McNeill v. McNeill, 052820 PASUP, 2123 EDA 2019

Docket Nº:2123 EDA 2019
Opinion Judge:STABILE, J.
Party Name:DOUGLAS MCNEILL Appellee v. CHRISTINE MCNEILL Appellant
Judge Panel:BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
Case Date:May 28, 2020
Court:Superior Court of Pennsylvania
 
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DOUGLAS MCNEILL Appellee

v.

CHRISTINE MCNEILL Appellant

No. 2123 EDA 2019

Superior Court of Pennsylvania

May 28, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order June 12, 2019 In the Court of Common Pleas of Monroe County Civil Division at No: 7877 CV 2014

BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM

STABILE, J.

Appellant Christine McNeill ("Wife") appeals from an order declaring the parties divorced, granting her exceptions to the master's report in part and denying her exceptions in part. We affirm in part and vacate in part. We affirm the order to the extent it denies Wife's exceptions to the date of separation, Wife's interest in the bank accounts, Wife's 55% interest in marital assets, and Wife's right to $1, 500.00 per month in alimony. We vacate the portion of the order denying Wife's exception to her share of an annuity fund managed by MassMutual, the Annuity Fund of Local No. One, I.A.T.S.E. ("IATSE Annuity"), and we remand for recalculation of Wife's share of the IATSE annuity.

Wife and Appellee, Douglas McNeill ("Husband"), married in 1982. Husband worked for years in theatrical rigging in New York City, while Wife stayed home with the parties' children. On September 18, 2014, Husband filed for divorce. The children were all adults by this time.

On August 21, 2018, a divorce master held an evidentiary hearing. On November 13, 2018, the master filed a report finding that the parties separated in May 2007, proposing a schedule of distribution, and recommending that Wife receive 55% of all marital assets in equitable distribution and $1, 000.00 per month in alimony for five years. The master also recommended that Husband convey his interest in the marital residence to Wife. Wife filed timely exceptions to the report, and the trial court held oral argument on February 28, 2019.

In an opinion and order dated June 19, 2019, the trial court granted Wife's exceptions in part and denied them in part. The court granted Wife's exception to alimony and raised her alimony to $1, 500.00 per month for five years. Otherwise, the court denied Wife's exceptions and adopted the master's recommendations as to equitable distribution, thus awarding the marital residence and 55% of the marital estate ($379, 798.08) to Wife.

Wife filed a timely appeal to this Court and filed a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. The trial court filed a Pa.R.A.P. 1925(a) statement explaining that it addressed all issues in Wife's Rule 1925 statement in its June 12, 2019 opinion.

Wife raises five issues in this appeal, which we re-order for the sake of convenience: 1. Whether the court erred as a matter of law and abused its discretion in determining the parties separated in May 2007?

2. Whether the court erred as a matter of law and abused its discretion in failing to properly value the annuity?

3. Whether the court erred as a matter of law and abused its discretion in failing to properly valuate the bank accounts[?]

4. Whether the court erred as a matter of law and abused its discretion in failing to equitably divide the assets in more favor of Wife based upon the statutory factors?

5. Whether the court erred as a matter of law and abused its discretion in failing to award alimony in an amount and length of time that Wife can maintain the home and survive[?]

Wife's Brief at 5-6.

First, Wife argues that the trial court erred by accepting the master's finding that the parties separated in May 2007. "Our standard of review in assessing the propriety of a marital property distribution is whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure . . . An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence." McCoy v. McCoy, 888 A.2d 906, 908 (Pa. Super. 2005). We conclude that the trial court acted within its discretion by denying Wife's exception to the finding that May 2007 was the date of separation.

Equitable distribution requires the court to "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." 23 Pa.C.S.A. § 3502(a). Marital property is "all property acquired by either party during the marriage," subject to eight exceptions. 23 Pa.C.S.A. § 3501(a). "The trial court has discretion as to whether to value the marital property at either the time of separation or the time of trial to obtain an equitable result, but valuation is made as of a date certain." Huber v. Etkin, 58 A.3d 772, 779 n.6 (Pa. Super. 2012). In this case, without objection from either party, the master valued marital property as of the date of separation.

When marital property is valued as of the date of separation, "the determination of the separation date obviously impacts the value of property in that only property acquired prior to the date of final separation is marital property and therefore subject to equitable distribution." McCoy, 888 A.2d at 910. The date of separation is when the parties live "separate and apart," which the Divorce Code defines as "[c]essation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served." 23 Pa.C.S.A. § 3103.

The only evidentiary hearing in this case took place before a master. "A master's report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties." Childress v. Bogosian, 12 A.3d 448, 455 (Pa. Super. 2011).

The trial court analyzed the master's finding on the date of separation as follows: At...

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