Swartz v. Swartz

• Decision Date: 23 February 2015
• Docket Number: No. 865 MDA 2014,J-A34021-14,865 MDA 2014
• Court: Pennsylvania Superior Court
• Parties: RICHARD ALLAN SWARTZ, Appellee v. ELAINE M. SWARTZ, Appellant

RICHARD ALLAN SWARTZ, Appellee v. ELAINE M. SWARTZ, Appellant

J-A34021-14

No. 865 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

FEBRUARY 23, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered May 6, 2014, In the Court of Common Pleas of Franklin County, Civil Division, at No. 2011-1851.

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

MEMORANDUM BY SHOGAN, J.:

Elaine M. Swartz ("Wife"), age fifty-four, appeals from the May 6, 2014 order of the Franklin County Court of Common Pleas in this divorce action. We affirm.

After a nearly twenty-nine-year marriage, Richard Allen Swartz ("Husband"), age fifty-five, filed a complaint in divorce on April 29, 2011, that included a count for equitable distribution. N.T., 2/25/13, at 8, 40. On June 30, 2011, the court entered an order, upon stipulation of the parties: 1) prohibiting Husband's contact with Wife and providing that upon violation of the order, "Wife may bring a Protection from Abuse action against him," and 2) proscribing Husband's ability to "raise, as a defense or objection, the passage of time between the occurrence of the 'abuse' and the date of filingsame." Order, 6/30/11 at 1. Thereafter, Wife filed a counterclaim adding counts for alimony pendente lite, counsel fees and expenses, and alimony. The parties have two children: an emancipated son and a minor daughter in tenth grade. Id. at 9. The daughter lives with Wife; Husband has limited partial custody. Id. at 38. Apparently, a child support action also ensued.¹

Husband worked as a police officer for the Borough of Chambersburg for the length of the marriage and attained the rank of sergeant for eight to ten years prior to separation. N.T., 2/25/13, at 10, 40. He earned approximately $100,000 annually, which included base pay of $60,000 and overtime pay of $40,000. Id. at 48. He retired from the police force in February 2011 and unsuccessfully ran for magisterial district judge. Id. at 41. Husband currently works as a driver for a waste management company earning $41,000 per year. Id. at 10, 39. He has a pension from the Borough of Chambersburg that pays a gross amount of $4,641.44, or $3,950.15 net, per month. Id. at 35; Master's Report, 8/15/13, at 3 ¶15. If Husband is married at the time of his death, the pension plan offers survivor benefits, at no cost, to his spouse in the amount of fifty percent ofthe benefit Husband was receiving. If Husband is not married at the time of his death, there is no survivor benefit. N.T., 2/25/13, at 35. The present value of the pension was determined to be in excess of $1.2 million dollars. Id.

Wife also worked throughout the marriage. N.T., 2/25/13, at 99-100. From 1985 until April 2011, Wife worked for a window hardware company, Blaine Windows, that provided flexible hours and permitted Wife to work from home while she raised the couple's children. Id. at 12, 100-101. Due to the economic downturn, the company reduced Wife to part-time status, and she lost her eligibility for benefits. Id. at 100. Thereafter, Wife worked on a commission basis for a car dealership, earning $28,000 in 2012. Id. at 105, 116. Her position was eliminated, and she collected unemployment benefits of $34.00 per week. Id. at 107. Wife also serves on the Chambersburg Borough Council, earning $4,150 per year. Id. at 13, 105. Wife has been unable to find new full time employment despite submitting over eighty-seven resumes. Id. at 111. Wife testified that she developed memory issues resulting from two blows to the head by Husband, one in March 2011 and one in April 2011. Id. at 118.

A Special Master was appointed on August 17, 2012. Because Husband's pension plan would not provide survivor benefits for Wife in the event of a divorce, Wife requested a continuance of the Master's hearing toallow time for further investigation into this issue by both parties, including procurement of an appraisal of the pension and estimates for the cost of life insurance to secure Wife's interest in the pension.

A hearing before the Master was held on February 25, 2013. The Master submitted her Report and Recommendations on August 15, 2013. Regarding Husband's pension, which amounted to $3,950.15 net per month, the Master recommended that each party receive fifty percent, or $1,975.08 per month. Wife filed exceptions on September 4, 2013, and Husband filed exceptions on September 14, 2013. Prior to oral argument before the Honorable Robert G. Bigham² on February 28, 2014, the parties resolved Husband's exceptions by agreement. Trial Court Opinion, 7/11/14, at 7.

The trial court entered an order on March 20, 2014, disposing of Wife's exceptions and determining equitable distribution of the marital estate. Regarding Husband's pension, the trial court modified the Master's recommendation of a fifty-fifty split to a fifty-five/forty-five percent split in favor of Wife. Thus, Husband was to receive $1,777.57 per month and Wife was to receive $2,172.58 per month. Wife filed a motion for reconsideration on March 26, 2014, which was denied on March 28, 2014. The court entereda divorce decree on May 6, 2014, and Wife filed her notice of appeal on May 20, 2014. Both the trial court and Wife complied with Pa.R.A.P. 1925.

Wife raises the following issues on appeal:

A. Whether the Trial Court abused its discretion and misapplied the law when it failed to make provision either in equitable distribution or through alimony for the cost of life insurance to secure Wife's interest in the survivor benefit of Husband's pension, where the pension is the most significant asset of the parties.

B. Whether the Trial Court abused its discretion and misapplied the law in relying upon the Finding of the Franklin County Domestic Relations Office to set Husband's earning capacity at $35,780.

C. Whether the Trial Court's equitable distribution scheme as a whole fails to effectuate economic justice because the court abused its discretion and misapplied the law on the following equitable distribution factors:¹

1. The Trial Court misapplied the law to conclude that factor 9, regarding the parties' respective standards of living, favored Husband; and

2. The Trial Court misapplied the law to conclude that factor 11, regarding custody of a minor child of the parties, is neutral.

D. Whether the Trial Court abused its discretion and misapplied the law in denying Wife alimony particularly where there is a significant disparity in income and Wife will have a substantial and ongoing liability in connection with the purchase of life insurance in order to secure her interest in Husband's pension.

¹ [Wife] originally identified five subparts to issue three regarding application of the equitable distribution factors. After review of the Trial Court's Rule 1925(a) Opinion with its clarification of the Court's ruling, [Wife] has elected not to pursuearguments that the Trial Court erred in its application of the factors set forth at 23 Pa.C.S.A. §§ 3502(a)(3), (4), (6), and (7).

Wife's Brief at 13.

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). "[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 toobserve and assess the behavior and demeanor of the parties." Childress, 12 A.3d at 455-456 (citing Moran v. Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003)).

The main focus throughout this case has been Husband's pension because if Husband predeceases Wife, there will be no survivor benefit for Wife. Thus, any pension payment awarded to her by equitable distribution will stop. In her first issue, Wife avers the trial court erred in failing to make provision for the cost of life insurance to secure Wife's interest in the survivor benefit of Husband's pension, either in the equitable distribution award or through alimony, which was not awarded. Wife asserts that the marital estate was valued at $1,516,681.52, and Husband's pension accounted for $1,260,257. She underscores that the pension is a marital asset accrued over nearly twenty-nine years of marriage. Unlike the typical scenario where the spouse who accrued the pension has some control over the survivor benefit, usually by election at the time of retirement, here, upon entry of a divorce decree, Wife's right to receive survivor benefits automatically terminates.

The trial court noted the following stipulation by the parties regarding the pension benefit:

1. If the parties remained married, and Husband died, Wife would receive half of the monthly pension amount for her lifetime as the survivor benefit, and Husband's estate wouldreceive nothing further. Once Wife died, her estate would receive nothing further from the pension.

2. If the parties are divorced and Husband dies, neither Husband's estate nor Wife would receive anything further from the pension.

3. If the parties divorced and Husband remarried,

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