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Newcomer v. Newcomer

SUPERIOR COURT OF PENNSYLVANIA
Apr 12, 2018
No. 1382 MDA 2017 (Pa. Super. Ct. Apr. 12, 2018)

Opinion

J-S12006-18 No. 1382 MDA 2017

04-12-2018

TRACY S. NEWCOMER v. RICHARD C. NEWCOMER Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered August 3, 2017
In the Court of Common Pleas of Schuylkill County Civil Division at No(s): S-1901-2013 BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY LAZARUS, J.:

Richard C. Newcomer ("Husband") appeals from the order, entered in the Court of Common Pleas of Schuylkill County, distributing the parties' marital property and ordering Tracy S. Newcomer ("Wife") to pay Husband alimony in the amount of $1,473.84 per month until December 31, 2017. After our review, we affirm based on the opinion authored by the Honorable Jacqueline L. Russell.

Husband has been receiving alimony pendente lite (APL) since August 2014; upon divorce the APL award converted to alimony.

The parties married in 1998 and separated in 2013. They have three minor children, ages 17, 15 and 12. The parties share physical custody of the two youngest children; Wife has primary physical custody of the oldest child. None of the children has special needs. At the time of the hearings before the master, in October and December of 2016, Wife was 50 years old and Husband was 47 years old.

Prior to the marriage, Wife obtained a Bachelor's Degree in Business Administration and a Master's Degree in Human Resources; she is employed at Country Meadows Retirement Community. Wife earns approximately $140,000.00 per year. Husband has taken some college level classes in horticulture; he has been self-employed as a landscaper since 1993. Husband can operate a bucket truck, a backhoe, a chipper and a stomper. Husband also has an active commercial driver's license (CDL). Husband's 2015 Federal Income Tax Return for his landscaping business showed gross receipts of $35,455.00 for his landscaping and snowplowing business, and other income, including alimony, of $22,237.00.

An interim order entered on August 27, 2014, determined that Husband's monthly net income was $833.15 and Wife's monthly net income was $7,928.37.

The parties stipulated to the value of the marital assets. The master held hearings on October 10, 2016, December 6, 2016, and December 28, 2016. On April 18, 2017, the master issued his report and recommendation. Both parties filed exceptions, and, on August 3, 2017, the trial court entered an order, adopting the master's findings and recommendations, and distributing the marital property as follows: 51% to Husband ($422,521.00) and 49% to Wife ($420,681.00). The court also ordered Wife's alimony payment to Husband continue to December 31, 2017. Husband appealed. Both Husband and the trial court have complied with Pa.R.A.P. 1925. Husband raises the following issues for our review:

1. Whether the lower court erred in setting forth an equitable distribution scheme that does not reflect a proper consideration of the facts as applied to the factors set forth in the Pennsylvania Divorce Code, and, instead, reflects bias in favor of Wife?
2. Whether the lower court erred in awarding alimony only until December 31, 2017?
3. Whether the lower court erred in failing to award attorney fees and costs to Husband?
4. Whether the lower court erred in failing to set forth the basis of, and reasoning behind, its equitable distribution scheme?
5. Whether the lower court erred in discriminating against Husband?
Appellant's Brief, at 7.
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.
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.
Morgante v. Morgante , 119 A.3d 382, 386-87 (Pa. Super. 2015) (quoting Childress v. Bogosian , 12 A.3d 448, 455-56 (Pa. Super. 2011) (internal citations and quotation marks omitted)).

Essentially, Husband argues that he should continue receiving alimony beyond December 31, 2017, in light of the disparity in the parties' incomes and in light of the fact that he suffers from back issues that limit his ability to work. The trial court noted, however, that Husband offered no medical testimony to support work restrictions for his back and takes no medication. Husband also argues that he requires approximately $76,000.00 for tuition because he intends to acquire a degree in mechanical engineering so that he can obtain a job that does not require physical labor. The court noted that the master found Husband was underemployed and that Husband's testimony was simply not credible. The court accepted the master's determination with respect to Husband's credibility. See Morgante , supra.

Further, the court reviewed the statutory factors, applied them to the parties' stipulations and the master's findings, and set forth its reasoning for the equitable distribution order. The trial court listed the factors a court must consider in the implementation of an equitable distribution scheme and in the award of alimony, and evaluated the master's reference to them and all relevant factual information assigned to them. Trial Court Opinion, 8/3/17, at 9-12.

We also agree with the court that the fact that it accepted the master's credibility determination did not establish that the court was biased against Husband or discriminated against him. Husband was awarded more than half of the marital estate and alimony for one year. He was also awarded the marital home and liquid assets, whereas the bulk of the assets awarded to Wife were retirement funds.

Having reviewed the parties' briefs, the record, the relevant law and the well-reasoned analysis by the trial court in the two opinions rendered in this case, the August 3, 2017 Opinion and the November 9, 2017 Rule 1925(a) Opinion, we conclude that the court properly disposed of Husband's claims on appeal. Accordingly, we adopt the trial court's two opinions as our own and affirm the order on that basis. We direct the parties to attach these opinions in the event of further proceedings.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/12/2018

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Summaries of

Newcomer v. Newcomer

SUPERIOR COURT OF PENNSYLVANIA
Apr 12, 2018
No. 1382 MDA 2017 (Pa. Super. Ct. Apr. 12, 2018)
Case details for

Newcomer v. Newcomer

Case Details

Full title:TRACY S. NEWCOMER v. RICHARD C. NEWCOMER Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Apr 12, 2018

Citations

No. 1382 MDA 2017 (Pa. Super. Ct. Apr. 12, 2018)