Litmans v. Litmans

• Decision Date: 20 March 1996
• Citation: 673 A.2d 382,449 Pa.Super. 209
• Parties: Rigmor B. LITMANS, Appellant, v. Murray I. LITMANS. Rigmor B. LITMANS v. Murray I. LITMANS, Appellant.
• Court: Pennsylvania Superior Court

Page 382

673 A.2d 382

449 Pa.Super. 209

Rigmor B. LITMANS, Appellant, v. Murray I. LITMANS.

Rigmor B. LITMANS v. Murray I. LITMANS, Appellant.

Superior Court of Pennsylvania.

Argued October 26, 1995.

Filed March 20, 1996.

Susan Curran, Pittsburgh, for Rigmor Litmans.

Chris F. Gillotti, Pittsburgh, for Murray Litmans.

Before TAMILIA, FORD ELLIOTT and CERCONE, JJ.

CERCONE, Judge:

This is an appeal from the lower court's order denying in part and granting in part the parties' exceptions to its decree of equitable distribution. We affirm in part and reverse in part.

The lower court comprehensively stated the facts underlying the instant case:

Plaintiff [appellant] Rigmor Litmans ("Wife") and defendant [appellee/cross-appellant] Murray Litmans ("Husband") were married on July 8, 1967. On September 18, 1985, the parties separated and Wife left the family residence. The parties were divorced on March 10, 1992. The parties had two children during the marriage: Ian, who was born on December 22, 1969, and was 23 years old at the time of the hearing; and Brian, who was born on May 20, 1972, and was 21 years old at the time of the hearing [June 21-23, 1993].

Husband's mother died in May 1969 and Husband inherited from her estate a residence at 5512 Dunmoyle Street, Pittsburgh, Allegheny County. Husband also inherited the majority of the furnishings in the residence and certain jewelry. From January 1969 through September 1985 the parties lived together in the Dunmoyle Street residence. Husband and the parties' children continued to live there even after Wife had left the residence. During the marriage Wife handled the family finances and paid all of the bills. Wife was a heavy drinker in the 1970's and all parties agree [that] she was a problem drinker by 1980.

Wife was 52 years old at the time of the hearing. She is a graduate of a university in Sweden and has the equivalent of a Master's Degree in French. Since November 1988 she has been employed as a secretary at TYK Refractories. Her starting salary was $12,000 per year and she now earns approximately $12,500 per year. Wife enjoys her job and does not want to look elsewhere for employment that pays more. In 1993, Wife was involved in a serious automobile accident. She has since recovered and is working again.

Husband was 56 years old at the time of the hearing. He is an attorney. In 1981, Husband incorporated the private practice of M.I. Litmans, P.C. of which he is the sole shareholder and manager. In 1985, Husband suffered a heart attack and underwent by-pass surgery. After his recovery, in April 1986, he left private practice to become a partner at Eckert Seamans Cherin & Mellot (hereinafter "Eckert Seamans") where he grossed over $123,000 the first year. Husband left Eckert Seamans in December 1989. In January 1990 he joined the Karlovitz firm which dissolved shortly thereafter. In 1990, Husband became a partner with Meyer, Darragh, Buckler, Bebenek & Eck (hereinafter "Meyer Darragh") and stayed there for a year. At Meyer Darragh he made $10,000 per month. From 1990 until June 30, 1992, Husband was a partner with Frank Bernstein, et al. in Maryland and was earning $12,000 per month. This firm dissolved on June 30, 1992. In the summer of 1992, Husband became a partner with the Washington D.C. firm of Schnader, Harrison, Segal and Lewis at a contract salary of $240,000 per year. He is currently employed with Schnader, but now is compensated pursuant to a point system which grosses him $140,000 per year.

When the parties separated their son Ian was enrolled in the Cardigan Mountain school in New Hampshire and their son Brian was enrolled at Shadyside Academy. After separation, Husband continued to maintain the children in private schools as had been the intention of both parties....

Following the separation, an Order was entered requiring Husband to pay Wife alimony pendente lite ("APL") in the amount of $685 per month plus $100 per month for medical expenses. From June 21 through June 23, 1993, a hearing was held to determine equitable distribution of the parties' marital estate. After hearing arguments and considering the evidence presented, this court issued its Findings of Fact and Decree Nisi. Both parties filed Motions for Post-Trial Relief. The court granted in part and denied in part Wife's Motion for Post-Trial Relief. In addition, the Court denied Husband's Motion for Post-Trial Relief. Wife has appealed and Husband has cross-appealed.

Trial court opinion, March 7, 1995, at 1-3. On appeal, wife/appellant has raised the following issues:

1. Whether the trial court erred in its valuation of the Butcher Singer Investment Accounts?

2. Whether the trial court erred in its valuation and distribution of the marital estate by treating the maturity value of the pension and profit sharing plan certificates of deposit as present value, thereby awarding to husband a disproportionate share of the marital estate?

3. Whether the trial court erred in failing to grant wife's petition for modification of alimony pendente lite or her petition for counsel fees?

4. Whether the trial court erred in its inclusion in marital debt $78,966 in loans from the corporate pension and profit sharing plans to husband?

Husband/cross-appellant raises the following additional issues on appeal:

1. Whether the trial court erred in valuing the inherited marital residence as of the date of the hearing rather than the date of separation?

2. Whether the trial court erred in failing to reduce the marital estate by the amount of marital debt that existed at the time of separation, including federal taxes, real estate taxes, private school tuition, utility bills and consumer debt?

3. Whether the trial court erred in failing to give husband credit for providing for the private school education of the children?

Before addressing these issues, we will first set forth our standard of review.

Our scope of review of an order of equitable distribution is limited. Miller v. Miller, 421 Pa.Super. 23, 617 A.2d 375 (1992), appeal denied, 525 Pa. 664, 583 A.2d 794 (1990). Such awards are within the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. Id. at 28, 617 A.2d at 377. "An abuse of discretion will be found by this court only if the trial court failed to follow proper legal procedures or misapplied the law." Id. at 28, 617 A.2d at 377-78.

Wife first contends that the trial court erred in its valuation of the Butcher Singer investment accounts by totalling the number of units held in the accounts rather than the dollar value of the holdings, and by failing to include the interest earned on the accounts. In its opinion of March 7, 1995, the trial court acknowledged that it had erred in valuing three accounts. The lower court, in its final order, valued account number 030-46592 (A1), at $54,553.00. In its opinion of March 7, 1995, the lower court admitted that this figure was incorrect and was the result of a typographical error. The lower court stated that the correct amount was $64,553.00. Trial court opinion, at 5. In her brief on appeal, wife indicates that she agrees with the correction made by the lower court in its March 7, 1995 opinion.

In that same opinion, the lower court also corrected the valuations of two other investment accounts. Trial court opinion, March 7, 1995, at 5-6. Wife indicates in her brief that she accepts the corrected valuations made by the lower court for these two accounts. Husband does not object to the corrections made by the lower court in its March 7, 1995 opinion. Therefore, it is not necessary for us to further address this issue.

Wife next contends that the trial court erred in its valuation and distribution of the marital estate by treating the maturity value of the pension and profit sharing plan certificates of deposit as their present value. Wife argues that the present value of the certificates is much lower than their maturity value. By using the maturity value, wife asserts that she did not receive a fifty-five percent share of the marital estate, but rather only about forty-one percent.

At the hearing in the lower court, evidence was offered to the effect that the certificates would be worth $100,342.00 each at their maturity dates in the year 2004. Neither party has cited any other evidence of the value of the certificates which was offered in the lower court. In fact, wife/appellant admits that neither party submitted evidence as to the present value of the certificates. Brief for Wife/Appellant, at 12. The trial court, in its equitable distribution scheme, awarded wife both of the C.D.s.

In determining the value of marital property, the court is free to accept all, part, or none of the testimony as to the true and correct value of property. Aletto v. Aletto, 371 Pa.Super. 230, 537 A.2d 1383 (1988). "[W]here the evidence offered by one party is uncontradicted, the court may adopt this value although the resulting valuation would have been different if more accurate and complete evidence had been presented." Holland v. Holland, 403 Pa.Super. 116, 120, 588 A.2d 58, 60 (1991), appeal denied, 528 Pa. 611, 596 A.2d 158 (1991).

In the instant case, the trial court did not abuse its discretion in adopting the only valuation amount submitted by the parties. Wife now contends that the present value of the C.D.s is far less than the value assigned by the lower court. She failed, however, to present any such evidence in the lower court and thus cannot now raise the issue on appeal. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. (issues not raised in the lower court will not be considered for the first time on appeal).

Wife's contention that the lower court's distribution scheme is flawed because the court used the maturity value of the C.D.s must also fail. The lower court addressed this issue in its opinion of March 7, 1995, stating as follows:

The Court did consider that the maturity value will not...