Isralsky v. Isralsky

• Decision Date: 28 April 2003
• Citation: 824 A.2d 1178,2003 PA Super 162
• Parties: Melanie D. ISRALSKY, Appellee, v. Jay S. ISRALSKY, Appellant.
• Court: Pennsylvania Superior Court

824 A.2d 1178

2003 PA Super 162

Melanie D. ISRALSKY, Appellee, v. Jay S. ISRALSKY, Appellant.

Superior Court of Pennsylvania.

Argued December 4, 2002.

Filed April 28, 2003.

Melaine S. Rothey, Pittsburgh, for appellant.

Samuel Reich, Pittsburgh, for appellee.

BEFORE: HUDOCK, TODD, and GRACI, JJ.

OPINION BY GRACI, J.:

¶ 1 Appellant, Jay S. Isralsky, ("Husband") appeals the trial court's order of equitable distribution awarding sixty percent of the marital estate to Appellee, Melanie D. Isralsky, ("Wife"), also granting Wife's request for alimony and ordering Husband to pay $20,000 of Wife's counsel fees. Upon review of the record we affirm in part and reverse in part, remanding with instructions.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 The relevant facts and procedural history, as aptly stated by the trial court, are as follows.

The parties to this action were married on February 22, 1981, and separated on or about November 23, 1997. The Amended Notice of Appeal confirms a Divorce Decree was not entered until February 27, 2002. During the marriage, three boys were born who at the time of trial were 17 (Brandon), 14 (Andrew), and 11 (Glen). Husband is 47 years old, born on August 14, 1954, and Wife is 46 years old, born on September 19, 1955.

Wife attended Queens College for approximately four years, but received no degree. She worked in the early years of the parties' marriage, but between 1984 and 1996 she was a stay-at-home mother to raise the three children. She returned to employment in 1996 and at the time of trial was employed as a coordinator at Primary Physicians Research & Pharmaceutical making $12.44 per hour for a 24-28 hour per week job. Since the date of separation, Wife has been the primary physical custodian of the three boys and Father has had extremely limited, and for most of the time, virtually no partial custody or visitation during the last four and one-half years.

Husband now lives with his sister in Alameda, California. He is presently employed at Williams-Sonoma, Inc. at an annual base salary of approximately $80,000 plus a bonus which may be between 10 percent and 30 percent of his base salary. From sometime in 1985 or 1986, until March 31, 1995, he was employed by OshKosh B' Gosh. The termination of his employment there resulted in a lawsuit, which brought a settlement of approximately $375,000.00 of which $75,000.00 went directly to his counsel. The initial net payment to Husband of $204,793.20 was made in June 1998. The proceeds of the settlement were separated into two joint accounts, and Wife's name was not on either one of them. A subsequent payment in 1999 was placed into an escrow account. The disposition of the proceeds of this settlement caused protracted litigation between the parties as Husband used most, if not all, of the funds to repay loans to his sister and mother. Wife contested the repayment of these loans and presented a Petition for Special Relief to the Court in 1999. The matter was tried before this Court for two days, and we found that family members of Husband had in fact loaned substantial funds to Husband to meet marital obligations of the parties between April 1, 1995 and June 1998. There were Promissory Notes including 10 percent interest on the principal amounts, to corroborate these loans. Wife had never signed any of these notes and she denied any knowledge of them. Further, the balance of the proceeds from the settlement, which had been held in an escrow account, were released, by Order of Court, directly to the Internal Revenue Service to satisfy or partially satisfy any remaining federal tax obligation as the result of the settlement of the claim. Even though Wife was not a signator to any of the Promissory Notes, and despite the fact that the interest rates charged by family members to Husband were higher than one might normally expect to see between family members, we felt constrained to find that the loans had been made by his mother and sister in order to satisfy the ongoing expenses of the parties. It was clear these expenses far exceeded any other available income to them during the period in question as Husband was unemployed for a long period of time, received unemployment and then had minimal employment with one or two firms.

Opinion, 5/23/02, at 1-3. Following a two-day trial on the economic issues, on November 20, 2001, the trial court issued Findings of Fact, Conclusions of Law and an Order of Court setting forth, in detail, its decision with regard to the issues of alimony, child support, modification of child support and alimony pendente lite, equitable distribution and counsel fees. A Notice of Appeal was filed on December 20, 2001 and an Amended Notice of Appeal was filed on February 28, 2002.¹

¶ 3 Husband raises on appeal, the following issues for our consideration.

I. The trial court erred with regard to the valuation of the marital estate in several particulars.

II. The trial court erred in ordering husband to pay an additional $400/month in child support based upon the "mortgage adjustment" set forth in Rule 1910.16-6(E), when such provision is inapplicable after theh [sic] entry of a divorce decree.

III. The trial court erred in granting wife's petition for modification of alimony pendente lite and child support in that it improperly assessed husband with a gross income of $80,000/year for the period of April 1999 through August 2001.

IV. The trial court erred in awarding alimony to wife in several particulars.

V. The trial court erred in calculating both husband's income and wife's income for purposes of determining the appropriate amount of support pursuant to the child support guidelines.

VI. The trial court erred in awarding sixty (60%) percent of the marital estate to wife without proper consideration of all factors set forth in 23 Pa.C.S.A. Section 3501, including the tax consequences.

VII. The trial court erred in awarding wife $20,000 in counsel fees.

Appellant's Brief, at i-ii. (We will address these claims in order.)

II. DISCUSSION

A. Equitable Distribution—Valuation of the Marital Estate

¶ 4 Husband begins by arguing in his brief that the trial court made four different errors in its valuation of the marital estate. Each allegation of error involved an item of the marital estate over which there was some conflict in testimony and evidence as presented by each party at trial. Each allegation involved a determination of the credibility of the evidence and required the exercise of judicial discretion.

¶ 5 Our role in reviewing awards of equitable distribution is well settled.

The trial court has broad discretion in fashioning equitable distribution awards and we will overturn an award only for an abuse of that discretion. Oaks v. Cooper, 536 Pa. 134, 638 A.2d 208 (1994); Hovis v. Hovis, 518 Pa. 137, 541 A.2d 1378 (1988); Gaydos v. Gaydos, 693 A.2d 1368 (Pa.Super.1997)(en banc). The Divorce Code states that the trial court

Shall...equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just after considering all relevant factors....

23 Pa.C.S. § 3502(a). In assessing the propriety of an equitable distribution scheme, our standard of review is whether the trial court, by misapplication of the law or failure to follow proper legal procedure, abused its discretion. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987). "Specifically, we measure the circumstances of the case, and the conclusions drawn by the trial court therefrom, against the provisions of 23 P.S. § 402(d) [now 23 Pa.C.S. § 3502(a) ] and the avowed objectives of the Divorce Code, that is, `to effectuate economic justice between the parties ... and insure a fair and just determination of their property rights.' 23 P.S. § 102(a)(6) [now 23 Pa.C.S. § 3102(a)(6) ]." Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151, 152 (1987).

Middleton v. Middleton, 812 A.2d 1241, 1247 (Pa.Super.2002) (footnote omitted). The law is also well settled that the trial court can accept all, some or none of the submitted testimony in determining the value of marital property. Kohl v. Kohl, 387 Pa.Super. 367, 564 A.2d 222 (1989) (aff'd 526 Pa. 263, 585 A.2d 463 (1991)). With these guidelines in mind, we will now review the trial court's distribution order. Husband first argues that:

(a) The trial court erred in assessing Husband with $3,042 from the joint PNC Checking Account when such funds were used to pay marital debt and/or household expenses after Husband moved from the marital residence.

Appellant's Brief, at 11. The trial court found that the, "PNC joint checking account... had a separation balance of $4542. The testimony established that wife made a cash withdrawal of $1,500 the day after the separation, and that husband took the remaining $3,042 and apparently deposited those funds into a bank account in New York." Findings of Fact, 11/20/01, at 2, ¶ 5. The trial court also explained that,

the evidence led us to believe that Husband wrote a check payable to his mother on the account in that amount three days after separation payable to his mother.... [T]hat same day his mother wrote a check to him in that same amount and a Promissory Note was executed by him to his mother. We believed that none of these funds were utilized to pay marital debt or household expenses.

Opinion, 5/23/02, at 3-4. This finding is supported by the record, and we find no abuse of discretion.

¶ 6 Husband's second assertion of error by the trial court regarding the valuation of the marital estate stated as follows:

(b) The trial court erred in including the $12,000 proceeds from the sale of the Porsche in the marital estate and awarding Wife $11,191 of said proceeds when the undisputed evidence indicated that said proceeds had been used by Husband prior to trial to pay a portion of the federal tax liability on the monies from...