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HomeMy WebLinkAbout00-5837 CivilKENNETH B. BEAM, Plaintiff Vo DENISE K. BEAM, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 00-5837 CIVIL TERM IN RE: PLAINTIFF'S EXCEPTIONS TO DIVORCE MASTER'S REPORT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., December 30, 2003. In this divorce action, which has been pending for more than three years, Plaintiff husband has filed exceptions to a report of the Cumberland County Divorce Master.2 The recommendations of the master included a division of marital property in proportions of 55% for Defendant wife and 45% for Plaintiff husband, an award of alimony payable to Defendant wife in the amount of $900.00 per month, and an award of attorney's fees and expenses payable to Defendant wife in the amount of $1,800.00.3 Plaintiff husband filed the following exceptions to the divorce master's report: 1. The Master's Report does not contain the determination of Monthly Net Income... for either party. The Master's Report states that Husband's tax return was unsigned and [the Master's Report states that Husband's tax return] also "failed to note approximately $10,000.00 that Husband had earned which was not included on the tax return." Plaintiff is a salaried employee and his salary is fully reflected on his W-2 form. About $10,000.00 of Plaintiff's salary is a pension contribution which is not taxable and not reflected on the [Federal Income Tax] return. To the extent that the Master's Report implies that Plaintiff was less than forthcoming with his Plaintiff's complaint was filed on August 24, 2000. Plaintiff's Exceptions to Master's Report, filed August 29, 2003. Master's Report, filed August 20, 2003, at 8-9, 13, 16. income, it is simply not supported by the record; on the contrary, every cent of Plaintiff's income was fully disclosed and Plaintiff was available for cross-examination with regard to any questions which were not self-evident in the documentation of his income. 2. [Monthly Net Income] is not only necessary to know the appropriateness of the alimony awarded, but also as a benchmark with regard to any future modification of alimony. 3. Alimony is awarded on an indefinite basis and without any benchmark to use in determining when the alimony payment should be terminated. 4. The learned Master erred in ordering Plaintiff to pay counsel fees and expenses to Defendant where (1) Plaintiff paid Defendant alimony pendente lite thoughout the pendency of the divorce proceedings, and is continuing to do so, (2) Plaintiff incurred essentially the same counsel fees and expenses as Defendant, and (3) Defendant has sufficient property set aside to pay her counsel fees and expenses. 5. In the tenor of his report and in his award of counsel fees and expenses, the learned Master criticizes, and appears to penalize, Plaintiff for having an unreasonable position on settlement. Even if Plaintiff took a hard line on settlement, this is not a factor that can be considered in an award, whether for counsel fees or expenses, or any other matter. 6. The learned Master erred in awarding the entire household contents to Defendant without any evidence of the value of same, again appearing to blame Plaintiff for the lack of that evidence. This is especially inappropriate where Defendant had exclusive possession of the marital residence, and its contents, for years. At the hearing on March 27, 2003, the Master directed the parties, and the parties agreed, to hold a private sale of the household contents with the proceeds distributed and a percentage assigned to each party. The household contents contained many valuable articles, including antiques, collectibles and custom-made pieces. Plaintiff understood that the private sale would result in a division of the household contents, and was taken by surprise that the Master then awarded the entire household contents to Defendant without knowing the value of what he was awarding to her. 2 7. The learned Master erred in closing the record on July 31, 2002, and denying Plaintiff the opportunity to present evidence on issues that had been left open following the hearing on March 27, 2003. This included income and property values. 8. Following the hearing on March 27, 2003, the learned Master advised the parties that he would hold the record open "indefinitely" pending receipt of additional evidence on certain issues. The Master later scheduled a hearing for July 31, 2003. At the beginning of that hearing, the Master announced that the record was closed, except for testimony on counsel fees and expenses. Attempts by Plaintiff to introduce evidence on the value of household contents and monthly net income were denied. 9. The learned Master erred when awarding the marital residence to Defendant without also ordering that Plaintiff be removed for liability for the debt which was a mortgage against the marital residence.4 Relief requested by Plaintiff in connection with the purported errors of the divorce master was as follows: (1) a remand to the master for receipt of further evidence on the value of household contents or an order directing a private sale of the household contents and distribution of the proceeds in accordance with the proposed 55/45 scheme; (2) a remand to the master for further evidence on the amounts of the parties' net incomes; (3) a limitation on the duration of alimony to five years or the inclusion of an express provision in the alimony supplemental decree that a termination of Plaintiff husband's employment or his disability would constitute an event of termination of the alimony obligation; (4) a denial of Defendant wife's claim for attorney's fees and expenses; (5) a remand to the master for a revised recommendation as to the amount of alimony, based on net incomes and without reference to Plaintiff husband's behavior in the case or for a fuller explanation of the manner in which the recommended alimony figure was calculated; and (6) an order directing that Defendant wife effect Plaintiff 4 Plaintiff's Exceptions to Master's Report, filed August 29, 2003, at 1-2. 3 husband's removal as an obligor with respect to the mortgage debt on the marital residence.5 Briefs have been submitted on behalf of the parties on the exceptions of Plaintiff husband to the divorce master's report. For the reasons stated in this opinion, the exceptions will be dismissed, and a decree in divorce and supplemental decrees respecting equitable distribution, alimony, and attorney's will be entered in accordance with the master's fees and expenses recommendations. STATEMENT OF FACTS In a divorce action, a divorce master's report and recommendations, while entitled to real consideration, are advisory only and not binding on the court. Morschhauser v. Morschhauser, 357 Pa. Super. 339, 349, 516 A.2d 10, 15 (1986). However, on issues of credibility the master's report will be given full consideration, because it is the master who had the opportunity to observe the parties' demeanor. Margolis v. Margolis, 201 Pa. Super. 129, 192 A.2d 228 (1963). The procedural history of this case has been well summarized in the divorce master's report as follows: A complaint in divorce was filed [by Plaintiff husband] on August 24, 2000, raising grounds for divorce of irretrievable breakdown of the marriage. No economic claims were raised in the complaint. The parties signed affidavits of consent and waivers of notice of intention to request entry of divorce decree on December 5, 2002, which were filed with the Prothonotary on December 6, 2002. Consequently, the divorce can proceed under Section 3301(c) of the Domestic Relations Code. A petition was filed [by Defendant wife] on September 5, 2000, raising economic claims of equitable distribution, alimony, alimony pendente lite, and counsel fees and expenses. The Master was appointed on August 6, 2001. Upon his appointment, the Master sent to counsel certification Plaintiff's Exceptions to Master's Report, filed August 29, 2003, at 2-3. 4 documents regarding discovery on August 13, 2001. [Discovery was significantly delayed by the failure of Plaintiff husband to respond to a request for production of documents, and to timely comply with an order of court directing such response.6] It was not until April 23, 2002, that wife's attorney wrote the Master a letter indicating that all discovery motions were resolved so that the Master could then proceed with a directive for pretrial statements. Pretrial statements were directed to be filed by May 6, 2002, followed by a pre-hearing conference on August 6, 2002. Following the pre-hearing conference, there were subsequent conferences with counsel and the parties leading to the scheduling of a hearing on December 5, 2002, on the factor of marital misconduct and the value of the marital residence. At that hearing, the Master found that there was no evidence presented by husband which rose to the level of marital misconduct, and the Master dismissed the marital misconduct allegations as irrelevant. The Master, at the hearing following the testimony on the market value of the marital residence, set the value at $251,000.00. At the conclusion of the hearing on December 5, 2002, another hearing was scheduled for March 27, 2003, to take testimony on the remaining issues. Following the hearing on March 27, 2003, the Master kept the record open to allow counsel and the parties, pursuant to the Master's recommendation and direction, to obtain an appraisal of a vehicle, conduct a private auction of the personal property, and provide income calculations. Nearly four months passed and the Master was not advised at any time as to there having been a consensus reached with regard to these outstanding matters. Counsel for wife, because she apparently was not receiving any communication and cooperation from husband and his counsel, requested a hearing be scheduled on the issue of counsel fees and expenses only. That hearing was held on July 31, 2003, and the record was closed. The Master limited the testimony at the hearing on July 31, 2003, to the issue of counsel fees and costs, although husband and his counsel claimed that the 6 See Defendant's Motion To Compel, filed January 17, 2002; Defendant's Motion To Make Rule Absolute, filed February 21, 2002; Defendant's Motion To Compel and Seek Sanctions, filed April 5, 2002. Defendant had also been forced to file a Motion To Compel Discovery on December 26, 2000. 5 Master had previously indicated in correspondence following the March 27, 2003, hearing that the Master did not set any deadlines establishing a time when the issues to be resolved should be concluded. [T]he [said] remaining issues continued to be unresolved four months later at the July 31, 2003, hearing.7 As noted by the divorce master, the initial hearing on December 5, 2002, disposed of one or more preliminary issues and set the stage for an evidentiary hearing on March 27, 2003, at which evidence was to be received on the economic claims of Defendant wife. At the commencement of the hearing on March 27, 2003, several valuations were stipulated toa and the parties agreed that a period of two weeks would be provided by the master following that date for receipt of supplemental materials respecting the parties' net incomes.9 The master then proceeded to receive evidence. The evidence at the master's hearing~° on March 27, 2003, supports the following recitation of facts pertinent to the issues raised in Plaintiff's exceptions: Plaintiff is Kenneth B. Beam, 52; he resides with a female friend at 1400 Twigg Avenue, Lebanon, Lebanon County, Pennsylvania.~ Defendant is Denise K. Beam, 51; she resides at 301 Front Street, Boiling Springs, Cumberland County, Pennsylvania, with one of the parties' children.~2 7 Master's Report, filed August 20, 2003, at 1-2. 8 N.T. 5-9, Divorce Master's Hearing, March 27, 2003. 9 N.T. 4-5, Divorce Master's Hearing, March 27, 2003. l0 Although the divorce master conducted the hearing over the course of three days, the notes of testimony of the first day (December 5, 2002) have not been transcribed and filed. This initial proceeding, as noted supra in the text, dealt with Plaintiff's unsubstantiated contention that marital misconduct had been committed by Defendant which disqualified her from an award of alimony. N.T. 4, Divorce Master's Hearing, March 27, 2003. ~ N.T. 10, 18, Divorce Master's Hearing, March 27, 2003. ~: N.T. 49-50, Divorce Master's Hearing, March 27, 2003. 6 The parties were married on November 26, 1971.~3 Two children were bom of the marriage: Chad Beecher Beam (October 7, 1977) and Brandon Beam (September 19, 1981).TM The parties separated in June of 2000.~5 Plaintiff husband is a college graduate~6 with a background in computer systems programming,~7 presently employed by IBM in "service delivery.''~8 When questioned at the master's hearing as to the amount of his salary in 2001, he indicated on direct examination that it was $83,650.00.~9 With the addition of $938.00 in dividends, he testified that his total income for 2001 was $84,588.00.2° For the year 2002, he indicated on direct examination that his wages were $85,771.00,2~ with dividend receipts expected to be comparable to those in 2001.22 Although this would suggest a gross income for Plaintiff husband of $86,709.00, he acknowledged on cross-examination that his gross wages for 2002 were $95,222.23,23 suggesting a gross income of $96,160.23. With regard to the discrepancy in figures, the brief of Plaintiff's counsel on Defendant's exceptions to the master's report indicates the following: [H]usband does not have a pension plan provided by his employer, but his employer does sponsor a 401(k) Plan to 24 which he contributes about $10,000.00 per year .... ~3 N.T. ~4 N.T. ~5 N.T. 16 N.T. ~7 N.T. ~8 N.T. 19 N.T. 20 N.T. 2~ N.T. 22 N.T. 23 N.T. 10, Divorce Master's Hearing, March 27, 2003. 13, Divorce Master's Hearing, March 27, 2003. 10, 50, Divorce Master's Hearing, March 27, 2003. 11-12, Divorce Master's Hearing, March 27, 2003. 13, Divorce Master's Hearing, March 27, 2003. 17, Divorce Master's Hearing, March 27, 2003. 18, Divorce Master's Hearing, March 27, 2003. 18-19, Divorce Master's Hearing, March 27, 2003. 19, Divorce Master's Hearing, March 27, 2003. 20, Divorce Master's Hearing, March 27, 2003. 40, Divorce Master's Hearing, March 27, 2003. 24 Plaintiff Husband's Brief in Support of His Exceptions to Master's Report, at 2. 7 The Court will accept this representation. Accordingly, Plaintiff Husband's gross annual income appears to be $96,160.23,25 yielding a gross monthly income figure of $8,013.35, and a net monthly income figure of $5,484.75.26 Defendant wife is not a college graduate.27 She has been employed as a proofreader for the Pennsylvania Legislative Reference Bureau since 1989.28 Evidence in the record would support a finding that Plaintiff's gross annual income is $35,504.88,29 resulting in a gross monthly income figure of $2,958.74, and a net monthly income figure of $2,007.77.30 Evidence in the record would also support a finding that Defendant's net monthly income is $2,163.34.3~ The major assets of the parties include (a) the marital residence, in which Defendant resides,32 having a fair market value of $251,000.00 and in which the parties have equity worth $154,176.00,33 (b) IBM stock with a stipulated value of $109,481.00,34 (c) Plaintiff husband's IBM pension plan with a stipulated value of $107,596.00,35 (d) Plaintiff husband's 401(k) retirement account with a stipulated 25 See Portugal v. Portugal, 798 A.2d 246, 252 (Pa. Super. Ct. 2002) (voluntary contributions to retirement plan considered income for purposes of support calculation). 26 The net monthly figure results from an application of the standard tax computer program utilized by the Cumberland County Domestic Relations Office for computation of net incomes. See Cunningham v. Cunningham, 49 Cumberland L.J. 219, 224 n.32 (2000) (use by Cumberland County of computer program to determine taxes applicable to a party's income). In this case, utilizing Plaintiff's married-filing-separately status (see Plaintiff's Ex. 2A, Divorce Master's Hearing, March 27, 2003), deductions from the gross monthly income figure of $8,013.35, as projected by the program, are as follows: Fed. Inc. Tax $1,656.80; FICA $449.50; Medicare $116.19; Local Inc. Tax $80.13; and State Inc. Tax $225.98. 27 N.T. 12, Divorce Master's Hearing, March 27, 2003. 28 N.T. 52, Divorce Master's Hearing, March 27, 2003. 29 Plaintiff's Pretrial Statement, Exhibit x (Support Master's Report). 30 Plaintiff's Pretrial Statement, Exhibit x (Support Master's Report). 3~ Defendant's Exhibit 2, Divorce Master's Hearing, March 27, 2003 (Order of Court). 32 This residence had been the family home of Defendant wife. N.T. 58, Divorce Master's Hearing, March 27, 2003. 33 N.T. 5-6, Divorce Master's Hearing, March 27, 2003. 34 N.T. 8, Divorce Master's Hearing, March 27, 2003. 3s N.T. 8, Divorce Master's Hearing, March 27, 2003. 8 value of $99,468.00,36 and (e) Defendant wife's state pension plan with a stipulated value of $54,094.00.37 (The stipulated values of the retirement accounts were in accordance with an expert report for which Defendant wife paid $600.00.38) The standard of living of the parties can be described as having been comfortable and middle class.39 As of the hearing, Defendant wife was receiving spousal support from Plaintiff husband in the amount of $1,426.00 per month.4° Much of the testimony at the hearing focused on the value of items which were not particularly consequential. For instance, the parties argued over the value of a 1989 Honda with more than a quarter of a million miles on it,4~ the value of a 1963 Chevrolet Impala,42 and the value of a 1969 Chevrolet Camaro which lacked an engine, seats, axles and windows.43 No evidence having been presented as to the value of the parties' household goods, it was agreed that they would be sold at auction.44 The master's hearing on March 27, 2003, concluded with no indication that a further hearing would be held.45 The two weeks referred to at the beginning of the hearing, within which the parties were to be permitted to supplement the record, passed. During this period, Plaintiff's counsel submitted to the divorce 36 N.T. 8, Divorce Master's Hearing, March 27, 2003. 37 N.T. 9, Divorce Master's Hearing, March 27, 2003. 38 N.T. 66-68, Divorce Master's Hearing, March 27, 2003. 39 N.T. 57-58, 77, Divorce Master's Hearing, March 27, 2003. 40 N.T. 51, Divorce Master's Hearing, March 27, 2003; Defendant's Exhibit 2, Divorce Master's Hearing, March 27, 2003. 41 N.T. 27-28, 33-36, 47-48 42 N.T. 29-30, 37-38. 43 N.T. 30-32, 36-37. 44 N.T. 21, Divorce Master's Hearing, July 31, 2003. 45 N.T. 81, Divorce Master's Hearing, March 27, 2003. 9 master an unsigned 2002 federal income tax form of Plaintiff.46 On April 16, 2003, the divorce master, in obvious frustration at the record which had been developed, sent counsel the following letter: I have reviewed the correspondence of both counsel relating to the continuing effort to determine income and valuation of some assets. I intend to keep the record open indefinitely until certain matters are finally resolved There is no point in imposing any further deadlines inasmuch as the hearing date should have been the final deadline for all matters to be resolved; however, we are still dealing with certain issues which require resolution for proper evidence before I render my recommendations. First, let me point out that the unsigned 2002 proposed income tax return from Mr. Beam in an effort to state his income does not consider the wages on the 2002 W-2 form as stated at $95,222.23. How [am I] to deal with the additional $10,000.00 with respect to the income determination? The 1963 Chevrolet Impala needs to be appraised. I intend to award it to Mr. Beam and we need to have a value established. The parties are continuing to wrangle over the value and distribution of the household contents. The distribution of those assets and the valuation are important in my final report inasmuch as I will put the total value of the assets as part of the marital estate and then assign assets that each party is to receive in the proposed distribution. Inasmuch as I do not intend to find an equal distribution of the marital estate, it is important that I know the value that each of the parties are receiving with respect to the household tangible personal property. · . . Perhaps neither party can achieve the same standard of living that they had during the marriage; however, certainly I believe that the standard of living issue is important in my consideration and do not find that this divorce is an "economic disaster" for the parties as there are substantial assets and Mr. Beam earns $95,000.00 annually and Mrs. Beam over $40,000.00 annually. The disaster in this case is the inability 46 See Plaintiff's Exhibit 6, Divorce Master's Hearing, July 31, 2003. 10 of the parties, because, as [Plaintiff's counsel] believes, this is an "emotionally charged divorce case(s)" to come to terms with what ! consider to be some basic matters that could have been resolved more expeditiously and less acrimoniously. Mostly, all divorce cases are "emotionally charged". Consequently, counsel can have all of the time they need to finalize the remaining issues that need to be addressed before I render my report and recommendations. In any event, I will essentially be out of the office until April 28, 2003, leaving the 17th. ! had hoped to be able to complete the report before my departure but obviously that is not going to happen so we may as well take the time needed to make sure that all of the evidence is properly presented and available to me for consideration.47 Regrettably, the implication of immortality on the part of the divorce master contained in the words "I intend to keep the record open indefinitely" and "counsel can have all the time they need" is supported only in certain sections of the Bhagavad Gita, which also do not appear in the record. A third of a year later, in spite of the best efforts of Defendant wife and her counsel,48 the master had been placed in little better position with respect to the record than he had been in at the conclusion of the hearing on March 27, 2003.49 NO auction of the household goods had been held or arranged. S° With a view toward concluding the case on the basis of the record which had been made, a final master's hearing was scheduled for July 31, 2003, limited to the issue of attorney's fees and expenses incurred by Defendant following the prior evidentiary hearing.5~ At that hearing, Defendant wife substantiated her position that responsibility for the lack of a more developed posture of the case lay 47 Plaintiff's Exhibit 6, Divorce Master's Hearing, July 31, 2003 (emphasis added). 48 See generally N.T. 4-46, Divorce Master's Hearing, July 31, 2003. 49 N.T. 10, Divorce Master's Hearing, July 31, 2003. 50 N.T. 10, Divorce Master's Hearing, July 31, 2003. 5~ Order and Notice Setting Hearing, July 3, 2003; N.T. 4, Divorce Master's Hearing, July 31, 2003. 11 with Plaintiff husband,52 one of whose e-mails to Defendant during this period included the following statement: "I will continue this until we have no money left to split or we decide to work this out.''53 By the time of the July 31, 2003, hearing, attorney's fees charged to Defendant wife by her present attorney~4 had totaled almost $8,000.00.~ Of this amount, $1,409.00 related to defense of a wholly meritless~6 marital misconduct allegation by Plaintiff57 and $359.00 related to pursuit of discovery by means necessitated, in the court's view, by Plaintiff's failure to comply with rules and orders.~8 Although no objection was initially made by Plaintiff's counsel to the limitation of evidence at the July 31, 2003, hearing to the issue of counsel fees,59 as the hearing proceeded to a conclusion he introduced, and secured admission of, the letter of the divorce master quoted above, and sought to introduce Plaintiff husband's 2002 tax return as filed, on the subject of his income.® In declining to admit the latter item into the record, the divorce master pointed out that the initial period during which the record was to have been supplemented on this subject had passed, that a sufficient basis for determining Plaintiff husband's wages was already of record by way of his 2002 W-2 form, that four months had passed from 5: See generally N.T. 4-46, Divorce Master's Hearing, July 31, 2003. 53 Defendant's Exhibit 6, Divorce Master's Hearing, July 31, 2003. 54 Defendant had been initially represented in these proceedings by another attorney. N.T. 65, Divorce Master's Hearing, March 27, 2003; N.T. 11, Divorce Master's Hearing, July 31, 2003. 55 Defendant's Exhibit 10, Divorce Master's Hearing, July 31, 2003; N.T. 11. 56 See N.T. 62, Divorce Master's Hearing, March 27, 2003. 57 N.T. 65, Divorce Master's Hearing, March 27, 2003. 58 N.T. 60-61, 65, 67-69, Divorce Master's Hearing, March 27, 2003; Defendant's Exhibit 3, Divorce Master's Hearing, March 27, 2003. 59 The notice of hearing as issued advised of this limitation, as did the divorce master at the commencement of the hearing. See Order and Notice Setting Hearing, June 3, 2003; N.T. 4, Divorce Master's Hearing, July 31, 2003. 60 N.T. 31-35, Divorce Master's Hearing, July 31, 2003. 12 the prior hearing, and that the present hearing was noticed as being limited to the 6~ issue of counsel fees and expenses. With respect to his letter suggesting an indefinite period for the record to be completed, the master conceded that I was not articulate enough in the process of trying to bring this [case] to a conclusion, but I certainly did not anticipate that this would take four months, and also I am confronted here today with testimony that there were efforts made to bring this to resolution and this was not accomplished. So we have a situation where the one side apparently is attempting to call this to a termination and the other side is not responding, I think there has to be a presumed date at which we say, well, there is not going to be anymore time. Otherwise, this could go on indefinitely. Unfortunately I used that kind of phraseology but it certainly was not anticipated by me that this case could hang open here for three, four, five years until somebody decided to do something on the other side.62 In his report, the divorce master recommended a 55/45 distribution of the valued marital estate ($576,063.64)63 and proceeds of a sale of the Chevrolet Camaro automobile shell,64 with the share to be received by Defendant wife to include the marital residence (subject to encumbrances securing debts, for which Defendant wife would be responsible),65 a distribution of certain household items, including a deep freezer and John Deere tractor, to Plaintiff husband and retention of the balance of the items by Defendant wife,66 alimony in favor of Defendant wife in the amount of $900.00 per month, subject to modification and termination 61 N.T. 31-35, Divorce Master's Hearing, July 31, 2003. 6: N.T. 33, Divorce Master's Hearing, July 31, 2003. 63 Divorce Master's Report, filed August 20, 2003, at 8-9. 64 Divorce Master's Report, filed August 20, 2003, at 10. 65 Divorce Master's Report, filed August 20, 2003, at 9. 66 Divorce Master's Report, filed August 20, 2003, at 10; Defendant's Exhibit 6, Divorce Master's Hearing. 13 in accordance with the Domestic Relations Cede,67 and an award to Defendant wife of attorney's fees in the amount of $1,500.00 and expenses in the amount of $300.00 (representing half of the retirement fund appraiser's fee).68 The master did not condition the recommended scheme upon the ability of Defendant wife to secure a release of Plaintiff husband by creditors secured by the marital residence, but did provide for Defendant's indemnification of Plaintiff for any loss he might incur in that respect. The master predicated his report upon net monthly incomes of $5,387.00 and $2,266.00 for Plaintiff husband and Defendant wife respectively. The record, as indicated above, would have supported higher figures, less favorable to Plaintiff husband. In his report, the divorce master prefaced his recommendations with a thorough analysis of the circumstances of the parties, including an explicit review of the factors set forth in Section 3502(a) of the Domestic Relations Cede69 and Section 3701(b) of the Domestic Relations Cede.7° The Court is in agreement with the findings of the master, as well as the rationale for the recommendations as expressed in the report, which are adopted herein. DISCUSSION The exceptions of Plaintiff husband to the divorce master's report may be classified as involving the determination of income, the propriety of alimony of an indefinite duration, the propriety of an award of counsel fees and expenses, the disposition of household goods, and the perpetuation of liability of Plaintiff husband on debts secured by liens on the marital home. These matters will be discussed seriatim. 67 Divorce Master's Report, filed August 20, 2003, at 13. 68 Divorce Master's Report, filed August 20, 2003, at 16. 69 Act of December 19, 1990, P.L. 1240, §2, 23 Pa. C.S. §3502(a) (factors to be considered in scheme for equitable distribution). 70 Act of December 19, 1990, P.L. 1240, §2, as amended, 23 Pa. C.S. §3701(b) (factors to be considered with respect to alimony). 14 Determination of income. As indicated by the recitation of facts above, the record does not, in the court's view, support Plaintiff's position that the divorce master failed to determine the net incomes of the parties.TM To the extent that Plaintiff's position is that the master's conclusion as to Plaintiff's income was inflated because the calculation included voluntary contributions to a retirement plan, the exception is not consistent with the present state of the law. See Portugal v. Portugal, 798 A.2d 246, 252 (Pa. Super. Ct. 2002) (voluntary contributions to retirement plan considered income for purposes of support calculation). Finally, to the extent that Plaintiff's position is that the divorce master failed to afford a sufficient opportunity for him to make a record upon which a determination of income could be based, two factors tend to weaken the effect of this argument. First, as the master pointed out, the record contains a copy of Plaintiff's most recent W-2 form; Plaintiff fails to suggest in what way his wages would be shown to be different from those reflected on the form by the submission of supplemental evidence, and in this sense the argument lacks any element of prejudice necessary to entitlement to relief. Second, Plaintiff did not, within the time initially provided by the master, supplement the record with further evidence of a reliable nature on the subject of his salary, nor did he cooperate to complete the record thereafter. Under these circumstances, the court does not believe that it is necessary to extend this case, which was commenced in 2000, into 2004 by remanding it to the master with a direction to the master that he reopen the record, conduct a fourth hearing, and file 7~ In this regard, Plaintiff concedes in his brief on the exceptions that "we can surmise from the record and from the Master's report what was likely the figures used..., [but] husband believes this is something that should be clear." Plaintiff Husband's Brief in Support of His Exceptions to Master's Report, at 8. Although the Court is unable to agree that the figures used were not explicit in the report, where a determination may be made on the basis of necessary implication a lack of explicitness will not be deemed a material defect. See, e.g., Peerless Publications Inc. v. County of Montgomery, 656 A.2d 547, 552 (Pa. Commw. Ct. 1995) (that is certain which can be made certain). 15 a new master's report, solely to facilitate the submission of further evidence on the subject of income by Plaintiff. Award of alimony of indefinite duration. "Where a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party.., if it finds that alimony is necessary." Act of December 19, 1990, P.L. 1240, 32, as amended, 23 Pa. C.S. §3701(a). "Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor's ability to pay." Twilla v. Twilla, 445 Pa. Super. 86, 90, 664 A.2d 1020, 1022 (1995). Factors relevant to the nature, amount, duration and manner of payment of alimony include those statutorily prescribed in Section 3701(b) of the Domestic Relations Code. Id; Act of December 19, 1990, P.L. 1240, 32, as amended, 23 Pa. C.S. §3701(b). An award of alimony may be modified, suspended, terminated or reinstituted, or replaced by a new order, upon a change of circumstances of either party of a substantial and continuing nature. Id §3701(e). "The court in ordering alimony shall determine the duration of the order, which may be for a definite or an indefinite period of time which is reasonable under the circumstances." Id §3701(c). Where a court expressly recognizes the prospect of a modification or termination of alimony in the event of changed circumstances, the indefinite duration of an award of alimony at its inception is not uncommon. See, e.g., Nemoto v. Nemoto, 423 Pa. Super. 269, 620 A.2d 1216 (1993). In the present case, where circumstances include a marriage of almost 30 years during which the parties established a comfortable standard of living, a substantial disparity in the parties' incomes and earning potentials, a modest income on the part of Defendant wife, and her assumption of a substantial debt obligation in connection with her residence, the award of alimony to her in the amount of $900.00 per month seems, to the court, entirely appropriate. Nor does it appear to be unreasonable to decline to assign a termination date to such an award 16 in the absence of an ability to predict when the circumstances of the parties will materially change, where the prospect of a termination or other modification upon a change of circumstances is expressly recognized. Counsel fees and expenses. With respect to counsel fees and expenses, the Domestic Relations Code expressly authorizes an award reimbursing, in whole or in part, a party for such expenditures in an appropriate case. "In proper cases, upon petition, the court may allow a spouse.., reasonable counsel fees and expenses." Act of December 19, 1990, P.L. 1240, §2, as amended 23 Pa. C.S. §3702. In this regard, "counsel fees are not awarded to either spouse automatically. Actual need must be shown in order to justify an award. Counsel fees are appropriate when necessary to put the parties on a par in defending their rights or in allowing a dependent spouse to maintain or defend an action for divorce." Johnson v. Johnson, 365 Pa. Super. 409, 415, 529 A.2d 1123, 1126 (1987). In addition, a more general statutory provision in Pennsylvania provides as follows: The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:... [a]ny participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter... [and a]ny participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith .... Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §2503(7), (9). Thus, in Isralsky v. Isralsky, 824 A.2d 1178 (Pa. Super. Ct. 2003), the Pennsylvania Superior Court upheld a lower court's award of attorney's fees to a spouse where credible evidence had been presented that the opposing party had threatened to "run her [the opposing spouse] out of money" and the lower court believed that an award of counsel fees was necessary in order to place the parties on a par and effectuate economic justice. Id at 1192-93. 17 In the present case, the assessment of one half of the $600.00 expense for an expert's report that served as the basis for a stipulation on retirement plan values seems fair and reasonable to the court. In addition, upon consideration of Plaintiff's own e-mailed threat as recounted above, the disparity of the parties' incomes, and Plaintiff' s pursuit of a meritless allegation of marital misconduct and failure to comply with discovery obligations, the assessment of a modest attorney's fee amounting to less than Defendant's bills in connection therewith and to a fraction of her overall legal expenses, seems equally appropriate. Disposition of household goods. "At some point litigation must end." Commonwealth v. Peterkin, 554 Pa. 547, 557, 722 A.2d 638, 643 (1998). It is, as a general rule, the responsibility of the parties to generate the record upon which a case will be decided. See, e.g., Commonwealth v. Gi//en, 798 A.2d 225 (Pa. Super. Ct. 2002). In this regard, the master concluded that the imperfect state of the record in the present case was primarily attributable to Plaintiff, and his conclusion finds support in the history of the proceedings. Under these circumstances, and in view of the age of the litigation, the court finds itself in agreement with the master's decision to proceed on the basis of the record which had been made to bring a case, which as of this writing is well into its fourth year, to a practical conclusion. The vast bulk of the marital estate was exclusive of the household items, and under the scheme proposed by the master each party will receive some of the household items. Plaintiff's share of these will include at least two major items.TM Accordingly, Plaintiff's position on the matter of household goods is viewed as less than compelling and the court will decline to further complicate and delay the process herein by sustaining Plaintiff's exceptions to the divorce master's report as they relate to the disposition of household goods. 7: In so finding, the court intends no reflection upon either counsel in the case, neither of whom was the client's initial counsel and both of whom have zealously pursued the interests of their clients with their accustomed competence and professionalism. 18 Liability of PlaintifJ~ husband on debts secured by marital residence. Whether a party who receives an item of property in equitable distribution which is encumbered on a joint debt should be required to effect a release of the other party on the debt, by means of refinancing or otherwise, is dependent upon the circumstances of the case. It is not uncommon that a scheme of distribution does not depend upon the effectuation of such a release. See, e.g., Ruth v. Ruth, 316 Pa. Super. 282, 462 A.2d 1351 (1983). While a release is obviously desirable from the point of view of the party who does not receive the property, the record in the present case does not demonstrate that a lending institution would be willing to accept the risk inherent in a substantial loan to a person with Defendant's income from employment as a proofreader. In addition, in view of the market value of the residence in question, the practical risk to Plaintiff that he will actually sustain any loss from remaining as an obligor on the debts secured by the premises is almost nonexistent. Because the feasibility of requiring Defendant to secure a release of Plaintiff is uncertain, and the risk to Plaintiff marginal, the court is in agreement with the absence of such a requirement in the scheme of distribution proposed by the divorce master. For all of the foregoing reasons, Plaintiff's exceptions to the report of the divorce master will be dismissed, a divorce decree will be issued, and supplemental decrees regarding economic claims will be entered in accordance with the recommendations of the master. ORDER OF COURT AND NOW, this 30th day of December, 2003, after careful consideration of Plaintiff's Exceptions to Master's Report, and for the reasons stated in the accompanying Opinion, the exceptions are dismissed. OF EVEN DATE herewith, a divorce decree and supplemental decrees respecting equitable distribution, alimony, and counsel fees and expenses are being entered in accordance with this Order and the accompanying Opinion. 19 BY THE COURT, E. Robert Elicker, II, Esq. Cumberland County Divorce Master Thomas J. Williams, Esq. Attorney for Plaintiff Debra Denison Cantor, Esq. Attorney for Defendant s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 20 21 KENNETH B. BEAM, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW DENISE K. BEAM, Defendant NO. 00-5837 CIVIL TERM IN RE: PLAINTIFF'S EXCEPTIONS TO DIVORCE MASTER'S REPORT BEFORE OLER, J. ORDER OF COURT AND NOW, this 30th day of December, 2003, after careful consideration of Plaintiff's Exceptions to Master's Report, and for the reasons stated in the accompanying Opinion, the exceptions are dismissed. OF EVEN DATE herewith, a divorce decree and supplemental decrees respecting equitable distribution, alimony, and counsel fees and expenses are being entered in accordance with this Order and the accompanying Opinion. BY THE COURT, E. Robert Elicker, II, Esq. Cumberland County Divorce Master Thomas J. Williams, Esq. Attorney for Plaintiff Debra Denison Cantor, Esq. Attorney for Defendant J. Wesley Oler, Jr., J.