J-A06039-18

* Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH L. TOPEL,

 Appellant

 v. 

OLIVIA J. TOPEL,

 Appellee

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

 No. 1211 WDA 2017

 No. 1283 WDA 2017

Appeal from the Decree Entered July 31, 2017

in the Court of Common Pleas of Erie County 

Civil Division, at No(s): 12544-2012

BEFORE: BENDER, P.J.E, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY: STRASSBURGER, J. FILED APRIL 13, 2018

Joseph L. Topel (Husband) appeals from the July 31, 2017 divorce 

decree that, inter alia, provided for the equitable distribution of the marital 

assets of Husband and Olivia J. Topel (Wife).

1

 We affirm.

Husband and Wife began their relationship in Virginia. The parties each 

had a child from a prior marriage, and they had two children together. The 

parties decided to move to Pennsylvania, and Wife purchased a house in 

Waterford in January 2007, where they ultimately resided together with their 

children. 

 

1 Wife filed a cross-appeal at 1283 WDA 2017 which this Court sua sponte

consolidated with Husband’s appeal. However, Wife has decided not to pursue 

arguments for reversal of the trial court’s rulings, and instead supports 

affirmance. Wife’s Brief at 2. 
J-A06039-18

- 2 -

The parties married in February 2008. It was Husband’s fourth 

marriage, Wife’s third. They sold their respective residences in Virginia, with 

Wife contributing $96,000 to Husband to enable him to pay off his mortgage, 

which had an outstanding balance greater than the market value of the 

property. Wife was a stay-at-home mother during the marriage until she 

resumed working outside the home in August 2011. Husband and Wife 

separated in February 2012. 

Husband filed for divorce in July 2012; Wife filed for economic support

and was awarded alimony pendente lite (APL). As the trial court aptly noted, 

this litigation now has lasted far longer than the marriage, with rounds of 

master hearings, exceptions, an interlocutory appeal and cross-appeal 

quashed by this Court sua sponte,

2 and now the instant timely-filed appeal. 

As Husband and the trial court have complied with Pa.R.A.P. 1925, this Court 

will address the following questions raised by Husband.

I. Whether the lower court erred in entertaining a 

division of marital assets and issuing an order regarding same in 

light of the fact that no valid decree in divorce was entered prior 

to the distribution of marital property by the court.

II. Whether the lower court erred in its application of the 

factors enumerated in the divorce code and in its application of 

the doctrine of equitable reimbursement thereby failing to 

equitably divide the marital estate.

 

2 Order, 1/13/2017, filed in both 1864 WDA 2016 (Husband’s appeal) and 

1923 WDA 2016 (Wife’s cross-appeal). 
J-A06039-18

- 3 -

III. Whether the lower court erred in refusing to terminate 

the APL order requiring husband to pay [APL] through the appeal 

process and upon any remand.

Husband’s Brief at 8 (suggested answers and unnecessary capitalization and 

emphasis omitted).

Husband first contends that the master and trial court lacked jurisdiction 

to take evidence or address in any way the equitable distribution of the marital 

property before the divorce decree had been entered. Husband’s Brief at 25-

27. In support, Husband cites several cases for the proposition that there can 

be no equitable distribution of marital property outside the context of divorce 

proceedings. Husband’s Brief at 25 (citing, inter alia, Drumheller v. 

Marcello, 505 A.2d 305, 306 (Pa. Super. 1986), rev’d, 532 A.2d 807 (Pa. 

1987)).

Husband is correct that a trial court’s jurisdiction to distribute property 

flows from its power to terminate marriages in divorce, as “[e]quitable 

distribution is an incident of divorce, not marriage.” Campbell v. Campbell, 

516 A.2d 363, 366 (Pa. 1986). However, that does not mean that a court in 

which divorce proceedings are pending is unable to take any action on the 

economic claims until after the divorce decree is entered. 

Trial courts are “empowered to make equitable distribution 

contemporaneously with or subsequent to a decree in divorce.” 

Waddington v. Waddington, 624 A.2d 657, 660 (Pa. Super. 1993) (citation 

and internal quotation marks omitted; emphasis added). It follows that, in 
J-A06039-18

- 4 -

order for the economic claims to be resolved contemporaneously with the 

entry of the divorce decree, the court may entertain proceedings concerning 

the economic issues prior to the entry of that decree. Indeed, our Supreme 

Court has entertained the merits of an appeal from an interlocutory “predivorce decree distributing marital property” after the distribution was 

rendered final by the subsequent entry of the divorce decree. Campbell, 516 

A.2d at 366.

Here, the trial court entered the divorce decree on July 31, 2017, 

expressly incorporating therein the scheme of division of marital property that 

it had found to be equitable in a memorandum and order dated November 9, 

2016. While the distribution order had been interlocutory before the entry of 

the decree, which is why this Court quashed the earlier appeal from that order, 

the order of equitable distribution was properly rendered final and appealable 

as of July 31, 2017. Husband’s first issue is meritless. 

Husband next contends that the trial court failed to apply properly the 

statutory factors applicable to determining the distribution of marital property, 

resulting in an inequitable distribution. Husband’s Brief at 27. He also argues 

that his having to pay Wife equitable reimbursement “is not fair.” Id. at 50. 

We consider Husband’s arguments mindful of the following.

A trial court has broad discretion when fashioning an award of 

equitable distribution. Our standard of review when assessing the 

propriety of an order effectuating the equitable distribution of 

marital property is whether the trial court abused its discretion by 

a misapplication of the law or failure to follow proper legal 
J-A06039-18

- 5 -

procedure. We do not lightly find an abuse of discretion, which 

requires a showing of clear and convincing evidence. This Court 

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. 

In determining the propriety of an equitable distribution award, 

courts must consider the distribution scheme as a whole. We 

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.

Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super. 2012) (quoting Biese v. 

Biese, 979 A.2d 892, 895 (Pa. Super. 2009)). 

In fashioning an equitable distribution award, the trial court 

must consider, at a minimum, the eleven factors set forth in 23 

Pa.C.S.[] § 3502.... These factors require the trial court to 

consider the relative economic positions of the parties and the 

nature of the parties’ relationship. The section 3502 factors are 

not a simple formula, rather they serve as a guideline for 

consideration. The facts of a particular case mandate how the 

section 3502 factors will be applied.

Gates v. Gates, 933 A.2d 102, 105 (Pa. Super. 2007). The factors 

enumerated in section 3502 are as follows.

(1) The length of the marriage.

(2) Any prior marriage of either party.

(3) The age, health, station, amount and sources of income, 

vocational skills, employability, estate, liabilities and needs of 

each of the parties.

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

increased earning power of the other party.

(5) The opportunity of each party for future acquisitions of capital 

assets and income.
J-A06039-18

- 6 -

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

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

(7) The contribution or dissipation of each party in the acquisition, 

preservation, depreciation or appreciation of the marital property, 

including the contribution of a party as homemaker.

(8) The value of the property set apart to each party.

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

marriage.

(10) The economic circumstances of each party at the time the 

division of property is to become effective.

(10.1) The Federal, State and local tax ramifications associated 

with each asset to be divided, distributed or assigned, which 

ramifications need not be immediate and certain.

(10.2) The expense of sale, transfer or liquidation associated with 

a particular asset, which expense need not be immediate and 

certain.

(11) Whether the party will be serving as the custodian of any 

dependent minor children.

23 Pa.C.S. § 3502(a).

We do not evaluate the propriety of the distribution order upon 

our agreement with the court[’s] actions nor do we find a basis for 

reversal in the court’s application of a single factor. Rather, we 

look at the distribution as a whole, in light of the court’s overall 

application of the [23 Pa.C.S. § 3502(a)] factors.... If we fail to 

find an abuse of discretion, the [o]rder must stand.

Lee v. Lee, 978 A.2d 380, 383 (Pa. Super. 2009) (quoting Trembach v. 

Trembach, 615 A.2d 33, 36 (Pa. Super. 1992)). 

In the instant case, the master enumerated the statutory factors in the 

report filed March 1, 2016. Master’s Report, 3/1/2016, at 3-4. While not 
J-A06039-18

- 7 -

offering her findings in a factor-by-factor list, the master addressed and 

discussed at length the relevant information, covering the parties’ ages, 

offspring, and prior marriages; their educations, abilities, employment and 

incomes; their respective contributions to the marriage, financial and 

otherwise; and their separate and marital property. Id. at 4-10. Upon these 

findings, the master recommended a 52% (Wife) – 48% (Husband) scheme 

for dividing the property, with, inter alia, each party retaining his or her 

respective vehicle, personalty, and credit card debt; specific properties and 

accounts (or portions thereof) being awarded to each party; and Husband 

paying Wife $46,000 “as additional equitable distribution,” payable in monthly 

installments. Id. at 11. 

The trial court determined that the master’s “application of the 

§ 3502(a) factors to the marital property in this case was appropriate, but fell 

short in terms of fairly compensating Wife for her contribution to the 

marriage.” Trial Court Opinion, 11/9/2016, at 14. The trial court thus ordered 

equitable reimbursement. 

The courts of this Commonwealth have created the doctrine 

of “equitable reimbursement” as a method of compensating a 

spouse for his or her contribution to the marriage where the 

marital assets are insufficient to do so. ... [E]quitable 

reimbursement is nothing more than a method of compensating a 

spouse for that which is fairly due to him or her. Whether this 

compensation is achieved via equitable distribution, or via 

“equitable reimbursement” as it is when there is insufficient 

marital property available to compensate the spouse, the result is 

the same.
J-A06039-18

- 8 -

Schenk v. Schenk, 880 A.2d 633, 640-41 (Pa. Super. 2005) (citing Zullo v. 

Zullo, 613 A.2d 544 (Pa. 1992), and Bold v. Bold, 574 A.2d 552 (Pa. 1990)). 

The trial court offered the following explanation for the propriety of 

equitable reimbursement in the instant case.

First, Wife contributed funds to the marriage that far 

exceeded Husband’s contributions. Specifically, Wife contributed 

funds to help get Husband out from debt. Husband was “upside 

down” on his premarital Virginia Home because the Virginia Home 

only sold for $520,000.00, which was less than what Husband 

owed on the mortgage. Accordingly, Husband needed $95,560.27 

to complete the sale. These funds were supplied by Wife. Wife 

refinanced and increased the mortgage on her premarital Dunn 

Valley Road Home by more than $75,000.00 and provided 

$20,000.00 of her cash to Husband so Husband could sell his 

Virginia Home. After a marriage of less than four years, the 

parties separated. At the time of separation, Husband was free 

and clear of his Virginia Home because of Wife’s assistance. 

However, Wife is compelled to continue paying the mortgage she 

had refinanced for Husband’s benefit. As a result, it is Wife [who] 

is now de facto paying for Husband’s devalued Virginia Home.

Husband received this benefit, but Wife not only did not receive a 

benefit, she incurred more debt for Husband’s benefit. Out of 

fairness to Wife, Wife must be compensated for her contribution 

that enabled Husband to eliminate a premarital debt.

Second, marital assets are insufficient to compensate Wife 

for her contribution. As indicated by the Master in her 

Supplemental Report, the marital estate only totaled $75,319.00. 

The marital estate was therefore smaller than the $96,000.00 that 

Wife had contributed to Husband to sell his Virginia Home. Where 

marital assets are insufficient to compensate a spouse, equitable 

reimbursement is appropriate. Actually, although the marital 

estate was valued at $75,319.00, it was [] smaller than that 

because Husband cashed two marital assets [valued at 

$22,400.00 total] post separation and Wife received none of these 

assets. ... Clearly, the parties’ marital estate was insufficient to 

compensate Wife for her $96,000.00 contribution.
J-A06039-18

- 9 -

Since Wife contributed funds to Husband and the marital 

assets were insufficient to compensate Wife for her contribution, 

equitable reimbursement [of $96,000 to Wife] is appropriate in 

this case. ...

Trial Court Opinion, 11/9/2016, at 19-20 (citations and footnote omitted). 

In seeking to have this Court award him relief, Husband complains that 

the master did not designate the $96,000 award to Wife as equitable 

reimbursement rather than equitable distribution, and that it “is clear that the 

[trial] court suggested to the [m]aster that her distribution scheme regarding 

the $96,000[] was equitable reimbursement to compensate Wife for the 

contribution of the funds from Wife to Husband regarding the sale of his premarital home.” Husband’s Brief at 44. 

Husband cites no authority to suggest that the above constitutes 

reversible error. As discussed above, our role is to determine whether the 

trial court erred or abused its discretion in adopting the equitable distribution 

that was ultimately ordered. Reber, 42 A.3d at 1134. Husband has failed to 

persuade us that the trial court’s proper classification of the $96,000 as 

equitable reimbursement after the master did not so designate it warrants any 

relief from this Court. 

Husband also maintains that the master failed to consider that Wife was 

the one who insisted that Husband sell his Virginia home, and that Husband 

had made contributions to Wife’s pre-marital property during the marriage. 

Id. at 44-45. Husband points out that he was the one making all of the 
J-A06039-18

- 10 -

payments and financial contributions to the family for the majority of the 

marriage, because he “was the sole bread-winner from the date of the 

marriage until August of 2011, when Wife secured employment.” Id. at 50-

51. 

Husband filed an exception concerning the master’s failure consider his 

payments on Wife’s Pennsylvania home. As Husband and the parties’ children 

resided in that home during the marriage, the trial court rejected his 

argument, finding “Husband is not entitled to any form of credit for paying the 

mortgage on a house in which he and his family lived and derived benefit.” 

Trial Court Opinion, 11/9/2016, at 23. Husband offers no authority to 

convince us that the trial court’s ruling was improper. 

Husband’s argument on this point also utterly devalues Wife’s 

contribution to the family during that time of raising the parties’ two children. 

The trial court acted within its discretion in weighing the different contributions 

of Husband and Wife to the marriage. See, e.g., Fonzi v. Fonzi, 633 A.2d 

634, 638 (Pa. Super. 1993) (rejecting the husband’s argument that he should 

have received “a greater share of the marital estate because of his 

employment efforts” where the trial court had “recognized the substantial

contribution of wife as homemaker” in bearing “the entire burden” of rearing 

the parties’ children). 

In essence, Husband’s argument mainly consists of his offering his own 

analysis of the statutory factors as the proper one, asking this Court to 
J-A06039-18

- 11 -

reweigh the evidence to reach his desired result. That we will not do. Busse 

v. Busse, 921 A.2d 1248, 1260 (Pa. Super. 2007) (“The weight to be given 

to the[] statutory factors depends on the facts of each case and is within the 

court’s discretion. We will not reweigh them.”) (internal citations and 

quotation marks omitted)).

The record shows that the trial court considered the relevant 

information, and determined that the equitable result of this short marriage 

was to split the marital property nearly in half, and to have Husband pay Wife 

back the $96,000 she contributed to paying off his pre-marital mortgage. 

Because Husband has failed to establish that the trial court’s order is the result 

of any error of law or evidence of partiality, prejudice, bias, or ill-will on the 

part of the trial court contained in the record, we will not disturb the equitable 

distribution order. Accord Twilla v. Twilla, 664 A.2d 1020 (Pa. Super. 1995) 

(holding monthly equitable reimbursement payments were appropriate to 

compensate wife for husband’s dissipation of equity in the home). 

With his last issue, Husband claims that the trial court erred in requiring 

Husband to continue paying APL throughout the appeal process. Husband’s 

Brief at 52. 

We review APL awards under an abuse of discretion 

standard. APL is an order for temporary support granted to a 

spouse during the pendency of a divorce or annulment 

proceeding. APL is designed to help the dependent spouse 

maintain the standard of living enjoyed while living with the 

independent spouse. Also, and perhaps more importantly, APL is 

based on the need of one party to have equal financial resources 
J-A06039-18

- 12 -

to pursue a divorce proceeding when, in theory, the other party 

has major assets which are the financial sinews of domestic 

warfare. 

Carney v. Carney, 167 A.3d 127, 134 (2017) (internal citations and 

quotation marks omitted).

The award of APL is not dependent upon the status of the parties 

but on the state of the litigation. This means, in theory, that the 

APL terminates at the time of divorce which usually concludes the 

litigation. However, a divorce is not final for purposes of APL until 

appeals have been exhausted and a final decree has been entered. 

Thus, while APL typically ends at the award of the divorce decree, 

which also should be the point at which equitable distribution has 

been determined, if an appeal is pending on matters of equitable 

distribution, despite the entry of the decree, APL will continue 

throughout the appeal process and any remand until a final 

[o]rder has been entered.

DeMasi v. DeMasi, 597 A.2d 101, 104 (Pa. Super. 1991) (emphasis omitted). 

Here, Husband dos not challenge the amount of APL awarded by the 

trial court. Rather, Husband argues that, with child support, past alimony 

payments, individual assets, and an award of $10,000 in counsel fees, the 

financial resources of the parties have already been “sufficiently equalize[d].” 

Husband’s Brief at 53. 

The trial court disagreed, observing that, while Wife has received 

substantial APL payments over the years that this case has been litigated, she 

nonetheless still has a lower earning capacity than Husband, and this divorce 

litigation has been long and complex. Trial Court Opinion, 7/3/2017, at 6. 

Further, Husband’s litigation choices have dragged this case out, with the 

proliferation of issues litigated. See, e.g., Trial Court Opinion, 11/9/2016, at 
J-A06039-18

- 13 -

21-31 (addressing Husband’s twenty exceptions and six additional exceptions 

to the master’s report). It appears that Husband is making good on his 

statement, made when Wife filed for APL, that “he would make sure that he 

cost [Wife] every penny that he paid [her]....” N.T. Master’s Hearing, 

8/3/2015, at 95. Under these circumstances, we discern no abuse of the trial 

court’s discretion in holding that Husband has failed to show that early

termination of APL was warranted. Carney, 167 A.3d at 135 (“It is the burden 

of the party seeking to modify an order of support to show by competent 

evidence that a change of circumstances justifies a modification.”). 

Decree affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2018