Sandino, S. v. Sandino, M.

J-S36017-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

SUSANNE SANDINO : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MANUEL SANDINO :

:

Appellant : No. 729 MDA 2024

Appeal from the Decree Entered April 25, 2024

In the Court of Common Pleas of Franklin County Civil Division at No(s):

2018-04481

BEFORE: LAZARUS, P.J., McLAUGHLIN, J., and BENDER, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 8, 2025

Manuel Sandino (“Husband”) appeals from the divorce decree entered

in this case and challenges the equitable distribution award. He disputes the

distribution of the pension assets and marital residence and argues the court

failed to consider that Susanne Sandino (“Wife”) is 10 years younger than he

is. We affirm.

In October 2018, Wife filed a complaint in divorce. The trial court

appointed a hearing officer to hear the claims of divorce, equitable

distribution, and alimony. In July 2023, the hearing officer held a hearing.

In August 2023, the officer issued a report and recommendation. The

Hearing Officer’s findings of fact included the following:

The parties have stipulated that the marital assets, and

the values thereof, are as set forth in Joint Exhibit 11[. Joint

Exhibit 11 lists the following marital property and values:

Real estate valued at $303,000; Husband’s military

retirement valued at $242,931; Husband’s FERS retirement

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valued at $40,870; Husband’s TSP retirement account

valued at $19,849.14; a Honda Pilot valued at $2,768; a

Passat valued at $3,062; stocks in the amount of $831.70;

and Wife’s 401(k) valued at $72.02. The exhibit further

showed a mortgage on the real property in the amount of

$160,361.43.] The total net value of the marital estate,

after accounting for the remaining marital mortgage, is

$453,022.43.

This does not include stocks that Husband received from

either his mother or his father. The evidence is conflicting

and unclear as to which parent gave these stocks to

Husband. However, either way it appears that the stocks

were a gift or inheritance to Husband. Furthermore, there is

no evidence of the value of these stocks, and no way to

properly account for their value as part of the marital estate.

We do note, however, that these stocks will be another

reason that Husband will be able to recover from the

economic consequences of this divorce faster than Wife.

...

Husband has stocks that he received from his mother

that have generated at least $50,000 in dividends since

2008. There is no evidence about the current value of these

stocks. Husband also has approximately $250,000 of non-

marital retirement assets.

Hearing Officer’s Report and Recommendation Under Pa.R.C.P. 1920.53(c)

and 1920.54, Aug. 30, 2023, at 8 (“Report and Recommendation”).

The Hearing Officer also discussed the factors affecting distribution and

made the following findings:

1. The length of marriage. The parties were married on

August 23, 2003 and finally separated on November 14,

2018. Thus[,] the length of the marriage was approximately

15 years.

2. Any prior marriage of either party. This was the first

marriage for both parties.

3. The age, health, station, amount and sources of income,

vocational skills, employability, estate, liabilities and needs

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of each of the parties. Husband is 50 years old. He earns at

least $103,000 per year through his employment with the

Federal Government and the National Guard. He has a

separate estate that he received as a gift from his family,

and he has significant non-marital retirement savings.

Wife is 39 years old. She works as a caregiver for elderly

people, earning $15 per hour. She has primary custody of

the children. She has no separate estate.

4. The contribution by one party to the education, training

or increased earning power of the other party. There was no

evidence of this factor. Although Wife started a real estate

class before separation, she did not finish it.

5. The opportunity of each party for future acquisition of

capital assets and income. Husband has a substantially

greater opportunity for future earning potential. He has an

established career in which he makes more than $100,000

per year. He also has stocks that he received from his

mother, as well as the non-marital portion of his retirement

accounts. Wife has a high school education and has never

earned more than $15 per hour. She also has the primary

responsibility for raising the children.

6. The sources of income of both parties, including but not

limited to medical, retirement, insurance or other benefits.

The primary source of income for both parties is their

incomes. Husband has the aforementioned stocks, which

produce periodic dividends. Husband also has significantly

more retirement savings than Wife.

7. The contribution or dissipation of each party in the

acquisition, preservation, depreciation, or appreciation of

the marital property, including the contribution of a party as

homemaker. Both parties contributed equally to the

acquisition of assets in this marriage. Husband worked and

furthered his career, while Wife served as primary

homemaker and also contributed through various jobs

outside the home.

8. The value of the property set apart to each party. Please

see Paragraph F below.

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9. The standard of living of the parties established during

the marriage. The parties established a middle class

standard of living.

10. The economic circumstances of each party, at the time

the division of property is to become effective. Husband is

in a better position to maintain the parties’ standard of

living, based on his job and his accumulated assets.

10.1 The federal, state and local tax ramifications associated

with each asset to be divided, distributed or assigned, which

ramifications need not be immediate and certain. N/A

10.2 The expense of sale, transfer or liquidation associated

with a particular asset, which expense need not be

immediate and certain. There will be expense in refinancing

the marital residence, and in preparing a [qualified domestic

relations order] to divide retirement assets.

11. Whether the party will be serving as the custodian of

any dependent minor children. According to the evidence

presented at trial, Wife has primary custody of the children.

For this reason, the Court has previously restricted her from

moving out of the Greencastle area. This limits her

employment options.

Id. at 6-10.

The Hearing Officer recommended that the court divide the assets such

that Wife would receive 62% of the marital assets ($280,873.91) and Husband

would receive 38% ($172,148.52). The Officer stated that this would avoid

alimony and would account for the “significant difference in the economic

condition of the parties.” Id. at 11. The Officer also reasoned the distribution

would allow for Wife “to meet her obligation of remaining in Greencastle

pursuant to the Custody Order.” Id. The Officer concluded that the distribution

would be “achieved by dividing the assets as” follows: Wife would receive the

marital residence, her $72.02 in retirement assets, the Honda vehicle,

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$40,0870 of Husband’s FERS retirement account, and $19,849.14 of

Husband’s TSP marital account; Husband would receive $242,931 of his

military retirement account, a Volkswagen Passat, and $831.70 in stocks.

Following this distribution, in order to achieve the 62%/38% distribution, the

hearing officer recommended that Husband make equitable distribution

payments to Wife in the amount of $74,676.18, at the rate of $1,000 per

month for 75 months. Id. The Hearing Officer also recommended that Wife be

required to refinance the house into her name and be solely responsible for

the remaining mortgage debt. Id.

Husband filed exceptions, arguing:

1. The Divorce Hearing Officer erred in dividing the estate

in such a way that [Wife] receives all the liquid assets but

[Husband] was awarded a non-liquid asset (a pension)

which he will not be able to access for at least ten years.

2. The Divorce Hearing Officer erred in making a

recommendation that not only gives all the liquid assets to

[Wife] but requires [Husband] to pay $74,000.00 cash to

[Wife] as equitable distribution over a period of time; no

consideration was given if [Husband] becomes disabled or

dies prior to these monies being paid.

3. The Divorce Hearing Officer erred in skewing the

distribution as heavily as he did in the [Wife’s] favor for a

fifteen-year marriage, when [Husband] has been supporting

[Wife] since the inception of this case in 2018.

Defendant’s Exceptions to Divorce Hearing Officer’s Report and

Recommendation, filed Sept. 8, 2023. In his brief in support of the exceptions,

Husband discussed the cases addressing immediate offset versus deferred

distribution of retirement accounts and argued the hearing officer erred in

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recommending Husband pay $74,000 over six years because this resolution

had none of the advantages of immediate offset and had the disadvantages

of a differed distribution. Defendant’s Brief On Exceptions, filed Oct. 13, 2023,

at 6-8.1

The court heard argument. In December 2023, the court overruled the

exceptions and approved the report and recommendation. The court granted

a divorce decree in April 2024, and Husband filed a timely notice of appeal.2

Husband raises the following issues:

1. Did the Court err in utilizing an immediate offset

distribution method rather than a deferred distribution

method, in ordering that Husband pay $74,000.00 cash to

Wife as equitable distribution over a period of time with no

consideration of Husband’s possible disability or death prior

to payment, and basing the award of the house to Wife on

an expectation that Wife will qualify to refinance the

mortgage without any credible evidence that she can do so?

2. In skewing the distribution heavily in Wife’s favor, was

insufficient weight put on the fact that Wife is ten years

____________________________________________

1 The brief is not in the certified record. The docket shows that a brief was

filed, and the brief is included in the reproduced record. Docket, Case No.

2018-04481 (On Oct. 19, 2023 stating “Defendant’s Brief on Exceptions Filed

with Copies Returned to Atty Hawbaker”). No party states that it is not

accurate, and we therefore will rely on the brief included in the reproduced

record. See Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012)

(where request to make documents part of certified record was granted, but

document was not included in the certified record, court could consider the

copy in the reproduced record where accuracy was not disputed).

2 Husband initially appealed following the order overruling his exceptions and

approving the report and recommendation. We quashed that appeal because

the court had not entered a divorce decree. Husband filed a timely appeal

after entry of the divorce decree.

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younger than Husband, and that the parties had a fifteen-

year marriage?

Husband’s Br. at 10 (suggested answers omitted).

This Court reviews “a challenge to the trial court’s equitable distribution

scheme for an abuse of discretion.” Hess v. Hess, 212 A.3d 520, 523

(Pa.Super. 2019). “We do not lightly find an abuse of discretion, which

requires a showing of clear and convincing evidence.” Id. (quoting Brubaker

v. Brubaker, 201 A.3d 180, 184 (Pa.Super. 2018)). A court has not abused

its 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.”

Id. (quoting Carney v. Carney, 167 A.3d 127, 131 (Pa.Super. 2017)). When

reviewing an equitable distribution award, “we 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.” Id.

(quoting Hayward v. Hayward, 868 A.2d 554, 558 (Pa.Super. 2005)).

“We do not evaluate the propriety of the distribution order upon our

agreement with the court’s actions nor do we find a basis for reversal in the

court’s application of a single factor. Rather, we look at the distribution as a

whole in light of the court’s overall application of the 23 Pa.C.S. § 3502(a)

factors for consideration in awarding equitable distribution.” Id. (quoting

Harvey v. Harvey, 167 A.3d 6, 17 (Pa.Super. 2017)) (citation and internal

brackets omitted). Moreover, we will not reverse a trial court’s credibility

determinations where they are supported by the record. Id. (citation omitted).

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Husband first argues that the trial court abused its discretion and

misapplied the law in utilizing an immediate offset distribution method rather

than a deferred distribution method for his pension plans. He maintains “the

immediate offset distribution resulted in Husband receiving mainly deferred

assets and having to make equitable distribution payment to Wife.” Husband’s

Br. at 17. He claims the court failed to consider that he may die or become

disabled. He further argues the court erred “by basing this distribution in

awarding the house to Wife on an expectation that Wife would qualify to

refinance the mortgage that is solely in Husband’s name without any credible

evidence that she can do so.” Id. Husband maintains the court “failed to

consider the real possibility that Wife might not qualify to refinance the

mortgage due to her limited earnings, the termination of APL, and child

support of the children who have or will become emancipated in the next few

years.” Id. at 24.

Husband argues the court erred in ordering that he pay $74,000 to Wife

over a six-year period and only awarding him non-liquid assets. He points out

that Wife had been receiving $561.92 a month in APL, in addition to child

support. He argues the equitable distribution award “essentially [gives] her

almost twice as much in equitable payments as she was receiving in APL.” Id.

at 19. He discusses the immediate offset and deferred distribution methods

for distributing retirement accounts. He notes that immediate offset is

preferred because it avoids further entanglement between the parties, but

argues that “[w]hen the value of the employee spouse’s pension far exceeds

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the value of the other marital property, the deferred distribution method must

be used.” Id. at 20 (quoting Braderman v. Braderman, 488 A.2d 613, 620

(Pa.Super. 1985)) (emphasis omitted). He claims that, here, “the equitable

distribution has none of the advantages of an immediate offset and all the

disadvantages of a deferred distribution.” Id. at 21. He argues that “[t]his is

clearly a case where the deferred distribution must be used, as Husband’s

pensions and other retirement assets far exceed the remainder of the marital

estate.” Id. at 22. He claims the more equitable resolution is for “Husband to

retain the marital home, to buy out Wife’s interest, and for Husband’s pensions

and other retirement assets to be divided between the parties.” Id. at 23. He

claims this avoids further court intervention once the QDROs are signed and

shares the risks of deferred distribution by the parties, and securing

retirement assets for Wife.3

This Court has recognized there are two methods of awarding a defined

benefit pension:

One method, the immediate offset method, divides the

benefits at the time the equitable distribution order is

entered by assigning a present value to them. . . . The

present value must be multiplied by the “coverture” fraction

to reach the present value of the entitlement which was

acquired during the marriage. . . . Next, the court must

determine how the sum available for equitable distribution

should be apportioned between the spouses according to the

Divorce Code. After determining the non-employee spouse’s

interest in the benefits, the court awards these benefits to

____________________________________________

3 Wife maintains Husband failed to raise this issue in his exceptions. However,

in the brief filed in support of the exceptions, Husband argued the trial court

erred in not using the deferred distribution method.

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the employee spouse and offsets this by distributing other

marital property or by ordering payment to the non-

employee spouse.

The second method is labeled the deferred distribution or

reserved jurisdiction method, since the court retains

jurisdiction and apportions the benefits when they enter pay

status or mature. Under this method, present value figures

are not used. Rather, the “coverture” fraction is applied to

the benefits when they enter pay status since there are too

many variables projected into the future.

Miller v. Miller, 577 A.2d 205, 208-09 (Pa.Super. 1990) (citation omitted)

(alterations in original).

Here, the trial court applied the immediate offset method, using the

present value of the retirement accounts, and ordering payment to the non-

employee spouse. Report and Recommendation, at Exs. 1, 2, 11. The court

also found that the parties had only pension assets and the marital residence,

it was reasonable to order a 55%-45% distribution of the pension assets, and

Husband could afford the proposed payments:

Husband and Wife clearly have differing economic

prospects. This was recognized even by Husband, who

proposed a 55%-45% distribution favoring Wife.

Determining an equitable distribution in this case is

complicated by the fact that the parties have no significant

liquid assets. Rather, they have pension assets and the

marital residence.

The pension assets are worth substantially more than the

net value of the marital residence. Therefore, awarding the

residence to one party does not preclude completing a

distribution by allocating pension assets. Husband

unreasonably blocked Wife’s purchase of alternative housing

in Greencastle. It is therefore equitable for Wife to be

awarded the marital residence in Greencastle, so she may

remain in the school district for the benefit of the children

and as required to by the custody court.

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The remainder of the distribution must then be of pension

assets, as those are all that remain. It is equitable to award

the military pension to Husband and the civilian pensions to

Wife. This results in a 55% distribution of assets favoring

the Husband, which must be offset via payments from

Husband to Wife. The proposed payments are not

unaffordable by husband, as they are the same as the APL

payments and child-support payments Husband already is

making.

Trial Court Opinion (“Tr.Ct.Op.”), filed Oct. 15, 2023, at 13 (citations to record

omitted).

In addition, the trial court concluded that Husband pointed to no law

requiring a court to consider the possible death or disability of a party and

that courts have ordered periodic equitable distribution payments when assets

cannot be divided evenly at the time of the equitable distribution award:

Husband raised an exception asserting no consideration

was given as to whether he becomes disabled or dies before

the equitable distribution moneys are paid. Husband points

to no case law or statute that requires the Court give

consideration to possible future death or disability. No

evidence was presented at trial as to Husband’s death or

disability being likely.

Periodic equitable distribution payments are payments

ordered when assets cannot, for whatever reason, be

divided evenly at the time of the equitable distribution

award. See e.g. Wagoner v. Wagoner, [648] A.2d 299,

302 (Pa. 1994) (distributing pension assets); In re Ware,

814 A.2d 725, 733 (Pa. Super. 2002) (distributing income

from a family trust); Johnson v. Johnson, 864 A.2d 1224,

1230 (Pa. Super. 2004) (distributing value of stock retained

by one party). Such payments are a debt owed by the payor

spouse to the payee spouse. Johnson, 864 A.2d at 1230.

Like any other debt existing at the time of death, if Husband

continues to owe an equitable distribution debt to Wife, then

the debt would be the responsibility of Husband’s estate. Id.

The exception related to death or disability is without merit.

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Id. at 11-12 (footnote omitted and citation to record omitted).

The trial court did not abuse its discretion. There is no requirement that

the immediate distribution amount be used only where the amount can be

paid at the time of the award. The periodic payments assured the equitable

distribution of the marital assets. Further, the court did not err in awarding

Wife the marital residence, and, based on the report and recommendation, it

was aware of her financial assets when doing so.

Husband next argues that the trial court “placed insufficient weight on

the fact that Wife is 10 years younger than Husband and that the parties had

a relatively short-term marriage of fifteen years, when skewing the

distribution heavily in Wife’s favor.” Husband’s Br. at 18. He claims that by

skewing the distribution toward Wife, the trial court “did not hold her to a full-

time earning capacity or consider that she is more than ten (10) years younger

than Husband and has more potential years of employment ahead of her.” Id.

at 25. He claims Wife is willfully underemployed, as she has not looked for

higher paying jobs and turns down extra shifts. He notes the children are

teenagers and claims Wife does not need the flexibility of the job like she once

did.

The trial court concluded that although Wife is 10 years younger than

Husband, Husband failed to establish how Wife would be able to use those

years to achieve Husband’s earning capacity or acquire non-marital assets:

Husband’s income is in excess of $100,000. Husband has

non-marital assets that pay significant dividends. Husband

also has significant marital and non-marital retirement

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savings. Wife has a limited education. Wife has never

earned more than $15 per hour. Wife has primary

responsibility for care of the children, and will continue to

have that responsibility for at least six more years.

Husband argues Wife has 10 years of additional earning

capacity due to their age-difference. While true, Husband

asserts no mechanism whereby Wife could use those years

to approximate Husband’s earning capacity or acquire

similar non-marital assets. Additionally, Wife will need to

function as primary custodian to the minor children for at

least six of those 10 years. Her ability to work is hampered

by the need to provide day-to-day care for the children.

This factor favors Wife. The Hearing Officer’s conclusion

that Husband has a substantially greater opportunity for

future earning potential is supported by the record.

Tr.Ct.Op. at 6-7 (footnotes and citations to record omitted).

The court did not abuse its discretion. Although Wife is 10 years younger

than Husband, she does not have his earning capacity, and she will not be

able to achieve it, particularly as she is primary custodian for the parties’

children and does not have non-marital assets.

Decree affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 1/08/2025

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