HomeMy WebLinkAbout93-1980 Civil MARSHALL E. POWELL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v. : CIVIL ACTION - LAW
NANCY I. POWELL, :
Defendant : NO. 1980 CIVIL 1993
IN RE: EXCEPTIONS TO MASTER'S REPORT
BEFORE SHEELY, P.J., HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this ~ day of August, 1995, after careful
consideration of Plaintiff's Exceptions to Master's Report and of
Defendant's Counter Exceptions to Master's Report, as well as the
briefs and oral arguments presented on the matter, and for the
reasons stated in the accompanying Opinion, all exceptions are
DENIED.
OF EVEN DATE herewith, a decree of divorce and supplemental
decrees respecting equitable distribution and alimony are being
issued in accordance with this Order and the accompanying Opinion.
BY THE COURT,
i,
James J. Kayer, Esq.
4 Liberty Avenue
Carlisle, PA 17013
Attorney for Plaintiff
Thomas J. Williams, Esq.
Ten East High Street
Carlisle, PA 17013
Attorney for Defendant
:rc
MARSHALL E. POWELL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
NANCY I. POWELL, :
Defendant : NO. 1980 CIVIL 1993
IN RE: EXCEPTIONS TO MASTER'S REPORT
BEFORE SHEELY, P.J., HOFFER and OLER, JJ.
OPINION and DECREE
Oler, J.
The parties in this divorce action were married on August 3,
1985, and separated on May 25, 1993.~ Plaintiff Husband, Marshall
E. Powell, is 55 years of age (d.o.b. 8/4/40),2 and Defendant Wife,
Nancy I. Powell, is 52 years of age (d.o.b. 4/19/43).3 This is
Husband's third, and Wife's second, marriage.4 There were no
children born of the marriage, although each party has adult
children from a prior marriage,s
On June 14, 1993, Husband ~filed a complaint in divorce
alleging an irretrievable breakdown of the parties' marriage under
Section 3301(c) of the Divorce Code. No economic claims were
raised in the complaint. On July 9, 1993, Wife filed an answer and
counterclaim, admitting the irretrievable breakdown of the marriage
and, inter alia, raising economic claims for equitable
Master's Hearing, May 11, 1994, at 67-68.
Master's Hearing, May 11, 1994, at 31.
Master's Hearing, October 27, 1994, at 5.
Master's Hearing, May 11, 1994, at 68.
Master's Hearing, May 11, 1994, at 68.
NO. 1980 CIVIL 1993
distribution, alimony pendente lite, exclusive possession of the
marital residence, and counsel fees and expenses.6 On July 29,
1993, in an amended answer and counterclaim, a claim for alimony
was added. A Master was appointed on October 18, 1993, and after
the filing of pre-trial statements a pre-hearing conference was
held by the Master on January 1~, 1994. On May 11, 1994, the first
Master's hearing was held, and counsel agreed not to schedule a
further hearing until certain medical information was received and
reviewed. Subsequently, a second hearing was held on October 27,
1994, at the conclusion of which the record was closed.
Following the hearing on October 27, 1994, the Master
suggested a resolution of the case which would involve Husband's
acquisition of financing on the marital home, his receipt of title
to it, and a payment to Wife.7 Husband was given two weeks to
determine if he could arrange financing, which he was able to do.8
However, an issue with regard to alimony continued to be unresolved
and after a Master's conference with the parties and counsel on
November 21, 1994, no resolution having been reached regarding the
alimony issue, the case had to proceed with the Master's report and
6 Neither party has filed an exception with regard to the
Master's recommendation of a denial of Wife's claim for counsel
fees and expenses.
7 Master's Report, November 25, 1994, at 1.
~ Id.
2
NO. 1980 CIVIL 1993
recommendations.9 Both of the parties filed affidavits of consent
under Section 3301(c) of the Divorce Code~° - Husband on May 17,
1994, and Wife on May 18, 1994.
The Master filed his report on November 25, 1994. He
recommended the following equitable distribution plan with respect
to the primary item-of marital property, a marital residence having
a stipulated value of $76,000.00:~
Husband shall pay to wife the sum of
$47,500.00 within thirty (30) days of the date
of a final order in these proceedings
representing wife's interest in the [marital
home] .... In the event that husband does not
pay to wife the sum of $47,500.00 within
thirty (30) days of the date of a final order
in these proceedings, the [marital home] will
be immediately listed for sale ... [for] a
price agreed upon between the parties and
counsel. The net proceeds from the sale of
the [marital home] which will be derived after
the payment of the customary settlement costs
including commission and transfer tax and
proration of real estate taxes will be
distributed 62.5% to wife and 37.5% to
husband. In distributing the net proceeds,
wife should receive some credit to be ·
subsequently established between the parties
and counsel representing her rental value
claim for husband's use of the property from
the date of this report to the date of
settlement on the real estate unless husband
buys out wife's interest in thirty (30) days
Id., at 1-2.
Act of December 19, 1990, P.L. 1240, S2, 23 Pa. C.S.A.
§3301(c).
Master's Hearing, May 11, 1994, at 5, 66.
3
NO. 1980 CIVIL 1993
as provided herein.~2
The Master further recommended that Husband be responsible for
making payments for the real estate taxes and insurance on the
property as long as he remained in possession of the marital home.TM
Husband was also to be responsible, in the amount of $4,800.00 for
expenses not covered by insurance, for property damage that
resulted from a 1993-94 winter storm.TM
With regard to Wife's claim for alimony, the Master
recommended that "Husband shall pay to Wife the sum of $100.00 per
month as alimony ... to begin upon the entry of a divorce decree in
these proceedings.-~5 The Master further recommended no award to
Wife for counsel fees and expenses.~6 Both Husband and Wife filed
exceptions to the Master's report, which are presently before this
court for disposition.
Husband raises nine exceptions to the Master's report. First,
he asserts that the Master failed to consider Husband's heart
problems in assessing the future health of Husband. Second, he
argues that the Master misapprehended the effect of Wife's
diagnosis of multiple sclerosis on her ability to work. Third, he
Master's Report, November 25, 1994, at 10-11.
Id., at 11.
Id.
Id., at 15.
Id., at 16.
4
NO. 1980 CIVIL 1993
claims that the Master based his assessment of Wife's monthly
income at $1,125.00 on insufficient evidence. Fourth, Husband
contends that the Master was incorrect in concluding that Wife made
a down payment of $14,000.00 on the marital home utilizing only her
premarital assets. Fifth, he argues that the Master was incorrect
in determining that Wife paid for the installation of public water
and sewer at the marital home in the amount of $5,000.00, and in
attributing a $36,000.00 mortgage payoff to Wife's premarital
assets. Sixth, Husband claims that the Master failed to consider
Husband's income, including his'military pension'and 'full-time
employment, in concluding that Husband had insignificant assets at
the time the parties purchased their marital home. Seventh,
Husband maintains that the Master failed to take into
consideration, with respect to his equitable distribution
recommendation, the funds brought into the relationship by the
Husband, and his premarital contributions toward the home when the
parties were unmarried and cohabiting. Eighth, he argues that the
Master was incorrect in concluding that the Wife was employed and
working to her full potential. Finally, Husband claims that the
Master was incorrect in his recommendation regarding alimony,
because he failed to consider that the Husband was precluded from
conducting a commercial enterprise at the marital home due to its
zoning status and because he failed to recognize limitations upon
Husband's income potential due to his disabilities.
NO. 1980 CIVIL 1993
Wife raises four exceptions to the Master's report. First,
she contends that the Master was incorrect in failing to credit her
with all of an $80,000.00 figure that she presently asserts she
contributed to the marriage from her premarital assets. Second,
she argues that the Master failed to assign Husband an earning
capacity'equivalent to his-actual, demonstrated earnings. Third,
Wife claims that the Master should have recommended an award of the
entire marital residence to her. Fourth, she contends that the
Master was incorrect in failing to charge Husband with the fair
rental value of the marital home from the date of parties'
separation, as opposed to the date of the Master's report.
STATEMENT OF FACTS
The parties were married on August 3, 1985, and separated on
May 25, 1993.~7 Husband, 55,~8 is retired from the military~9 and is
currently unemployed.2° His gross entitlement in the nature of
retirement pay is $916.00 per month, which includes $166.00 per
month designated as a disability payment.2~ The sum of $182.00 is
deducted from Husband's monthly payment for spousal support of
~? Master's Hearing, May 11, 1994, at 67-68.
~ Id., at 31.
~ Id., at 19.
20 Id.
2~ Id.
6
NO. 1980 CIVIL 1993
Wife.22 After the deduction for spousal support, as well as federal
taxes, Husband's net monthly income from the military is $487.75
plus the $166.00 disability payment for a total of $653.75.23
While the parties were living together, Husband operated a
business known as Ernie's Mustang Drive.24 In this business,
Husband sold Mustang parts and rebuilt Ford engines.~s Husband
conducted most, if not all, of his business transactions on a cash
basis.26 Husband claims that these activities were conducted, more
or less, as a hobby and that after the parties had separated he no
longer desired to pursue such activities.2~ Husband further claims
that even if he did wish to continue his business he would be
prohibited from doing so based on a local zoning ordinance.~8
Husband has ongoing medical problems which include arthritis,
sciatica, tendinitis, stress disorder, sinusitis, a twenty-percent
disability in his left leg (which is 5/8 inch shorter than his
Plaintiff's Exhibit 4.
Plaintiff's Exhibit 4; Master's Hearing, May 11, 1994, at
57.
Master's Hearing, May 11, 1994, at 121.
Id., at 73, 124; Defendant's Exhibit 2.
Master's Hearing, May 11, 1994, at 40, 45.
Id., at 84, 123, 138; Master's Hearing, October 27, 1994,
at 119.
~8 Master's Hearing, May 11, 1994, at 11, 15, 40-41, 121.
7
NO. 1980 CIVIL 1993
right leg), and high blood pressure.29 Husband claims that in 1985
his doctor found a blockage in his heart and subsequently told him
that he would need a pacemaker someday.3° Despite the blockage in
his heart, his doctor advised Husband's employer at that time, in
writing, that Husband was still capable of working.3~
With regard to Husband's formal education and acquired skills,
Husband completed one year of high school and subsequently obtained
a GED in 1978.~2 While in the military, Husband had training in
welding and with the military police.~ Husband also has acquired
mechanical skills from working on his own cars.~4
Husband currently lives in the marital home at 191 Crain's Gap
Road, Carlisle, Cumberland County, Pennsylvania, with his
girlfriend, Anna M. Dunkleberger.3s She has been living with
Husband since August 30, 1993, during which time she has
contributed what she could toward monthly household expenses.~6 In
29 Master's Hearing, May 11, 1994, at 24, 26, 131, 140;
Plaintiff's Exhibit 1.
Master's Hearing, May 11, 1994, at 25.
Id.
Id., at 20.
Id.
Id.
Master's Hearing, May 11, 1994, at 62, 145.
Id., at 62-63, 145, 147, 149.
8
NO. 1980 CIVIL 1993
the absence of rental payments, Husband has been receiving the
value of the marital home rent free, the mortgage having been
previously paid off.37
Wife, 52,38 lives alone in an apartment.TM She completed three
years of high school and has had training in cosmetology school,
preparing her to do hair, nails and facials.4°
With regard to her health, Wife was tentatively diagnosed with
multiple sclerosis in 1973 when she was thirty years of age.4~
Subsequently, in 1981, she was conclusively diagnosed with the
disease.42 "[Wife] was found to be disabled within the meaning of
the Social Security Act beginning November 23, 1980 and she [was]
not engaged in substantial gainful activity [from] that date until
[February 16, 1990].'.43 Although Wife is capable of working, she
occasionally experiences blurred vision, slight loss of memory44 and
numbness in the hands.4s
Id., at 152-53.
Master's Hearing, October 27, 1994, at 5.
Id., at 33, 48.
Id., at 5.
Id., at 11.
Id., at 13.
Defendant's Exhibit 4, at 3.
Master's Hearing, October 27, 1994, at 68.
Id.
9
NO. 1980 CIVIL 1993
Wife works part-time at Marlene's Total Salon Concepts,46 where
she earns approximately $100-$125 a week.47 In addition, she
receives spousal support payments in the.amount of $182.00 a month
from Husband,48 and a disability check in the amount of $460.00 per
month.49 Wife's income from her part-time employment, her
disability payments and her spousal ~support totals approximately
$1075.33-$1183.66 per month,so Based on Wife's testimony, she also
receives $20.00 per month in the form of tips,s~ bringing her total
monthly income to between $1095.33 and $1203.66. Wife has
indicated that she is going to attempt to work full-time at
Marlene's Total Salon Concepts in order to increase her income,s2
However, Wife is aware that she will lose her disability benefits,
including her Medicare benefits, if she begins working full-time
and earning more than $125.00 per week.s3 Wife does not receive any
Id., at 16.
Id., at 45; Defendant's Exhibit 11.
Plaintiff's Exhibit 4.
Master's Hearing, October 27, 1994, at 88.
Id., at 45, 88; Defendant's Exhibit 11; Plaintiff's Exhibit
Master's Hearing, October 27, 1994, at 56.
Id., at 47, 59.
Id., at 47, 91.
10
NO. 1980 CIVIL 1993
jtype of benefits at her place of employment,s4 If Wife should lose
her medical benefits as a result of working full-time, it would
cost Wife approximately $300.00 per month to obtain her own
independent medical coverage,s~
When the parties purchased the marital home at 191 Crain's Gap
Road, Carlisl~e, Pennsylvania, on August 17, 1983s6 for the price of
$54,000.00,~7 Wife made the down payment of $14,000..00 from money
which she had received from a settlement in her prior divorce.58
Husband, according to Wife, paid approximately $1,000.00 in closing
costs.59 Wife alleges that she made further contributions from her
prior marriage settlement proceeds toward the marital residence in
the amount of $5,000.00 for installation of public water and sewer
systems at the marital home~° and paid off the mortgage in the
Id., at 48.
Id., at 88, 90.
Master's Hearing, May 11, 1994, at 47; Plaintiff's Exhibit
2.
Master's Hearing, October 27, 1994, at 21.
Id.
59 Id., at 22; Master's Hearing, May 11, 1994, at 142. It
should be noted that prior to the purchase of the home, in late
1982 or early 1983, Husband filed for bankruptcy. Id., at 104.
The parties are in disagreement as to whether Husband had
$10,000.00 in his possession subsequent to his filing for
bankruptcy. Id., at 139; Master's Hearing, October 27, 1994, at
18.
60 Master's Hearing, October 27, 1994, at 26-28.
11
NO. 1980 CIVIL 1993
amount of $36,000.00.6~ Husband testified that it was he who was
responsible for paying the $4,833.52 to complete the public water
and sewer system hookup.62 Husband constructed a garage on the
property, the cost of which was paid by him in the amount of
$10,329.72.63
Husband has had possession and use of the marital home since
the parties separated on May 25, 1993. Presumably, Husband has
been paying the real estate taxes and homeowner's insurance during
that period. During the winter of 1993-94 the marital home
suffered damage from storms, the cost of repairs totalling
$14,600.00.64 Of the total, $9,800.00 will be covered by insurance
and $4,800.00 would be the responsibility of Husband under the
Master's recommendation.6s
STATEMENT OF LAW
In a divorce action, a Master's report and recommendations,
while entitled to great consideration, are advisory only and not
binding on the court. Morschhauser v. Morschhauser, 357 Pa. Super.
339, 349, 516 A.2d 10, 15 (1986). On issues of credibility, the
Id., at 26.
Master's Hearing, May 11, 1994, at 52; Plaintiff's Exbhit
3.
Master's Hearing, May 11, 1994, at 64.
Master's Hearing, October 27, 1994, at 93-94.
Id.; Plaintiff's Exhibit 11.
12
NO. 1980 CIVIL 1993
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
trial court is required to review the Master's report, determine if
his or her recommendations are appropriate, and enter a final
decree. Reed v. Reed, 354 Pa. Super. 284, 511 A.2d 874 (1986).
The court has discretion to deviate from the recommendation of the
Master regardless of whether either party has raised a particular
issue in an exception. Morschhauser v. Morschhauser, 357 Pa.
Super. 339, 350, 516 A.2d 10, 15 (1986). It is with these
principles in mind that the court will address the parties' several
exceptions.
HUSBAND'S EXCEPTIONS
In his first exception, Husband contends that the Master
failed to consider the Husband's heart problems that he has had
since 1985 when determining the prospective health of the parties.
Husband admitted that the blockage that was discovered in his heart
did not prevent him from continuing his employment and Husband, in
fact, obtained a statement from his doctor to that effect.66 The
court is in agreement with the Master's credibility determination
regarding the effect of Husband's heart problems on his ability to
work.
In his second exception, Husband claims that the Master's
6~ Master's Hearing, May 11, 1994, at 25.
13
NO. 1980 CIVIL 1993
recommendations are unreliable in that he mistakenly assumed that
Wife was initially diagnosed with multiple sclerosis on February
16, 1990. Husband argues that Wife was initially diagnosed with
symptoms of multiple sclerosis prior to 1990 and testified that she
can continue working despite blurred vision and numb extremities.
The court is unable to agree that this exception is meritorious.
In his finding of fact number ten, the Master stated:
Wife was diagnosed with multiple sclerosis and
on February 16, 1990, was determined to be
disabled for the purpose of receiving social
security disability payments. Although wife
is able to work, occasionally she experiences
blurred vision and has problems with her hands
and feet going numb.~?
The Master correctly acknowledged the impact that multiple
sclerosis had on the Wife's ability to work. The Master recognized
that Wife could and did continue to work despite having occasional
experiences of blurred vision and numb extremities. The exact date
of the diagnosis was not of particular importance - rather, the
proper focus was on how the Wife's illness affected her ability to
obtain future income. Since the court feels that the Master
properly considered this factor, it will not disturb the Master's
finding of fact number ten.
In his third exception, Husband contends that the Master
incorrectly found that Wife's monthly income was $1,125.00, when
Wife failed to produce documentation substantiating her claim with
~7 Master's Report, November 25, 1994, at 3.
14
NO. 1980 CIVIL 1993
regard to the period between the first hearing in May of 1994 and
the second hearing in October of 1994. After a careful review of
the record the court concludes that the Master's finding with
regard to Wife's weekly wages was consistent with the evidence.
Wife testified that her weekly income was approximately
$100.00 to $125.00 per week.68 Wife also provided documentation
concerning her weekly income from November 1993 until April 1994.69
Husband's argument that Wife did not provide documentation as to
weekly paychecks for the months between the first and second
Master's hearings does not persuade the court that the Master's
finding of Wife's weekly income was incorrect. It was based on
Wife's credited testimony and prior documentation. The Master's
finding regarding Wife's weekly wages will thus not be disturbed by
the court.
In his fourth exception, Husband contends that the Master
incorrectly determined that Wife was responsible for making the
down payment, in the amount of $14,000.00, on the marital home.
Husband argues that this finding is not supported by the record due
to a lack of documentationTM showing that the down payment was from
Master's Hearing, October 27, 1994, at 45.
Defendant's Exhibit 11.
70 It should be noted that there is conflicting testimony from
the parties that documentation left by Wife in the marital home was
subsequently disposed of by Husband. Master's Hearing, May 11,
1994, at 108-10.
15
NO. 1980 CIVIL 1993
a source consisting exclusively of Wife's premarital assets. The
same reasoning as previously stated with regard to Husband's third
exception applies to this exception. Credible testimony, even
though unsupported by documentation, is competent evidence.
Furthermore, with regard to credibility of witnesses, a
Master's report is entitled to full consideration, since it is the
Master who had the opportunity to observe the demeanor of the
witnesses while testifying. For these reasons, the court is not in
disagreement with the Master's finding that the down payment on the
marital home, in the amount of $14,000.00, was derived solely from
the Wife's premarital assets.
In his fifth exception, Husband contends that the Master was
incorrect in concluding that Wife paid for the installation of
public water and sewer at the marital home, in the amount of
$5,000.00, when Husband provided documentation in the form of
cancelled checks that he paid this amount. Husband further claims
that the Master was incorrect in attributing the $36,000.00
mortgage payoff to Wife's premarital assets, when Wife failed to
provide documentation concerning the source of these funds.
Husband testified that he paid $4,833.52 out of funds derived
from his personal checking account.TM He supported this assertion,
not by copies of cancelled checks, but rather by a listing in his
expense summary of the source of funds, the date of the check, the
7~ Master's Hearing, May 11, 1994, at 52.
16
NO. 1980 CIVIL 1993
check number, the payee and the check amount.72
On the other hand, Wife testified that she was responsible for
paying $5,000.00 for the water and sewer hookup.TM Wife claimed
that Husband stated that he did not have that amount and that he
refused to pay it. Rather than letting the contractor place a lien
Gn the marital home,~ according to Wife, she chose to pay the amount
herself out of $51,000.00 which she had received from a settlement
in her prior divorce.TM This court believes that the conflicting
testimony of the parties presents a question of fact that must be
resolved based on the credibility of the witnesses. The Master had
the opportunity to observe the demeanor of the witnesses, and his
credibility determination will be given full consideration by the
court. After carefully reviewing the record, the court is not in
disagreement with the Master's conclusion that Wife contributed the
$5,000.00 for the water and sewer hookup in the marital home.
With regard to Husband's contention concerning the lack of
documentation supporting Wife's testimony that the $36,000.00
mortgage payoff was made from Wife's premarital assets, the court
will reiterate that testimony, even though unsupported by
documentation, still qualifies as competent evidence. Furthermore,
Husband failed to provide any testimony of his own to prove that
Plaintiff's Exhibit 3.
Master's Hearing, October 27, 1994, at 26.
Id., at 26-28.
17
NO. 1980 CIVIL 1993
the $36,000.00 came from sources other than the Wife's premarital
assets. For these reasons, the court will credit Wife with the
$36,000.00 mortgage payment.
In his sixth exception, Husband claims that the Master
incorrectly concluded that Husband had only minimal assets at the
time that the parties purchased their marital home. Husband feels
that the Master did not adequately consider the income of the
Husband at that time, which included his military pension as well
as full-time employment. When asked, "Did you contribute any money
in the initial purchase of the home", Husband replied, "Lawyer's
fees, down payment partially. The checks are all there
[Plaintiff's Exhibit 3].''75 After a review of Plaintiff's Exhibit
3, Husband's expense summary, the only documentation that this
court finds with regard to Husband's contributions toward the
marital home is a listing by Husband of two checks allegedly given
to Century 21 for the combined amount of $3,396.51. Wife, on the
other hand, testified that Husband contributed the closing costs
towards the purchase of the marital home in an amount which may
have exceeded $1,000.00.TM The Master accepted the figure mentioned
by Wife, and the court, after reviewing the record, does not
disagree with this credibility determination.
In his seventh exception, Husband argues that the Master's
75 Master's Hearing, May 11, 1994, at 48.
76 Master's Hearing, October 27, 1994, at 22.
18
NO. 1980 CIVIL 1993
recommendation regarding his equitable distribution was unreliable
because the Master incorrectly concluded that the Wife brought into
the relationship a substantial sum of money arising from a
settlement in her prior divorce while Husband possessed no
substantial assets. Husband claims that the Master did not
adequately consider funds brought into the relationship by the
Husband nor his premarital contributions toward the home when the
parties were living there but were still unmarried.
Both parties testified that in January of 1983 Husband filed
bankruptcy and soon after moved in with Wife at her residence.77
Husband testified that when he first moved in with Wife he had
$10,000.00 in bank accounts.TM Wife testified that Husband did not
have $10,000o00 after he filed for bankruptcy.TM When asked about
the assets that Husband brought with him when he moved in, Wife
replied, "[h]e had no money. When he walked away from [the
bankruptcy proceedings]. He had no money. He had nothing but his
pay check coming in, that was it; and his retirement."8° Once
again, the determination of Husband's assets that he brought into
the relationship with him is a matter involving the credibility of
7~ Master's Hearing, May 11, 1994, at 47; Master's Hearing,
October 27, 1994, at 18.
Master's Hearing, May 11, 1994, at 139.
Master's Hearing, October 27, 1994, at 18.
Id.
19
NO. 1980 CIVIL 1993
the witnesses. When this is the case, the Master's finding will be
given full consideration because it was he who had the opportunity
to observe the demeanor of the witnesses. After reviewing the
record, the court is in agreement with the Master's conclusion that
Husband brought only minimal assets to the parties' relationship.
In his eighth exception, Husband argues-~-that the Master
incorrectly concluded that the Wife is employed and is working to
her full potential. Husband contends that the Wife is not working
to her full potential because she is capable of working full-time.
In his report, the Master acknowledged that Wife is going to
attempt to work full-time. The Master also stated that if the Wife
does in fact begin to work full-time she will lose her social
security disability benefits8~ so that her income may actually
decrease as a result of her extended hours. Even if this court
were to find that the Master was incorrect in concluding that Wife
is working to her full potential, that finding would be of little
or no benefit to Husband, and might actually have an adverse
consequence to Husband since the Wife's working full-time could
result in a decrease in her income. For these reasons, the court
does not disagree, on this basis, with the Master's recommendation
regarding alimony and equitable distribution.
In his ninth and final exception, Husband claims that the
8~ If Wife's earnings exceed the amount of $125.00 per week
her social security disability benefits in the amount of $460.00
per month will be discontinued.
20
NO. 1980 CIVIL 1993
Master was mistaken in his assessment of Wife's alimony claim.
Husband contends that, in discussing the possibility of Husband's
pursuit of his automobile parts and motor repair business once
more, the Master failed to consider that Husband is precluded from
conducting a commercial enterprise at the marital home due to local
zoning restrictions. The Mast-er states that "[t]he recommendation
of alimony is based upon the parties earnings as set forth in the
findings of fact and considering the adjustment that would have to
be made resulting from Wife's termination of spousal support
benefits and the added expense of medical insurance coverage as
well as other factors considered in the analysis."82 Prior to the
Master's hearings, Wife was receiving spousal support in the amount
of $182.00 per month. Pursuant to the recommendations of the
Master, Wife's receipt of funds, for alimony, would be reduced to
$100.00 per month. In light of all the circumstances of this case,
and notwithstanding that the location of Husband's enterprise in
the past may not have been municipally sanctioned, this court does
not feel that $100.00 per month is an unreasonable amount.
WIFE'S EXCEPTIONS
In her first exception, Wife argues that the Master was
incorrect in failing to credit her with a postulated figure of
$80,000.00 that she maintains she contributed to the marriage from
her own premarital assets. The Master, however, credited Wife
82 Master's Report, November 25, 1994, at 14.
21
NO. 1980 CIVIL 1993
with the amount that she testified to contributing to the marriage.
Wife was credited with $14,000.00 which represented the down
payment on the marital home, with $5,000.00 which represented the
installation of public water and sewer systems and with $36,000.00,
which represented the mortgage payoff on the marital residence, for
a total ~f $55,000.00. Wife did not present any additional
testimony or documentation to show that she contributed an
additional $25,000.00 to the marriage. Therefore, this court does
not find itself in a position to disagree with the Master and
credit Wife with a contribution to the marriage in the greater
amount of $80.000.00, representing a figure that she testified she
had from a settlement in a prior divorce.
In her second exception, Wife contends that the Master failed
to assign Husband an earning capacity equivalent to his actual
demonstrated earnings. One of Husband's former employees, Wilmont
Delano Jumper, Jr., testified with regard to Husband's actual
earnings from his automotive business. Mr. Jumper stated that
Husband told him that he made $50,000.00 to $60,000.00 a year, but
that this was not profit since much of that figure was reinvested
in the business in order to maintain its viability.83 In response
to Mr. Jumper's testimony, Husband stated that the $50,000.00 to
$60,000.00 was not an estimate of his yearly income but rather was
Master's Hearing, May 11, 1994, at 82.
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NO. 1980 CIVIL 1993
an estimate of the liquidation value of his business assets.84
Husband further claimed that that figure was stated in jest.8s Upon
a review of the record, the court is in agreement with the Master's
determination regarding Husband's earning capacity.
In her third exception, Wife argues that the Master should
have recommended an award of the entire marital residence to her.
After reviewing the brief submitted by Wife in support of her
exceptions, it appears that Wife has moderated this position. For
instance, Wife concedes that, "[u]nder [the] circumstances, it was
not unreasonable for the Master to award two-thirds of the marital
residence to Wife and one-third to Husband."86 Wife also concedes
that "[t]he wife's pre-marital purchase of the home was clearly
reflected in the Divorce Master's equitable distribution of 62.5%
to the wife and 37.5% to the husband.''87
In her fourth and final exception, Wife contends that the
Master was incorrect in failing to charge Husband with the fair
rental value of the marital residence from the date of the parties'
separation, as opposed to the date of the Master's report. The
applicable principles with regard to rental value claims were
Id., at 125-126.
Id., at 126.
Brief of the Defendant at 5.
Id., at 6; see also Cumberland County Rule of Court 210-7
(issues raised but not briefed deemed abandoned).
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NO. 1980 CIVIL 1993
stated by the Superior Court in Trembach v. Trembach, 419 Pa.
Super. 80, 87-88, 615 A.2d 33, 37 (1992) (citations omitted):
First, the general rule is that the
dispossessed party is entitled to a credit for
the fair rental value of jointly held marital
property against a party in possession of that
property, provided there are no equitable
defenses to the credit. Second, the rental
credit is based upon, and therefore limited
by, the extent of the dispossessed party's
interest in the property. Generally, in
regard to the marital home, the parties have
an equal one-half interest in the marital
'proPerty. It follows, therefore, that in cases
involving the marital home that the
dispossessed party will be entitled to a
credit for one-half of the fair rental value
of the marital home. Third, the rental value
is limited to the period of time during which
a party is dispossessed and the other party is
in actual or constructive possession of the
property. Fourth, the party in possession is
entitled to a credit against the rental value
for payments made to maintain the property on
behalf of the dispossessed spouse. Generally,
in regard to the former marital residence,
payments made on behalf of the dispossessed
spouse will be one-half of the expenses
including debt service on the property. This
is so because equity places a presumption upon
the dispossessed spouse of responsibility for
expenses to the extent of her/his ownership
interest which is generally one-half.
Finally, we note that the amount thereof is
within the sound discretion of the [trial
court].
Furthermore, the award to a nonpossessing spouse of one half of
rental value of a marital residence occupied exclusively by the
other spouse during divorce proceedings is not mandatory. Butler
v. Butler, 423 Pa. Super. 530, 621 A.2d 659 (1993).
Due to the circumstances of this case, the court agrees with
24
NO. 1980 CIVIL 1993
the Master's recommendation of a conditional and limited award of
rental value to Wife. The Master did consider the rental value
claim of the Wife in assessing the equitable distribution between
the parties. The Master took "note of the fact that the property
does have a rental value and that considering Husband's exclusive
possession since the date of separation the Master believes that
wife should not be charged with contributing to the repair costs
[in the amount of $4800.00] of the home."88 Furthermore, the Master
considered the rental value claim of the Wife in not crediting the
Husband with any payments that were made to maintain the property.
For these reasons, and given the proposed receipt by Wife of the
sum of $47,500.00 from Husband' for her interest in the marital
residence, the court believes that an award of rental value from
the date of separation of the parties is not warranted.
In conclusion, the court has carefully reviewed the Master's
Report, and his discussion of the factors in the Divorce Code
pertinent to a proper resolution of the matters of equitable
distribution and alimony, and believes that he has properly
considered these factors and arrived at a correct recommended
resolution of the above issues.
ORDER OF COURT
AND NOW, this llth day of August, 1995, after careful
consideration of Plaintiff's Exceptions to Master's Report and of
88 Master's Report, November 25, 1994, at 8.
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NO. 1980 CIVIL 1993
Defendant's Counter ExceptiOns to Master's Report, as well as the
briefs and oral arguments presented on the matter, and for the
reasons stated in the accompanying Opinion, all exceptions are
DENIED.
OF EVEN DATE herewith, a Decree of divorce and supplemental
decrees respecting equitable distribution and alimony are being
issued in accordance with this Order and the accompanying Opinion.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
James J. Kayer, Esq.
4 Liberty Avenue
Carlisle, PA 17013
Attorney for Plaintiff
Thomas J. Williams, Esq.
Ten East High Street
Carlisle, PA 17013
Attorney for Defendant
26