Opinion
J-S06003-18 No. 1431 EDA 2017
08-27-2018
PAUL ADAMS Appellant v. CARRIE ADAMS
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 28, 2017
In the Court of Common Pleas of Delaware County Civil Division at No(s): 2010-003254 BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY BOWES, J.:
Paul Adams ("Husband") appeals pro se from the trial court's final equitable distribution order. We affirm.
Husband and Wife (respectively aged forty-two and forty at the time of trial) married in February 2006 after having a daughter together in 2004. Husband contends that the parties separated in September 2007, when Wife moved out and filed for custody and support for their daughter. Wife contends that the parties resumed cohabitation thereafter, and that the date of separation was not until February 2009. The parties' daughter has resided with Wife since the parties separated.
Husband filed a complaint for divorce in March 2010. Wife filed an answer and counterclaim, and requested equitable distribution. The proceedings were bifurcated, with a divorce decree entered in September 2013. The remaining economic claims proceeded to a hearing before a hearing officer, and a subsequent de novo equitable distribution trial upon Wife's demand. The parties agreed that the only marital asset to be divided was $9,939.38 that constituted the marital portion of Husband's individual retirement account (IRA).
As Husband has been incarcerated since November 2012 and is serving a sentence of thirty to sixty years, Husband attended the hearing via video conference.
The pre-marital portion of the IRA belonging to Husband and not subject to equitable distribution was $39,160.80. See Trial Court Opinion, 7/30/17, at 13.
The trial court issued an order distributing the marital property on March 27, 2017, and an amended order the following day awarding 100% of the marital portion of the IRA to Wife. Husband filed a timely notice of appeal, and both Husband and the trial court complied with Pa.R.A.P. 1925. Husband presents this Court with two issues, which we have re-ordered for ease of disposition.
Husband's concise statement of errors complained of on appeal, due on May 23, 2017, was not entered on the docket until May 25, 2017. However, it appears that his statement was timely filed under the prisoner mailbox rule, which provides that a pro se prisoner is deemed to have made his filing on the date it was deposited in the prison mail system. See Thomas v. Elash , 781 A.2d 170, 176 (Pa.Super. 2001) ("[T]he prisoner mailbox rule applies to all pro se legal filings by incarcerated litigants."); Commonwealth v. Cooper , 710 A.2d 76, 78-79 (Pa.Super. 1998) (holding prisoner mailbox rule may be applied to deem a filing timely where "the opposing party does not challenge the timeliness . . . and the prisoner's assertion of timeliness is plausible").
I. Whether the trial court committed an error of law and/or abused its discretion when it determined the date of separation as February 7, 2009.Husband's brief at 4.
II. Whether the trial court committed an error of law and/or abused its discretion when it granted . . . Wife 100% of the marital portion of the asset and the increase in value during the length of the marriage when the marital assets should have been most properly divided equally between the parties.
We begin with Husband's challenge to the trial court's acceptance of Wife's date of separation in February 2009 over Husband's suggested date in September 2007. Spouses are considered separated when they begin living "separate and apart." That term is defined as the "Cessation of cohabitation, whether living in the same residence or not." 23 Pa.C.S. § 3103. "In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served." Id. However, that presumption may be rebutted if "an earlier date can be substantiated through the presentation of evidence confirming an earlier date." McCoy v. McCoy , 888 A.2d 906, 912 (Pa.Super. 2005). In determining such factual questions, "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." Yuhas v. Yuhas , 79 A.3d 700, 704 (Pa.Super. 2013) (en banc).
Husband contends that the date of separation was established in this case by Wife's moving out and filing a complaint for support and custody in September 2007. Husband's brief at 11. While he acknowledges that Wife and their daughter moved back into his residence from July 2008 to February 2009, he argues that "there was no reconciliation of the marital relationship" based upon the ongoing litigation of the custody and support matters. Id. Husband contends that the trial court's ruling that the date of separation was in February 2009 is thus "contrary to the record." Id.
Wife, however, testified that after she moved out, she and Husband cohabited while trying to work out their marital difficulties. According to Wife, when she moved back with Husband in 2008, she and Husband resumed attending family functions together, celebrating anniversaries, going on vacations together, engaging in counseling, and having sex. See N.T., 1/26/17, at 33-35.
The trial court offered the following rationale for its determination that the date of separation was in February 2009.
In the instant matter, the divorce complaint was filed by [Husband] on March 22, 2010. However, Husband and Wife both agreed that they separated prior to the filing of the divorce complaint. The dispute between them involves Husband's contention that the parties separated on September 1, 2007 and Wife's contention that the parties separated on February 7, 2009. This Court found that Wife's established date of separation was consistent with the standards articulated in the case law cited above.
Specifically, this Court found as follows:
a. Wife moved out of the parties' residence on September 1, 2007. Wife filed a Complaint for Custody and a Complaint for Support on September 17, 2007.
b. From September 1, 2007 through January of 2009, Husband and Wife attempted to "work things out." Wife (and the child) moved back in to Husband's residence and that the parties resided together for a period of eight (8) months in 2008.
c. During the period of time wherein Husband and Wife were attempting to resolve issues of discord between them and look toward reconciliation, including the period of time in 2008 when Wife returned with the child to live with Husband, Wife continued to collect child support. Wife never terminated the child support order.
d. Wife testified that she signed a lease to obtain her own residence on January 15, 2009, and moved into the new residence on February 7, 2009. Since that date, the parties have maintained separate residences. However, according to Wife, even after the parties lived separately, they continued to wear wedding rings, attend family functions together, celebrate anniversaries, and go on vacation together. However, Husband testified that the parties did not wear wedding rings or in any other way demonstrate an intent to reconcile or portray themselves as husband and wife.
Trial Court Opinion, 7/30/17, at 20-22 (citations omitted).
Based on the facts, as summarized above, this Court found that neither party demonstrated an unequivocal intent to end the marriage until Wife left the marital residence permanently on February 7, 2009. Therefore, this Court found the parties' date of separation to be February 7, 2009.
In asking this Court to reach a different conclusion, Husband relies upon his testimony that the parties "did not commence a renewed marital relationship" after Wife moved out in September 2007. Husband's brief at 11. However, the trial court's findings are amply supported by the record. See N.T., 1/26/17, at 34-35 (Wife testifying that after she moved out, she and Husband cohabited for another eight months, including attending family functions together, celebrating anniversaries, having sex, going on vacations together, and doing "counseling type activities"). We may not reverse the trial court's credibility determinations or its findings based upon them. Yuhas , supra at 704. As such, the evidence substantiates the separation date found by the trial court. Therefore, Husband's first issue merits no relief.
We consider Husband's remaining question, regarding the trial court's division of the marital assets, mindful of the following.
A trial court has broad discretion when fashioning an award of equitable distribution. Our standard of review when assessing the propriety of an order effectuating the equitable distribution of marital property is whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure. We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence. This Court will not find an abuse of discretion unless the law has been overridden or misapplied or the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence in the certified record. In determining the propriety of an equitable distribution award, courts must consider the distribution scheme as a whole. 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.Reber v. Reiss , 42 A.3d 1131, 1134 (Pa.Super. 2012) (quoting Biese v. Biese , 979 A.2d 892, 895 (Pa.Super. 2009)).
In fashioning an equitable distribution award, the trial court must consider, at a minimum, the eleven factors set forth in 23 Pa.C.S.A. § 3502 . . . . These factors require the trial court to consider the relative economic positions of the parties and the nature of the parties' relationship. The section 3502 factors are not a simple formula, rather they serve as a guideline for consideration. The facts of a particular case mandate how the section 3502 factors will be applied.Gates v. Gates , 933 A.2d 102, 105 (Pa.Super. 2007). The factors enumerated in § 3502 are as follows.
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.23 Pa.C.S. § 3502(a). In reviewing a trial court's distribution order, this Court will not engage in a factor-by-factor review of the trial court's rulings. As we have explained:
(10.1) The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.
(10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.
(11) Whether the party will be serving as the custodian of any dependent minor children.
We do not evaluate the propriety of the distribution order upon our agreement with the court['s] actions nor do we find a basis for reversal in the court's application of a single factor. Rather, we look at the distribution as a whole, in light of the court's overall application of the [23 Pa.C.S. § 3502(a)] factors . . . . If we fail to find an abuse of discretion, the [o]rder must stand.Lee v. Lee , 978 A.2d 380, 383 (Pa.Super. 2009) (quoting Trembach v. Trembach , 615 A.2d 33, 36 (Pa.Super. 1992)).
Husband contends that the trial court "failed to appropriately weigh all the factors." Husband's brief at 9. Specifically, Husband highlights that Wife has substantial income from her full-time employment and rental property. Id. Further, Husband suggests that it is likely that Wife will in the future acquire substantial capital assets and realize increased income. Id. Therefore, although Wife will be the custodian of their daughter, the disparities in the parties' economic circumstances call for an equal split of the marital property. Id. at 9-10.
The trial court offered the following in response to Husband's claim of error.
Husband's contention, that th[e trial c]ourt abused its discretion because it awarded Wife 100% of the marital assets in question, is without merit. The only marital asset at issue is Husband's [IRA]. Th[e trial c]ourt weighed the factors under 23 Pa.C.S. § 3502(a), and found that an award to Wife in the amount of 100% of the marital portion of the IRA was fair, just, and equitable.Trial Court Opinion, 7/30/17, at 13-14 (footnote omitted).
In its determination, th[e trial c]ourt also considered that a substantial portion of Husband's IRA, approximately [$39,160.80], was pre-marital and therefore not subject to equitable distribution. This significant and separate asset will be available for Husband when he finishes the duration of his prison sentence. The increase in value of Husband's IRA, from date of marriage to date of separation, awarded to Wife, was approximately [$9,939.38].
In fashioning its award with respect to equitable distribution, th[e trial c]ourt also considered the likely appreciation in value of Husband's separate IRA funds, which will accrue from the present date until Husband is released from prison.
Furthermore, th[e trial c]ourt considered the fact that Husband will have no need for income to maintain self-support, as he will be fed, clothed, and sheltered for the next approximately thirty (30) years. It will be Wife who will be responsible for providing care, maintenance and support for herself, her family, and most importantly, [Child], without any assistance from Husband. In accordance with its findings, this Court awarded one hundred percent (100%) of the marital value of the IRA to Wife. The award was logically based upon the factors considered in accordance with 23 Pa.C.S. § 3502(a).
Our review of the record reveals that the trial court did consider all of the relevant factors. See Trial Court Opinion, 7/30/17, at 3-9. The record also shows that, prior to his incarceration, Husband was paying Wife nearly $1,000 per month in child support. N.T., 1/26/17, at 48. Wife received nothing from Husband after November 2012. Id. at 49. Husband acknowledged that he will be unable to contribute to his daughter's financial support for the remainder of her minority. Id. at 59. Moreover, given his sentence of incarceration, Husband will have no personal expenses for food, clothing, and shelter until he is past retirement age. Id. at 58. Yet, as the majority of his IRA is non-marital, he has retained that asset, which will continue to grow while he awaits release from prison.
Thus, there is no indication in the record that "the law has been overridden or misapplied or the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will." Reber , supra at 1134. From the facts of this case and the trial court's explanation for its decision, we cannot conclude that the award to Wife of the full value of the single marital asset—an amount less than $10,000—was an abuse of discretion. Therefore, Husband's second issue warrants no relief from this Court.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/27/18