CourtListener opinion 4301899

Evidence quotes

Clean opinion text

J-A13012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 RUTH M. POPE : IN THE SUPERIOR COURT OF
 : PENNSYLVANIA
 Appellant :
 :
 :
 v. :
 :
 :
 ESTATE OF HOWARD POPE, : No. 1397 WDA 2017
 DECEASED, AND ANITA BURROUGHS :

 Appeal from the Order September 18, 2017
 In the Court of Common Pleas of Allegheny County Family Court at
 No(s): FD-14-7809-011

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED AUGUST 8, 2018

 Appellant, Ruth M. Pope, appeals from the order entered on September

18, 2017, where the trial court amended its final, August 29, 2017, order of

court. We affirm.

 The Master thoroughly summarized the underlying facts of this case and

its recommendations regarding the equitable distribution of marital property:

 [A.] HISTORY

 [Appellant and Howard Pope (hereinafter "Husband")1] were
 married on June 26, 1982, and [Appellant] filed her complaint
____________________________________________

1Husband passed away on June 22, 2016. See Suggestion of Death, 6/23/16,
at 1. We note that 23 Pa.C.S.A. § 3323(d.1) provides:

 In the event one party dies during the course of divorce
 proceedings, no decree of divorce has been entered and
 grounds have been established as provided in subsection (g),
 J-A13012-18

 in divorce on September 9, 2014. There were no children
 born of the marriage although each party has adult children
 from a prior marriage.

 At the time of trial, Husband was 81 years of age. Husband
 is retired from his employment from the Port Authority of
 Allegheny County. He is also receiving Social Security
 Retirement benefits as well as rental income from rental
 property he owns. Husband's 2014 federal income tax return
 indicated his gross income (which included his retirement,
 rental and Social Security income) was $45,234. Husband's
 net monthly income was determined to be $3,388 at the time
 of the support hearing.

 At the time of trial, [Appellant] was 78 years of age.
 [Appellant's] source of income is her income from Social
 Security as well as her rental income from the rental property
 she owns. Her pension from AT&T was cashed in sometime
 after her retirement in 1997. At the time of the support
 hearing, [Appellant's] net monthly income was determined to
 be $1,020. Husband is paying $1,106.81 to [Appellant] as
 alimony pendente lite, plus $100 toward the arrears.

 ...

 In 2012, Husband was diagnosed with a malignant neoplasm
 of the spinal cord (a cancerous tumor braided into his spinal
 cord).

 ...

 [B.] MARITAL PROPERTY

 The parties were able to stipulate to the following marital
 assets:
____________________________________________

 the parties' economic rights and obligations arising under the
 marriage shall be determined [under the Divorce Code]
 rather than under 20 Pa.C.S. (relating to decedents, estates
 and fiduciaries).

23 Pa.C.S.A. § 3323(d.1).

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 J-A13012-18

 ...

 [1]. The value of [Appellant's] real estate at 3804 Mountain
 Road (Middle Alley), South Park, PA acquired by [Appellant]
 during the marriage is $30,000; it is entirely marital
 property.

 [2]. [Appellant's] rental home at 2917A Overhill Street,
 South Park, PA is [Appellant's] premarital property; the
 increase in value of this property during the marriage is
 $6,000.

 [3]. As of [September 26, 2014], the balance in Husband's
 PNC Money Market account ...2308 was $1,000.33.

 [4]. As of [September 26, 2014], Husband's PNC checking
 account ...4171 had a balance of $2,821.22.

 [5]. Husband has a NY Life IRA ...8645, which has a cash
 surrender value of $8,959.03 as of [January 20, 2015].

 [6]. Husband has a NY Life Whole Life insurance policy
 ...4982, which has a face value of $50,000 and a cash
 surrender value of $32,165.86 as of [September 9, 2014].

 [7]. Husband has a NY Life Whole Life insurance policy
 ...9696, which has a face value of $50,000 and a cash
 surrender value of $29,591.24 as of [September 9, 2014].

 [8]. [Appellant] has an American Equity IRA ...3600 which
 has a contract value of $41,976.82 as of [January 23, 2015].

 [9]. [Appellant] has a NY [L]ife Whole life insurance policy
 ...4924, which has a face value of $50,000 and a cash
 surrender value of $28,098.41 as of [July 16, 2015].

 [10]. [Appellant] owns a NY Life annuity ...2401 on
 Husband's life which has a cash surrender value of $9,036.77
 as of [February 21, 2016].

 [11]. [Appellant's] Northwest Savings account ...8198 had a
 balance of $934 as of April 2014.

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 J-A13012-18

 [12]. [Appellant's] Northwest [Savings] checking account
 ...1105 had a balance of $1,054.69 as of [September 24,
 2014].

 [13]. The parties acquired a riding mower with a value of
 $500 which is in Husband's possession.

 [14]. The parties acquired a 1995 GMC Silverado truck with
 a value of $500 which is in Husband's possession.

 [15]. Since [September 23, 2013, Appellant] withdrew a total
 of $11,184 from PNC account ...2308. $5,510 was returned
 by the bank, leaving a balance of $5,674.

 The parties' marital residence located at 3824 Mountain
 Road, South Park PA 15129 was owned by Husband prior to
 the marriage. Other than the transfer into the Howard Pope
 and Ruth M. Pope Irrevocable Catastrophic Illness Trust in
 March of 2014, the property has always remained in
 Husband's name. According to [Appellant's] real estate
 appraiser, James Audas, Sr., the value of the property as of
 the time of marriage was $44,500 and the value of the
 property as of the date near to the date of separation was
 $116,000. Mr. Audas opine[d] that the marital value of the
 property is $71,500.

 When asked how he was able to ascertain the value of the
 real estate as of the date of marriage ([June 6, 1982]), Mr.
 Audas testified that since over 30 years has passed since the
 parties were married; no reliable databases exist from that
 time period with respect to the sales comparison approach,
 such as the multi-list database. As such, Mr. Audas utilized
 the Marshall and Swift database which is a service that tracks
 building trends in particular areas. Mr. Audas did testify that
 he did utilize the Multi-list database and the sales comparison
 approach with respect to the value of the property as of the
 time of separation.

 Husband's appraiser, J. Matthew Barone, opined that the
 value of 3824 Mountain Road, South Park, PA 15129 as of the
 date of marriage was $65,000 and the value of the property
 as of the time of separation was $120,000. Thus, according
 to Mr. Barone, the marital value of 3824 Mountain Road is
 $55,000. Mr. Barone testified that he was able to utilize the

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 J-A13012-18

 sales comparison approach in determining the value of the
 property from the date of marriage because his family has
 been in the real estate appraisal business for over forty years,
 and they have maintained an extensive Multi-list database for
 at least that time.

 Given the fact that both experts' valuations from the date of
 separation were so close, and both utilized the sales
 comparison approach pursuant to the Multi-list database, it
 stands to reason that the Multi-list database is reliable. As
 Mr. Barone utilized the Multi-list database for both valuations,
 the Master believes his approach to be the most reliable. As
 such, the Master determines that the marital value of 3824
 Mountain Road, South Park PA is $55,000.

 Husband also owned another piece of real estate prior to the
 parties' marriage, known as 2893 Overhill Street, South Park
 PA 15129. This particular piece of real estate also contains a
 vacant lot of the same address with a different tax parcel
 number. [Appellant's] expert, Mr. Audas chose to appraise
 each parcel of real estate separately and Husband's expert,
 Mr. Barone, chose to appraise the vacant lot in conjunction
 with the property containing the building.

 Mr. Audas testified that the vacant lot located at 2893
 Overhill Street, South Park PA 15129 had a date of marriage
 value of $6,900, and its date of separation value was
 $18,000. Therefore, according to Mr. Audas, the marital
 value of the vacant lot at 2893 Overhill Street, South Park PA
 15129 is $11,100. Mr. Audas further testified that the house
 located at 2893 Overhill Street, South Park PA 15129 had a
 date of marriage value of $34,500 and the date of separation
 value was $90,000, which would make the marital value of
 the real estate containing the house at 2893 Overhill Street,
 South Park PA 15129 to be $55,500. Mr. Audas testified that
 he utilized the same methodology that he applied with
 respect to 3824 Mountain Road in determining the date of
 marriage values for both pieces of property located at 2893
 Overhill Street. This was the Marshall and Swift economic
 trending approach as no sales comparisons were available to
 him from over 30 years ago. Mr. Audas did utilize the Multi-
 list database and the sales comparison approach with respect
 to the present valuation of the property.

 -5-
 J-A13012-18

 The Master notes that the comparable sales that Mr. Audas
 utilized with respect to the vacant lot were at least three
 times the size of the lot in question. Also, Mr. Audas did not
 appear to take this fact into consideration in his report as no
 adjustments for lot size appear to have been made. It also
 appears from the map of the property that ingress and egress
 to the house is by use of the vacant lot.

 When Mr. Barone appraised 2893 Overhill Street, he did not
 separate the vacant lot from the lot containing the house
 bearing the same address. Mr. Barone testified that the date
 of marriage value of 2893 Overhill Street was $52,000 and
 the date of separation value was $75,000. As such, according
 to Mr. Barone, the marital value of 2893 Overhill Street is
 $23,000.

 Given the reliability of the consistent use of the sales
 comparison approach to both the date of marriage and the
 date of separation values, the Master accepts Mr. Barone's
 valuation of the property. Also, the properties that Mr. Barone
 utilized for comparison were of similar lot size to 2893
 Overhill Street. In the few cases where the comparison
 properties were not similar in lot size, Mr. Barone made the
 appropriate adjustments. As such, the marital value of 2893
 Overhill Street is $23,000.

 The parties own a piece of rental property located at 2900
 Highland Road, South Park PA 15129. They purchased it
 during their marriage and it is entirely marital. Mr. Audas
 testified that he used two approaches in determining the
 value of the property. The first approach Mr. Audas utilized
 was the income producing approach. In using this approach,
 Mr. Audas opined that the property is valued at $112,050.
 The next approach utilized by Mr. Audas is the sales
 comparison approach wherein Mr. Audas values the property
 at $113,000. Mr. Barone utilized both the income producing
 approach and the sales comparison approach when he valued
 the property. On both occasions, Mr. Barone's valuation was
 $90,000. Given the fact that both appraisers' approaches in
 valuation of the property yielded nearly identical figures, it
 appears that both approaches are relatively reliable. As both
 appraisers appear to be reliable in their respective
 methodologies, an average between the methodologies
 would be just as reliable. Therefore, the value of the property

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 J-A13012-18

 is $101,025 which is the average between both appraisers'
 valuations utilizing the sales comparison approach.

 Lastly, with respect to real estate, the parties own a piece of
 real estate located at 1412 ½ Center Street. Mr. Barone
 values the property at $5,000 while Mr. Audas values the
 property at $17,000. Mr. Barone testified that the relatively
 low valuation was due to the distressed area where the
 property is located as well as the relatively poor condition of
 the property. Mr. Audas did acknowledge the fact that the
 property was in need of repairs, and despite this fact, he still
 values the property at $17,000. While one will never truly
 know what is the true value of a piece of property unless it
 sells, it does appear that Mr. Audas is too lofty in his
 expectations, and Mr. Barone is too pessimistic.
 Nevertheless, the parties cannot agree with respect to the
 valuation, as such; the most equitable approach is to average
 the valuations as set forth by the experts. Therefore, the
 value of 1412 ½ Center Street, for equitable distribution
 purposes is $11,000.

 There also exists an annuity with EquiTrust Life Insurance
 Company held by the Additional Defendant, Anita Burroughs
 for the benefit of Husband. The account was created when
 Ms. Burroughs was appointed the agent for Husband
 pursuant to a power of attorney he created. Apparently, after
 Husband was diagnosed with a malignant neoplasm of the
 spinal cord there were issues with his mental faculties. Once
 Husband's medication was adjusted his mental capacity was
 no longer in question, and the need for Ms. Burroughs to act
 on his behalf presented itself no longer. Ms. Burroughs acted
 as Husband's agent pursuant to the power of attorney from
 May of 2013 through September of 2014. During this time,
 Ms. Burroughs began working with Mr. Catale to create an
 irrevocable catastrophic illness trust wherein Husband would
 become divested of his assets and become eligible for long-
 term care benefits through the Veteran's Administration.
 During this process Ms. Burroughs created the annuity as well
 as the accounts at Dollar Bank which are titled in her name,
 however, the accounts are marital accounts subject to
 equitable distribution. As of the time of separation, the Dollar
 Bank checking account had a balance of $56,010.85 and the
 Dollar Bank savings account had a balance of $1,064.26. The
 most recent balance of the annuity is $82,857.47. There was

 -7-
 J-A13012-18

 also debt associated with the marriage. [Appellant] presented
 evidence ([Appellant's] exhibit H) that as of the time of
 separation the Bank of America account titled in [Appellant's]
 name had an outstanding balance of $10,969.80. [Appellant]
 also presented a statement from Prescription Center Plus that
 as of October 31, 2014 there was an outstanding balance of
 $28.00 for what appears to be prescriptions for [Appellant].
 Pursuant to [the trial court's] order of court dated April 21,
 2015, effective September 26, 2014, Husband was
 responsible for 75% of [Appellant's] unreimbursed medical
 expenses that exceeded $250 annually. Therefore, pursuant
 to the April 21, 2015 order of court, Husband is not
 responsible for this obligation.

 [Appellant] presented evidence (Exhibit H) that prior to the
 parties' separation, [Appellant] had an outstanding balance
 with Dr. Kristal Izadorczyk in the amount of $1,007. As this
 obligation existed at the time of the parties' separation, it is
 a marital obligation.

 [Appellant] presented what appears to be an AAA
 membership renewal. This is not a marital debt subject to
 equitable distribution. If [Appellant] chooses to continue her
 membership, then the cost of that membership falls to her.

 [Appellant] also presented South Park School District real
 estate tax bills for three pieces of real estate. The first piece
 of real estate is 3804 Mountain Road which is titled in
 [Appellant's] name and was purchased during the marriage.
 The statement was dated June 25, 2014 which indicated a
 balance of $741.84. As the statement predated the parties'
 separation, no credit is due. The same is true of the tax bills
 of the same date for the properties located at 2917(A)
 Overhill Avenue, and 2900 Highland Road in the amounts of
 $505.80 and $2,000.72 respectively.

 [Appellant] also presented evidence (exhibit H) which
 indicated that the parties had an outstanding IRS obligation
 from the tax year 2012 in the amount of $12,951 as of July
 14, 2014. At the time of trial, the parties learned that their
 amended 2012 tax return had been accepted by the IRS and
 instead of the parties owing the IRS; they were now due a
 refund in the amount of $1,244.28.

 -8-
 J-A13012-18

 Husband presented copies of checks for various bills paid by
 him. (Husband's exhibit 11). After reviewing the exhibit in
 its entirety, it appears that all of the payments made by
 Husband predated the parties' stipulated date of separation
 as such; no credit will be given to Husband.

 According to the order of court dated April 21, 2015,
 [Appellant] was held responsible for all expenses related to
 3824 Mountain Road. Husband presented evidence (exhibit
 15) indicating that he paid the real estate taxes for the
 property. However, [Appellant's] obligation to pay the
 expenses associated with the property, pursuant to the order
 of court, began September 26, 2014[,]which was the date
 the order was effective. Therefore, after a more complete
 review of exhibit 15, it appears that Husband is entitled to
 credit in the amount of $383.13 for the taxes he paid for the
 county taxes for the year 2015.

 While Husband is not entitled to be entirely reimbursed for
 the expenses paid by him prior to the effective date of the
 support order, he is entitled to be reimbursed by [Appellant]
 for her share of the obligations that the parties shared after
 separation. In other words, Husband paid $1,972.27 in real
 estate taxes on September 11, 2014, and he is entitled to be
 reimbursed $986.13. As the parties were joint owners of the
 property, they share jointly in the obligations associated with
 the property. Also, since the parties separated, Husband paid
 the insurance for the property located at 2900 Highland
 Avenue in the amount of $707, therefore; he is entitled to be
 reimbursed $353.50. Husband paid $412.55 to the County of
 Allegheny for the 2015 taxes for 2900 Road, as such; he is
 entitled to be reimbursed $210.78. Husband also paid
 $335.60 in utility bills for the parties' rental property on May
 7, 2015, (exhibit 16) therefore, he is entitled to be
 reimbursed $167.80.

 In addition to the expenses previously mentioned, Husband
 presented additional evidence (exhibit 12) wherein he paid
 for certain repairs and real estate taxes after the parties
 separated. Husband paid $320 for roof repairs to 1416 ½
 Center Avenue, $64.10 for window cleaning, and $2,200.79
 for school district taxes for the property located at 2900
 Highland Avenue, and $106.75 for outstanding refuse at the
 marital residence. Husband paid a total of $2,691.64 of which

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 J-A13012-18

 he is entitled to be reimbursed $1,345.82. In total, Husband
 is entitled to be reimbursed $3,447.16, which represents
 [Appellant's] obligations pursuant to the support order as
 well as her obligations toward the expenses associated with
 the property advanced by Husband after the parties'
 separation.

 [C]. EQUITABLE DISTRIBUTION OF MARITAL PROPERTY

 Even though both parties were previously married, this is a
 long marriage of over 32 years. Both parties are advanced in
 age, and their ages are relatively similar. Although Husband's
 health is worse than [Appellant's], Husband's separate
 premarital assets compensate for the difference. Given the
 parties' respective ages and sources of income, neither has
 the advantage with respect to the future acquisition of capital
 assets and income.

 In view of the foregoing, the Master recommends an equal
 division of assets and debts. This means that both parties
 must receive assets valued at $262,592.92 and pay debts of
 $7,902.79. As previously mentioned Husband has already
 paid some of the parties' marital debt which totaled
 $2,691.64, and is entitled to be reimbursed $1,345.82 for
 [Appellant's] portion of these debts. In addition, Husband
 paid debts which [Appellant] was obligated to pay pursuant
 to the order of court dated April 21, 2015, and is entitled to
 receive $2,101.34 from [Appellant]. In order to achieve this
 result, the Master recommends the following allocation of
 assets and debts:

 ...

 [Appellant] is awarded the following marital property:

 2900 Highland Road $101,025.00

 3804 Mountain Road $30,000.00

 2917(A) Overhill Street $6,000.00

 Husband's NY Life whole life policy ...4982 $32,165.86

 The American Equity IRA ...3600 $41,976.82

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 J-A13012-18

 The NY Life whole life policy ...4924 $28,098.41

 The NY Life annuity ...2401 $9,036.77

 The Northwest Savings ...8198 $934.00

 The Northwest Checking account ...1105 $1,054.69

 Subtotal (Assets to [Appellant]) $261,291.55

 Less [Appellant's] share of Marital Debts $7,902.79

 Subtotal $253,388.76

 Less reimbursement to Husband for $2,145.80
 [Appellant's] obligations paid by him

 NET TOTAL TO [APPELLANT] $251,242.97

 With respect to the $2,145.80 [Appellant] owes Husband,
 this amount shall first be offset by any existing APL arrears
 owed by Husband. The remaining difference between the
 aforementioned $2,145.80 shall be reduced from Husband's
 NY Life whole life policy [Appellant] is receiving.

 [Appellant] shall also receive 50% of the marital portion of
 Husband's defined benefit pension he is receiving from the
 Port Authority. [Appellant's] counsel shall prepare the
 Qualified Domestic Relations Order.

 Husband shall receive the following marital property:

 The Marital share of 3824 Mountain Road $55,000.00

 The Marital share of 2893 Overhill Street $23,000.00

 The PNC Money Market account ...2308 $1,000.33

 The PNC Checking Account ...4171 $2,821.22

 The NY Life IRA $29,591.24

 The Riding Mower $500.00

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 J-A13012-18

 The 1995 GMC Silverado $500.00

 The PNC Checking account ...8263 $2,589.88

 The Dollar Bank Trust checking account $56,010.85

 The Dollar Bank Trust savings account $1,064.26

 The EquiTrust Annuity $82,857.47

 Subtotal (assets) $263,894.28

 Less Husband's share of marital debts $7,902.79

 Plus reimbursement from [Appellant]
 for debts advanced by Husband $2,145.80

 TOTAL TO HUSBAND $258,137.29

 Each party shall pay their own respective counsel fees.

 ...

 Other than already indicated, each party shall retain
 whatever property is in their possession.

 The parties shall sign their respective affidavits of consent
 and waivers of notice so a divorce decree may issue.

Master's Report and Recommendation, 5/24/16, at 2-11 and 14-15 (some

internal capitalization and paragraphing omitted).

 Appellant filed her exceptions to the Master's Report and

Recommendation on June 10, 2016. On August 29, 2017, the trial court

denied Appellant's exceptions for the most part; however, the trial court

granted two particular exceptions: one that essentially corrected a clerical

error in the Master's Report and the other that corrected the Master's "failure

to reduce the value of the real estate." See Trial Court Order, 8/29/17, at 1-

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 J-A13012-18

7. Excluding these two corrections, the trial court accepted the Master's

Report and Recommendation and entered a final order based upon the Report

and Recommendation. Id. at 7. The trial court slightly amended its August

29, 2017 order on September 18, 2017 and, on September 27, 2017,

Appellant filed a timely notice of appeal. Trial Court Order, 9/18/17, at 1;

Notice of Appeal, 9/27/17, at 1.

 Appellant raises eight claims on appeal:

 1. Did the trial court err in refusing to reopen the record to
 consider changed circumstances after the death of
 Husband[?]

 2. Did the trial court err in denying [Appellant's] exceptions
 to the master's rulings on the admission of evidence at the
 hearing and permitting Husband's \testimony\" by summary