Childress v. Bogosian

• Citation: 12 A.3d 448,2011 PA Super 5
• Parties: Laura S. CHILDRESS, Appelleev.Philip J. BOGOSIAN, Appellant.Laura S. Childress, Appelleev.Philip J. Bogosian, Appellant.
• Decision Date: 10 January 2011
• Court: Superior Court of Pennsylvania

12 A.3d 448
2011 PA Super 5

Laura S. CHILDRESS, Appellee
v.
Philip J. BOGOSIAN, Appellant.Laura S. Childress, Appellee
v.
Philip J. Bogosian, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 20, 2010.Filed Jan. 10, 2011.

[12 A.3d 451]

Dolores M. Troiani, Devon, for appellant.Sheryl R. Rentz, Ardmore, for appellee.BEFORE: BENDER, FREEDBERG and COLVILLE ^*, JJ.OPINION BY BENDER, J.:

Philip J. Bogosian (Husband) appeals from the final decree in divorce, entered November 20, 2009, relating to equitable distribution issues, in which the court granted in part and denied in part the exceptions filed by both Husband and Laura S. Childress (Wife) to the master's report and recommendation (E.D. Report). Husband also appeals from a domestic relations order entered on the same day, relating to alimony pendente lite (APL) issues, in which the court granted in part and denied in part Wife's exceptions to the master's report and recommendations (Support Report).¹ We affirm.

The parties were married on December 26, 1998, and separated on December 1, 2004. The parties had no children.² Wife

[12 A.3d 452]

initiated the divorce proceedings by filing a complaint on February 11, 2005, including counts for equitable distribution, alimony and attorney's fees and costs. A divorce master was appointed.

The trial court set forth the following procedural history in regard to the equitable distribution matter in an opinion that accompanied the final decree in divorce:

The Master held a preliminary conference on June 18, 2007, a settlement conference on September 17, 2007[,] and a second settlement conference on January 4, 2008. At the second settlement conference, [Husband] appeared with new counsel. The parties failed to conclude an agreement and on January 22, 2008 the matter was certified for trial. Husband again retained new counsel and the parties appeared at a third settlement conference on October 29, 2008. Absent an agreement, the Master held the trial as scheduled on November 3, 5 and 6, 2008, with a fourth day of trial held on January 5, 2009. The Master kept the record open until January 21, 2009 for Wife to submit a final proposed Exhibit P–33 and for Husband to object to same by letter marked Exhibit–6^6. Both parties filed post-trial briefs on or about February 27, 2009.

Trial Court Opinion, 11/20/09, at 1.

The master's E.D. Report was filed on June 11, 2009. It provides that the marriage, the first for both parties, lasted just short of six years, and that Wife was considerably younger than Husband. The master further found that Wife had a bachelor's degree and a master's degree in music, and that she had certificates from the American Conservatory in Fountainebleau, France, while Husband had attended four semesters of college and studied piano with private teachers. With regard to employment, the master found Wife has been a self-employed piano teacher and runs a piano teaching business from which she receives commission from other piano teachers who work for her. Likewise, Husband has been a self-employed piano teacher. He also earns income as a piano technician, a piano tuner and a piano dealer.

The master also discussed a spousal support order that was entered on June 23, 2005, requiring Husband to pay to Wife the amount of $1,750 per month. Arrears were to be paid at equitable distribution. The master explained that when Husband filed a modification petition on November 15, 2006, the support issues were consolidated with the equitable distribution proceedings and were heard by the master in the scope of those proceedings. Specifically, with regard to income, the master found Wife's net income per month to be $2,976,³ and Husband's net income per month to be $5,911.

The master next addressed the real property owned by Husband and Wife's entitlement to a portion of the marital appreciation. The Berwyn home, which became the marital residence when the parties married, had been owned by Husband's mother with whom he lived. Husband inherited the property in 2003, when his mother died. Both parties offered appraisal

[12 A.3d 453]

reports and testimony from which the master determined a value of the property for the date of acquisition, for the date of separation, and for a date close to the time of the hearing. Specifically, the Master found that the Berwyn home was valued at $511,000 at the time of acquisition and at $675,000 as of October 2008, near the time of the hearing. Therefore, the master concluded that the marital appreciation of the Berwyn home was $164,000.

Prior to the marriage, Husband had owned property in Maryland (Porfin Drive), which he sold during the marriage, using some of the proceeds to purchase another Maryland property (Bay Landing) again titled solely in Husband's name. Based upon a lack of evidence in the record, the master indicated that she could not find any marital appreciation in the Porfin Drive property. However, with regard to the Bay Landing property, evidence was submitted as to the purchase price, the source of funds to purchase the property and to make major improvements, and the value of the property near the date of the hearing by way of appraisal reports. Based upon this evidence, the master concluded that the marital appreciation of the Bay Landing property was $422,000.

The master's E.D. Report also included discussion about Husband's Vanguard accounts. The master found that “the marital component of Husband's retirement account[s was] $146,584 as of October 24, 2008, taking into consideration the effects of market depreciation on each portion of the retirement accounts.” E.D. Report, at 12. An additional item of contention was a diamond ring, which the parties agreed was valued at $16,92^5. Husband claimed the ring was non-marital property that he loaned to Wife to wear on special occasions. Wife countered that Husband had given her the ring four months prior to their marriage as an engagement ring. Based upon the testimony, the master concluded that the ring was given to Wife prior to marriage and was, therefore, her separate property.

Next, after discussing all the relevant factors enumerated in 23 Pa.C.S. § 3502(a) and finding that the total marital estate equaled $951,046, the master set forth the following recommendation:

All relevant factors, including the eleven (11) factors as enumerated in the Divorce Code, which bear on the issue of equitable distribution have now been reviewed. While Husband has a significant separate estate, this was a short term, six year marriage. Husband was 50 years old at the time of marriage and had amassed his assets from his lifetime of work. The marital estate is significant and exists by virtue of Husband's pre-marital efforts and savings. Husband also inherited a sizable estate after his mother died, just 1 1/2 years before separation. Wife was only 25 year[s] old at marriage. She had an encumbered piano and student loan debt at the time of marriage. The marriage enabled her to build a retirement fund, her business and a Steinway “D” piano. The marital estate is primarily attributable to the market appreciation of Husband's non-marital assets. For these reasons, the master recommends that the marital assets, except for the appreciation in the Bay Landing Property, be divided to achieve a distribution of 45% ($238,070) to Wife and 55% ($290,975) to Husband.

Master's E.D. Report, at 2^7. The master also recommended that the appreciation value of the Bay Landing property be divided 40% ($168,800) to Wife and 60% ($253,200) to Husband, due mainly to Husband's

[12 A.3d 454]

significant non-marital contribution. Id. at 28.

In regard to APL,⁴ the master's Support Report reveals that Husband had a net monthly income of $6,022 and that Wife's net monthly income totaled $2,384 for 2006, $2,742 for 2007, and $2,976 for 2008. Citing Pa.R.C.P. 1920.16– 5(c), the master determined that a 20% downward deviation from the guideline calculation was appropriate, because Wife forfeited commissions from her boyfriend, Joe Kerr, for student referrals and did not receive contributions from Mr. Kerr for living expenses. Additionally, the master determined that although the parties were together for six years, at the time of the hearing they had been separated for more than four years. Specifically, the master reasoned that

[Wife] had moved forward with her life in that she has had a child with another man, Mr. Kerr. [Wife] lives with Mr. Kerr at least 4 days each week and chooses not to receive financial assistance from him. Rather she seeks financial assistance from [Husband]. [Husband's] obligation to pay APL should terminate on April 25, 2007, providing her with two years of financial assistance.Master's Support Report, at 9–10. After applying the 20% downward deviation, the master modified the June 2005 order to $1,164 for the period from November 15, 2006 to December 31, 2006, and for the period between January 1, 2007 and April 25, 2007, the master modified the payment to $1,050.

Both parties filed numerous exceptions with supporting briefs to the Master's E.D. Report and the court held oral argument. Thereafter, the court issued its final decree, granting the divorce. In the decree, the court listed the items contained in the marital estate, concluding that it totaled $806,022. The court accepted the master's recommendation as to a 45/55 division of the marital property and the 40/60 split of the Bay Landing property with Husband receiving the larger percentages. Specifically, Wife was entitled to assets or funds totaling $346,360 and Husband was entitled to assets or funds totaling $459,662.

With regard to the Master's Support Report, the court granted Wife's exception to the Master's recommendation that APL payments end in April 200^7. Rather than terminate the APL in April of 2007, the court ordered the following monthly payments of APL from Husband to Wife: November 15, 2006 to December 31, 2006—$1,278; for the year 2007—$1,164; for the year...