Hess, R. v. Hess, J.
Hess, R. v. Hess, J.
Opinion
*522 Appellant, Judy L. Hess ("Wife"), appeals from the July 20, 2018 Divorce Decree, which, inter alia, provided for the equitable distribution of the marital assets of Wife and Appellee, Rodney S. Hess ("Husband"). She challenges the court's consideration of Husband's SERS pension in its distribution of marital assets. After careful review, we affirm.
The relevant factual and procedural history is as follows. Husband and Wife married on April 10, 1999, which was a second marriage for both parties. The couple was married for seventeen years and separated on July 22, 2016, when Husband filed a Complaint in Divorce. Husband and Wife do not have any children together; however, each party has adult children from a previous marriage.
Husband is 64 years old and in good health. Husband currently works part time at the Surplus Outlet in Briar Creek, Pennsylvania, unloading trucks and stocking freezers, and receives health insurance through this employer. Husband served in the United States Air Force and National Guard prior to his previous employment as a police officer and an installer for Direct TV. Husband also worked for PennDOT, from which he retired in August of 2013. On a monthly basis, Husband earns $ 600 from the Surplus Outlet, $ 1,062 from his Pennsylvania State Employee Retirement System ("SERS") pension, which has been in pay status since August 2013, and $ 946 in Social Security Benefits.
Wife is 51 years old and in good health. She has worked as a pharmacy technician at Giant Markets since 2005, working an average of 32 hours per week, and receives health insurance through this employer. Wife previously worked as a school bus driver and in a factory. She is a high school graduate and completed an additional two years of training to become a pharmacy technician. Wife's gross income for 2016 was approximately $ 17,180 and for 2015 was approximately $ 19,843.
The marital property is comprised of a few vehicles, minimal debt, retirement funds, and the marital residence valued at $ 101,000, which is unencumbered by any mortgage or lien.
On March 29, 2018, after a Special Master's Hearing, the Master filed a Report and Recommendations to the Court that recommended, inter alia , awarding Wife 53% and Husband 47% of the marital assets and splitting the SERS pension equally. 1 On April 18, 2018, Husband filed Exceptions to the Report.
On June 25, 2018, after reviewing briefs and hearing argument, the trial court issued an Opinion and Order, which granted in part Husband's Exceptions and, inter alia , ordered "an overall 55%-45% equitable division in favor of Husband as to all assets other than the SERS pension, and a 65%-35% division of the SERS pension" in favor of Husband. Trial Court Order and Opinion, filed 6/25/18, at 11. On July 20, *523 2018, the trial court entered a Final Decree in Divorce.
Wife timely appealed. Both Wife and the trial court complied with Pa.R.A.P. 1925.
Wife raises the following issues on appeal:
I. Did the trial court misapply the law and abuse its discretion when it determined that the [S]pecial [M]aster's calculation of [Husband]'s income, which included [Husband]'s SERS pension, was "double dipping[?"]
II. Did the trial court misapply the law and abuse its discretion when it rejected the [S]pecial [M]aster's recommendations and granted [Husband]'s exceptions?
Wife's Brief at 3 (some capitalization omitted).
Both of Wife's issues challenge the trial court's refusal to follow the Special Master's Recommendations with respect to the distribution of Husband's pension. We review a challenge to the trial court's equitable distribution scheme for an abuse of discretion.
Brubaker v. Brubaker
,
When determining the propriety of an equitable distribution award, this Court must consider the distribution scheme as a whole.
Mundy v. Mundy
,
In her first issue, Wife avers that the trial court misapplied the law and abused its discretion when it "failed to consider Husband's SERS pension as income for purposes of equitable distribution." Wife's Brief at 8. Specifically, Wife argues that the trial court erred in relying on support cases to conclude that the Master's method of calculating the 50/50 distribution of the SERS pension impermissibly used "the income from a marital asset [ (the pension) ] to determine the percentage distribution of all of the marital assets, a type of 'double dipping.' " Trial Ct. Order and Op. at 3. See Wife's Brief at 8, 10-11. For the following reasons, we find no error in the trial court's equitable distribution scheme.
"A trial court has broad discretion when fashioning an award of equitable distribution."
Brubaker
,
Section 3502 provides, inter alia , that upon request from either party in a divorce action:
the court shall 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. § 3502(a). Among other factors, Section 3502 requires a trial court to consider the "sources of income of both parties, including, but not limited to, medical, retirement, insurance, or other benefits." 23 Pa.C.S. § 3502(a)(6).
In Pennsylvania, "[t]he amount of pension funds accrued during marriage is marital property and subject to equitable distribution."
Hayward v. Hayward
,
In this case, the Master considered all of the Section 3502 factors but put emphasis on the parties' ages and the Husband's income, noting that Husband's income from the SERS pension "leaves him with that much greater income than Wife." Master's Report, filed March 29, 2018, at 10. Upon considering Husband's Exceptions to the Master's findings, the trial court opined:
First, in regards to the SERS pension, in the first instance, the Master's calculation does not contemplate that the Master ordered half of the SERS benefit, or $ 531.09/mo., to be distributed to Wife. This results in Wife's monthly income increasing to $ 2,184.67, while decreasing Husband's income to $ 2,126.59.
Beyond that, the Master's method uses the income from a marital asset (a pension in active pay status for years prior to separation) to determine the percentage distribution of all the marital assets, a type of "double dipping." This begs the chicken or the egg conundrum: When relative incomes, presently and in the *525 future, is the major factor in driving the determination of the percentages in equitable distribution, how does one know the end result incomes of the parties (after equitable distribution) and apply this factor without first determining the percentage distribution of the pension asset already in pay status? Posing the question illustrates the impossibility of solving the equation.
***
The aversion to considering pension income, where the pension has been equitably distributed, has been extended to considerations of alimony in addition to spousal support. The idiosyncrasy of considering the pre-equitable distribution pension income for equitable distribution, where that pension is already in pay status, before one knows the post-equitable distribution income to be left to each party, illustrates the "double dipping" aversion should be applied in the present case.
Trial Ct. Order and Op. at 3-4.
This Court has long held that marital property subject to equitable distribution may
not
be included in an individual's income for purposes of calculating
support
payments, and has characterized such as "double dipping."
See
Miller
,
As stated above, there is no standard formula guiding the division of marital property and a trial court has "flexibility of method" when making its determination "from the facts of the individual case."
See
Wang
,
The trial court engaged in a proper analysis of the Section 3502 factors, including review of the source and amount of income that each party was receiving, and found that "[t]he only factors of any weight are in Husband's favor. This bodes in favor on an overall 55%-45% equitable division in favor of Husband as to all assets other than the SERS pension, and a 65%-35% division of the SERS pension." Trial Ct. Order and Op. at 11.
Our review of the record reveals that the record supports the trial court's findings. Accordingly, we find no abuse of discretion.
In her second issue, Wife presents two arguments. She first avers that the trial court misapplied the law and abused its discretion by improperly analyzing a number of the Section 3502 factors when equitably distributing the marital property. Wife's Brief at 8. Wife argues that the trial court failed to consider Husband's part time employment as income when considering the Section 3502 factors. Id. at 15.
In presenting this argument, Wife does not cite any legal authority or engage in a discussion of the specific income totals to which she is referring pursuant to Pa.R.A.P. 2119. Instead, Wife engages in a general discussion of how the trial court
*526
erred when it considered when Husband is entitled to retire and failed to consider when, and if, Wife is able to retire. Wife's Brief at 15-16. Accordingly, to the extent that Wife asserts that the trial court erred when it failed to consider Husband's part time employment as income, we find this argument to be underdeveloped and, therefore, waived.
See
Pa.R.A.P. 2119 (describing briefing requirements);
Hayward
,
Wife next argues that in calculating its equitable distribution award, the trial court failed to consider that Husband has possession of the only capital asset in the marriage, the marital residence valued at $ 101,000. Wife's Brief at 18. Additionally, she argues that the trial court failed to consider that Wife's income fluctuates year to year, Wife only has one source of income, and Wife made a significant contribution to the marital estate. Wife's Brief at 17-21.
Wife is essentially challenging the weight that the trial court placed on different evidence when analyzing the Section 3502 factors to reach its determination. Our review of the record reveals that the trial court engaged in an analysis of the Section 3502 factors in making its equitable distribution determination and the record supports the trial court's findings. We decline to reweigh the evidence and find no abuse of discretion.
See
Brubaker
,
Decree affirmed.
The Master also recommended that no alimony or counsel fees were due, and neither party raised an Exception to those findings.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.