J-S62014-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EUGENE B. MILLER, III IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellant

v.

DEBORAH J. MILLER

Appellee No. 676 MDA 2017

Appeal from the Order Entered January 13, 2017

In the Court of Common Pleas of York County

Criminal Division at No: 2012-FC-001170-15

BEFORE: STABILE, MOULTON, and STRASSBURGER, * JJ.

MEMORANDUM BY STABILE, J.: FILED MARCH 27, 2018

Appellant, Eugene B. Miller, III (“Husband”), appeals from the January 

13, 2017 order entered in the Court of Common Pleas of York County (“trial 

court”) awarding Deborah J. Miller (“Wife”) slightly over fifty percent of the 

marital estate in its equitable distribution award, and directing Husband to pay 

monthly alimony of $1,833.60 to Wife until she turns 67. We affirm the 

equitable distribution award. We remand for further proceedings concerning 

Wife’s alimony award. Specifically, we direct the trial court to (1) address 

what effect, if any, Wife’s post-separation receipt of an inheritance of 

$61,000.00 has on the amount of alimony that Husband must pay, and (2) 

perform an item-by-item evaluation of the criteria for alimony within 23 

Pa.C.S.A. § 3701(b).

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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On June 26, 2012, Husband filed a complaint in divorce seeking 

equitable distribution of marital property. Wife filed a petition seeking, inter 

alia, alimony and counsel fees. On August 24, 2015, a court-appointed master 

heard testimony from both parties. On June 21, 2016, the master entered a 

report with findings of fact and recommendations. We summarize the 

master’s findings of fact and recommendations as follows. 

Both parties are in their fifties. Both parties graduated high school but 

did not attend college. Wife was married once before marrying Husband, and 

she has two children from the previous marriage. Her son from her first 

marriage, Matthew, lives with her along with Matthew’s son, Devon. Matthew 

does not pay her rent or money to support Devon. Husband and Wife had one 

child of their own who is now an emancipated adult. Master’s Report and 

Recommendation (“Master’s Report”), 6/21/16, at 3-4, 6.

Husband was a chef until 2005. From 2005 through 2014, he was a 

general manager for a food service contractor. Since 2014, he has been the 

director of dining services at Quarryville Presbyterian Retirement Community. 

He earned $94,040.00 in 2014 and was on track to earn more than 

$100,000.00 in 2015. The master calculated Husband’s net monthly income 

to be $5,509.00. Id. at 4, 19.

Prior to the marriage, Wife obtained a real estate sales license and 

worked as a server in a restaurant, a law office secretary, and an assistant in 

a real estate office. She renewed her real estate license during the marriage. 

She is currently unemployed and has not actively sought out employment. 
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She applied for Social Security Disability benefits during divorce proceedings

but was denied due to lack of employment history within the last ten years. 

Id. at 4-5.

During the marriage, Husband and Wife jointly owned a residence in 

Hanover, Pennsylvania. In 2003, the parties jointly filed for bankruptcy. To 

keep the marital residence, and to pay an automobile loan, they jointly 

borrowed $57,000.00 from Husband’s mother and co-signed a mortgage on 

the residence to secure the debt. At the time of separation in 2011, the parties 

had paid down the debt to $29,916.00. Husband made several more 

payments after separation, reducing the debt to $28,330.00, but made no 

further payments after January 2012. The marital residence was sold in the 

fall of 2015, by which time interest of $2,408.00 had accrued on the debt. To 

permit the sale of the residence, Husband’s mother voluntarily marked the 

mortgage satisfied. It is unclear whether she intended to forgive the debt or 

merely to release her security for payment. Id. at 10.

Husband is in good health. Wife testified that she suffers from multiple 

medical problems, including fibromyalgia, sleep apnea, arthritis, irritable 

bowel syndrome, a deviated septum, lymphedema in her legs, and cellulitis. 

She did not offer medical testimony in support of her claims. Husband 

provided medical insurance for Wife, but coverage terminated upon entry of 

the divorce decree. Id. at 4-5.
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Following the parties’ separation, Wife received an inheritance of 

approximately $61,000.00, which she used to pay living expenses, and she 

has about $3,500.00 left. Id. at 8.

Husband requested credit for assuming the debt of approximately 

$30,000.00 that both Husband and Wife still owed to Husband’s mother. The 

master recommended that Husband not receive credit for this debt and that

Wife receive $54,624.00, slightly over half of the net marital estate of

$108,579.00. Id. at 10-11.

The master determined that Wife should receive alimony because most 

of the marital assets are non-liquid1 and Wife is capable of working only parttime. If she worked for minimum wages of $7.25 per hour, the master wrote, 

she would gross $1,257.00 per month working full-time, so she stood to gross 

less than this amount working part-time. The master determined that Wife 

could work part-time (35 hours per week), thus making gross income of 

$1,100 per month with net income of $925 per month. The master also 

determined that Wife’s own living expenses were between $1,800 to $2,000 

____________________________________________

1 The master observed that most of the marital estate consists of retirement 

assets and $16,091.00 in cash from the sale of the marital residence. Master’s 

Report at 20-21. Wife will need the cash from the sale of the real estate to 

pay legal fees and other current expenses. Id. at 21. She cannot access the 

retirement money until age 62 without incurring either penalties or taxes. Id.
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per month.

2

 Based on these computations, the master recommended that 

Wife receive alimony of $1,000.00 per month until age 62, when she can begin 

receiving Social Security retirement benefits. He also recommended that Wife 

receive no counsel fees, costs or expenses. Id. at 19-22.

Both parties filed timely exceptions to the master’s report. On January 

13, 2017, following oral argument, the trial court entered an order denying 

Husband’s exceptions and denying in part and granting in part Wife’s 

exceptions. Specifically, the trial court increased Wife’s monthly alimony to 

$1,833.60 and ordered Husband to pay alimony until Wife turned 67 (instead 

of 62, as the master recommended). The trial court calculated monthly 

alimony as $1,833.60, forty percent of the difference between the master’s 

findings of Husband’s monthly net income ($5,509.00) and Wife’s monthly 

earning capacity ($925.00). Otherwise, the trial court adopted the master’s 

findings of fact and recommendations, including the master’s determination 

that Husband should not receive credit for assuming the debt that both parties 

owed to Husband’s mother. Husband filed a timely notice of appeal, and both 

Husband and the trial court complied with Pa.R.A.P. 1925.

Husband raises five issues for our review, which we repeat verbatim:

I. Whether the trial court committed abuse of discretion and 

error of law in failing to consider and address the stipulated 

____________________________________________

2 The master stated that this sum did not include money to support her son 

or grandson, because “she should be seeking contribution from them or from 

the Pa. Dept. of Welfare if she chooses to provide them with a home.” Master’s 

Report at 19 n. 5.
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marital debt of the parties in the equitable distribution 

scheme and not considering and ordering some contribution 

from Wife for the repayment of such debt.

II. Whether the trial court erred and abused its discretion in not 

considering the dissipation of assets Husband proved 

against Wife in determining the equitable distribution 

scheme as well as in the length and amount of alimony 

awarded.

III. Whether the trial court committed abuse of discretion in 

determining that Husband should pay alimony to Wife until 

she is 67 when she would be entitled to social security 

benefits at 62. Such finding results in the Husband paying 

to Wife support and or alimony benefits for nearly 20 years 

or the length of the marriage which is inequitable. 

IV. The trial court erred and abused its discretion in not 

considering that Wife is residing with other individuals who 

should be contributing to the household expenses, and 

failure of [Wife] to require such contribution should be 

considered in the calculation of the alimony payment.

V. Whether the trial court erred and abused its discretion in not 

considering Wife’s receipt of inheritance after the date of 

separation in determining the alimony and equitable 

distribution. 

Husband’s Brief at 5-6 (capitalization omitted). 

Wife did not file a brief in this Court. Husband’s first argument and part 

of his second argument concern the equitable distribution of the parties’ 

marital assets. His remaining arguments relate to his alimony obligations. 

We first address Husband’s equitable distribution arguments. Husband 

argues that the trial court abused its discretion in the course of determining 

equitable distribution by denying Husband credit for assuming the debt that 

both parties owed to Husband’s mother. “In making its decision regarding

equitable distribution, the trial court must consider at least the eleven factors 
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enumerated in [the Divorce Code’s equitable distribution statute,] 23 

Pa.C.S.A. § 3502(a).” Wang v. Feng, 888 A.2d 882, 887 (Pa. Super. 2005). 

However,

there is no simple formula by which to divide marital property. 

The method of distribution derives from the facts of the individual 

case. The list of factors [in the Divorce Code] serves as a guideline 

for consideration, although the list is neither exhaustive nor 

specific as to the weight to be given the various factors. Thus, 

the court has flexibility of method and concomitantly assumes 

responsibility in rendering its decisions.

Id. The 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 in assessing an equitable distribution order is “whether 

the trial court abused its discretion by a misapplication of the law or failure to 

follow proper legal procedure.” Smith v. Smith, 904 A.2d 15, 19 (Pa. Super.

2006). We will not find an “abuse of discretion” unless the law has been 

“overridden or misapplied or the judgment exercised” was “manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown 

by the evidence in the certified record.” Wang, 888 A.2d at 887. In

determining the propriety of an equitable distribution award, courts must 

consider the distribution scheme as a whole. Id. “[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).
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Moreover, the trial court’s province is to weigh the evidence and decide 

credibility, and this Court will not reverse those determinations so long as they 

are supported by the evidence. 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 to observe 

and assess the behavior and demeanor of the parties.” Moran v. Moran, 839 

A.2d 1091, 1095 (Pa. Super. 2003).

In this case, the master recommended that Husband not receive credit 

for assuming the debt to his mother, because both parties remain equally 

liable for repayment, and it is possible that neither party will pay anything 

more. Master’s Report at 10-11. Husband, the master reasoned, should not 

receive credit for a debt that he might unilaterally decide not to pay. The trial 

court accepted the master’s rationale. Trial Ct. Findings of Fact and Order

(“Order”), 1/13/17, at 4. In our view, this decision was a proper use of 

discretion, because there was a rational explanation underlying this decision. 

The trial court was understandably wary of giving Husband credit for an act

that he had not yet performed and might later find inconvenient to carry out. 

Husband’s “assumption” of debt to his mother might have been a pretext for 

depriving Wife of her fair share of the marital estate. For these reasons, the 

trial court’s decision was not “manifestly unreasonable or the result of 
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partiality, prejudice, bias, or ill will.” Wang, 888 A.2d at 887. Husband’s first 

argument fails.3 

Next, Husband asserts that in the course of determining equitable 

distribution, the trial court abused its discretion by failing to consider that Wife 

dissipated marital assets by failing to contribute to the marital household 

during the final half of the parties’ marriage. According to Husband, (1) Wife 

was able to work but refused to do so, (2) Wife stopped caring for the marital 

home and the parties’ child, and (3) instead of working or behaving 

responsibly, Wife regularly smoked and drank and often passed out after 

combining alcohol and prescription medications. Appellant’s Brief at 16-17. 

The master determined that Wife’s smoking and drinking might have 

exacerbated her health problems, thereby dissipating the marital estate, “but 

it is impossible to quantify the degree to which Wife’s health issues were 

directly related to her smoking and drinking without more detailed medical 

evidence.” Master’s Report at 15. The trial court adopted this finding. Order 

at 5.

The equitable distribution statute requires the trial court to consider, 

inter alia, “the contribution or dissipation of each party in the acquisition, 

preservation, depreciation or appreciation of the marital property, including 

____________________________________________

3 At the conclusion of this argument, Husband added that his assumption of 

debt should have led the trial court to reduce his alimony payments. Once 

again, this argument fails because he might unilaterally decide not to pay this 

debt. 
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the contribution of a party as homemaker.” 23 Pa.C.S.A. § 3502(a)(7). The 

Divorce Code does not specify a particular method of valuing assets. The trial 

court must exercise discretion and rely on the estimates, inventories, records 

of purchase prices, and appraisals submitted by both parties. Smith v. 

Smith, 653 A.2d 1259, 1265 (Pa. Super. 1995). In determining the value of 

marital property, the court is free to accept all, part or none of the evidence 

as to the true and correct value of the property. Litmans v. Litmans, 673 

A.2d 382, 395 (Pa. Super. 1996). 

Here, while Husband’s argument that Wife’s smoking and drinking 

dissipated the marital estate has some intuitive appeal, he failed to present 

sufficient evidence demonstrating the value of the marital assets that Wife 

dissipated through these habits. Thus, the trial court acted within its 

discretion by deciding not to reduce Wife’s share of the marital estate.

The remaining issues in Husband’s appeal concern Wife’s alimony

award. We review alimony awards for abuse of discretion. Middleton v. 

Middleton, 812 A.2d 1241, 1247 (Pa. Super. 2002). The alimony statute in 

the Divorce Code provides: “Where a divorce decree has been entered, the 

court may allow alimony, as it deems reasonable, to either party only if it finds 

that alimony is necessary.” 23 Pa.C.S.A. § 3701(a). The alimony statute lists 

seventeen factors that the court must consider in “determining whether 

alimony is necessary and in determining the nature, amount, duration and 
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manner of payment of alimony.” 23 Pa.C.S.A. § 3701(b).4 The purpose of 

alimony is not to reward one party and to punish the other, but rather to meet 

____________________________________________

4 Section 3701(b) provides:

In determining whether alimony is necessary and in determining 

the nature, amount, duration and manner of payment of alimony, 

the court shall consider all relevant factors, including:

(1) The relative earnings and earning capacities of the parties.

(2) The ages and the physical, mental and emotional conditions of 

the parties.

(3) The sources of income of both parties, including, but not 

limited to, medical, retirement, insurance or other benefits.

(4) The expectancies and inheritances of the parties.

(5) The duration of the marriage.

(6) The contribution by one party to the education, training or 

increased earning power of the other party.

(7) The extent to which the earning power, expenses or financial 

obligations of a party will be affected by reason of serving as the 

custodian of a minor child.

(8) The standard of living of the parties established during the 

marriage.

(9) The relative education of the parties and the time necessary 

to acquire sufficient education or training to enable the party 

seeking alimony to find appropriate employment.

(10) The relative assets and liabilities of the parties.

(11) The property brought to the marriage by either party.

(12) The contribution of a spouse as homemaker.

(13) The relative needs of the parties.

(14) The marital misconduct of either of the parties during the 

marriage. The marital misconduct of either of the parties from the 

date of final separation shall not be considered by the court in its 

determinations relative to alimony, except that the court shall 

consider the abuse of one party by the other party. As used in this 

paragraph, “abuse” shall have the meaning given to it under [23 

Pa.C.S.A. §] 6102 (relating to definitions).

(15) The Federal, State and local tax ramifications of the alimony 

award.
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the reasonable needs of the person who is unable to support herself through 

appropriate employment. Grandovic v. Grandovic, 564 A.2d 960, 965 (Pa. 

Super. 1989). Alimony following divorce is a secondary remedy and is 

available only where economic justice and the reasonable needs of the parties 

cannot be achieved by way of an equitable distribution award and 

development of an appropriate employable skill. Id. 

As he argued with regard to equitable discretion, Husband contends that 

the trial court should have reduced the alimony award because he assumed 

the debt that both parties owed to his mother. Husband’s Brief at 15. For the 

reasons given in our discussion of equitable distribution above, the trial court 

acted within its discretion by declining to reduce Wife’s alimony award on this 

basis.

Husband also argues that the trial court unfairly increased Wife’s 

alimony award to relieve Wife of her duty to obtain contribution from her son, 

Matthew, or obtain contribution from the Pennsylvania Department of Welfare 

(“DPW”). Husband’s Brief at 27-28. We do not read the trial court’s order 

this way. The master recommended that Wife’s alimony award only relate to 

____________________________________________

(16) Whether the party seeking alimony lacks sufficient property, 

including, but not limited to, property distributed under [Title 23,] 

Chapter 35 (relating to property rights), to provide for the party's 

reasonable needs.

(17) Whether the party seeking alimony is incapable of selfsupport through appropriate employment.

Id.
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her own living expenses, and that she should seek contribution from Matthew 

or DPW for expenses relating to Matthew and his son. Although the trial 

court’s order provided more alimony to Wife than the master recommended, 

the intent of the trial court’s order was simply to provide more money for 

Wife’s own living expenses, not to provide her with money for Matthew or his 

son. Under the trial court’s order, Wife continues to have the duty to seek 

contribution from Matthew or DPW for the living expenses of Matthew and his 

son. Therefore, Husband’s argument does not warrant relief. 

Husband’s final arguments with regard to alimony warrant remand for 

further consideration by the trial court. First, Husband argues that the trial 

court failed to take Wife’s post-separation inheritance of $61,000.00 into 

account when determining the amount of alimony.5 Husband’s Brief at 28. 

The alimony statute requires the trial court to consider, among other factors, 

“the expectancies and inheritances of the parties.” 23 Pa.C.S.A. § 3701(b)(4). 

____________________________________________

5 Husband introduced evidence of Wife’s inheritance during the hearing before 

the master. N.T., 8/24/15, at 102. The master, however, found that “neither 

party has any” expectancies or inheritances, Master’s Report, at 18, and 

recommended that Wife receive monthly alimony of $1,000.00. Id. at 21. 

Husband did not file a written exception to the master’s failure to consider 

Wife’s inheritance. Husband did, however, raise this issue during oral 

argument in the trial court, and the trial court permitted Husband’s counsel to 

argue this issue on the merits. N.T., 1/9/17, at 30-34. Therefore, we deem 

this issue preserved for appeal. Cf. Mammocchio v. 1818 Market 

Partnership, 734 A.2d 23, 27 (Pa. Super. 1999) (where party filed tardy 

post-trial motions in civil action and opposing party did not allege prejudice, 

trial court acted within its discretion in considering issues). 
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Wife’s inheritance of $61,000.00 is sizable in comparison to the net marital 

estate of $108,579.00, much of which is non-liquid, and to Husband’s annual 

income of about $100,000.00. The master, however, found erroneously that 

Wife did not receive an inheritance. Master’s Report, at 18. Following 

Husband’s exceptions to the Master’s report, the trial court acknowledged 

during oral argument that Husband’s request to take Wife’s inheritance into 

consideration had “some logic.” N.T., 1/9/17, at 32. But in its subsequent 

Order, the trial court made no mention of Wife’s inheritance in its analysis of 

alimony6 and directed Husband to pay monthly alimony of $1,833.60, almost 

twice the amount recommended by the master.

There is no real dispute that Wife is entitled to an alimony award, given 

the wide disparity between Husband’s and Wife’s earning power and the lack 

of liquid assets available for equitable distribution. The only question is what 

amount of alimony Wife should receive. Wife’s inheritance deserves weight in 

the calculation of her alimony award, because it is fairly large in comparison 

to the liquid marital assets and Husband’s income stream. Because the trial 

court failed to mention Wife’s inheritance in its alimony analysis, we cannot 

tell whether it took the inheritance into consideration. The appropriate 

remedy, therefore, is to vacate the alimony award and remand for the trial 

____________________________________________

6 The only time the trial court’s order mentioned Wife’s inheritance was in 

connection with a different issue that is not before us on appeal: whether 

Husband should have to pay attorney fees that Wife incurred during divorce 

proceedings. Order at 4.
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court’s explicit consideration of Wife’s inheritance. If the trial court took the 

inheritance into account in its previous Order, it should explain how it treated 

the inheritance in reaching its alimony award of $1,833.60 per month. If it 

did not take the inheritance into account, it should recalculate Wife’s award 

and explain how the inheritance factors into the new award.

Next, Husband argues that Wife’s alimony award is excessive in both 

amount and length of time because it was more than Husband should pay if 

Wife rejoined the workforce. As noted above, the master recommended an 

alimony award of $1,000.00 until Wife turned 62 by determining that she 

could work part-time (35 hours per week at $7.25 per hour) and by finding 

monthly living expenses to be between $1,800.00 to $2,000.00. Although the 

trial court agreed that Wife can work part-time, Order at 2, the trial court 

increased Wife’s alimony to $1,833.60 and the duration of payments until Wife 

turned 67. This decision was internally inconsistent: monthly alimony of 

$1,833.60 would pay all (or at least virtually all) of Wife’s monthly expenses, 

a burden which Husband should not have to shoulder if Wife is capable of 

partial self-support. 

Further, we are concerned about the manner in which the trial court 

determined monthly alimony to be $1,833.60. The trial court arrived at this 

amount by calculating forty percent of the difference between the master’s 

determination of Husband’s net monthly income ($5,509.00) and Wife’s net 

monthly earning capacity ($925.00). Order at 3. While the Rules of Civil 
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Procedure prescribe that alimony pendente lite7for a spouse without 

dependent children is forty percent of the difference between the spouses’ net 

incomes, see Pa.R.Civ.P. 1910.16-4(a), the straight forty percent calculation 

is intended to be only an interim remedy pending the determination of 

alimony itself. The determination of alimony requires the trial court to weigh 

the seventeen criteria in 23 Pa.C.S.A. § 3701(b), a far more nuanced and 

comprehensive assessment than alimony pendente lite. Here, instead of 

focusing on section 3701(b)’s many criteria, it appears the trial court simply 

invoked Rule 1910.16-4(a)’s forty percent alimony pendente lite formula. 

Accordingly, on remand, the trial court should arrive at alimony with an 

item-by-item application of the criteria in section 3701(b) to the facts of this 

case, including but not limited to (1) analysis of the effect, if any, Wife’s postseparation receipt of an inheritance of $61,000.00 has on her alimony award, 

and (2) analysis of the effect of Wife’s ability to work part-time on her alimony 

award. 

Order affirmed as it relates to equitable distribution. Order vacated as 

it relates to Wife’s alimony award and remanded for proceedings consistent 

with this memorandum. Jurisdiction relinquished.

Judge Moulton did not participate in the disposition of this appeal. 

____________________________________________

7 Alimony pendente lite is an order for temporary support granted to a spouse 

during the pendency of a divorce or annulment proceeding. Busse v. Busse, 

921 A.2d 1248, 1254 (Pa. Super. 2007) (citation omitted). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/27/2018