Opinion
J-S85032-16 No. 186 EDA 2016
02-27-2017
MEHRNOSH MASSERRAT v. ESMAEEL MASSERRAT, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order enteredDecember 18, 2015 in the Court of Common Pleas of Leigh County,
Civil Division, No(s): 2006-FC-1453 BEFORE: PANELLA, RANSOM and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Esmaeel Masserrat ("Husband"), pro se, appeals from the final Order equitably distributing the parties' marital assets. We affirm.
In its Memorandum Opinion filed on July 14, 2016, the trial court described the factual history underlying the instant appeal as follows:
[Husband and Mehrnosh Masserrat ("Wife")], Iranian citizens, had separated on October 25, 2006, just two months shy of their twenty-first wedding anniversary, having married [on] December 30, 1985.... It was the first marriage for each of them. At the time of the marriage, Husband was employed as an electrical engineer and Wife was a college student. The marriage produced two children, both of whom have reached the age of majority.
Wife was born on July 29, 1961, and thus she is now fifty-four years of age. Husband is approximately fifty-five years of age. Husband is still an electrical engineer. Wife has an associate[']s degree in business, a bachelor's degree in accounting, and obtained a Master[']s Degree in Business Administration after separation. Throughout the course of this
litigation, both [H]usband and [W]ife have had periods of unemployment and different employers....Trial Court Memorandum Opinion, 7/14/16, at 6-7 (footnote added).
At the time of the 2009 hearings in front of the Divorce Master, [W]ife had an existing health condition and a lack of formal work experience[,] which the Master found would give Husband a superior ability to earn income and to acquire assets in the future. Husband contributed to Wife's education[,] paying for her accounting classes at Mulhenberg College in exchange for Wife cooking, cleaning, cutting the grass, and everything else. Husband's approximate annual income[,] when he was employed by LSI[,] was $125,000 a year. The Lehigh County Domestic Relations Section determined the parties' net monthly incomes to be $7,100 for Husband and $2800 for Wife. At the time of separation, ... Wife was caring for dependent minor child[,] N.M.[,] at the marital residence.
Wife also is appearing pro se in the instant appeal.
In its Memorandum Opinion, attached to the trial court's Pa.R.A.P. 1925(a) Statement, the trial court details the protracted procedural history, which we adopt for the purpose of this appeal. See Trial Court Memorandum Opinion, 7/14/16, at 8-11. The court filed its final Order, equitably distributing the parties' marital assets, on December 18, 2015. Husband, pro se, timely filed a Notice of Appeal, followed by a Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Husband presents the following claims for our review:
(1) Can the Master of divorce/[trial] court ["Master"] disregard official documents being delivered to the court (on several occasions) and give $25,000[] credit to [Husband] as the value of [a] joint stock account at separation date, based solely on hearsay?
(2) Can the [trial] court give [Wife] $62,000[] credit for paying down the [m]ortgage while the following condition[s] appl[y]:
- [Husband] is denied his rental portion of the marital home since [the parties'] separation date of Oct. 25, 2006.
- [Husband] is forced out of the marital home[,] yet he is required to pay full support[,] which included additional mortgage deviation to [Wife.]
Brief for Appellant at 6-8 (emphasis and some extraneous argument omitted, footnote added).
Is there a legal obligation to pay support and mortgage deviation[,] but no rights for [Husband] in this case?
(3) Can the Master/[trial] court deny [Husband the] [f]air [r]ental [c]redit for his portion of the [m]arital [h]ome based solely on [an] unsubstantiated statement of abuse (as determined by court actions) as well as ignoring the terms of the [Protection from Abuse Act ("PFA") Order] signed by both parties?
(4) What justice is served when [the trial] court disregard[ed] [Pa.R.C.P.] 1910.16-6 and force[d] [Husband,] who has been evicted from [the] marital home, to take [on the] burden of paying 55% share of [the] marital home [r]eal [e]state [t]axes[,] amounting to $23,000[]?
(5) Can the [trial] court force an appraisal on the marital home, in spite of objections by [Husband] as to how the appraisal is done, and put a value on the marital home that is about $100,000[] below the market value of the home? And then deny [Husband] from purchasing the [m]arital [h]ome at the appraised value? Isn't this self[-]evident, and therefore[, an] abuse of [d]iscretion, that [the] appraised value is unfair?
(6) Are witnessing of 5 people [sic] ... as to [the] existence[] of valuable Persian carpets in [the] marital home, not a preponderance of evidence against [the] sole witnessing of one person, [Wife]?
Our review of an award of equitable distribution is guided by the following principles:
A trial court has broad discretion when fashioning an award of equitable distribution. Dalrymple v. Kilishek , 920 A.2d 1275, 1280 (Pa. Super. 2007). 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." Smith v. Smith , 904 A.2d 15, 19 (Pa. Super. 2006) (citation omitted). We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence. Id. 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." Wang v. Feng , 888 A.2d 882, 887 (Pa. Super. 2005). In determining the propriety of an equitable distribution award, courts must consider the distribution scheme as a whole. Id. "[W]e measure the circumstances of the case against the objective of effectuating economic justice between the parties and achieving a just determination of their property rights." Schenk v. Schenk , 880 A.2d 633, 639 (Pa. Super. 2005) (citation omitted).Childress v. Bogosian , 12 A.3d 448, 455 (Pa. Super. 2011) (quoting Biese v. Biese , 979 A.2d 892, 895 (Pa. Super. 2009)). "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." Morgante v. Morgante , 119 A.3d 382, 387 (Pa. Super. 2015) (citation omitted).
Husband first claims that the trial court abused its discretion in valuing his joint stock account, as of the date of separation, at $25,000. Brief for Appellant at 16-18. In support, Husband challenges the transcription of numbers in the October 16, 2009 Notes of Testimony. Id. at 17. Husband further asserts that the Master merely picked one statement by Husband, out of several, while ignoring other documentary evidence. Id. at 18.
Although "hearsay" is mentioned in the Statement of Questions Involved, there is no legal argument challenging the admissibility of hearsay evidence in the Argument section of the brief.
In its Memorandum Opinion, the trial court addressed this claim, and concluded that it lacks merit. See Trial Court Memorandum Opinion, 7/14/16, at 16-20. Upon our review of the parties' briefs and the certified record, we agree with the sound reasoning of the trial court, as expressed in its Opinion, and affirm on this basis with regard to Husband's first claim. See id.
In his second claim, Husband argues that the trial court improperly credited $62,000 to Wife, for mortgage payments made by her. Brief for Appellant at 19. Husband claims that he,
alone[,] made all contributions to maintaining the marital property while living together[,] and made substantial contributions to preserving the marital estate even after separation, given that he was charged with a mortgage deviation of around $450[] dollars per month (modified a few times) for about 4 years in the related domestic relations [O]rder from Oct[ober] 2006 [until] March 2010[,] when the Home Equity loan was paid off.Id. (citation omitted). Husband contends that the lack of a fair rental credit to the dispossessed spouse is an unfair enrichment to the possessing spouse, at the expense of the dispossessed spouse. Id. at 22. Husband further argues that the trial court improperly ignored evidence that he has been paying a mortgage deviation on the property, as part of his support obligation to Wife. Id. Husband asserts that an unfair burden is placed on him, as he is forced to share in paying the real estate taxes on the marital home, during the time that a PFA Order was in effect. Id.
In its Memorandum Opinion, the trial court addressed this claim and concluded that it lacks merit. See Trial Court Memorandum Opinion, 7/14/16, at 20-23. We agree with the sound reasoning of the trial court, as set forth in its Memorandum Opinion, and affirm on this basis with regard to Husband's second claim. See id.
In his third claim, Husband argues that the trial court improperly denied him a fair rental credit for his portion of the marital home, "given that he had to rent separate living quarters." Brief for Appellant at 23. Husband contends that Wife's claim of abuse "was totally unsubstantiated and the [a]ssault case against [Husband] was dropped by the action of [the district attorney,] and this fact has been ignored by the trial court." Id. at 24.
In his fourth claim, Husband asserts that the trial court improperly denied him a fair rental credit, in violation of Pa.R.C.P. 1910.16-6. Id. at 24-26. Husband argues that based on Pa.R.C.P. 1910.16-6, especially where his has not been given fair rental credit, "the tax expenses are solely [Wife] alone and [Husband] should be given 100% credit for the money removed from [a] frozen account to pay [r]eal [E]state taxes." Id. at 26.
In its Memorandum Opinion, the trial court addressed these two claims and concluded that they lack merit. See Trial Court Memorandum Opinion, 7/14/16, at 23-29. We agree with the sound reasoning of the trial court, as expressed in its Memorandum Opinion, and affirm on this basis as to Husband's third and fourth claims. See id.; see also Lee v. Lee , 978 A.2d 380, 388 (Pa. Super. 2009) (recognizing that "in divorce-related equitable distribution, when a spouse has been excluded from the marital home by a [PFA] order, the other spouse may raise an equitable defense against the first spouse's claim to rental credit for the time period in which the order was in effect.").
In his fifth claim of error, Husband argues that his right to a fair appraisal and appeal process was violated when the appraisal was conducted in his absence. Brief for Appellant at 26. Husband contends that he was not informed that an appraisal had taken place until a copy of the appraisal was handed to him in court. Id. Once again, Husband points out that Wife did not make a single mortgage payment while the couple lived together. Id. Husband further contends that he was not afforded an opportunity to challenge the appraisal, which was $100,000 below an estimate on Zillow.com, an online real estate marketplace. Id. at 27. Husband also asserts that the trial court denied him the opportunity to purchase the house at the appraisal price. Id.
The trial court addressed this claim in its Memorandum Opinion, and concluded that it lacks merit. See Trial Court Memorandum Opinion, 7/14/16, at 29-34. We agree with the sound reasoning of the trial court and affirm on this basis as to Husband's fifth claim. See id.
Finally, Husband challenges the trial court's valuation assigned to the parties' personal property. Brief for Appellant at 28. Husband claims that he "should be entitled to at least $50,000 for the personal property that was in Wife's sole possession[,] instead of [the] mere $2500[] credit given to him for everything in the marital home." Id. Husband directs our attention to testimony by him, his children and his expert that the home "was expensively furnished with valuable original Persian carpets[.]" Id.
The Master's Report states the following, with regard to the Persian carpets:
14. The testimony offered by both parties as to their Persian rugs/carpets was confusing and lacking in substantial credibility.
15. The expert offered by Husband as to the value of the rugs/carpets, [] Tahir, clearly was biased against Wife for whatever reason, and her testimony has been discounted in its entirety.
16. The testimony offered by the parties' children as to the carpets/rugs, while a bit more clearly stated, was nevertheless lacking the specificity required to conclude the location and/or value of the rugs/carpets.
17. The only clear testimony offered by the children related to details offered by their son[,] that Wife had removed certain rugs/carpets from the residence after separation, an allegation which Wife did not contest or rebut.Master's Report, 7/15/11, at ¶¶ 14-19.
18. Neither the specific identity, nor the value of the rugs/carpets which Wife removed after separation were articulated.
19. No credible testimony was provided to support Husband's contention that he had purchased Wife jewelry during the marriage which had any ascertainable value.
In its Opinion adopting the Master's findings, the trial court stated the following:
The transcripts reveal four days of contentious hearings with numerous counsel. The Master had the opportunity observe the witnesses and evidence that he discredited or found credible. The record is replete with confusing, unclear, biased, and incredible evidence[,] as well as the lack of evidence or documentation. It bears out the Master's difficulty in ascertaining the values of the assets in order to calculate with reasonable certainty the aggregate value of the marital estate. The court agrees [that] in his findings, [the Master] appropriately allocated and valued the marital assets, calculated credits[,] or lack thereof[,] to the parties. The [trial] [c]ourt finds that [the] Master [], as the initial trier of fact and of credibility, did not abuse his discretion or commit an error of law.Trial Court Opinion, 6/22/12, at 4-5.
Our review confirms the Master's findings, as adopted by the trial court. At the evidentiary hearing, Husband claimed that there were 12 or 13 carpets, which were purchased in Iran and shipped to Canada, or purchased in Canada, which were then brought to the United States. N.T., 10/16/09, at 106, 107, 109-10. Husband presented only one document, identifying him as the purchaser, stating that he owed $50,000 for the carpets. Id. at 109. However, Husband then acknowledged that he purchased only some of the carpets, and that others were gifts from his father. Id. at 110-11. In explaining why his name appeared on the purchase document as the purchaser, Husband testified that when a purchase is made in Iran, the name of the intended recipient is placed on the receipt, not the name of the person who actually purchased the items. Id. at 118. Husband produced no documentation regarding the value of each carpet. Id. at 107.
At the hearing, Husband's expert, Tahir, testified that she had been to the parties' home at least 20 times over the years. N.T., 8/7/09, at 99. While there, she observed approximately 10 or 14 Persian carpets, of all sizes. Id. The parties' 18-year-old son, N.M., testified that when Wife left the marital residence, he helped her remove two or three carpets from the house. Id. at 216. N.M. could not recall what happened to the other carpets. Id.
The cross-examination testimony of Husband's expert, Tahir, was fraught with contradictions. Regarding the value of the Persian carpets, Tahir testified on cross-examination that she had inspected the carpets every time that she visited the residence, on her hands and knees. Id. at 122, 124-25, 132. However, Tahir later conceded that she did not get down on her hands and knees every time she visited the residence. Id. at 132. During another exchange, Tahir stated that Wife "is cooked." Id. at 145-46. Further, as Husband's valuation expert, Tahir refused to assign a fair market value to the Persian carpets:
Q. [Wife's counsel]: Now, you're talking about replacement value. What if this carpet was sold on the open market, how much?Id. at 152-53. Notably, Tahir was not qualified as a valuation expert as to the home's furnishings or jewelry owned by Wife.
A. [Tahir]: I do not know where this case stands.
Q. Answer my question. Do you have an opinion on how much this carpet would sell for on the open market?
A. Definitely.
Q. How much would it sell for on the open market?
A. It would sell according to who would like to buy it. And obviously[,] when you are going with your sack on your shoulder, people are going to treat you accordingly. When this is put into Bloomingdales where[,] obviously[,] people have a high price tag, they would pay for it. If [Wife] put it on the shoulder and begged people to buy it, who will buy it.
Q. How much would the carpet be sold for in the open market[, the carpet] that is in Defendant's [Exhibit] 44 in the family room?
A. I can't answer that.
Q. How much would the carpet be sold for in the open market that is in Defendant's [Exhibit] 4 in the family room?
A. I will not answer any open market question because I have not been able to do it with something like that in the past.
When viewed in light of the credibility determination made by the Master, who discounted the testimony of Husband's expert in its entirety, we discern no error or abuse of discretion by the trial court in adopting the findings regarding the value of the personal property, and credibility determinations. See Smith , 904 A.2d at 20 (stating that the factfinder is entitled to weigh the evidence presented and to assess its credibility, believing all, part, or none of it); Morgante , 119 A.3d at 387 (stating 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."). Accordingly, we cannot grant Husband relief on this claim.
Based upon the foregoing, we affirm the Order of the trial court, which equitably distributed the parties' marital property.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/27/2017
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