Hocker v. Hocker, J-S05028-15

• Decision Date: 04 March 2015
• Docket Number: No. 1086 WDA 2014,J-S05028-15,1086 WDA 2014
• Court: Pennsylvania Superior Court
• Parties: LYNN M. HOCKER, Appellant v. DIANA L. HOCKER, Appellee

LYNN M. HOCKER, Appellant v. DIANA L. HOCKER, Appellee

J-S05028-15

No. 1086 WDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MARCH 4, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered June 3, 2014, In the Court of Common Pleas of Bedford County, Civil Division, at No. 931 for 2010.

BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:

Lynn M. Hocker ("Husband") appeals from the June 3, 2014 order of the Bedford County Court of Common Pleas in this divorce action against Diana L. Hocker ("Wife"). We affirm.

The trial court summarized the basic facts regarding the parties and their respective incomes, as follows:

The parties were married on August 9, 1986 in the state of Kansas. The parties have two children, a daughter, age 25, and a son, age 23. It was a first marriage for both parties. [Husband], Lynn M. Hocker, is 58 years of age, having been born on January 15, 1956. [Husband] is a business consultant who operates his own business. [Husband] provides training in communication and problem solving. The company staff consists of himself and an office manager. The business is organized as a sub-chapter S corporation. In 2013 the corporation reported a loss of $42,980.00. [Husband's] personal returns showed a total negative income of approximately $798.00. [Husband] also operates a number of other business entities, most of whichappear to be duly filed fictitious names for the same business. These entities are known as Solutions in Human Resources, Whispering Creek Foundation, Whispering Creek Project Fund, Whispering Creek LLC, Whispering Creek, and Whispering Creek Trading Company. Based on [Husband's] testimony it appears these different names were used to take advantage of business and tax opportunities. In 2010 [Husband's] business interests showed a loss for income tax purposes of $108,769.00. [Husband] showed income of $4,516.00 on his personal return.

[Husband] has suffered from health problems over the last few years. In 2002 [Husband] had a total hip replacement resulting from degenerative arthritis. Two months after the operation he was in an automobile accident which broke the prosthesis. In 2010 the replacement hip shattered requiring a second replacement. Currently he suffers from significant strength loss and is able to stand for only a few minutes at a time. Further, he suffers from arthritis in the other hip and in both shoulders. [Husband] also has nerve damage in his left side, and suffers from hypertension. [Husband] currently receives payments from a private disability insurance policy. [Husband] testified that the policy will pay him as long as he maintains his profession. [Husband] stated that he receives $5,516.00 per month or $66,192.00 per year. [Husband] stated this insurance is free from income taxes and he receives these payments until age 65 as long as he maintains the business.

[Wife], Diana L. Hocker, is 51 years of age, having been born on September 23, 1962. [Wife] was 24 at the time the parties were married. [Wife] has an Associate's Degree in general studies. At the time of the marriage [Wife] was employed as an accountant for a retail sales business. As noted, the parties married in Kansas then lived in Wisconsin for four years. The parties moved to Bedford County in 1991. [Wife], by agreement of the parties, had been employed full time in the home since they had lived in Wisconsin. Although she conceded she did some child care in the home in Wisconsin. When the parties moved to Bedford her duties were the care of the home and the children. [Husband] was employed at several area companies before starting his present business in 1998. [Wife] eventually obtained part time employment as an office worker. [Wife] sought full time employment when [Husband] filed thedivorce. Currently [Wife] is employed at an insurance company in Blair County earning $24,000.00 a year with health benefits. Initially this position paid $30,000.00 a year, but her job was changed when she was unable to do the insurance portion of the job which resulted in a $6,000.00 pay reduction. [Wife] also receives an annual bonus of $1,000.00 to $1,200.00 a year. [Wife] has maintained this employment for four years. [Wife] stated she had never been involved in the finances of the consulting business and did not do the banking. [Wife] also receives $800.00 per month in spousal support and has received this for approximately one and one-half to two years. [Wife] reports no health concerns. The parties' final separation was on July 14, 2010.

Trial Court Opinion, 6/3/14, at 1-4.

Husband filed a complaint for divorce on July 16, 2010. Wife filed an answer on October 6, 2011, which included new matter claims for support, alimony pendent lite, and alimony. The trial court held evidentiary hearings over a two-year period on June 11, 2012, January 25, 2013, and March 3, 2014. The trial court granted the divorce on June 3, 2014, entered an order distributing the marital estate, granted Wife alimony for six and one-half years until Husband's sixty-fifth birthday, and awarded Wife counsel fees in the amount of $6,000.00. Husband filed a notice of appeal on July 2, 2014. Both Husband and the trial court complied with Pa.R.A.P. 1925.

The order of equitable distribution provides, in pertinent part, as follows:

2. [Husband] shall receive as his sole and separate property the following:

a. The life estate in real estate at 1117 Oppenheimer Road.

b. 2007 Ford F-250 pickup truck. [Husband] shall hold [Wife] harmless from any debt on said vehicle.

c. Chevrolet 1500 pickup, 2004 Honda motorcycle, 2007 Polaris ATV vehicle, 2007 Kawasaki motorcycle, 2004 Suzuki Eiger ATV, 2007 Honda Sportrax, 2001 Suzuki GS-500 Motorcycle, John Deere 955 tractor, and the 18 foot trailer.

d. Putnam Investment in [Husband's] name, Roth IRA in [Husband's] name, Investco account in [Husband's] name, and the Southwest Insurance Policy.

e. Solutions in Human Resources, Inc. its associated businesses and entities. [Husband] shall receive all checking accounts associated with said business and shall hold [Wife] harmless from any debt on said businesses.

f. All personal property and equipment currently in his possession unless otherwise awarded to [Wife].

3. [Wife] shall receive as her sole and separate property the following:

a. The real estate and improvements located at 434 South Bedford Street, Bedford, Pennsylvania. All furnishings and property contained therein. [Wife] shall hold [Husband] harmless from the mortgage on said residence, including but not limited to a set of Noritake china, set of silverware, glassware, all Longaberger baskets in the household, artwork by Terry Redlen, and Jesse Borner, children's toys and schoolwork.

b. 2008 Nissan Rogue. [Wife] shall hold [Husband] harmless from any debt on said vehicle.c. 614 shares of Sara Lee stock, [Wife's] Putnam Investments, American Fund Investments in [Wife's] name, Investco IRA in [Wife's] name, and SAC, Inc. 401K.

4. [Husband] shall pay [Wife] reimbursement alimony at the rate of $800.00 per month for a period of six (6) years, seven (7) months from this date, but to end on [Husband's] 65^thbirthday.

5. [Husband] shall within 90 days of this date, pay [Wife] the sum of $6,000.00 toward her counsel fees.

6. The parties shall sign all documents necessary to effectuate this order.

Order, 6/3/14, at 1-3.

Husband raises the following issues on appeal:

1. Whether the Trial Court erred and abused its discretion by failing to include the majority of the parties' marital debts in its Equitable Distribution Analysis that Husband was either paying or responsible for paying, which included several loans, credit card accounts, lines of credit and student loans for their children.

2. Whether the Trial Court erred and abused its discretion by failing to recognize Husband's disability income as revenue for his business to maintain and pay for business expenses thereby incorrectly stating the disparity between the parties' income as significant.

3. Whether the Trial Court erred and abused its discretion by failing to include all of Husband's business expenses in the Equitable Distribution Analysis when calculating his income as evidenced by the business tax returns.

4. Whether the Trial Court erred and abused its discretion in calculating Husband's life estate by failing to take into consideration the maintenance costs and expenses paid to maintain the real estate which would significantly reduce its value.

5. Whether the Trial Court erred and abused its discretion by awarding Wife reimbursement alimony based upon the incorrect value of Husband's life estate.

6. Whether the Trial Court erred and abused its discretion by awarding Wife counsel fees when wife had reasonable income and resources to pay her attorney fees and receive the substantial share of marital assets from the estate.

Husband's Brief at 2-3.

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 is whether the trial court abused its discretion. Smith v. Smith, 904 A.2d 15, 19 (Pa. Super. 2006) (citation omitted). "An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence." Yuhas v. Yuhas, 79 A.3d 700, 704 (Pa. Super. 2013) (en banc), appeal denied, 93 A.3d 464 (Pa. 2014). In determining the propriety of an equitable distribution award, we must consider the distribution scheme as a whole. Childress v. Bogosian, 12 A.3d 448, 455 (Pa. Super. 2011). "[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). Moreover, it is within the province of the trial court to weigh the evidence and decide credibility. Sternlicht v. Sternlicht, 822 A.2d 732, 742 (Pa. Super. 2003).

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