Trapasso, H. v. Trapasso, J.

J-A21020-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

HEATHER L. TRAPASSO : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

JOSEPH G. TRAPASSO

Appellant : No. 293 EDA 2021

Appeal from the Decree Entered March 17, 2021

In the Court of Common Pleas of Northampton County Civil Division at

No(s): No. C-48-CV-2013-03559

BEFORE: KUNSELMAN, J., NICHOLS, J., and KING, J.

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 19, 2021

Joseph G. Trapasso (Husband) appeals from the decree divorcing

Husband and Heather L. Trapasso (Wife). Husband challenges the valuation

of marital property and the award of alimony pendente lite (APL) to Wife. We

affirm based on the trial court’s opinion.

We state the facts as presented in the master’s report, which was

adopted by the trial court:

The parties were married on September 25, 2004. The parties

separated on April 18, 2013. There were no children resulting

from the marriage and this was the first marriage for both parties.

Wife was 47 years old at the date of the hearing. There was no

testimony regarding any medical issues. During the marriage,

Wife obtained a degree in nursing as well as a master’s degree.

Based upon her prior work experience and her education, Wife

developed a specialized career as a medical writer. In this

occupation, Wife contracts with various pharmaceutical companies

to assist them in preparing and editing documents which are then

submitted to “health authorities” for approval. These health

authorities are typically governmental agencies both domestic and

international.

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During the marriage, Wife established her business, Rite Idea

Enterprises (“Rite Idea”), for which she is the sole employee. Rite

Idea has few hard assets, consisting mainly of office equipment

utilized by Wife, and the value of this entity is almost entirely

Wife’s expertise, goodwill, and professional reputation. Wife

operated Rite Idea from a home office at 1658 Briarwood Circle

(“Briarwood Home”), the marital residence.

As of the date of the hearing, Wife was earning in excess of

$390,000 annually through Rite Idea. Despite her large salary,

Wife had failed to amass the expected level of savings, assets, or

retirement plans. The testimony revealed that during the

marriage, Wife would spend lavishly on luxury items. Fortunately

for Wife, she will continue to command a substantial salary post-

divorce. Her strong earning ability will allow her to support her

reasonable needs, continue her upper-class lifestyle, while also

amassing retirement and savings accounts for the future. As an

example of Wife’s current financial abilities, after the date of

separation, she purchased her own home and is now building

equity in this asset. Her high income is also aided by the likely

additional working years Wife will have over [H]usband due to her

being ten years younger.

Husband was 58 years old at the date of the [hearing]. There was

no testimony regarding any medical issues. Husband is a licensed

physician, specifically in oncology, currently employed by St.

Luke’s Physician Group (“SLPG”). At the time of the hearing,

Husband was earning over $500,000 annually. Husband

completed his training and education prior to the date of marriage

and was a partner within the medical practice then known as

Urology Specialists of the Lehigh Valley, P.C. (USLV”).

In 2017, well after separation, USLV was bought out by SLPG ina

purchase agreement that included a price for USLV itself as well

as employment agreements for the shareholder-physicians of

USLV. ... In contrast to Wife, Husband lives a frugal lifestyle.

As a result, Husband has amassed considerable savings and

retirement assets. He will continue to earn a substantial salary

thus enabling him to continue to support himself, meet all his

reasonable needs, and continue to set funds aside for the future.

Additionally, Husband has a number of non-marital assets and

thus, considerable savings beyond the marital estate divided

within this report.

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During the marriage, the parties maintained individual banking

and credit card accounts and indeed much of their financial lives

remained separate. Husband was primarily responsible for the

home expenses of the couple. Husband paid the mortgage and

real estate taxes on the Briarwood Home, the utility bills,

entertainment expenses, and travel. Husband also supported

Wife’s efforts to increase her earning potential by loaning her

funds for school and providing support typical within a marriage.

It was uncontradicted that Wife did pay Husband back for all the

sums he loaned her for education. Wife was responsible for the

expenses pertaining to their show dogs, which were not

insignificant. There was testimony that Wife would take charge of

various renovation projects on the marital home and that she

would also contribute to these projects financially. These projects,

however, seem to have done little to increase the equity in the

Briarwood Home....

Husband has remained at the Briarwood Home and all ownership

documents and any financial obligations on the same are in his

name alone. The home was purchased immediately prior to the

marriage by Husband....

At the date of the hearing, both parties commanded substantial

salaries. During the marriage, however, this was not always the

case. In fact, Wife’s income increased dramatically during the

marriage as Rite Idea became a successful business. At one point

during the marriage, Wife out-earned Husband’s salary from

USLV.

Master’s Report, 3/20/20, at 3-7; see also Order, 1/4/21 (adopting, as

modified, the master’s report).

Each party filed exceptions to the master’s report, which the trial court

resolved on January 4, 2021. See Order, 1/4/21. The trial court did not

immediately file a divorce decree. On February 3, 2021, Husband filed a

premature notice of appeal from the trial court’s January 4, 2021 order. The

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trial court subsequently filed a divorce decree on March 17, 2021.! Decree,

3/17/21.

Meanwhile, on February 10, 2021, the trial court ordered Husband to

comply with Pa.R.A.P. 1925(b), and service occurred on February 11, 2021.

Order, 2/10/21; Docket. On March 8, 2021, the trial court docketed

Husband’s Rule 1925(b) statement, which was dated March 3, 2021.2

Husband raises the following issues:

1. Did the [trial] court err in adopting the master’s

recommendation that the decrease in value of [Husband’s]

pre-marital property was limited to $52,000.00 as opposed

to $263,000.00 that existed on date of separation and had

zero value on date of distribution and a negative value of

another $125,000.00 on date of distribution, contrary to the

mandates of [23 Pa.C.S. § 3501(a.1)?].

2. Did the [trial] court err in adopting the master’s

recommendation that [Wife] was entitled to additional

growth of [Husband’s] pre-marital property after the date of

separation where that growth resulted in a greater amount

of the increase in [Husband’s] marital property, contrary to

[23 Pa.C.S. § 3501(a.1)]?

1 This Court held that Husband’s appeal is properly us. See Order, 4/9/21

(stating that “upon [this Court’s] docket review, and after [this Court’s] receipt

of an updated trial court docket evincing that the divorce decree was entered

on the trial court docket on March 17, 2021, this appeal will be treated as

timely filed” (citations omitted)); see also Campbell v. Campbell, 516 A.2d

363, 366 (Pa. Super. 1986) (en banc) (holding that an appeal filed before the

trial court enters a final decree is “rendered final by the entry of a decree in

divorce” (footnote omitted)).

2 Attached to Husband’s Rule 1925(b) statement was a completed United

States Postal Service Form 3817, which reflects a service date of March 3,

2021. Because Husband complied with Rule 1925(b)(1), which permits the

use of USPS Form 3817, we therefore conclude that Husband timely filed his

court-ordered Rule 1925(b) statement.

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3. Did the [trial] court err in granting and extending alimony

pendente lite to [Wife] where she consistently earned a

[substantial] income, at times greater than Husband, and

produced no evidence as to “need”[?]

Husband’s Brief at 3.

In support of his first issue, Husband argues that the trial court erred in

calculating the value of his USLV interest. Id, at 10. By way of background,

the parties stipulated that the value of Husband’s USLV interest on the date

of marriage was $52,695, and the value on the date of separation was

$236,734. R.R. at 18a-19a.2 On the date of the parties’ distribution hearing,

however, the value of Husband’s USLV interest was $0, and Husband had to

pay a further $125,000 to complete the sale of USLV. Id. at 328a-30a. The

trial court held that Husband lost $52,695 and that he was entitled to offset

that loss against any increase in the value of his other nonmarital property.

See, e.g., Trial Ct. Op., 1/4/21, at 12-13.

On appeal, Husband disagrees with the “start” date used to calculate

the value of his USLV interest. Specifically, instead of using the date-of-

marriage valuation of $52,695, Husband argues that the trial court should

have used the date-of-separation value of $236,734. Husband's Brief at 11.

Husband therefore reasons that the value of his USLV interest was negative

$361,734, which represents the complete loss of $236,734, plus the additional

3 We may cite to the reproduced record for the parties’ convenience.

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$125,000 he paid. Id. at 10-11. Husband asserts that under 23 Pa.C.S. §

3501(a.1), any decrease in the value of any nonmarital property “can be used

as an Offset.” Id. at 11.

Wife counters that Section 3501(a.1) states that the “start” date must

be the date of marriage. Wife’s Brief at 2. Wife therefore reasons that

Husband’s maximum loss is $52,695, j.e., the date-of-marriage value of

Husband’s USLV interest. Id. at 4.

The trial court addressed this issue as follows:

Upon review, we find no error of law or abuse of discretion in the

Master’s determination of the marital value of Husband’s interest

in USLV. The Master properly assessed the credibility of

Husband’s expert witness, Mr. LeMaster, and credited his

testimony that the sale of USLV allowed the four shareholders,

including Husband, to satisfy more than three million dollars in

outstanding corporate debt, wind down the business, and begin

instead working as employees of St. Luke’s. The Master

reasonably found that the value of Husband’s interest in USLV

was, at the time of the hearings, zero dollars. Because the

stipulated value at the time of the parties’ marriage was $52,695,

and because the Master is directed by law to the use the lesser of

the value at the time of separation or the value at the time of the

hearing, the Master properly found a decrease in value of $52,695

to serve as an offset against the gains of other pre-marital assets.

Trial Ct. Op., 1/4/21, at 13, 24 (stating that the “Master’s Report directly

addresses [Husband’s] argument that his loss should be much higher, more

than $300,000, by noting that no such loss was proven at the hearing. We

agree that the record does not support a decrease in value in excess of

$52,695”); Master’s Report, 3/20/20, at 15 n.7 (stating that “[w]hile Husband

maintains in his post hearing letter brief that he is entitled to a credit for a

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decrease in the amount of $361,734[,] this sum was not proven at the hearing

nor was the argument and math used within Husband’s brief persuasive as to

that figure”).

The standard of review follows:

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. 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.

Moreover, it is within the province of the trial court to weigh the

evidence and decide credibility and this court will not reverse

those determinations so long as they are supported by the

evidence. We are also aware that a master’s report and

recommendation, although only advisory, is to be given the fullest

consideration, particularly on the question of credibility of

witnesses, because the master has the opportunity to observe and

assess the behavior and demeanor of the parties.

Goodwin v. Goodwin, 244 A.3d 453, 458 (Pa. Super. 2020) (citations

omitted and formatting altered), appeal granted, --- A.3d ---, 2021 WL

4204802 (Pa. filed Sept. Sept. 16, 2021).

With respect to the valuation of marital property in “effectuating the

equitable distribution of marital property,” id., courts are guided by Section

3501(a.1) of the Domestic Relations Code:

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(a.1) Measuring and determining the increase in value of

nonmarital property.—The increase in value of any nonmarital

property acquired pursuant to subsection (a)(1) and (3) shall be

measured from the date of marriage or later acquisition date to

either the date of final separation or the date as close to the

hearing on equitable distribution as possible, whichever date

results in a lesser increase. Any decrease in value of the

nonmarital property of a party shall be offset against any increase

in value of the nonmarital property of that party. However, a

decrease in value of the nonmarital property of a party shall not

be offset against any increase in value of the nonmarital property

of the other party or against any other marital property subject to

equitable division.

23 Pa.C.S. § 3501(a.1).

“While the Divorce Code does not require a specific methodology for

assessing an asset’s value, it is beyond peradventure that the chosen

methodology must represent an accounting of the asset’s total value.” Mundy

v. Mundy, 151 A.3d 230, 237 (Pa. Super. 2016).

Thus, the trial court must exercise discretion and rely on the

estimates, inventories, records of purchase prices, and appraisals

submitted by both parties. 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. Where

the evidence offered by one party is uncontradicted, the court may

adopt this value even though the resulting valuation would have

been different if more accurate and complete evidence had been

presented. A trial court does not abuse its discretion in adopting

the only valuation submitted by the parties.

Biese v. Biese, 979 A.2d 892, 897 (Pa. Super. 2009) (citations omitted and

formatting altered).

Instantly, Section 3501(a.1) requires using the parties’ date of marriage

as the initial “start” date for determining any increase in the value of

Husband’s USLV interest. See 23 Pa.C.S. § 3501(a.1) (stating that “[t]he

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increase in value of any nonmarital property . . . shall be measured from the

date of marriage”). The parties stipulated that the value of Husband’s USLV

interest was $52,695 on the date of the parties’ marriage, and therefore, the

trial court did not abuse its discretion. See Biese, 979 A.2d at 897.

To the extent Husband challenges the calculation of the loss, Husband

did not establish any abuse of discretion by the trial court because Husband’s

proposed loss value uses the date-of-separation value but Section 3501(a.1)

requires using the parties’ date of marriage as the initial “start” date. See id.

Regardless, even if the trial court could use the date-of-separation value as

the “start” date, we agree with the trial court that it did not abuse its discretion

by holding that Husband failed to establish the proposed loss value at the

hearing because it was well within the trial court’s discretion to “accept all,

part or none of the evidence as to the true and correct value of the property.”

See id. The trial court acted within its discretion to reject Husband's proposed

loss value and accept Wife’s proposed loss value. See id.

In support of his second issue, Husband argues that the trial court erred

by adopting the master’s figures for the increase in value of the marital portion

of two of his non-marital properties. Husband’s Brief at 13. By way of

background, Jonathan Cramer, Wife’s valuation expert, testified that he

excluded postseparation contributions and payments in calculating the value

of the marital portions of the properties in question. R.R. at 200a. Mr. Cramer

testified that he did his best to separate the marital from the nonmarital

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contributions, but he did not have all of the required financial statements. Id.

at 180a, 219a-20a.

Husband cross-examined Mr. Cramer as follows:

[Husband's counsel]. And you're aware that that statement that

all nonmarital -- marital assets such as this, that the increase in

value, for purposes of equitable distribution, is to be either the

date of final separation or the date as close to the hearing on

equitable distribution as possible, whichever date results in a

lesser increase?

[Mr. Cramer]. Correct. And I didn’t know -- you quoted from my

report, but you didn’t say the last sentence of the paragraph. I

have noted the limitation of that report, and I say, [i]f historical

statements had been made available to me to allow the calculation

the way you’re describing it, I would amend the report. But I was

not provided with necessary statements to do the exact

calculation that you’re referring to.

[Husband's counsel]. But your calculation would still be -- would

still result in a value that is greater than the value of the date of

separation; correct?

[Mr. Cramer]. Correct, because I’d be including earnings on the

marital contributions. Contributions made into the account during

the marriage, in my opinion, are marital property and should

include earnings postseparation. I do agree with you that the

increase in value of nonmarital property, which would be the

premarital balance, should be cut off at the date of separation, if

that provides for a lesser increase than as of the current date. But

we don’t have statements from 2004, 2013, so I can’t make the

calculation in accordance with the letter of the law. This is the

best I can do with what I have.

R.R. at 213a-15a. In other words, because Mr. Cramer did not have

statements post-dating the parties’ date of separation, he could not calculate

an alternative figure. See id.

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On appeal, Husband argues that the trial court should have considered

only “the increase in value of the non-marital property [up] to the date of

separation [and] not any increase in value of any portion of the non-marital

asset as of the date of the [equitable distribution] hearing.” Husband’s Brief

at 18. Husband emphasizes that “Section 3501(a.1) is explicit that the marital

portion of a non-marital asset is to be calculated from the date of marriage to

the date of separation, only.” Id, at 19.

In Wife’s view, Husband “had the burden to provide sufficient credible

evidence” of any nonmarital asset. Wife’s Brief at 4. Regardless, Wife argues

that her marital asset valuations omitted “any growth. . . after the date of

separation” and any “post-separation contributions and any growth on those

contributions.” Id. at 6.

We have previously set forth the applicable law above. In relevant part,

as quoted above, “the court is free to accept all, part or none of the evidence

as to the true and correct value of the property.” Biese, 979 A.2d at 897

(citation omitted).

Instantly, as stated, Section 3501(a.1) provides that the “increase in

value of [the marital portion of] any nonmarital property . . . shall be

measured from the date of marriage... . to either the date of final separation

or the date as close to the hearing on equitable distribution as possible,

whichever date results in a lesser increase.” See 23 Pa.C.S. § 3501(a.1).

Therefore, to the extent Husband argues that the date of separation is the

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only permissible date, Husband is incorrect. See id. Further, to the extent

Husband’s argument can be construed as a challenge to the calculation of the

|™

value, the trial “court [was] free to accept all, part, or none of the evidence

as to the true and correct value” of the increase in value of any nonmarital

property. See Biese, 979 A.2d at 892. The parties presented different values

for the calculation of marital assets. Husband presented one set of values,

which used the date of separation as the end point for his marital assets

calculation, and Wife presented her set of values, which used the same date

of separation. See R.R. at 200a (reflecting Mr. Cramer’s testimony that he

did not include post-separation contributions and payments); id, at 213a-15a

(reflecting Mr. Cramer’s testimony that he could not calculate any post-

separation figures). Upon careful review of the parties’ arguments, the record,

and the trial court’s opinion, we agree with and adopt the trial court’s

reasoning that it did not abuse its discretion in accepting Wife’s values based

on its analysis and review of the record. See Biese, 979 A.2d at 897.

Lastly, Husband argues the trial court erred in awarding APL to Wife,

specifically thirty months of APL for a total of $75,660. Husband's Brief at 20,

23-24. In Husband’s view, Wife failed to present “relevant evidence” of her

“circumstances or her ‘need’ with regard to lifestyle or the cost of the divorce

litigation.” Id. at 20. Husband emphasizes that Wife earned over $345,000

in 2013 (when the parties separated), over $440,000 in 2014, and over

$283,000 in 2016. Id. at 22. Because Wife failed to establish her burden of

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proof for APL, Husband asserts that he improperly paid her thirty months of

APL, totaling $75,660. Id. at 23-24.

Wife counters that Husband misstates the burden of proof. Wife’s Brief

at 9. Wife explains that the guideline support amount is presumed correct

and that Husband was required to establish error in the guideline support

amount. Id.

The standard of review for a grant of APL follows:

If an order of APL is bolstered by competent evidence, the order

will not be reversed absent an abuse of discretion by the trial

court. Further, in ruling on a claim for alimony pendente lite, the

court should consider the following factors: the ability of the other

party to pay; the separate estate and income of the petitioning

party; and the character, situation, and surroundings of the

parties.

Strauss v. Strauss, 27 A.3d 233, 236 (Pa. Super. 2011) (citations omitted

and formatting altered); see also 23 Pa.C.S. §§ 3702, 4322. “The guideline

support amount is presumed to be the correct support amount.” Ileiwat v.

Labadi, 233 A.3d 853, 863 (Pa. Super. 2020) (emphasis and citation

omitted). Because the guideline support amount is presumed correct, the

burden is on the person opposing the APL amount “to produce evidence to

persuade the fact-finder that the guideline amount was unjust or

inappropriate, and that deviation was warranted under the statutory factors.”

Id. (citations omitted). An argument that the APL recipient does not “need

the guideline amount to meet [the recipient’s] expenses has been soundly

rejected by this Court.” Id. (citation omitted and formatting altered).

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After careful review of the record, the parties’ briefs, and the trial court’s

opinion, we affirm this issue based on the trial court’s reasoning. See Trial

Ct. Op., 3/31/21, at 9-15. We agree with the trial court that it did not abuse

its discretion as the record supports the calculation of the APL amount, and

this Court has rejected Husband’s argument that Wife must establish a need

for APL. See Labadi, 233 A.3d at 863; Strauss, 27 A.3d at 236. For these

reasons, we affirm the decree on the basis of the trial court’s opinion.

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Es¢

Prothonotary

Date: 11/19/2021

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“_—, =“ Circulated 11/04/2021 03:03 PM

IN THE COURT OF COMMON PLEAS OF

NORTHAMPTON COUNTY, PENNSYLVANIA

CIVIL DIVISION — LAW

HEATHER L. TRAPASSO, : CIVIL ACTION

Plaintiff :

NO. C-0048-CV-2013-3559

Vv.

JOSEPH G. TRAPASSO, ; a

Defendant : IN DIVORCE oe _—

OPINIONOFTHECOURT ==... ©!

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Presently before the Court are exceptions to the Divoree Masigr’s Report

filed by both the Plaintiff, Heather L. Trapasso, and the Defendant, j oseph G.

Trapasso. This matter was argued before the Court on October 27, 2020 and is

now, following a review of the record and the briefs filed by the parties, ripe for

disposition.

FACTUAL BACKGROUND/PROCEDURAL HISTORY

On April 18, 2013, Plaintiff Heather Trapasso (“Plaintiff” or “Wife”) filed a

Complaint in Divorce against Defendant Joseph Trapasso (“Defendant” or

“Husband”). The parties were married on September 25, 2004 and separated on

April 18, 2013. A Master’s Hearing was held on the 22™4 and 23" of January 2020,

at which counsel for both parties presented evidence and testimony before Special

Master Jeremy F. Clark, Esquire. The Master filed his Report on March 20, 2020.

The Master’s Report concludes that neither party is entitled to alimony or counsel

' fees: With respect to equitable distribution of the marital property, the Master

recommends that Husband shall transfer to Wife a sum of $821,241.00 from his

qualified assets, and that Husband shall transfer to Wife several pieces of art

located in the former marital home now occupied by Husband.

On April 15, 2020, Plaintiff filed seven (7) exceptions to the Master’s

Report. On May 11, 2020, Defendant filed eight (8) exceptions to the Master’s

Report. On September 21, 2020, Plaintiff filed a brief in support of her exceptions.

On October 6, 2020, Defendant filed a brief in support of his exceptions. On

October 20, 2020, Defendant filed a response in opposition to Wife’s exceptions.

On October 26, 2020, Plaintiff filed a brief in opposition to Defendant’s

exceptions.

STANDARD OF REVIEW

A master's report and recommendation, although only advisory, is to be

given the fullest consideration, particularly on the question of credibility of

witnesses, because the master has the opportunity to observe and assess the

behavior and demeanor of the parties. See Cook v. Cook, 186 A.3d 1015 (Pa.

Super. 2018). “[T]he report of a master is entitled to great consideration . . . [and] it

should not be disregarded lightly.” Arcure v. Arcure, 281 A.2d 694, 695 (Pa.

Super. 1971). However, “the reviewing Court is not bound by it and it does not

come to the Court with any preponderate weight or authority which must be

' overcome.” Arcure, 281 A.2d at 695. The correct standard of review is de novo.

See id. Accordingly, when a party files exceptions to the master’s report, the trial

court is required to make an independent review of the report and

recommendations to determine whether they are appropriate. See Kohl v. Kohl,

564 A.2d 222, 224 (Pa. Super. 1989), aff'd 585 A.2d 463 (Pa. 1991). “In

determining the propriety of an equitable distribution award, courts must consider

the distribution scheme as a whole.” Morgante v. Morgante, 119 A.3d 382, 387

(Pa. Super. 2015).

DISCUSSION

We will first examine each of the Plaintiff’s exceptions. Thereafter, we will

examine each of the Defendant’s exceptions.

Plaintiff’s Exception No. 1:

Increased Value of Property at 1658 Briarwood Circle

Plaintiff argues that the Master abused his discretion and/or erred as a matter

of law by finding that the increased value of the property at 1658 Briarwood Circle

(the “Briarwood Home”) was $10,000 when the parties specifically stipulated that

the increased value of the property was $193,500. See N.T. 1/22/20 at 17; see also

N.T. 1/22/20 at 206:2-4 (Husband acknowledging marital value of the Briarwood

Home was $193,500). Plaintiff contends that the Master mistakenly utilized a

different value than the one agreed upon by the parties nor did he address or

explain his deviation from the stipulated value. Plaintiff therefore asks the Court to

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. grant the exception and use the value of $193,500 for the purpose of equitable

distribution.

Defendant responds that the parties stipulated that the fair market value of

the Briarwood Home increased by $10,000 during the parties’ marriage, see N.T.

1/22/20 at 5. Defendant argues that there is no dispute that the Briarwood Home

was pre-marital and owned solely by Husband,' and that Wife bears the burden of

proving her claim on Husband’s pre-marital property, upon which Wife admitted

she made no contribution toward mortgage payments.

In this matter, the parties disagree about the nature of their stipulation.

Plaintiff avers that the stipulation was that the “total increase in value of the asset

during the course of the marriage” was $193,500, see Brief in Support of Plaintiff's

Exceptions p. 1. Defendant asserts that the parties “stipulated that the fair market

value of [the] 1658 Briarwood Circle property increased by $10,000 during the

parties’ marriage.” See Defendant’s Response to Plaintiff's Brief p. 1. The

transcript of the proceedings before the Master reflects this apparent disagreement

and/or confusion. Just after a list of stipulations was marked as Joint Exhibit No. 1

and admitted into the record, the following exchange occurred:

THE MASTER: All right. Whoever would like to

read those onto the record can.

| Husband purchased the Briarwood Home for $640,000 on May 24, 2004. The parties were married on

September 25, 2004. Defendant argues that the parties stipulated to an increase in fair market value of

$10,000 (from $640,000 to $650,000) between the date of their marriage and the date of their separation

on April 18, 2013.

MS. EIDELMAN [Counsel for Defendant]: Since

Attorney Zamborsky prepared this, he can read it. I will

just state there are certain modification to this, so I'll state

them as he goes through them.

THE MASTER: Okay. Attorney Zamborsky.

MR. ZAMBORSKY [Counsel for Plaintiff]:

Certainly. The -- Number one, the fair market value of

1658 Briarwood Circle property increased by $10,000

during the parties’ marriage.

THE MASTER: So, no change to that one, Attorney

Eidelman?

MS. EIDELMAN: No.

THE MASTER: Okay.

N.T. 1/22/2020 at 5:4-16. However, just a few pages later, the following exchange

appears in the transcript:

THE MASTER: All right. Let’s go back on the

record. There are a few other stipulations, I understand,

Counsel.

MR. ZAMBORSKY: Yes, that’s correct. Number

one, that the increase in value of the marital residence

located at 1658 Briarwood Circle, Bethlehem,

Pennsylvania is $193,500.

MS. EIDELMAN: That’s agreed.

THE MASTER: $193,500, which is the increase in

value from what date to what date?

MS. EIDELMAN: Date of marriage to date of

separation.

THE MASTER: Okay. -

MS. EIDELMAN: That also is a premarital asset.

THE MASTER: Oh, okay. I understand. ...

N.T. 1/22/2020 at 17:10-24. The Master’s Report ultimately defined this portion

of the marital estate as follows: “The increase in value of 1658 Briarwood Circle

(“Briarwood Home”), a pre-marital asset of Husband owned in his name alone, of

$10,000 a value stipulated by the parties at the time of the hearing.” Master’s

Report at 9.

The Master’s Report notes that the Briarwood Home was purchased by

Husband just prior to the parties’ marriage, that title was held solely in his name,

and that he paid all expenses associated with the home. See Master’s Report at 6-7.

The Master considered Wife’s exhibit purporting to show funds that she had

expended toward “upgrades” to the property, but found credible other testimony

presented at the hearing that these purchases were made “without consulting

Husband and he often felt they were unnecessary.” Id. at 7. Wife would take

charge of various renovation projects, but “[t]hese projects, however, seem to have

done little to increase the equity in the Briarwood Home.” Id. at 6.

In light of the confusing testimony on this issue and the parties’ subsequent

expression of disagreement about the nature of their stipulation(s), we cannot find

that the Master erred by accepting the $10,000 figure stated by the parties as the

6

: agreed-to increase in the fair market value of the Briarwood Home, which was

memorialized in their Joint Exhibit No. 1.? Accordingly, Plaintiff's Exception No.

1 is denied.

Plaintiff’s Exception #No. 2:

Reduction of Mortgage Liability on Briarwood Home

Plaintiff next argues that, if her first exception is denied, that the Court

should grant her second exception seeking an adjustment of the value of the

Briarwood Home to reflect the parties’ stipulation that the outstanding principal

balance of the mortgage was paid down in the amount of $176,500 during the

marriage. See N.T. 1/22/2020 at 5. Plaintiff contends that it would be an error to

disregard this amount because a court must consider the “net value” or “equity

value” from the date of marriage to the date of separation, not just the change in

fair market value. See Plaintiff's Brief at 2 (citing Mundy v. Mundy, 151 A.3d 230

(Pa. Super. 2016)).

Defendant responds that Wife did not submit any evidence or testimony as

to the balances of the mortgage on the date of marriage and date of separation.

Because Wife must prove any facts that she wants the Master to accept, Defendant

argues that wife cannot prevail on this exception.

2 This Joint Exhibit was submitted to the Master and admitted into the record, although not signed by

counsel or the parties. See N.T. 1/22/20 at 16:7-17:3.

7

° Although Defendant is correct that Wife did not produce documentary

evidence to prove the reduction in the mortgage balance on the Briarwood Home,

we nevertheless do not find Defendant’s argument persuasive because Defendant’s

counsel stipulated to that value:

MR. ZAMBORSKY: [Stipulation] Number two,

the principle [sic] balance of the mortgage note against the

1658 Briarwood Circle property decreased by the sum of

$176,500 during the marriage.

THE MASTER: Attorney Eidelman, is that --

MS. EIDELMAN: That’s agreed.

THE MASTER: Okay.

N.T. 1/22/20 at 5:18-24 (emphasis added). The record reflects no dispute that the

outstanding principal balance of the mortgage was paid down in the amount of

$176,500 during the marriage. While “the Divorce Code does not require a

specific methodology for assessing an asset's value,” Mundy v. Mundy, supra at

237, in order to accurately measure the increase in equity in the Briarwood Home

during the course of the marriage, the reduction of the debt encumbering the

property must be considered alongside the increase in its fair market value. The

amount paid toward the mortgage principal during the course of the marriage is

essentially money put into savings, but invested in a real estate asset rather than a

mutual fund or other more easily liquidated type of account, which would clearly

be part of the marital estate. Wife is therefore “entitled to her share of any increase

8

‘in equity that accumulated during the ... marriage.” Id. We therefore grant

Plaintiff's Exception No. 2. Because the increase in value of the Briarwood Home

is properly calculated as the sum of the increase in the home’s fair market value

and the reduction in the applicable mortgage balance — and because the parties

stipulated on the record that in this case those values are $10,000 and $176,500,

respectively — we find that the increase in value of the Briarwood Home during the

course of the marriage was $186,500.

Plaintiff’s Exception No. 3: Expert Valuation of USLV° Profit Sharing Plan

Plaintiff argues that the Master erred as a matter of law and abused his

discretion when he failed to utilize the value established by Wife’s expert,

Jonathan Cramer, with regard to Husband’s pre-marital USLV Profit Sharing Plan

— which was subsequently rolled over into a Fidelity IRA — despite stating that he

accepted Mr. Cramer’s valuation methodology and resulting value. See Master’s

Report at 17 (“... the undersigned will accept the valuation figures provided by

Wife’s expert.”). Mr. Cramer computed a marital value of $493,265.77, see N.T.

1/22/20 at 186:25-187:16, but the Master instead substituted an amount $11,087.77

less without explanation. See Master’s Report at 9. Without any justification for

this reduction, Plaintiff argues that the Master’s determination was in error.

3 “USLV” is used herein, as in the parties’ briefs, as shorthand for “Urology Specialists of the Lehigh

Valley, P.C.”.

9

” Defendant concedes that the Master did state that he accepted Wife’s

expert’s testimony regarding the marital value of the USLV plan, but Defendant

nevertheless argues that whether or not the Master accepted the expert’s ultimate

value is unclear as he never explicitly stated that he accepted the sum of

$493,265.77 for the purpose of his report.

The discrepancy between Mr. Cramer’s calculated figure of $493,265 and

the Report’s use of $482,178 for the same asset is not explained in the Report and

appears inconsistent with the Master’s stated acceptance of Mr. Cramer’s valuation

figures. The hearing testimony and substance of the Master’s Report provide only

support for the former amount. In light of what appears to be an inadvertent error

in the Report with regard to this dollar figure, we grant Plaintiff's Exception No. 3

and find the marital value of the USLV Profit Sharing Plan to be $493,265.

Plaintiff’?s Exception No. 4:

Failure to Include National Penn Bank Account No. -3952 in Marital Assets

Plaintiff next argues that the Master erred by failing to include the stipulated

value of $2,018.00, held in National Penn Bank Account No. -3952, as a marital

asset subject to equitable distribution. Plaintiff avers that, given the parties’

stipulation that Husband controlled and either maintained or consumed said funds,

see N.T. 1/22/20 at 9-10, the Master erred as a matter of law and/or abused his

discretion by failing to include this account in the valuation. Plaintiff requests that

10

; thesé additional funds be attributed to Husband when determining equitable

distribution.

Defendant responds that the Master is free to accept or reject any testimony

in determining economic justice between the parties, and is afforded great

discretion in fashioning a distribution to achieve that purpose. See Smith v. Smith,

904 A.2d 15 (Pa. Super. 2006). Defendant suggests that the Master may have felt

that ignoring an asset of such minor value was part of achieving “economic

justice.”

We are compelled to agree with Plaintiff that the Master erred by omitting

Account No. -3952 held in National Penn Bank from the marital assets set forth on

pages 9 through 11 of the Master’s Report. The parties stipulated that this account,

valued at $2,018, was marital property. Defendant’s argument, that perhaps, the

Master excluded this account intentionally due to its relatively small value, is

inconsistent with the fact that the Master did specifically include National Penn

Bank Account No. -1727 valued at only $1,341. We believe the omission of

Account No. -3952 from the Report was an inadvertent error. Accordingly, we

grant Plaintiff's Exception No. 4 and attribute the amount of $2,018 to Husband for

the purpose of determining equitable distribution.

11

Plaintiff’?s Exception No. 5:

Decrease in Value of Husband’s Ownership Interest in USLV

Plaintiff contends that the Master erred by finding that Husband’s ownership

interest in USLV decreased by $52,695 during the parties’ marriage. Plaintiff

references pages 7 and 8 of the January 22, 2020 Transcript, in which the parties

stipulated that the value of Husband’s shares in the medical practice was $52,695

on the date of marriage and $236,734 on the date of separation, thus having

increased by $184,039 during the marriage. Plaintiff also alleges that Husband, as

one of the four remaining shareholders in the practice in 2017, opted to approve a

sale of USLV to St. Luke’s Physician Group, Inc. (“St. Luke’s”) for $3.8 million,

and thereafter became an employee of St. Luke’s rather than have the practice

repurchase his shares consistent with the Shareholders’ Agreement. This was four

years after the parties separated. Plaintiff avers that “Husband clearly chose to

abandon the increased value of his shareholder interest in USLV for a more

lucrative, non-marital, and thus untouchable income.” Plaintiffs Brief at 5.

Plaintiff asks the Court to find that Husband’s interest in USLV did not decrease

by $52,695 but rather increased by $184,039 during the marriage.

Defendant responds that the Master should have found that Husband’s

ownership interest in USLV decreased by more than $52,695 and that it is

undisputed, based upon the testimony of Louis Lemaster, the corporate

accountant for USLV, that Husband received nothing from the sale of USLV and,

12

in fact, lost a substantial amount. Its value on the date of separation was $236,734 -

and, upon the sale of USLV to St. Luke’s, each of the four partners had to

contribute $125,000 back to the business because the sale price alone was

insufficient to cover USLV’s debts. Therefore, Defendant argues that the true value

of the decrease of Husband’s pre-marital asset was $361,734.

Upon review, we find no error of law or abuse of discretion in the Master’s

determination of the marital value of Husband’s interest in USLV. The Master

properly assessed the credibility of Husband’s expert witness, Mr. LeMaster, and

credited his testimony that the sale of USLV allowed the four shareholders,

including Husband, to satisfy more than three million dollars in outstanding

corporate debt, wind down the business, and begin instead working as employees

of St. Luke’s. See Master’s Report at 13. The Master reasonably found that the

value of Husband’s interest in USLV was, at the time of the hearings, zero dollars.

Because the stipulated value at the time of the parties’ marriage was $52,695, and

because the Master is directed by law to the use the lesser of the value at the time

of separation or the value at the time of the hearing, see 23 Pa.C.S.A. § 3501 (a.1),

the Master properly found a decrease in value of $52,695 to serve as an offset

against the gains of other pre-marital assets. Therefore, Plaintiff's Exception No. 5

is denied.

13

Plaintiff’s Exception No. 6: Testimony of Mr. LeMaster

Plaintiff objects to the Master’s acceptance of the testimony of Mr.

LeMaster, who, as noted, testified for Husband and was the corporate accountant

for USLV since 1998. Plaintiff asserts that his testimony was contradictory

because he testified that typically the repurchase price for shares of a departing

USLV member was computed pursuant to a formula in the Shareholders’

Agreement, which had typically resulted in shareholders receiving over $200,000.

However, that formula was revised at a shareholders’ meeting in 2016 to be a flat

$50,000. Plaintiff states that Mr. LeMaster failed to reveal that the shares of one

doctor, Dr. Chiapella, were repurchased for $218,049.00 in July 2016. Plaintiff

states that this sheds significant doubt on the value of shares of USLV. Plaintiff

contends that, because a Master’s conclusions regarding credibility are not binding

on the reviewing court, see Rothrock v. Rothrock, 765 A.2d 400, 404 (Pa. Super.

2000), this Court should determine that the Master erred in viewing Mr.

LeMaster’s testimony as believable and reliable.

Defendant responds that there is no contradiction or other reason to

disbelieve Mr. LeMaster’s testimony. He testified that two retiring partners were

paid $50,000 for their shares under the new agreement while Dr. Chiapella’s

termination preceded the change in formula and that is why her shares were valued

under the previous agreement. Additionally, Wife’s expert, Dale Capone, was

14

‘privy to all documentation that Mr. LeMaster relied upon for his testimony. At the

hearing, Wife did not produce Mr. Capone and no contrary report was ever

prepared contesting the valuations calculated by Mr. LeMaster. See N.T. 1/23/20 at

15-18. Because Mr. LeMaster’s testimony was credible and uncontroverted,

Defendant urges the Court to reject Plaintiff's exception to the Master’s Report.

Upon review, we find no error of law or abuse of discretion in the Master’s

handling of Mr. LeMaster’s testimony. Although we are not bound to accept the

Master’s determinations with regard to the credibility of witnesses, see Arcure v.

Arcure, supra at 695, upon a review of the relevant testimony, and giving the

Master’s evaluation as set forth in his Report the “fullest consideration,” we see no

reason to alter his determination on this point. Accordingly, Plaintiff's Exception

No. 6 is denied.

Plaintiff's Exception No. 7: Qualified Retirement Assets

Plaintiffs seventh and final exception is that the Master erred by awarding

Wife only qualified retirement assets, thus leaving Husband with all of the cash

assets. Plaintiff argues that the Master erred in his statement that “there will be

little tax implications to either party as no assets will need to be liquidated.” See

Plaintiff's Brief at 8, quoting Master’s Report at 20. Plaintiff says that she will

eventually have to liquidate the qualified retirement assets and pay the resulting

taxes thereon unless she simply holds them intact until her own death. Plaintiff

15

says that, because the Master failed to articulate a logical basis for attributing all of

the cash assets to Husband and all of the qualified retirement assets to Wife, this

exception to the Master’s Report should be granted.

Defendant responds that he agrees with Plaintiff, in part, but “only to the

extent that the Master recommends the transfer of taxable assets that exceeds the

martial value of taxable assets subject to Wife’s claims. Defendant asserts,

therefore, that this recommendation is simply impossible to be met. Defendant’s

Brief at 6. Defendant seeks an alternative to allow for distribution to Wife from

other assets.

Although Defendant does not explicitly join Plaintiffs exception, both

parties seem to agree that the Master’s recommendation that “Husband will

transfer to Wife, from his qualified assets, the sum of $821,241.00” is either unfair

(because it leaves Husband with all of the cash assets) or unworkable (because

Husband’s qualified assets are less than $821,241.00). With regard to the full tax

implications, the picture is complicated. Under the distribution scheme contained

in the Master’s Report, in addition to various cash assets, Husband also maintains

the Briarwood Home, a Fidelity investment account, and a Vanguard investment

account. Although these are not qualified retirement assets subject to early

withdrawal penalties, as a practical matter these assets and accounts are similarly

16

subjéct to future taxation, at least to the extent that any capital gains are realized

during the life of the owner.’

In light of the parties’ common position that the Master’s recommendation

cannot be carried out in its present form, and in the interest of achieving economic

justice, we grant Plaintiff's Exception No. 7. The funds to be transferred to Wife

should come from a combination of qualified and non-qualified assets consistent

with the totality of the marital estate.

Defendant’s Exceptions Nos. 1 and 2:

Statement of Total Value of Marital Estate with Percentages to Each of the

Parties and Recommendation of Set Amount to be Paid to Wife

Defendant argues that the Master erred in his valuation of the marital estate

because he failed to specify percentages of distribution and instead only set forth a

specific monetary amount to be paid from Husband to Wife. Defendant believes

the Report intended to recommend that the parties each receive an equal share of

the marital estate. However, the Report does not provide any specific percentages

to be distributed to each of the parties, lists “qualified” and “non-qualified” assets

together, and recommends only that Husband distribute a specific dollar amount to

Wife from his “qualified” assets. Defendant contends that this error is of particular

impact here, where a large portion of the assets at issue are invested in the stock

4 The Court recognizes the possibility that a significant portion of any profits realized from a future sale

of the Briarwood Home may be exempt from capital gains taxes, although we reach no such conclusion

based solely upon the facts of record.

17

‘market and subject to significant fluctuations until the date of actual distribution.

Husband notes that the “qualified assets” in the marital estate are insufficient to

distribute the amount of $821,241 from such assets to Wife as recommended by

the Master, and the Report does not set forth how such a distribution can be

accomplished.

Plaintiff responds that these exceptions place form over function, and that all

values and determinations by the Master were itemized and are able to be extracted

from the text of the Report, as summarized by Plaintiff's itemization. See

Plaintiff's Brief in Response to Defendant’s Exceptions, Exhibit A. Therefore,

Plaintiff disagrees that the Master erred with regard to naming the specific assets

and their values. Although Plaintiff states that she cannot agree to Defendant’s

exceptions, Plaintiff does agree that the award should have been broken down into

non-qualified and qualified assets, and asserts that Wife should have received fifty

percent (50%) of the cash assets as well as fifty percent (50%) of the qualified

assets. In accordance with our ruling on Plaintiff's Exception No. 7, we will grant

Defendant’s Exceptions Nos. 1 and 2 to the extent that they seek a distribution to

Wife that is not entirely from qualified assets but rather consists of both qualified

and non-qualified assets consistent with the totality of the marital estate.

Defendant’s Exceptions Nos. 1 and 2 are further granted to the extent they

seek the distribution of assets to be expressed as a percentage rather than a specific

18

7 ™~

dollar amount. By statute, it is the court’s duty to “equitably divide, distribute or

assign, in kind or otherwise, the marital property between the parties without

regard to marital misconduct in such percentages and in such manner as the court

deems just after considering all relevant factors. The court may consider each

marital asset or group of assets independently and apply a different percentage to

each marital asset or group of assets” 23 Pa.C.S.A. § 3502(a) (emphasis added).

“In an order made under this chapter for the distribution of property, the court shall

set forth the percentage of distribution for each marital asset or group of assets and

the reason for the distribution ordered.” 23 Pa.C.S.A. § 3506 (emphasis added).

Although Plaintiff is not necessarily incorrect that a percentage and a specific

dollar figure can simply be two different methods of expressing the same idea, the

court is directed by statute to apply a percentage. We therefore find that the

Master’s expression of his determination in terms of dollars only, rather than as a

percentage, was in error.

Defendant’s Exceptions Nos. 3 and 4:

Denial of Motion in Limine to Exclude Testimony of Wife’s Expert,

Jonathan Cramer and Acceptance of Mr. Cramer’s Testimony>

Defendant argues that the Master erred in denying his motion in limine to

exclude the testimony of Wife’s expert, Jonathan Cramer, as irrelevant and

> Defendant’s Exceptions erroneously refer to Wife’s expert as “Jonathan Clark”, but this is corrected to

“Jonathan Cramer” in Defendant’s supporting brief.

19

contrary to existing law. Defendant’s counsel had argued that, under 23 Pa.C.S.A.

§ 3501(a.1), that no additional growth should be added to Husband’s non-marital

assets following the date of separation. The Master denied the motion and

permitted testimony from Mr. Cramer regarding a growth factor to be applied to

the “marital portion” of the non-marital assets. Defendant contends that Mr.

Cramer’s testimony should not have been permitted and that the Master erred by

accepting his testimony as to additional amounts he added to the non-marital

property of Husband after the date of separation. Therefore, the additional increase

of approximately $62,000 in the “marital portion” of Husband’s non-marital assets

was in error.

Plaintiff responds that the Master’s report was based upon the

uncontroverted expert testimony of Mr. Cramer, and so no error can exist. See

Bold v. Bold, 516 A.2d 741, 744 (Pa. Super. 1986). Plaintiff also argues that

Defendant is incorrect that growth should not apply to non-marital assets. Plaintiff

reiterates that, as here, where the marital portion of non-marital assets can be

identified, the value of that portion should be determined at the date closest to

distribution.

The Master’s Report begins with the Master’s ruling on Defendant’s Motion

in Limine, which was held in abeyance during the hearing, see N.T. 1/22/20 at 171,

to allow for Mr. Cramer to testify without an on-the-spot ruling by the Master as to

20

‘the admissibility of that testimony. The Master found that Husband had not cited

any rule of evidence or relevant case law that would justify the exclusion of Mr.

Cramer’s testimony, but rather advanced only arguments supporting his

disagreement with Mr. Cramer’s conclusions. See Master’s Report at 2. We agree

with Plaintiff that the Master did not commit an error of law or abuse his discretion

in determining that Mr. Cramer could testify. Defendant’s Exception No. 3 is,

therefore, denied.

We turn now to the substance of Mr. Cramer’s testimony and the Master’s

acceptance of that testimony. Mr. Cramer gave testimony regarding Husband’s

USLV Profit Sharing Plan and Guardian Whole Life Insurance Policy. Both of

these assets were pre-marital assets that saw a substantial increase in value both

during the marriage and after separation. The Master found that these assets have

several components: (1) their pre-marital value; (2) the growth of the pre-marital

component between the date of marriage and date of separation; (3) contributions

made during the marriage; (4) the growth of these marital contributions; (5)

contributions made after the date of separation; and (6) growth on contributions

made after the date of separation. See Master’s Report at 15-16. The Report

concludes that components (2), (3), and (4) are marital and subject to equitable

distribution, while components (1), (5), and (6) are non-marital. Mr. Cramer

21

" provided calculations of these components, while Husband did not offer expert

testimony on this point. See id. at 16-17.

Upon a review of the testimony and the Report, we find that the Master

appropriately relied upon uncontroverted testimony of an expert witness with

regard to valuation and did not commit an error of law by considering the growth

of the marital portion of an asset that has both marital and non-marital components.

The Master identified the marital portion of the asset and the increase in value of

the non-marital portion that must be considered “marital property” pursuant to 23

Pa.C.S.A. § 3501.° Accordingly, Defendant’s Exception No. 4 is denied.

6 Section 3501 provides, in relevant part:

(a) General rule.--As used in this chapter, “marital property” means all property acquired

by either party during the marriage and the increase in value of any nonmarital property

acquired pursuant to paragraphs (1) and (3) as measured and determined under subsection

(a.1). However, marital property does not include:

(1) Property acquired prior to marriage or property acquired in exchange for property

acquired prior to the marriage.

(2) Property excluded by valid agreement of the parties entered into before, during or after

the marriage.

(3) Property acquired by gift, except between spouses, bequest, devise or descent or

property acquired in exchange for such property.

(4) Property acquired after final separation until the date of divorce, except for property

acquired in exchange for marital assets.

(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good

faith and for value prior to the date of final separation.

(6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of

September 2, 1958 (Public Law 85-857, 72 Stat. 1229), as amended, except for those

benefits received by a veteran where the veteran has waived a portion of his military

retirement pay in order to receive veterans’ compensation.

(7) Property to the extent to which the property has been mortgaged or otherwise

encumbered in good faith for value prior to the date of final separation.

(8) Any payment received as a result of an award or settlement for any cause of action or

claim which accrued prior to the marriage or after the date of final separation regardless of

when the payment was received. Footnote is continued on page 23

22

Defendant’s Exception No. 5:

Failure to Consider Total Loss of Pre-Marital Assets

Defendant argues, similarly to his response to Plaintiff's Exception #5, that

Husband’s loss upon the sale of USLV was not the accepted figure of $52,695, but

actually a much higher amount because the business’s debt exceeded the sale price.

Because the value of Husband’s interest was reduced from $236,734 on the date of

separation to less than zero, he contends his actual loss was $352,334. Therefore,

he argues that the growth of Husband’s non-marital assets should be offset by the

total loss of Husband’s non-marital assets in the amount of $352,334 in order to

effect economic justice between the parties.

Plaintiff responds that her argument as to her own Exception #5 applies here.

Plaintiff notes that the maximum credit available to Defendant is the complete loss

of the premarital value of his interest in USLV, and that it misstates Defendant’s

actual loss to also include a gain that occurred during the marriage and then lost.

As set forth in the discussion of Plaintiff's Exception No. 5 supra, the Master did

Footnote continued from page 22

(a.1) Measuring and determining the increase in value of nonmarital property.--The

increase in value of any nonmarital property acquired pursuant to subsection (a)(1) and (3)

shall be measured from the date of marriage or later acquisition date to either the date of

final separation or the date as close to the hearing on equitable distribution as possible,

whichever date results in a lesser increase. Any decrease in value of the nonmarital property

of a party shall be offset against any increase in value of the nonmarital property of that

party. However, a decrease in value of the nonmarital property of a party shall not be offset

against any increase in value of the nonmarital property of the other party or against any

other marital property subject to equitable division.

23 Pa.C.S.A. § 3501.

23

‘not commit an error of law or abuse of discretion by finding that Husband

sustained a loss of $52,695 with regard to his ownership interest in UNLV. The

Master’s Report directly addresses Defendant’s argument that his loss should be

much higher, more than $300,000, by noting that no such loss was proven at the

hearing. See Master’s Report at 15, n. 7. We agree that the record does not support

a decrease in value in excess of $52,695. Accordingly Defendant’s Exception No.

5 is denied.

Defendant’s Exception No. 6:

Failure to Consider Wife’s Lack of Contribution to the Marital Estate

Defendant argues that the Master, by seemingly recommending a near-equal

division of what he determined to be the marital estate, failed to consider Wife’s

lack of contribution to the marital estate. Defendant contends that Wife admitted

that she never contributed to any of the marital assets during the marriage, see N.T.

1/22/20 at 142, and spent her money solely on what she wanted “‘to enjoy life,” not

contributing toward mortgage payments, taxes, utilities, dinners, vacations, or

other items or services for their mutual enjoyment despite her earning more than

him at times during their marriage. Despite earning over $300,000, Wife has no

separate assets and no growth in her non-marital assets.

Plaintiff responds that Defendant cannot now attempt to reconstruct the

lifestyle and contributions of the parties during the course of their marriage. In this

matter, the Master equally attributed the lifestyle choices of the parties during the

24

“marriage based upon evidence that the parties jointly made decisions regarding

investments and payments of certain funds, see N.T. 1/22/20 at 29, and at no point

prior to their separation did either party object to those decisions.

Defendant is correct that equitable distribution does require the

consideration of “[t]he contribution or dissipation of each party in the acquisition,

preservation, depreciation or appreciation of the marital property...”. 23 Pa.C.S.A.

§ 3502(a)(7). However, we disagree with Defendant’s assertion that the Master did

not consider this factor. The Report mentions that during the marriage Wife spent

“lavishly on luxury items,” failing to amass “the expected level of savings, assets,

or retirement plans,” while Husband lived more frugally. See Master’s Report at 5-

6. However, the Master specifically rejected Husband’s argument that Wife

dissipated marital assets through this behavior. See id. at 6. The Master’s Report

later cites Section 3502(a)(7), see id. at 18, and notes that the weight afforded to

this factor, as well as the other factors enumerated in Section 3502(a), is within the

sound discretion of the trial court. Id. at 18-19 (citing Wayda v. Wayda, 576 A.2d

1060, 1063 (Pa. Super. 1990)). The Master clearly considered this issue in

determining an equitable distribution of assets, and thus did not commit legal error

or abuse his discretion. Accordingly Defendant’s Exception No. 6 is denied.

25

Defendant’s Exceptions Nos. 7 and 8:

Documentation Showing Value of Husband’s Assets Prior to Covid-19 Crisis

& Decreased Value of Husband’s Assets Since Master’s Hearings

Defendant again reiterates that the Master failed to apply and use a

percentage distribution and, as a result, Husband was unfairly disadvantaged when

the “value of the stock market dropped significantly” due to the Covid-19

pandemic. Had the recommended distribution to Wife been a percentage rather

than a specific amount, Defendant asserts that both parties would have shared the

risk of declining values. Defendant states that economic justice has not been

effectuated by the Master’s recommendation of a specific dollar amount rather than

a percentage under which both parties would share the risk of market fluctuations.

Plaintiff responds that Defendant has failed to provide any evidentiary

support for his assertion that there has been a drop in the value of the affected

assets. Although Plaintiff concedes that factoring in a market effect on qualified

assets may be generally reasonable, it is well-established that “[a] Trial Court may

not consider evidence outside the record in making its determination.” Ney v. Ney,

917 A.2d. 863, 866 (Pa. Super. 2007) (citing Eck v. Eck, 475 A.2d 825, 827 (Pa.

Super. 1994)).

With regard to the valuation of the marital assets, we agree that there is no

evidence of record to demonstrate that the invested funds at issue have

significantly dropped in value. However, as set forth herein with regard to

26

; Defendant’s Exceptions Nos. 1 and 2, we agree that the distribution should have

been expressed in terms of percentages rather than as a set dollar amount to be

transferred from Husband to Wife. We therefore deny Defendant’s Exceptions

Nos. 7 and 8 to the extent they ask the court to consider evidence outside of the

record with regard to post-hearing fluctuations in the value of certain assets. We

grant Defendant’s Exceptions Nos. 7 and 8 to the extent they seek a distribution

expressed as a percentage of marital assets.

CONCLUSION

The Master identified twenty-one (21) assets that comprised the marital

estate and, therefore, are subject to equitable distribution. These assets are set

forth in numbered paragraphs 1 — 21 on pages 9 — 11 of the Master’s Report.

Paragraphs 1 — 14 are assets attributed to Husband/Defendant. Paragraphs 15 — 21

are assets attributed to Wife/Plaintiff. We have summarized the Master’s findings

in Court Exhibit “A” attached to this Opinion and made a part hereof. Husband’s

total is the sum of $1,866.391. However, the Master afforded an offset to

Husband in the amount of $52,695 for the decrease in value of Husband’s

ownership interest in USLV. We have upheld that determination in our analysis of

Plaintiff's Exception No. 5 and Defendant’s Exception No. 5. With the aforesaid

offset, assets Husband’s assets equal $1,813,696.

27

Assets attributable to Wife equal $118,372. The combination of assets

attributed to Husband and assets attributed to Wife brings the total value of the

marital estate to $1,932,068. Taking into consideration the value of the assets each

party had retained, and in order to effectuate economic justice between the parties,

the Master recommended that Husband be ordered to transfer to Wife the sum of

$845,241. Without so stating, this represented approximately 50% of the total

marital estate. The Master then reduced the recommended amount by $24,000

based upon an agreement of the parties that Wife owes Husband this amount. See

Master’s Report at 20. This resulted in the Master finally recommending that

Husband transfer $821,241 to Wife in order to effectuate the equitable distribution.

However, as a result of our rulings on the exceptions filed by the parties, we

must now adjust some of the findings of the Master as follows:

e Increased value of Briarwood Home is changed from $10,000 to $186,500

(See Plaintiff's Exception No. 2 supra)

e Increased value of USLV is changed from $482,178 to $493,265. (See

Plaintiff's Exception No. 3 supra)

e National Penn Bank Account No.: 3952 is added as a marital asset attributed

to Husband in amount of $2,018.00. (See Plaintiff's Exception No. 4 supra.)

Taking into consideration the aforesaid adjustments, the marital estate is

increased by the sum of $189,605. These additional assets are all attributed to

Husband bringing his total to $2,003,301. Therefore, we have revised the

calculation of the marital estate as set forth in Court Exhibit “B” attached to this

28

“~ ~

. Opiriion and made a part hereof. This brings the total value of marital property

subject to equitable distribution to the sum of $2,121,673.

We believe that the Master was correct in recommending essentially a 50% -

50% division of the marital estate. Based upon the aforesaid law and facts of

record, we find that the Court’s revision of some of the values of certain assets

should not change that percentage of distribution. Therefore, taking into

consideration the revised values and the value of the assets each party has retained,

we find that Husband should remit $942,464 to Wife, which will effectuate a 50%

- 50% distribution of marital assets. This amount, however, will be reduced by

$24,000.00 which represents the amount of money the parties acknowledged is

owed by Wife to Husband. Therefore, Husband will be ordered to transfer to Wife

$918,464.00. The Court’s calculation of the equitable distribution is set forth in

Court Exhibit “C” which is attached to this Opinion and made a part hereof.

Accordingly, we enter the Order that is attached to this Opinion.

29

an

SUMMARY OF MASTER’S DETERMINATION OF MARITAL ESTATE

HUSBAND

Increase value of “Briarwood Home”

$ 10,000

Increase value pre-marital USLV

$ 482,178

Increase value pre-marital Fidelity Inv.

$ 361,597

Increase value pre-marital Fidelity IRA

$ 27,256

Vanguard Account

$ 447,370

Increase value pre-marital Guardian Life Ins

$ 291,755

Pre-marital Knights of Columbus Life Ins.

$ 6,463

Pre-marital American Funds Act.

$ 2,285

Ownership interest in USLV

$ 0.

USLV real estate, MCC real estate

$ 161,734

Inc. value-pre-marital Int. Keystone Partners

$ 21,880

Inc. value-pre-mar Int. Theralogix Urology

$ 3,213

GMC Denali

$ 37,650

National Penn account

$ 13,010

$1,866,391

Less: $52,695.00

Decrease in value of USLV

Total Husband $1,813,696

TOTAL Marital Assets - $1,932,068

Determined by Master

WIFE

Inc. value pre-marital Fidelity IRA

$ 8,495

Fidelity SEP/IRA-Separation Balance

$ 65,817

National Penn Checking Account (1727)

$ 1,341

National Penn Checking Account (8032)

$ 19,997

National Penn Checking Act. Dt of Sep.

$ 9,924

KNBT Savings Account

$ 5,498

Automobile

$ 7,300

Total Wife $118,372

Court Exhibit “A”

am

oy

COURT REVISED SUMMARY OF MARITAL ESTATE

HUSBAND

Increase value of “Briarwood Home”

$ 186,500

Increase value pre-marital USLV

$ 493,265

Increase value pre-marital Fidelity Inv.

$ 361,597

Increase value pre-marital Fidelity IRA

$ 27,256

Vanguard Account

$ 447,370

Increase value pre-marital Guardian Life Ins

$ 291,755

Pre-marital Knights of Columbus Life Ins.

$ 6,463

Pre-marital American Funds Act.

$ 2,285

Ownership interest in USLV

$ -0-

USLYV real estate, MCC real estate

$ 161,734

Inc. value-pre-marital Int. Keystone Partners

$ 21,880

Inc. value-pre-mar Int. Theralogix Urology

$ 3,213

GMC Denali

$ 37,650

National Penn account

$ 13,010

National Penn Act. No. 3952

$2,018

$2,055,996

Less: $52,695.00

Decrease in value of USLV

Total Husband $2,003,301

TOTAL Marital Assets - $2,121,673

Determined by Court

WIFE

Inc. value pre-marital Fidelity IRA

$ 8,495

Fidelity SEP/IRA-Separation Balance

$ 65,817

National Penn Checking Account (1727)

$ 1,341

National Penn Checking Account (8032)

$ 19,997

National Penn Checking Act. Dt of Sep.

$ 9,924

KNBT Savings Account

$ 5,498

Automobile

$ 7,300

Total Wife $118,372

Court Exhibit “B”

I.

Il.

COURT CALCULATION OF EQUITABLE DISTRIBUTION

Assets

Husband $2,003,301

Wife 118,372

Total $2,121,673

50% Distribution

Total Marital Estate: $2,121,673

$2,121,673 +2 = $1,060,836 to each party

Calculation of Wife’s Share

$1,060,836

Less: _- 118,372 - Retained Property of Wife

$ 942,464

Less: _- 24,000 - Amount owed to Husband

$918,464 - Payable to Wife

Court Exhibit “C”

Circulated 1104/1 03:03 PM

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY

COMMONWEALTH OF PENNSYLVANIA

HEATHER L. TRAPASSO, Docket Nos.: C-48-CV-2013-3559

DR-95317

Plaintiff,

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PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925(a)

STATEMENT

AND NOW, this 3 bay of Mar da , 2021, the Court issues the

following statement pursuant to Pa.R.A.P. No. 1925(a).

This matter is before the Superior Court on Defendant’s appeal of an

Order entered on January 4, 2021 in the parties’ divorce action at

Northampton County docket no. C-48-CV-2013-3559. On the Notice of

Appeal and subsequently filed Rule 1925(b) Statement, Defendant indicates

that he is also appealing the Orders granting Plaintiff Alimony Pendente Lite

(“APL”) entered in the Domestic Relations Section during the course of the

divorce litigation.

With regard to Defendant’s appeal of the January 4, 2021 Order, the

reasons for the Court’s decision are set forth fully in the January 4, 2021

Opinion of the Court, which was filed concurrently with the Order, as well

1

©

as the Master’s Report filed March 20, 2020.’ Because the reasons for the

January 4, 2021 Order are set forth at length in the Opinion and Master’s

Report, we rely on those documents of record and do not duplicate here their

discussions of the factual/procedural background and the reasons for the

Court’s determinations.

With regard to Defendant’s appeal of the APL Orders at issue, the

procedural history of the APL in the Domestic Relations Section and the

propriety of those Orders are addressed herein.

PROCEDURAL BACKGROUND

On July 5, 2017, Plaintiff, Heather Trapasso, filed a Complaint to

establish APL with the Northampton County Domestic Relations Section.

See Complaint, Trapasso v. Trapasso, DR-095317 (C.P. Northampton

7/5/2017).”. At the Court’s direction, the parties appeared with counsel for a

support conference on September 26, 2017. See Conference Notes,

Trapasso, supra. (C.P. Northampton 9/26/2017). The parties’ 2016 income

tax returns were received, however, at the conclusion of the conference, it

was noted that disposition of the case was pending receipt of Defendant’s

! Paragraph 14 of the January 4, 2021 Order states that, “[e]xcept as modified herein, in all other

respects, the Master’s Report is accepted and approved by the Court, and made a part hereof.”

2 Plaintiff, Heather Trapasso, filed a Complaint in Divorce at Northampton County Civil Docket

No. C-48-CV-2013-03559. The Complaint to establish APL in the instant matter was a copy of

the Complaint in Divorce certified to the Domestic Relations Section on July 5, 2017.

pay stubs and a tax return for Defendant’s business. See Conference Notes,

Trapasso, supra. (C.P. Northampton 9/26/2017).

On or about October 23, 2017, Defendant submitted to the Honorable

Paula A. Roscioli a “Petition to Dismiss Plaintiff's Claim for Alimony

Pendente Lite.” See Defendant’s Petition to Dismiss Plaintiff's Claim for

Alimony Pendente Lite, Trapasso, supra. (C.P. Northampton 11/16/2017)’.

Also on October 23, 2017, Judge Roscioli ordered that Defendant’s Petition

to Dismiss Plaintiff's Claim for Alimony Pendente Lite would be heard on

the De Novo Hearing List scheduled for November 6, 2017 before the

Honorable Michael J. Koury, Jr. See Order of Court, Trapasso, supra. (C.P.

Northampton 10/23/2017).

Following receipt of the documentation required at the conclusion of

the September 26, 2017 conference, Defendant was found to have a monthly

disposable net income in 2016 in the amount of $19,702.75, while Plaintiff's

monthly disposable net income was determined to be $13,398.77. See

Conference Notes, Trapasso, supra. (C.P. Northampton 10/25/2017). On

October 25, 2017, the Honorable Paula A. Roscioli entered an Order of

Court, utilizing the parties’ monthly disposable net incomes as determined

by the Conference Officer and the formula provided by the Pennsylvania

3 The Petition was received on 10/24/2017 but filed and docketed on November 16. 2012.

Rules of Civil Procedure, requiring Defendant to pay APL in the amount of

$2,774.00 per month, effective July 5, 2017. The award was allocated

$2,522.00 for current support of Plaintiff and $252.00 for arrears. See Order

of Court, Trapasso, supra. (C.P. Northampton 10/25/2017) (“October 2017

Order”). Arrears as of October 25, 2017 were set at $9,804.71. Id.

Defendant was required to provide medical insurance coverage for Plaintiff.

Id. Pursuant to the October 2017 Order, APL was set to terminate on July 4,

2019 absent a written request from Plaintiff indicating the need for

continued support. Id. The October 2017 Order also provided that APL

could terminate earlier than July 4, 2019 if the parties reached a settlement,

or if ordered by the Court. Id.

On November 6, 2017, the parties appeared before Judge Koury for

the scheduled hearing on Defendant’s Petition to Dismiss Plaintiff's Request

for APL. On November 16, 2017, Judge Koury entered an Order of Court

denying Defendant’s request to dismiss Plaintiff's claim for APL. See Order

of Court, Trapasso, supra. (C.P. Northampton 11/17/2017). The Order

directed the parties to comply with the October 25, 2017 Order. Id.

On December 6, 2017, Defendant filed a Notice of Appeal of the

November 16, 2017 Order to the Superior Court. See Notice of Appeal,

Trapasso, supra. (C.P. Northampton 12/6/2017). Defendant failed to request

a transcript of the November 6, 2017 hearing and failed to submit a

Statement of Errors Complained of on Appeal. On December 16, 2018, the

Court received a Notice of Discontinuance of Appeal by Defendant.

On June 5, 2019, Plaintiff filed a written request for continued APL

and demand for a de novo hearing regarding the continuation of the APL in

this matter. On June 6, 2019, Defendant filed a written demand for de novo

hearing regarding opposition to continued APL. The parties were ordered to

appear at a complex/separate listing hearing to occur on July 22, 2019,

which was subsequently continued to August 12, 2019.

On August 12, 2019, the parties appeared before the Honorable

Samuel P. Murray for the hearing on Plaintiffs request for continued

alimony pendente lite and Defendant’s opposition thereto. Following the

hearing, Judge Murray entered an Order directing counsel for Plaintiff to

submit a letter brief within 30 days and indicating that after receipt of the

that documentation, further disposition would be made by the Court. See

Order of Court, Trapasso, supra. (C.P. Northampton 8/23/2019). Counsel

for Plaintiff timely submitted his brief on September 3, 2019. Counsel for

Defendant submitted a brief on September 26, 2019.

On October 9, 2019, Judge Murray entered an Order granting

Plaintiffs request for continued APL and extended Defendant’s APL

obligation for an additional six (6) months effective July 5, 2019. See Order

of Court, Trapasso, supra. (C.P. Northampton 10/11/2019). APL was set to

terminate on January 4, 2020 absent a written request from Plaintiff

indicating the need for continued support. Id. All other contingencies of the

October 25, 2017 Order remained in full force and effect. Id.

On January 6, 2020, Judge Roscioli entered an Order directing

Defendant to pay $2,774.00 per month for arrears, effective January 4, 2020.

See Order of Court, Trapasso, supra. (C.P. Northampton 1/6/2020). No

insurance was ordered. Id. The Order terminated APL as of January 4, 2020

in accordance with Judge Murray’s October 9, 2019 Order. Id. Upon

payment of the arrears in full, the case was to be closed. Id. On February

28, 2020, Judge Roscioli entered an Order of Court closing the case and

vacating the attachment of Defendant’s income as the record indicated that

the arrears had been paid in full.

On February 3, 2021, Defendant, Joseph Trapasso, filed a Notice of

Appeal in the divorce case, Northampton County docket no. C-48-CV-2013-

3359, of an Order entered by the undersigned on January 4, 2021 granting in

part and denying in part exceptions filed to the Master’s Report by both

parties. In the Notice of Appeal, Defendant indicated that he was also

appealing “previous interlocutory Orders granting Alimony Pendente Lite,

as entered on the docket”. See Notice of Appeal, Trapasso v. Trapasso, CV-

2013-3359 (C.P. Northampton 2/3/2021). On March 3, 2021, Defendant

filed his Rule 1925(b) Statement of Errors Complained of on Appeal in the

divorce matter. Paragraph three (3) of the Statement of Errors set forth the

following averment: “Did the lower court err in granting and continuing

Plaintiff's alimony pendente lite where she showed no need and had

substantial income, sometimes greater than Defendant during the marriage?”

See Defendant’s Rule 1925(b) Statement, Trapasso v. Trapasso, CV-2013-

3359 (C.P. Northampton 3/3/2021).

STANDARD OF REVIEW.

It is well established that “[i]t is within the discretion of the lower

court to determine the amount of a support Order.” Hartley v. Hartley, 528

A.2d 233, 235 (Pa. Super. 1987) (citing Costello v. LeNoir, 337 A.2d 866

(Pa. 1975)). It is further well established that on appeal the Superior Court

will “review APL awards under an abuse of discretion standard.” Childress

v. Bogosian, 12 A.3d 448, 463 (Pa. Super. 2011) (citing Haentjens v.

Haentjens, 860 A.2d 1056 (Pa. Super. 2004)). The Superior Court has stated

that the “standard of review for awards of alimony pendente lite is well

settled. If an order for alimony pendente lite is bolstered by competent

evidence, the order will not be reversed absent an abuse of discretion by the

trial court.” Isralsky v. Isralsky, 824 A.2d 1178, 1188 (Pa. Super. 2003)

(quoting Jayne v. Jayne, 663 A.2d 169, 176 (Pa. Super. 1995)). “In order to

overturn the decision of the trial court, we must find that it ‘committed not

merely an error of judgment, but has overridden or misapplied the law, or

has exercised judgment which is manifestly unreasonable, or the product of

partiality, prejudice, bias or ill will as demonstrated by the evidence of

record.’” Dudas v. Pietrzykowski, 849 A.2d 582, 585 (Pa. 2004).

The Pennsylvania Supreme Court has stated as follows:

“Abuse of discretion” is synonymous with a failure

to exercise a sound, reasonable, and legal

discretion. It is a strict legal term indicating that

[an] appellate court is of opinion that there was

commission of an error of law by the trial court. It

does not imply intentional wrong or bad faith, or

misconduct, nor any reflection on the judge but

means the clearly erroneous conclusion and

judgment—one that is clearly against logic and

effect of such facts as are presented in support of

the application or against the reasonable and

probable deductions to be drawn from the facts

disclosed upon the hearing; and improvident

exercise of discretion; and error of law.

Commonwealth v. Powell, 590 A.2d 1240, 1244 (Pa. 1991). A finding of

abuse of discretion will be made only upon a showing of clear and

convincing evidence. Id.

DISCUSSION

It is respectfully submitted that Defendant’s appeal of the APL Orders

entered during the course of the divorce proceedings is without merit and

should be dismissed. It was not an error of law or an abuse of discretion to

grant Plaintiff APL during the pendency of the divorce proceedings, or to

continue APL until the conclusion of the divorce litigation.

23 Pa.C.S.A. § 4322(a) provides that “[c]hild and spousal support

shall be awarded pursuant to a Statewide guideline as established by general

rule by the Supreme Court, so that persons similarly situated shall be treated

similarly. (emphasis added). That section further notes as follows:

[t]he guideline shall be based upon the reasonable

needs of the child or spouse seeking support and

the ability of the obligor to provide support. In

determining the reasonable needs of the child or

spouse seeking support and the ability of the

obligor to provide support, the guideline shall

place primary emphasis on the net incomes and

earning capacities of the parties, with allowable

deviations for unusual needs, extraordinary

expenses and other factors, such as the parties'

assets, as warrant special attention.

23 Pa.C.S.A. § 4322(a) (emphasis added). Pa.R.C.P. No. 1910.16-1

provides that “[e]xcept as provided in subdivision (3), the support guidelines

determine the amount of support that a spouse or parent should pay based on

the parties' combined monthly net income, as defined in Pa.R.C.P. No.

1910.16-2, and the number of persons being supported.”* Pa.R.C.P. No.

1910.16-1(a). Rule 1910.16-1 further provides that “[t]he support amount

(child support, spousal support or alimony pendente lite) awarded pursuant

to the Pa.R.C.P. Nos. 1910.11 and 1910.12 procedures must be determined

in accordance with the support guidelines, which consist of the guidelines

expressed as the child support schedule in Pa.R.C.P. No. 1910.16-3,

the Pa.R.C.P. No. 1910.16-4 formulas, and the operation of the guidelines as

set forth in these rules.” Pa.R.C.P. No. 1910-16.1(b) (emphasis added). The

Rules also specifically note that “[i[f the trier-of-fact determines that a party

has a duty to pay support, there is a rebuttable presumption that the

guideline-calculated support amount is the correct support amount.”

Pa.R.C.P. No. 1910.16-1(d).

When the October 25, 2017 APL Order was entered, Pa.R.C.P. No.

1910.16-3.1 provided that “[i]Jn cases in which the parties’ combined

monthly net income exceeds $30,000, the trier of fact shall apply the

formula in Part IV of Rule 1910.16-4(a) as a preliminary analysis in

calculating spousal support or alimony pendente lite.” Pennsylvania Rule of

Civil Procedure No. 1910.16-4 provides the formulas for calculating support

4 Subdivision 3 addresses circumstances where the plaintiff is a public body and is not applicable

to the instant matter.

10

obligations under various circumstances. Part IV of Rule 1910.16-4,

paragraphs 22 through 29 set forth the formula to calculate the APL

obligation of a defendant when there are no minor children. That section

provides the following formula for calculating APL with no dependent

children:

22. Obligor's Monthly Net Income (line 4)

23. Obligor's Support, Alimony Pendente Lite or Alimony

Obligations to Children or Former Spouses who are not

part of this action, if any (Pa.R.C.P. No. 1910.16-2(¢)2)) ()_

24. Obligee's Monthly Net Income (line 4) ee )

25. Difference

(line 22 minus lines 23 and 24)

26. Multiply by 40% oo KAO

27. Preliminary Monthly Spousal Support or APL amount

(line 25 multiplied by line 26)

28. Adjustments for Other Expenses (See Pa.R.C.P. No.

1910.16-6)

(line 12f)

29. Total Monthly Spousal Support or APL amount

(line 27 plus or minus line 28, as appropriate)

This was the formula utilized by the Conference Officer to determine the

recommended APL obligation for Defendant, and the calculations were

provided to the parties. The resulting amount calculated utilizing this

formula was set forth in the October 25, 2017 Order.

As set forth above, APL was initially ordered on October 25, 2017.

See Order of Court, Trapasso v. Trapasso, DR-95317 (C.P. Northampton

10/26/2017). Defendant was ordered to pay APL in the amount of $2,774.00

11

per month effective July 5, 2017, the date on which the Complaint for APL

was filed with the Domestic Relations Section. Id. The monthly APL

payment was allocated $2,522 for basic support and $252.00 on arrears. Id.

APL was set to terminate on July 4, 2019 absent a written request for

continued support from Plaintiff. Id. Arrears as of October 25, 2017 were

set at $9,804.71. Id.

The October 25, 2017 Order was entered following a conference on

September 26, 2017. At the conference, both parties appeared with counsel

and provided information and documentation of income. See Conference

Notes, Trapasso, DR-95317 (C.P. Northampton 9/26/2017). Defendant

reported being a partner in a Urology medical practice that had recently been

sold to St. Luke’s Physician’s Group. Id. Defendant reported that he had

recently begun receiving a salary of approximately $400,000.00 per year,

along with potential additional incentives. Id. Defendant was directed to

submit his full 2016 Federal Tax Return and business returns within seven

(7) days of the conference. Id. Plaintiff submitted her 2016 Federal Tax

Return at the time of the conference. Id. Plaintiff's 2016 return indicated

gross receipts of $283,360.00. Id. Following review of the parties’ tax

returns, Defendant was found to have a monthly disposable net income in

2016 of $19,702.75. See Conference Follow-Up Notes, Trapasso, DR-

12

95317 (C.P. Northampton 10/25/2017). Plaintiff was determined to have a

monthly disposable net income in 2016 of $13,398.77. Id. The Domestic

Relations Conference Officer then properly utilized the formula set forth in

Pa.R.C.P. 1910.16-4 to calculate Defendant’s APL obligation at $2,521.59

and this amount was properly included in the October 25, 2017 Order.

These calculations were provided to the parties and their counsel.

Based on the above, it was clearly not an error of law or an abuse of

discretion to enter the October 25, 2017 APL Order. The correct figures

were utilized for the parties’ incomes, and the calculations were run

properly. The Defendant’s APL obligation was determined utilizing the

statutory scheme and formula, as required by the Pennsylvania Rules of

Civil Procedure and applicable statutes.

Defendant’s request to dismiss Plaintiff’s claim for APL was heard

before Judge Koury on November 6, 2017. Defendant has not requested and

has not filed with the Court a transcript of that hearing. However, on

November 16, 2017, Judge Koury entered an Order denying Defendant’s

request to dismiss Plaintiff’s claim for APL and requiring compliance with

the October 25, 2017 Order. See Order of Court, Trapasso, DR-95317 (C.P.

Northampton 11/17/2017). Given that Defendant’s APL obligation was

properly calculated, it was not an error of law or an abuse of discretion to

13

deny Defendant’s request to dismiss Plaintiff's claim for APL and to require

compliance with the October 25, 2017 APL Order.°

On June 5, 2019, counsel for Plaintiff filed a demand for a hearing to

continue APL. On June 6, 2019, counsel for Defendant filed a written

demand for a hearing regarding opposition to the continuation of APL. A

hearing occurred on August 12, 2019 before Judge Murray on the issue of

continued APL. Defendant has not requested or submitted to the Court a

transcript of that hearing. Following the hearing, counsel for Plaintiff was

directed to submit a letter brief in support of Plaintiffs request for continued

APL. Counsel for both parties submitted legal briefs, and after considering

the arguments set forth therein, Judge Murray entered an Order granting the

request for continued APL and extending APL six (6) months, to terminate

on January 4, 2020, absent another request from Plaintiff indicating the need

for continued support. See Order of Court, Trapasso, DR-95317 (C.P.

Northampton 10/11/2019).

It is well established that “APL is ‘an order for temporary support

granted to a spouse during the pendency of a divorce or annulment

proceeding’”. Schenk v. Schenk, 880 A.2d 633, 644 (Pa. Super. 2005)

5 As reflected in the DRS docket, Defendant filed an appeal of the November 16, 2017 Order.

Defendant did not file a Statement of Errors complained of on Appeal, did not request or submit a

transcript, and subsequently discontinued the appeal.

14

(quoting 23 Pa.C.S.A. § 3103). APL “is designed to help the dependent

spouse maintain the standard of living enjoyed while living with the

independent spouse.” Id. (quoting Litmans v. Litmans, 673 A.2d 382, 389

(Pa. Super. 1996)). Furthermore, “APL is based on the need of one party to

have equal financial resources to pursue a divorce proceeding when, in

theory, the other party has major assets which are the financial sinews of

domestic warfare.” Id. APL, therefore, is not dependent on the status of the

party, but on the state of the litigation. Id.

As set forth in the October 25, 2017 Order, APL was set to terminate

on July 4, 2019, absent written request from Plaintiff indicating the need for

continued support. Plaintiff submitted that request and a hearing was held

on that request. The record reflects that as of June 5, 2019 when the request

for continued APL was filed, as of August 12, 209 when the hearing on the

request occurred, and on October 9, 2019 when Judge Murray entered the

Order continuing the APL in this matter, the parties’ divorce proceedings

remained ongoing at Northampton County docket no. C-48-CV-2013-3559.

Given that APL is “dependent on the state of the litigation”, as stated above,

it was not an error of law or an abuse of discretion to continue the APL for

an additional 6 months while the divorce litigation continued.

15

CONCLUSION

For the reasons set forth at length in the Court’s January 4, 2021

Opinion and Order, as well as in the Master’s Report to the extent it is made

a part thereof, it is respectfully submitted that the issues identified in

paragraphs 1, 2 and 4 of Defendant’s Statement of Errors Complained of on

Appeal are without merit. We respectfully request that our decision should

be affirmed and Defendant’s appeal dismissed.

With regard to paragraph 3 concerning the Court’s APL

determinations, for the reasons set forth herein we submit that Defendant’s

APL obligation was properly calculated utilizing the appropriate figures and

formulas required by the Rules of Civil Procedure. Defendant did not have a

legal basis to dismiss Plaintiff's claim for APL at any point during the

litigation. When requested by Plaintiff, Defendant’s APL obligation was

properly extended for six months while the parties’ divorce proceedings

continued. Defendant’s APL obligation came to an end on January 4, 2020,

pursuant to the Court’s Order and was not extended beyond that point,

despite the fact that the divorce proceedings continued for another year, until

the January 4, 2021 Order currently on appeal. The Court did not commit an

error of law or an abuse of discretion in awarding Plaintiff APL or extending

it an additional 6 months after the initial award was set to expire. Therefore,

16

paragraph 3 of Defendant’s Statement of Errors Complained of on Appeal is

similarly without merit and we respectfully request that our decision be

affirmed and Defendant’s appeal dismissed.

BY THE COURT

Ne WA. Aroralt

JOR M. MORGANELLL, J.

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17

MeO [~O-LOA LA

aS

IN THE COURT OF COMMON PLEAS OF

° NORTHAMPTON COUNTY, PENNSYLVANIA

CIVIL DIVISION — LAW

HEATHER L. TRAPASSO, CIVIL ACTION

Plaintiff

NO. C-0048-CV-2013-3559

V.

JOSEPH G. TRAPASSO,

Defendant

IN DIVORCE

ORDER OF COURT

AND NOW, this Sf 4 day of You vary » OAS , upon consideration of the

exceptions to the Master’s Report filed by Plaintiff, Heather L. Trapasso, and Defendant, Joseph

G. Trapasso, it is hereby ORDERED as follows:

1. Plaintiff's Exceptions Nos. 1, 5, and 6 are DENIED.

2. Plaintiff's Exceptions Nos. 2, 3, 4, and 7 are GRANTED.

3. Defendant’s Exceptions Nos. 1 and 2 are GRANTED.

4. Defendant’s Exceptions Nos. 3, 4, 5, and 6 are DENIED.

5. Defendant’s Exceptions Nos. 7 and 8 are GRANTED IN PART and DENIED IN

PART as follows:

a. Granted to the extent that they seek distribution as a percentage of marital assets

rather than a specific dollar amount;

b. Denied to the extent that they seek the consideration of evidence outside of the

record with regard to post-hearing fluctuations in the value of certain assets.

ms,

IT IS FURTHER ORDERED AND DECREED as follows: LS &

ne

>

VS

1

10.

11.

12.

13.

14.

The parties will be divorced from the bonds of matrimony by a separate order to be

entered upon the completion of the equitable distribution scheme set forth within this

order.

Neither party is entitled alimony or counsel fees.

Husband shall transfer to Wife the sum of $918,464.00 in order to effectuate a 50%

division of the marital estate. If necessary, the parties will cooperate in the preparation

of a qualified domestic relations order and will share the costs associated therewith.

Husband shall return to Wife art from the Briarwood Home, one piece located within

the foyer and two pieces from the library.

The Parties shall execute, within 14 days of presentment, all documents necessary to

effectuate the contents of this order.

The Parties shall be equally responsible for any outstanding court or stenographer fees

associated with this matter.

Except as set forth in this Order, neither party is entitled to any further distributions or

transfers.

The Court retains jurisdiction of any claims raised by the parties to this matter for

which a final Order has not yet been entered.

Except as modified herein, in all other respects, the Master’s Report is accepted and

approved by the Court, and made a part hereof.

BY THE COURT:

CO )/otw. vnugentl:

M. MORGANELLL, J.