Vogl v. Vogl (memorandum)

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J-A24010-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 GERALD W. VOGL, Appellee v. SUSAN C. VOGL, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1467 WDA 2011 Appeal from the Order entered on August 22, 2011 in the Court of Common Pleas of Allegheny County, Civil Division, No. FD-05-009140-004 GERALD W. VOGL, Appellant v. SUSAN C. VOGL, Appellee : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1573 WDA 2011 Appeal from the Order entered on August 22, 2011 in the Court of Common Pleas of Allegheny County, Civil Division, No. FD-05-009140-004 BEFORE: MUSMANNO, BOWES and WECHT, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: March 18, 2013 Gerald W. Vogl ( Husband ) appeals from the Order of equitable distribution of August 22, 2011. Susan C. Vogl ( Wife ) has filed a crossappeal. We affirm. J-A24010-12 The pertinent facts and procedural history of this case were set forth by the trial court in its Opinion of December 2, 2011, which we adopt for the purpose of this appeal. See Trial Court Opinion, 12/2/11, at 1-6. In this timely appeal, Husband raises seven issues, as set forth in his appellate brief. See Brief for Appellant/Cross-Appellee at 3. cross-appeal, raises eleven issues, and ten sub-issues. Wife, in her See Brief for Appellee/Cross-Appellant at 5-7. Before addressing the issues, we set forth the applicable standards of review. Our standard of review of an award of equitable distribution is as follows: A trial court has broad discretion when fashioning an award of equitable distribution. Our standard of review when assessing the propriety of an order effectuating the equitable distribution of marital property is whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure. We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence. This Court will not find an abuse of discretion unless the law has been overridden or misapplied or the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence in the certified record. In determining the propriety of an equitable distribution award, courts must consider the distribution scheme as a whole. [W]e measure the circumstances of the case against the objective of effectuating economic justice between the parties and achieving a just determination of their property rights. Biese v. Biese, 979 A.2d 892, 895 (Pa. Super. 2009) (citations omitted). The Divorce Code does not specify a particular method of valuing assets. Thus, [t]he trial court must exercise discretion and rely on the estimates, inventories, records of purchase prices, and appraisals submitted by both parties. -2- J-A24010-12 When determining the value of marital property, the court is free to accept all, part or none of the evidence as to the true and correct value of the property ¦. Id. at 897. There is no simple formula by which to divide marital property; the method of distribution derives from the facts of the individual case. In making an equitable distribution of property, the court must consider all relevant factors. See 23 Pa.C.S.A. § 3502. The courts attempt to split property equitably, instead of equally, taking into consideration such factors as length of marriage, the contributions of both spouses, ages and health of each spouse. When reviewing an equitable distribution award, this court must consider the distribution scheme as a whole. Taper v. Taper, 939 A.2d 969, 974 (Pa. Super. 2007) (citations omitted). In an equitable distribution case, the master s report and recommendation are to be given the fullest consideration and we will not reverse the master s credibility determinations on appeal. Busse v. Busse, 921 A.2d 1248, 1256 (Pa. Super. 2007). Our standard of review of an award of alimony is as follows: Our standard of review regarding questions pertaining to the award of alimony is whether the trial court abused its discretion. We previously have explained that [t]he purpose of alimony is not to reward one party and to punish the other, but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met. 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. Moreover, [a]limony following a divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill. -3- J-A24010-12 In determining whether alimony is necessary, and in determining the nature, amount, duration and manner of payment of alimony, the court must consider numerous factors including the parties earnings and earning capacities, income sources, mental and physical conditions, contributions to the earning power of the other, educations, standard of living during the marriage, the contribution of a spouse as homemaker and the duration of the marriage. Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004) (citations omitted, emphasis in original). Our standard of review of an award of counsel fees is as follows: We will reverse a determination of counsel fees and costs only for an abuse of discretion. The purpose of an award of counsel fees is to promote fair administration of justice by enabling the dependent spouse to maintain or defend the divorce action without being placed at a financial disadvantage; the parties must be on par with one another. *** Counsel fees are awarded based on the facts of each case after a review of all the relevant factors. These factors include the payor s ability to pay, the requesting party s financial resources, the value of the services rendered, and the property received in equitable distribution. Counsel fees are awarded only upon a showing of need. Further, in determining whether the court has abused its discretion, we do not usurp the court's duty as fact finder. Id. at 201-02 (citations omitted). The parties in this case have extensively argued each issue.1 We emphasize that we have thoroughly considered each issue and sub-issue in light of the parties arguments and the record before us. After review, we We note that Husband s main brief is 52 pages in length; Wife s is 44 pages in length. Husband also filed a second brief. 1 -4- J-A24010-12 have discerned no reversible error in the trial court s decision. We note that many of the issues raised determinations of the Master. by the parties turn on the credibility Based on our review, we conclude that the equitable distribution scheme is supported by the evidence, and fairly allocates the parties marital assets. In support of our decision, we rely on and adopt the trial court s wellreasoned Opinion and the Master s Report, as appropriate. Husband s Issues on appeal:2 1. Whether the trial court erred in declining to deduct $5,000 in hand money by Husband for the purchase of a marital asset and $66,917 in normal pre-separation living expenses used by Husband from the advance attributed to Husband from the marital Schwab account? See Brief of Appellant at 10. The trial court did not abuse its discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 8-9, 11. 2. Whether the trial court committed an error of law in awarding a 55%/45% equitable distribution in favor of Wife, whereas application of the statutory equitable distribution factors to the facts of the instant case, as found of record, demands a 50%/50% distribution, and where the trial court abused its discretion in finding that Husband s earning capacity is $300,000, where the record below lacks support for such a conclusion? See Brief of Appellant at 25. The trial court did not commit an error of law or abuse its discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 6-7, 7-8; see also Master s Report, 12/20/10, at 5-6, 14-16. 2 See Brief for Appellant at 3. -5- J-A24010-12 3. Whether the trial court committed an error of law in concluding that an award of alimony was warranted where the statutory factors do not support an award in the amount and subject to the terms of the [Master s] Recommendation, and the trial court abused its discretion in finding that Husband s earning capacity is $300,000, absent support in the record below for such a conclusion? See Brief for Appellant at 45. The trial court did not commit an error of law or abuse of discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 7, 12-13; see also Master s Report, 12/20/10, at 16-18. 4. Whether the trial abused its discretion educational expenses payment of the past estate or subtracting it court committed an error of law and in confirming the parties 2010-2011 as a marital debt, but not awarding expenses ($54,510) from the marital from Husband s marital asset total? See Brief for Appellant at 21. The trial court did not commit an error of law or an abuse of discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 12; see also Master s Report, 12/20/10, at 7-9. 5. Whether the trial court abused its discretion in only awarding to Husband those of his family s sentimental items which Wife acknowledged after being confronted with an actual photograph, even though the ¦ Overdale Drive home is stacked with containers of hoarded items that Wife would neither allow inspection of, nor inspected herself, to locate all of Husband s family s sentimental items? See Brief for Appellant at 20. The trial court did not abuse its discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 14-15. 6. Whether the trial court abused its discretion by granting counsel fees for numerous reasons, including but not limited to Wife s prior advances against equitable distribution, Wife s substantial savings and APL during separation, Wife s previous counsel fee awards, and the duplicative and wasteful work performed by Wife s four attorneys? -6- J-A24010-12 See Brief for Appellant at 48. The trial court did not abuse its discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 13-14; see also Master s Report, 12/20/11, at 18. 7. Whether the trial court abused its discretion in assigning the $54,195 home equity loan balance to Husband as an advance distribution? See Brief for Appellant at 17. The trial court did not abuse its discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 10-11. We now examine Wife s claims in her cross-appeal. Wife s Issues on appeal:3 1. The trial court erred in concluding that $6,003,495 was used either for marital expenses or college expenses and not an advance to either party. a. The trial court erred in failing to conclude that Crown Castle International stock options and restricted stock awards, which were liquidated post-separation at a stipulated net marital asset value of $3,078,260.00 should be that starting point to determine the amount of the advance taken by Husband. b. The trial court erred in concluding that Husband received only $793,510 as an earlier advance from his Charles Schwab account. Pursuant to the evidence of record, ¦ Husband diverted, for his sole purposes, a sum of money totaling no less than $1,845,005 from the marital estate. i. The trial court erred in failing to find that Husband s Exhibits 19A and 19B were in admissible evidence of withdrawals/deposits, as they were neither disclosed prior to trial, nor included in Husband s Pre-Trial Statement and they were based upon inaccurate data, relying upon assumptions which are inconsistent with the Pennsylvania Divorce Code. 3 See Brief of Appellee/Cross-Appellant at 5-7. -7- J-A24010-12 See Brief for Appellee/Cross-Appellant at 13-14. The trial court did not err or abuse its discretion with regard to these issues. See Trial Court Opinion, 12/2/11, at 8-9 & n.5; Master s Report, 12/20/10, at 9. ii. The trial court erred in granting Husband a credit in the amount of $50,000 for his 2004 (pre-separation) purchase of a Mercedes 2003 SL 500 against the $843,510 ¦ in advances determined by the Master. See Brief for Appellee/Cross-Appellant at 17. The trial court did not err or abuse its discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 11. iii. The Master found and the trial court affirmed that withdrawals from the Schwab Account after separation before the injunction Order of May 29, 2009, for college expenses would be a marital obligation, but this is contrary to law and the evidence. See Brief for Appellee/Cross-Appellant at 17. The trial court did not abuse its discretion in affirming the Master with regard to this issue. See Trial Court Opinion, 12/2/11, at 8-9; Master s Report, 12/20/10, at 9. iv. The trial court failed to correct the Master s failure to charge Husband as an advance for margin account loan increases which occurred solely due to his cash withdrawals from the Schwab account ¦ and the PNC Investment account ¦ after the date of separation and through the date of the payoff of both margin loans. The sum of money withdrawn by Husband during this period is $468,886. See Brief for Appellee/Cross-Appellant at 18. The trial court affirmed the master as to advances from the marital estate, and did not abuse its discretion with regard to this issue. See Trial Court Opinion, at 9-10. -8- J-A24010-12 2. The trial court s Order affirming the Master is contrary to the law and the evidence to the extent that pre-judgment interest was not attributed to those sums of money which were diverted by Husband post-separation from the marital estate. See Brief for Appellee/Cross-Appellant at 20. The trial court did not err or abuse its discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 9-10. 3. a. The trial court s order affirming the Master was contrary to the law and the evidence as it was erroneously concluded that $24,625 unilaterally withdrawn by Husband from the Schwab Account for the purchase of a vehicle for the parties daughter, Danielle, post-separation was accounted for in the $743,510 advance assigned to Husband. b. The same argument is set forth with regard to $22,995 used for a vehicle for the parties daughter, Allison. See Brief for Appellee/Cross-Appellant at 22. The trial court did not abuse its discretion with regard to these issues. See Trial Court Opinion, 12/2/11, at 11; see also Master s Report, 12/20/10, at 11-12. 4. The trial court erroneously concluded that Wife received an advance of $1,539 from the Schwab account, said conclusion being against the weight of the evidence. See Brief for Appellee/Cross-Appellant at 23. The trial court did not abuse its discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 9-10. 5. The 55/45 percentage distribution recommended by the Master and affirmed by the trial court is contrary to the law and the evidence, given the disparate economic status of the parties. Wife s request for a 60/40 asset distribution is consistent with attainment of economic justice pursuant to -9- J-A24010-12 the equitable distribution factors stated in the Pennsylvania Divorce Code, as amended. See Brief for Appellee/Cross-Appellant at 23. The trial court did not abuse its discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 7-8; see also Master s Report, 12/20/10, at 14. 6. The trial court s failure to find that Wife s reasonable expenses, necessary to meet her basic needs, are $10,589 per month ¦. Wife specifically asserts that the downward adjustments made by the Master to Wife s budget are contrary to the law and the evidence. See Brief for Appellee/Cross-Appellant at 25. Contrary to Wife s argument, the Master made an allowance for taxes. See Master s Report, 12/20/10, at 17-18. The trial court did not abuse its discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 12-13. 7. The trial court s conclusion that Wife receive partial reimbursement for her counsel fees in the amount of $40,000 is contrary to the law and the evidence ¦. See Brief for Appellee/Cross-Appellant at 28. The trial court did not abuse its discretion with regard to this issue. See Trial Court Opinion, 12/2/11, at 13-14; see also Master s Report, 12/20/10, at 18. 8. The Master s recommendation, affirmed by the trial court, that pursuant to the May 29, 2009 Consent Order of the Court, the 2009-2010 college tuition expenses for the parties daughters were to be paid from the PNC Investment Account, without further allocation between the parties at equitable distribution, is contrary to the law and the evidence. See Brief for Appellee/Cross-Appellant at 31. The Master determined that the daughters 2009-2010 college expenses would be paid from the parties - 10 - J-A24010-12 joint PNC investment account pursuant to the May 29, 2009 consent Order of court. See Master s Report, 12/20/10, at 8. The trial court affirmed the Master with regard to the distribution scheme as a whole. See Trial Court Opinion, 12/2/11, at 10. We discern no abuse of discretion by the trial court or the Master in determining that the daughters 2009-2010 college expenses were governed by the May 29, 2009 consent Order. 9. The Master s recommendation, affirmed by the trial court, that Wife be charged $62,500 as a result of funds received by her from the parties joint PNC checking account is contrary to the law and the evidence. See Brief for Appellee/Cross-Appellant at 32. With regard to advances assigned by the Master to the parties, the trial court indicated that it had reviewed the master s report and the record, ¦ and in the light of the overall distribution recommendations ¦. scheme, can find no error in the Trial Court Opinion, 12/2/11, at 10. master s See also Master s Report, 12/20/10, at 10. We conclude that the trial court did not abuse its discretion in this regard. 10. a. The trial court s decision to enter the Elysian Street property on the asset distribution schedule at a net equity of $178,062 without simultaneously providing a credit to Wife for Husband s post separation dissipation of this asset is contrary to the law and the evidence. b. The trial court s failure to affirm that the Elysian Street property should be distributed to Husband as recommended by the Master is contrary to the law and the evidence. - 11 - J-A24010-12 See Brief for Appellee/Cross-Appellant at 34. The trial court did not abuse its discretion with regard to these issues. See Trial Court Opinion, 12/2/11, at 11-12. 11. As to distribution of household goods, the Master s recommendation and the trial court s affirmation of same is contrary to the law and the evidence by not awarding Wife the dining room set and buffet, the same being an integral part of the family home vacated by Husband. See Brief for Appellee/Cross-Appellant at 35. The trial court did not abuse its discretion in regard to this issue. See Trial Court Opinion, 12/2/11, at 14-15. See also Master s Report, 12/20/10, at 12, 19. Order affirmed. - 12 -

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