising from her excessive alcohol consumption. 6.)Defendant makes exception to the finding that an award of 60% of the marital property to Plaintiff is supported by the factors set forth in the Divorce Code. 23 Pa. C.S. §3501. 7.)Defendant makes exception to the Master awarding expenses to Plaintiff in the form of cost for real estate appraisals in the absence of any claim prior to the hearing. DISCUSSION I. Scope of Review As a general rule, unless the testimony and evidence provides grounds upon which the Divorce Master's finding of credibility can be impeached, the Court will give his conclusions the fullest consideration. Goodman v. Goodman, 544 A.2d 1033, 1035 (Pa. Super. Ct. 1988). It should be noted, however, that the Master’s findings are merely advisory and the trial court is not required to follow the recommendations should the evidence prove contrary. The reviewing court has the duty to make a complete and independent review of all the evidence, including an analysis of the weight and credibility to be accorded to the testimony of the witnesses. Gomez v. Gomez, 11 Phila. Co. Rptr. 221, 226-27 (1984). After the conclusion of a Master’s hearing and the issuance of the report and recommendation, any party has the opportunity to file exceptions to the report or any part thereof. Matters not covered by the exceptions are considered to be waived unless other Court leave is granted. If any exceptions are filed, the Court shall hear argument regarding the exceptions and enter a final decree. 42 Pa. R.C.P 1920.55-2. II.Exceptions to the Master’s Report Defendant Craig Beane filed exceptions to the Master’s report and recommendations contending that the recommended support obligations should be precluded because of his 6 allegations that Plaintiff entered into cohabitation. Furthermore, he disagreed with the Master’s findings regarding a consideration of Plaintiff’s health in determining that she was incapable of self-support through employment. He also disagreed with the Master’s discretion in awarding reimbursement of appraisal costs to Plaintiff, but did not set forth an argument in support of this proposition. Having reviewed the record and after considering the applicable law, this Court dismisses Defendant’s exceptions and affirms the findings of the Master. A. Cohabitation Defendant contends that the Master’s recommendations regarding support obligations should be precluded because of his allegations that Plaintiff entered into cohabitation. If the Divorce Master had found that Plaintiff had indeed entered into cohabitation, then an alimony award would be precluded under 23 Pa. C.S. 3706. In support of his argument that the Master’s findings were against the weight of the evidence, Defendant is arguing that the Master’s determination of the credibility of the witnesses was basically incorrect. In reviewing a Master’s report and recommendation, the Court must give it the fullest consideration, particularly on the question of credibility of witnesses, because the Master’s opportunity to observe and assess the behavior and demeanor of the parties. Moran v. Moran, 839 A.2d 1091, 1095 (Pa. Super. Ct. 2003). On the basis of witness credibility, the Master specifically found that Mr. Rheem was solely acting as a friend when he allowed Plaintiff to take up residence with him, therefore finding that Plaintiff had not entered into cohabitation under the definition of this statute. In support of this holding, the Master found that neither Mr. Rheem nor Plaintiff had created joint accounts, they did not have an ongoing sexual relationship, and they did not conduct their lives generally as spouses or as a couple involved in an intimate relationship; rather, Plaintiff’s living 7 situation with Mr. Rheem more closely resembled that of a tenant, with Mr. Rheem, her friend for over thirty years, only helping her out until she could establish a more stable life for herself. Furthermore, the Master found that had Mr. Rheem not allowed Plaintiff to take up residence with him, Plaintiff would be living on the streets due to her current financial circumstances, earning capacity, and health issues. In this type of case, where emotions and personal interest run high, the ability of the Master to assess the tone and demeanor of the witnesses is critical. For example, the only witness who provided any explicit testimony about the Plaintiff and William Rheem having any type of intimate sexual relationship was Delaine Louise Moody. Miss Moody was an individual who frequented the American Legion Post bar where both the Plaintiff and Defendant were regulars. On both direct and cross-examination, she admitted that she had had a sexual relationship with the Defendant, Craig Beane. In reviewing the transcript of the testimony, it becomes quite apparent to this Court that in order to assess the credibility of such witnesses it would be very important to observe their tone of voice and demeanor in order to assess their credibility. This Court has given fullest consideration to the Master’s findings and holds that the Master’s findings were supported by the weight of the evidence. Consequently, this Court refuses to disturb the Master’s findings in his report and recommendation because the Court has not found any clear and convincing evidence of an abuse of discretion or clear error of law. B. Consideration of Plaintiff’s Health This Court will not disturb the Master’s findings, absent a finding of a clear abuse of discretion, in making a determination in regards to equitable distribution of property. The Divorce Master is permitted to exercise his discretion in the equitable distribution of property. Kleinfelter v. Kleinfelter, 463 A.2d 1196, 1197 (Pa. Super. Ct. 1983). The Master properly 8 considered Plaintiff’s health under the relevant provisions of the code. Pursuant to 23 Pa. C.S. 3502(a)(3), health is among the relevant factors listed as relevant to the equitable division of marital property. It was also within his discretion to consider health in regards to other relevant factors listed in that provision, such as “station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.” Furthermore, health is a relevant factor to consider in determining whether alimony is necessary. Anderson v. Anderson, 822 A.2d 824, 830-31 (Pa. Super. Ct. 2003). Pursuant to 23 Pa. C.S. 3701(b), the following factors are considered relevant for determining alimony: (1) The relative earnings and earning capacities of the parties. (2) The ages and the physical, mental and emotional conditions of the parties. (3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits. This Court need not spend much time on the issue of Plaintiff’s health. Plaintiff’s illness is well documented, and it has been acknowledged and recognized by the Defendant. Plaintiff has health problems with liver and neuropathy in her legs. She has been unemployed for over three years, and once she has completed treatment for her alcoholism, she will seek employment; however, her net earning capacity is only $1,069.00. Defendant offers no credible evidence to support his contention that health should not have been considered in the Master’s findings. The Master’s discretion to consider health in determining equitable distribution and alimony is supported by case law and the Divorce Code. As the evidence supports the Master’s findings of fact, and since Defendant has offered no evidence to the contrary, this Court affirms those findings. 9 C.Reimbursement of Appraisal Costs On the issue of reimbursement of expert appraisal costs incurred by Plaintiff, Defendant obviously disagrees with the Master’s findings yet he offers no evidence to support his contention and did not raise the issue in his brief. The Master properly used his discretion in making his recommendation for reimbursement of these costs based on Plaintiff’s dire financial circumstances and by explaining that the Plaintiff did not receive any benefit from the increased value of the property at 1907 Lincoln Street, Camp Hill. The Master has astutely explained that the Defendant husband was the owner of this property in name only. In reality, the Defendant’s mother continued to reside in the property, pays all of the expenses related to the property, and has no understanding that when she made the gift to the Husband that the increase in value of the property would be subject to equitable distribution in a divorce. As the evidence and sound reasoning supports the Master’s findings of fact, and since Defendant has offered no evidence to the contrary and has not briefed the issue, this Court affirms those findings. CONCLUSION Having considered the testimony and evidence presented by both parties, this Court finds that the Master’s Findings of Fact and Recommendations are credible and should be awarded the fullest consideration. Defendant’s exceptions to the Master’s Report will be dismissed and the current Order of Court shall stand as is. Accordingly, the following order will be entered: 10 ORDER OF COURT AND NOW , this 19th day of December, 2007, having considered the testimony and evidence presented by both parties, this Court finds that the Master’s Findings of Fact and Recommendations are credible and should be awarded the fullest consideration. IT IS HEREBY ORDERED AND DIRECTED that Defendant’s exceptions to the Master’s Report filed on October 9, 2007 are dismissed and the current Order of Court shall be entered as a Final Order of Court. By the Court, ___________________________ M. L. Ebert, Jr. J. Shane B. Kope, Esquire Attorney for Plaintiff Kope & Associates, LLC 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 Timothy J. O’Connell, Esquire Attorney for Defendant Turner and O’Connell 4415 North Front Street Harrisburg, PA 17110 E. Robert Elicker, II Divorce Master of Cumberland County 9 North Hanover Street Carlisle, PA 17013 11