J-S11019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUZANNE L. BARRY

v.

W. LYNN BARRY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1218 WDA 2021

Appeal from the Order Entered September 14, 2021

In the Court of Common Pleas of Blair County Civil Division at No(s): 

2018 GN 434

BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.

MEMORANDUM BY OLSON, J.: FILED: JUNE 6, 2022

Appellant, W. Lynn Barry (Husband), appeals from the order of equitable 

distribution of marital property entered on September 14, 2021. We affirm.

We briefly summarize the facts and procedural history of this case as 

follows. Husband and Lynn Barry (Wife) married on April 25, 19811 and 

separated on August 20, 2017. Wife eventually moved out of the marital 

residence and currently resides with her siblings in a home owned by her older 

brother. Husband remained in the marital residence where he currently lives 

with the parties’ adult daughter and her three children. 

On February 23, 2018, Wife filed a complaint for divorce. On August 

16, 2019, the parties attended a hearing before a master. On September 26, 

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1

 At the time of this appeal, Wife is 63 years old and Husband is 65 years 

old. The marriage produced three children who are now adults. Wife is a 

receptionist at the Catholic Diocese of Altoona-Johnstown. Husband is a 

self-employed carpenter.
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2019, the master issued a report and recommendation regarding the equitable 

distribution of the marital estate. The master found “that a 50/50 division of 

the marital assets would be appropriate.” Master’s Report, 9/26/2019, at 3. 

The bulk of the parties’ marital estate consists of three adjoining parcels of 

property: the marital residence, a rental home, and a vacant lot. The master 

“recommended essentially that each party retain the [checking, savings, and 

retirement] accounts and debts in his or her name, that the real estate be 

awarded to Husband, and that Husband pay the sum of $53,458.33 to Wife 

within ninety (90) days.” Husband’s Brief at 9. 

Both parties filed exceptions to the master’s report and recommendation

and the trial court convened a hearing on March 6, 2020. On September 16, 

2020, the court issued an order and opinion that denied the parties’ exceptions 

and upheld the master’s recommendation concerning the equitable 

distribution of the marital property. This appeal resulted.2

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2

 Husband filed a notice of appeal on October 14, 2020. On November 2, 

2020, the trial court ordered Husband to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Husband complied 

timely on November 10, 2020. At that time, Husband also filed a motion for 

the entry of a final decree in divorce. The trial court did not take action and, 

therefore, Husband filed a praecipe to withdraw the appeal because, with no 

final divorce decree, the equitable distribution decision was not appealable. 

See Wilson v. Wilson, 828 A.2d 376, 378 (Pa. Super. 2003) (pre-divorce 

order distributing marital property is interlocutory and unappealable; 

appellate court lacks jurisdiction to review equitable distribution order until 

order is rendered final by entry of divorce decree). Thereafter, the trial court 

entered a divorce decree on September 13, 2021. Husband filed a notice of 

appeal on October 13, 2021. On November 8, 2021, Husband filed a Rule 

1925(b) concise statement. On December 21, 2021, our Prothonotary 
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On appeal, Husband presents the following issues3for our review:

I. Did the trial court err and/or abuse its discretion in averaging 

the parties’ respective experts’ appraised values for the marital 

residence and adjoining lot rather than accepting Husband’s 

appraisal reports which were based on more accurate data?

II. Did the trial court err/and or abuse its discretion in awarding a 

portion of the fair rental value of the marital residence to Wife 

under all the facts and circumstances of this case?

III. Did the trial court err and/or abuse its discretion in failing to 

give Husband credit for the expenses he paid after the parties’ 

separation for the rental property and vacant lot?

IV. Did the trial court err and/or abuse its discretion by ordering a 

50/50 distribution of the marital estate when a proper 

application of the equitable distribution factors set forth in 23 

Pa.C.S.A. § 3502 to the facts of this case did not justify the 

same given the parties’ respective financial circumstances, the 

parties’ respective ages, and Husband’s inability to pay a 

substantial financial settlement to Wife?

V. Did the trial court err and/or abuse its discretion in ordering 

Husband to pay to Wife a financial settlement of $53,458.33 

when the record reveals that he lacked the financial ability to 

make such a payment and that said amount was not equitable 

under all the facts and circumstances of this case?

VI. Did the trial court err and/or abuse its discretion in ordering 

Husband to pay to Wife a substantial financial settlement within 

90 days when the record reveals that he clearly lacked the 

ability to do so?

Husband’s Brief at 4-5.

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received a letter advising this Court that the trial court relied upon the record 

and its opinion and order entered on September 16, 2020 and no other opinion 

was forthcoming.

3

 We have reordered the issues presented for ease of discussion. 
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All of Husband’s issues challenge the award of equitable distribution.

We adhere to the following standards:

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 

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.

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

quotations, and brackets omitted).

Moreover, we have previously determined:

The finder of fact is entitled to weigh the evidence presented and 

assess its credibility. The fact finder is free to believe all, part, or 

none of the evidence and the Superior Court will not disturb the 

credibility determinations of the court below.

In determining whether a court has abused its discretion, we do 

not usurp the trial court's duty as finder of fact. The trial court's 

findings, if supported by credible evidence, are binding upon a 

reviewing court and will be followed. An abuse of discretion must 

be established by clear and convincing evidence.

Miller v. Miller, 744 A.2d 778, 787 (Pa. Super. 1999).
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Husband asserts in his opening claim that both parties presented expert 

appraisals of the marital properties4 and the master erred by averaging those 

appraisals. Id. at 26-30. As such, Husband contends that “a careful review 

of the appraisers’ testimony and reports makes abundantly clear that the 

values reached by Husband’s appraiser [] were based on far more accurate 

data and should therefore have been accepted by the [m]aster as more 

reliable than the values reached by Wife’s appraiser[.]” Id. at 27. 

Regarding property valuation in equitable distribution cases, this Court 

has stated:

The Divorce Code does not include a specific method of valuing 

assets. We have previously held that the court must exercise its 

discretion, relying upon the estimates and inventories submitted 

by both parties, the records of purchase prices, and appraisals. In 

determining the value of marital property, the court is free to 

accept all of the testimony, portions of the testimony, or none of 

the testimony regarding the true and correct value of the 

property. [...T]he trial court act[s] within its discretion in assigning 

equal weights to the testimony of [] two experts, and averaging 

the two figures to arrive at an estimated fair market value of the 

marital home.

Aletto v. Aletto, 537 A.2d 1383, 1389 (Pa. Super. 1988) (internal citations 

and quotations omitted).

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4

 Husband explains:

[T]he primary issue in this case is the appropriate division and/or 

distribution of the parties’ three adjoining parcels of real estate. 

These include the former marital residence, a vacant lot beside 

the residence, and a rental property, all located on East 

Wopsononock Avenue in Altoona, [Pennsylvania].

Husband’s Brief at 20. The properties appear to be unencumbered.
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Here, the master averaged the property appraisals presented by 

Husband and Wife because of “a significant disparity between the appraisals 

provided by each parties’ expert appraiser.” Trial Court Opinion, 9/16/2020, 

at 7. The trial court determined that the record supported the master’s 

decision to average the appraisals because one expert “based his appraisals 

on comparable structures in inferior neighborhoods while [the other expert’s] 

appraisals were based on comparable structures in quieter, nicer 

neighborhoods.” Id. The trial court concluded that there was no abuse of 

discretion because the master “weighed the testimony, photographs, and 

financial situations of the parties [and] found it appropriate to average the 

two appraisals together to arrive at the net value for the marital” estate. Id.

at 11. Based upon our standard of review, our review of the certified record

and applicable law as set forth above, we agree and conclude that it was not 

an abuse of discretion to average the appraisals submitted by the parties in 

valuing the real properties included within the marital estate. As such, 

Husband is not entitled to relief on this issue. 

Husband’s next two issues pertain to the master’s award of fair rental 

value of the parties’ marital estate and Husband’s claim of offsetting credits

for maintaining the properties, so we will examine them together. Husband 

argues that it was an abuse of discretion “in awarding Wife the sum of 

$3,500.51 as her share of the fair value of the marital residence” because she 

left of her own volition and Husband did not “take any action to bar Wife from 

the home or interfere with her return” and, thus, “Wife was never 
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dispossessed from the marital residence[.]” Id. at 31 (internal quotations 

omitted). Additionally, Husband asserts:

The evidence also showed that while Wife’s living expenses are 

minimal, Husband bears all the expenses of the utilities, 

maintenance, repairs, taxes and insurance for the marital 

residence. It should be noted that Husband never sought 

reimbursement for these expenses incurred for the residence, but 

merely enumerated the expenses, together with the other 

relevant factors, to demonstrate that awarding a portion of the 

fair rental value was not warranted under the circumstances of 

this case.

Id. at 32.

We have found:

it is within the discretion of the trial court to grant rental value as 

a part of equitable distribution. The award of rental value is within 

the sound discretion of the trial court. The basis of the award of 

rental value is that the party out of possession of jointly owned 

property (generally the party that has moved out of the formal 

marital residence) is entitled to compensation for her/his interest 

in the property.

Generally, parties have an equal one-half interest in the marital 

property, and thus the dispossessed party will be entitled to a 

credit for one-half of the fair rental value of the marital home. 

This Court has discussed the analysis for deciding whether to 

award rental credit:

First, the general rule is that the dispossessed party is 

entitled to a credit for the fair rental value of jointly held 

marital property against a party in possession of that 

property, provided there are no equitable defenses to the 

credit. Second, the rental credit is based upon, and 

therefore limited by, the extent of the dispossessed party's 

interest in the property.... Third, the rental value is limited 

to the period of time during which a party is dispossessed 

and the other party is in actual or constructive possession 

of the property. Fourth, the party in possession is entitled 

to a credit against the rental value for payments made to 

maintain the property on behalf of the dispossessed spouse. 
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Generally, in regard to the former marital residence, 

payments made on behalf of the dispossessed spouse will 

be one-half of the expenses including debt service on the 

property. This is so because equity places a presumption 

upon the dispossessed spouse of responsibility for expenses 

to the extent of her/his ownership interest which is generally 

one-half. Finally, we note that whether the rental credit is 

due and the amount thereof is within the sound discretion 

of the court of common pleas.

Lee v. Lee, 978 A.2d 380, 385–386 (Pa. Super. 2009) (quotations omitted), 

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

Initially, we reject Husband’s suggestion that Wife was not dispossessed 

from the marital residence. As made clear in Lee and Trembach, the award 

of fair rental value is available to “the party out of possession of jointly owned 

property” and also described as “the party that has moved out of the formal 

marital residence.” Lee, supra. Here, there is no dispute that Wife moved 

out of the marital residence. Moreover, upon review of her report, it is clear 

that the master considered (in great detail) and ultimately granted Husband 

credit against the rental value for payments made to maintain the marital 

property:

Husband provided an accounting of expenses associated with 

maintaining the residence. Husband replaced the water heater. 

The cost of the parts was $348.00 plus fourteen hours of his time. 

The hot water system was replaced with parts previously 

purchased for the rental property. Husband repaired the furnace 

at the marital residence with replacement parts. New parts were 

unavailable because the furnace is obsolete. Husband was 

required to convert gas lines and water lines and install the flue in 

order to repair the furnace. The 2017 taxes were in the amount of 

$254.39 for the county, $320.43 for the school district and 

$416.19 for the city ($82.58 per month). The 2018 taxes were in 

the amount of $357.49 for the county, $393.82 for the school and 
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$467.15 for the city ($101.54 per month). The 2019 taxes were 

in the amount of $357.49 for the county, $365.75 for the school 

and $467.15 for the city ($99.19 per month). The homeowners 

insurance in 2017 and 2018 was $50.53 per month and the 

homeowner's insurance in 2019 was $52.35 per month. 

For the period from August 20, 2017 to October 20, 2019 Husband 

paid taxes in the total amount of $2,540.79. For the period from 

August 20, 2017 to October 20, 2019, Husband paid homeowners 

insurance in the total amount of $1331.98. The fair rental value 

based upon the expert opinions will be established at $687.50 per 

month. ($725.00 + $650.00 = $1,375.00 ÷ 2 = $687.50). 

Husband is entitled to credit for expenses paid on behalf of Wife 

in the amount of $74.48 per month. ($2,540.77 for taxes + 

$1331.98 for insurance = $3,872.75 ÷ 26 months = $148.95). 

Wife's share or half of $148.95 is $74.48. Wife's share of the fair 

rental value of $687.50 adjusted for Husband's expenses would 

be in the amount of $269.27 ($687.50 ÷ 2 = $343.75 - $74.48 = 

$269.27). The fair rental value which Wife can claim is $269.27 x 

26 months = $7,001.02. The calculation will be adjusted to one 

half or $3,500.51 because the parties' daughter and grandchildren 

also live in the house. Finally, Husband shall be afforded credit 

for the water heater maintenance which was $348.00. Wife's 

share was $174.00 ($348.00 ÷ 2).

Master’s Report, 9/26/2019, at 11-12. The master thoroughly examined 

Husband’s expenses in maintaining the marital residence after the parties 

separated and offset those expenses against the fair rental value allocated to 

the property. We discern no abuse of discretion in awarding Wife fair rental 

value for the parties’ marital residence.

With regard to post-separation expenses paid on the rental property and 

vacant lot, Husband avers, in sum:

The [m]aster and the court below granted Wife 50% of the 

adjusted value of the parties’ rental property and vacant lot, but 

failed to credit Husband with the expenses he incurred in 

connection with the maintenance, repairs, taxes and insurance for 

these properties, he should have been afforded a credit for the 
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expenses he incurred in the maintenance and preservation of 

these marital assets.

Husband’s Brief at 33.

We find this issue waived for failing to develop the argument, provide 

legal citations, or point to the place in the record where Husband provided 

evidence of the expenses he allegedly incurred. See Pa.R.A.P. 2119(d) 

(“When the finding of, or the refusal to find, a fact is argued, the argument 

must contain a synopsis of all the evidence on the point, with a reference to 

the place in the record where the evidence may be found.”); see also Milby 

v. Pote, 189 A.3d 1065 (Pa. Super. 2018) (“We shall not develop an argument 

for an appellant, nor shall we scour the record to find evidence to support an 

argument; instead, we will deem [the] issue to be waived.”). Husband does 

not give a synopsis of the expenses for which he now claims credit nor does 

he point to the record where he presented the evidence. Accordingly, we find 

this issue waived. Regardless, on this issue, the trial court agreed with “the 

[m]aster’s decision not to credit [Husband] for taxes and insurances paid on 

the rental and vacant lot properties” because “the [m]aster considered those 

expenses in the ultimate distribution scheme.” Trial Court Opinion, 

9/16/2020, at 17. Husband does not refute this finding and we otherwise

discern no abuse of discretion, as discussed below, when we analyze the 

overall equitable distribution scheme in response to Husband’s final three 

appellate issues.
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Husband’s last three issues overlap, so we will examine them together. 

Generally, Husband argues that the trial court abused its discretion by 

upholding the master’s decision to divide the marital estate 50/50 and 

requiring Husband to make a lump sum payment to Wife within 90 days of the 

decision. Husband’s Brief at 14-20. More specifically, Husband claims that 

the master and the trial court failed to consider the disparity in the parties’ 

income and economic circumstances, that “the parties’ adult daughter and her 

three children reside with Husband at the former marital residence, and 

Husband bears the majority of expenses as a result[,]” and that Husband is 

responsible for repairs necessary for both the marital residence and the rental 

property. Id. at 14-22. Husband maintains that “the parties in this case have 

little in the way of liquid assets to permit either party from buying out the 

marital interest of the other party in real estate.” Id. at 34. He contends 

that “[t]here is no indication whatsoever in the record in this case that 

Husband has any means of making a significant payment to Wife within the 

ninety-day time limit [] and neither the [m]aster nor the lower court 

suggested how this could be accomplished.” Id. at 34-35. As a result, 

Husband “submits that the lump sum payment to be paid Wife should be 

drastically reduced and that a significant time period be afforded to make 

payments.” Id. at 25-26. “In the alternative, Husband posits that the 

property should remain in joint names for a significant period of time to afford 

him an opportunity to make improvements, sell one or more of the properties, 
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and/or obtain financing to make whatever payment the court finds fair and 

reasonable to pay Wife.” Id. at 26.

When deciding equitable distribution, the master and the trial court must 

consider:

[T]he length of the marriage; any prior marriages; age, health, 

skills, and employability of the parties; sources of income and 

needs of the parties; contributions of one party to the increased 

earning power of the other party; opportunity of each party for 

future acquisitions of assets or income; contribution or dissipation 

of each party to the acquisition, depreciation, or appreciation of 

marital property; value of each party's separate property; 

standard of living established during the marriage; economic 

circumstances of each party; and, whether the party will be 

serving as custodian of any dependent children.

Mercatell v. Mercatell, 854 A.2d 609, 611 (Pa. Super. 2004), citing 23 

Pa.C.S.A. § 3502(a)(1-11). “The weight to be given to these statutory factors 

depends on the facts of each case and is within the court's discretion.” Id.

(citation omitted).

We discern no abuse of discretion in ordering a 50/50 split in equitable 

distribution. Here, the master and trial court carefully considered each of the 

aforementioned equitable distribution factors. The parties were married for 

37 years. Both Husband and Wife are currently in their 60s and still employed. 

When examining the respective incomes of the parties, the master determined 

that Husband undervalued his annual income and, essentially, considered the 

parties’ income comparable. See Master’s Report, 9/26/2019, at 16 

(“Husband's 2018 US Individual Income Tax Return reflects business income 

in the amount of $9,847.00. On cross-examination, Husband testified that an 
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individual who receives payment as cash may not report same. Husband 

testified that he deducts expenses including gas for the truck and office and 

home expenditures. As a result, his income is higher than the amount set 

forth as business income on the tax returns.”). Our review of the record 

confirms this as Husband testified that his annual income was, in fact, higher 

than he reported on his taxes. N.T., 8/16/2019, at 159. There is no dispute 

that both parties have little debt or individual assets and that each party has 

a modest retirement account. Both parties agreed to assume their own debt, 

individual assets, and retirement accounts. As a result, and as Husband 

acknowledges, the bulk of the martial estate consists of the three 

aforementioned parcels of property. Husband expressed interest in 

maintaining possession of all three properties. N.T., 8/16/2019, at 139-141; 

156. As a result, Wife is entitled to her 50% share of the value of those 

properties. Hence, we discern no abuse of discretion in ordering Husband to 

make a lump sum payment to Wife. Moreover, Husband is not entitled to an 

offset because his adult daughter and her children currently reside with him

in the marital residence. The master and the trial court were statutorily 

required to consider only whether Husband was serving as custodian of any 

dependent children, which he is not. Finally, with regard to the 90-day 

requirement, the trial court determined that after reviewing “the [m]aster’s 

recommendations regarding the distribution of marital property as well as the 

parties’ arguments, it is [the trial c]ourt’s [o]pinion that there have been a 

number of delays which ha[ve] provided [Husband] substantial additional time 
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to make financial arrangements[,]” finding the master’s recommendations 

“fair and equitable.” Trial Court Opinion, 9/16/2020, at 19. We agree. Ninety 

days was enough time to obtain financing or sell one or more of the properties. 

Accordingly, we discern no abuse of discretion in ordering Husband to make a 

lump sum payment to Wife within 90 days. As such, Husband’s final three 

interrelated appellate issues fail.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/2022