J-A11019-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARIETTA OST 

Appellant

v.

DAVID E. OST

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1411 MDA 2019

Appeal from the Order Entered August 20, 2019

In the Court of Common Pleas of Lancaster County Civil Division at 

No(s): CI-15-06601

MARIETTA OST

v.

DAVID E. OST 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1511 MDA 2019

Appeal from the Order Entered August 20, 2019

In the Court of Common Pleas of Lancaster County Civil Division at 

No(s): CI-15-06601

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 08, 2020

In these cross-appeals, Marietta Ost, Wife, and David E. Ost, Husband, 

contest aspects of the domestic relations order entered on August 20, 2019, 

which set forth the parties’ equitable distribution for their divorce. Wife claims 

that the court erred when it ordered deferred distribution of Husband’s 

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* Former Justice specially assigned to the Superior Court.
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pension—resulting in her receiving half of each monthly distribution—rather

than requiring an immediate offset wherein she would be paid half of the 

present value of the pension from the marital estate. She also claims the court 

erred when it ordered that Husband pay only $350 in monthly alimony, and 

when it did not remand to the divorce master to allow Wife an additional half 

day to further explore Husband’s alleged alcohol abuse. Husband claims that 

the trial court erred when it denied his request that Wife pay his attorneys’ 

fees. Upon review, we affirm.

Husband and Wife were married in 1976, and at the time of the divorce 

proceedings, they were both in their early 70s; their children are adults. 

During the marriage, Wife was primarily a homemaker. Husband obtained his 

PhD shortly after the parties married and was the main income earner. He 

worked as a consultant and college professor. 

After a hearing, the divorce master concluded that Husband’s Federal 

Employees Retirement System (FERS) pension, which is currently in pay 

status, should be distributed 50/50 between the parties using a deferred 

distribution method. The remainder of the marital assets were allocated 40% 

to Husband and 60% to Wife. Wife’s share included the marital residence 

where she currently resides. Both Husband and Wife filed exceptions to the 

divorce master’s report. 

On August 14, 2019, the trial court issued an order and opinion 

overruling both parties’ exceptions. It entered an order finalizing the equitable 
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distribution, together with a decree granting the parties’ divorce, on August 

20, 2019. These timely appeals followed.

Wife raises three questions on appeal:

1. [Whether] the court should have provided an immediate offset 

for distribution of the FERS pension instead of in-kind division 

(distributed distribution) of the monthly payment[?]

2. [Whether] the court should have granted a higher amount of 

alimony[?]

3. [Whether] the court should have concluded that alcohol abuse 

is a marital misconduct issue and that such behavior would 

have a bearing on the equities; thus, requiring a remand to the 

Master[?]

Wife’s Br. at 6 (argument and unnecessary capitalization omitted).

Husband raises one question on cross-appeal: “Should Wife pay at least 

a portion of Husband’s attorney fee due to the need of Husband and Wife’s 

actions?” Husband’s Br. at 1.

We review a challenge to the trial court’s equitable distribution 

scheme for an abuse of discretion. We do not lightly find an abuse 

of discretion, which requires a showing of clear and convincing 

evidence. 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. . 

. . When determining the propriety of an equitable distribution 

award, this Court must consider the distribution scheme as a 

whole. 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.A. § 3502(a) factors for consideration 

in awarding equitable distribution. If we fail to find an abuse of 

discretion, the order must stand. Finally, it is within the province 

of the trial court to weigh the evidence and decide credibility and 
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this Court will not reverse those determinations so long as they 

are supported by the evidence.

Conner v. Conner, 217 A.3d 301, 309 (Pa.Super. 2019) (citations and 

quotation marks omitted). We also review challenges to awards of alimony 

and of counsel fees for an abuse of discretion. See Balicki v. Balicki, 4 A.3d 

654, 659 (Pa.Super. 2010); Busse v. Busse, 921 A.2d 1248, 1258 (Pa.Super. 

2007).

In her first issue, Wife contends that the court should have used the 

immediate offset method to distribute Husband’s FERS pension, rather than 

the deferred distribution method. She argues that the following factors lend 

support to immediate offset: assets are available from the home and thrift

savings plan (TSP); immediate offset will avoid future entanglement between 

the parties; and deferred distribution results in Wife bearing the risk of 

Husband dying before her and the pension ending.

Husband responds that in this case, division based on the deferred 

distribution method is not an abuse of discretion and is supported by law. He 

argues that the estate does not have assets of the same nature available to 

provide the immediate offset, and an immediate offset would be inequitable 

in death because it would provide Wife assets to pass on, but not leave 

husband with any of the same.

Pennsylvania law provides two methods for distributing a pension 

when dividing marital assets. The first method, “immediate 

offset,” awards a percentage of the marital portion of the value of 

the pension to the party earning it, and offsets the marital value 

of this pension with other marital assets at equitable distribution. 

This method is preferred where the estate has sufficient assets to 

offset the pension, because it does not require the court to retain 
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jurisdiction indefinitely. The second method, “deferred 

distribution,” generally requires the court to retain jurisdiction 

until the pension is collected, at which point the pension is divided 

according to the court's order. This method is more practical 

where the parties lack sufficient assets to offset the marital value 

of the pension. 

We have recognized that neither distribution scheme will be 

appropriate to all cases. Rather, the trial court must balance 

the advantages and disadvantages of each method 

according to the facts of the case before it in order to 

determine which method would best effectuate economic justice 

between the parties.

Conner, 217 A.3d at 312 (emphasis added, citations omitted).

Here, the trial court found that because the FERS pension is already in 

pay status and Wife waived her right to a survivor annuity, the deferred 

distribution method will achieve a more equitable result. The court recognized 

that sharing both the TSP and FERS pension spreads the risk between both 

parties. The court stated that it “does not find it to be equitable that Husband 

should lose the TSP and be forced to have [to] wait on a monthly payment of 

$3488 so that Wife can have $467,000 at her immediate disposal.” Trial Court 

Opinion, 8/14/19, at 6.

Mindful of the wide discretion afforded the trial court in equitable 

distribution matters, we conclude that the court did not abuse its discretion 

when it employed the deferred distribution method for Husband’s FERS 

pension. Wife’s first issue is meritless.

In her second issue, Wife contends that the trial court erred when it 

ordered that Husband pay her only $350 in monthly alimony payments. She 

proposes that the court should have ordered that Husband pay $800 to 
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equalize their income under the deferred distribution pension method. In 

support of this claim, she argues that Husband needs the money less, and 

that she will now have added expenses such as health insurance. Finally, she 

claims that it is an abuse of discretion for the court to allow Husband to benefit 

from higher social security payments without ordering that he pay higher 

alimony to equalize income.

Husband asserts that the trial court did not abuse its discretion when it 

ordered that he pay $350 in alimony. He reasoned that the equitable 

distribution order provided more to Wife up front which therefore lessened the 

amount of alimony she would need in the future. 

The Divorce Code provides that “[w]here 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). It further 

sets forth seventeen factors to consider in determining whether alimony is 

necessary and the nature, amount, duration and manner of payment. These 

factors include, inter alia, the parties earning capacities, ages, sources of 

income, the duration of the marriage, the standard of living during the 

marriage, the contribution of a spouse as homemaker, and the relative needs 

of the parties. See 23 Pa.C.S.A. § 3701(b).

Alimony is based upon reasonable needs in accordance with the 

lifestyle and standard of living established by the parties during 

the marriage, as well as the payor’s ability to pay. An award of 

alimony may be reversed where there is an apparent abuse of 

discretion or there is insufficient evidence to support the award. 

Balicki, 4 A.3d at 659 (citations and quotation marks omitted).
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Here, the trial court explained that the divorce master recommended 

that Husband pay $350 to Wife because of the parties’ age, the income 

disparity between the parties, the needs of the parties, and the fact that Wife 

will have to provide her own health insurance after the divorce. The court 

stated that the divorce master accounted for Wife’s other arguments when 

she recommended that 60% of all non-FERS pension assets go to Wife. 

Upon review, we conclude that the court did not abuse its discretion 

when it ordered that Husband pay Wife $350 in alimony. Wife’s second issue 

does not merit relief.

In her third and final issue, Wife argues that the trial court should have 

remanded this case to the divorce master for the divorce master to allocate 

an additional half day of argument for Wife to explore any marital misconduct 

arising from Husband’s alleged alcohol abuse during the marriage. Wife did 

not raise before the master the issue of not being afforded a second day to 

argue; instead, she bypassed the master and raised the issue for the first time 

in her exceptions to the master’s recommendation. The trial court dismissed 

Wife’s exception, observing that Wife failed to properly request that the 

master conduct a second day hearing. Upon review, we find that Wife failed 

to raise her request before the master and conclude that the trial court did 
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not abuse its discretion in dismissing her exception. Wife’s third issue is 

meritless.1

In his sole issue on cross-appeal, Husband claims that the trial court 

abused its discretion when it failed to order that Wife pay any part of 

Husband’s attorney fee. He argues that he has shown actual need, and that 

therefore the fees are required in order to place him on par with Wife. Husband 

supported his claim of actual need by referencing the equitable distribution 

scheme which, he argues, left him with little ability to pay attorney fees other 

than a withdrawal from his TSP. In addition, he claims that Wife failed to 

prosecute the divorce, and this dilatory conduct entitled him to attorney fees 

as a sanction against Wife under 42 Pa.C.S.A. § 2503(7). 

In response, Wife argues that Husband is not in need, citing his ability 

to pay his attorney from either the TSP or his pension payments, as well as 

noting other high dollar expenditures Husband allegedly made over the course 

of the divorce proceedings. She asserts that the case followed a standard time 

frame, and her actions were not dilatory.

We will reverse a determination of counsel fees and costs only for 

an abuse of discretion. The purpose of an award of counsel fees is 

to promote fair administration of justice by enabling the 

dependent spouse to maintain or defend the divorce action 

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1 We also note that Wife failed to properly develop an argument concerning 

this issue in her brief before this court. The Rules of Appellate Procedure 

require a party to support each issue raised with citation to pertinent 

authority. See Pa.R.A.P. 2119(a). Wife did not support her argument with any 

authority; therefore, we could also have found her claim waived.
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without being placed at a financial disadvantage; the parties must 

be “on par” with one another.

Counsel fees are awarded based on the facts of each case 

after a review of all the relevant factors. These factors include the 

payor’s ability to pay, the requesting party’s financial resources, 

the value of the services rendered, and the property received in 

equitable distribution.

Busse, 921 A.2d at 1258 (quoting Teodorski v. Teodorski, 857 A.2d 194, 

201 (Pa.Super. 2004)).

In its opinion, the trial court stated that it did “not find Husband’s 

argument persuasive and finds that the [d]ivorce [m]aster did not abuse her 

discretion in the allocation of attorney fees.” Trial Ct. Op. at 13. Upon review, 

we do not find that the court abused its discretion in denying Husband’s 

request for attorneys’ fees. Accordingly, Husband’s issue is meritless.

For the reasons set forth above, we reject the parties’ allegations of 

error and affirm the trial court’s order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/08/2020