J-A08027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIELA BURGUI IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALBERT S. BURGUI

Appellant No. 1390 MDA 2014

Appeal from the Decree of July 16, 2014

In the Court of Common Pleas of Berks County

Civil Division at No.: 09-16199

BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.: FILED APRIL 10, 2015

Albert S. Burgui (“Husband”) appeals the July 16, 2014 divorce decree 

that made final the June 26, 2014 order that denied Husband’s exceptions to 

the Master’s recommended equitable distribution of the marital property 

between Husband and Daniela Burgui (“Wife”). After review, we affirm.

The trial court provided the following factual and procedural summary:

[Husband] and [Wife] were married on August 20, 1994, in 

Constanta, Romania. The [p]arties have one child, [I.B., born in 

August 2000]. Wife filed a Complaint in Divorce [in Berks 

County] on December 8, 2009, requesting primary custody of 

the minor child, equitable distribution of all marital property, 

alimony and counsel fees/ costs/expenses. The instant appeal 

concerns the equitable distribution of the parties’ marital 

property and alimony and counsel fees.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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After separation of the parties, Husband has remained the sole 

owner and operator of Beltrans, Ltd., a trucking business. Wife 

is a teacher with the Daniel Boone School District. [After 

hearings on May 20, 2013 and July 19, 2013,] Divorce Master 

[Louis M.] Shucker provided a detailed report and 

recommendation based upon his extensive attempts to resolve 

all outstanding economic issues. [The Master made a 

determination of Husband’s income in which he rejected an 

approach that used depreciation of Beltrans’ assets and instead, 

included a portion of Beltrans’ retained income as part of 

Husband’s income. The Master also determined the value of 

Beltrans’ equipment in calculating the worth of the company. 

The Master recommended: an approximately equal division of 

the marital assets with Husband retaining the business and Wife 

retaining the marital residence, along with the associated 

mortgage and home equity loan; alimony to Wife in the amount 

of $500.00 per month for sixty months; and counsel fees to Wife 

in the amount of $7,500.00.] Husband filed exceptions to the 

Divorce Master’s Recommendation and upon agreement of 

counsel submitted the case to [the trial court] to be decided on 

briefs and the record produced by Master Shucker. [The trial 

court] reviewed the transcript and report of Master Shucker as 

well as the documents and evidence submitted and entered an 

Order on [June 26, 2014,] denying Husband’s Exceptions. . . . 

Trial Court Opinion (“T.C.O.”), 10/14/2014, at 1.

On July 16, 2014, the trial court entered the divorce decree, which 

included equitable distribution as proposed by the Master. On July 23, 2014, 

Husband filed a notice of appeal. The trial court ordered, and Husband 

timely filed, a concise statement of errors complained of on appeal pursuant 

to Pa.R.A.P. 1925(b). 

Husband raises six issues for our review:

I. Whether the trial court erred as a matter of law and 

abused its discretion by denying [Husband’s] exceptions to 

the Divorce Master’s report and recommendation and 

granting [Wife] five (5) years of alimony and in its 

assessment of [Husband’s] income?
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II. Whether the trial court erred as a matter of law and 

abused its discretion by denying [Husband’s] exceptions to 

the Divorce Master’s report and recommendation and by 

awarding [Wife] seven thousand five hundred dollars 

($7,500.00) in counsel fees?

III. Whether the trial court erred as a matter of law and 

abused its discretion by denying [Husband’s] exceptions to 

the Divorce Master’s report and recommendation and by 

affirming the Divorce Master’s conclusion that appraisals 

are inherently suspect inasmuch as they are often 

conducted by friends or family?

IV. Whether the trial court erred as a matter of law and 

abused its discretion by denying [Husband’s] exceptions to 

the Divorce Master’s report and recommendation and by 

affirming the Divorce Master’s computation of [Husband’s] 

income and subsequent conclusion thereon?

V. Whether the trial court erred as a matter of law and 

abused its discretion by denying [Husband’s] exceptions to 

the Divorce Master’s report and recommendation and in 

affirming the Divorce Master’s recommendation, which 

calculated, computed and considered that depreciation is a 

part of [Husband’s] income?

VI. Whether the trial court erred as a matter of law and 

abused its discretion by denying [Husband’s] exceptions to

the Divorce Master’s report and recommendation and in 

affirming the Divorce Master’s recommendation, which 

considered [Husband’s] retained earnings of 2010 as a 

portion of assets for distribution?

Husband’s Brief at 2-3.

We review an equitable distribution order as follows:

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 
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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.

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

quotation marks omitted). Similarly, we review challenges to an award of 

alimony and to an award of counsel fees for an abuse of discretion. Gates 

v. Gates, 933 A.2d 102, 106, 109 (Pa. Super. 2007). We also note that “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.” Childress v. Bogosian, 12 

A.3d 448, 455-56 (Pa. Super. 2011).

Because Husband challenges alimony and counsel fees and because 

the award of those forms of economic relief rely, in part, upon his income, 

we first address Husband’s fourth and fifth claims of error because, in those 

claims, he challenges the determination of his income.

Husband disagrees with the Master’s calculation of his income. First, 

Husband contends that the court erred by including retained earnings in his 

income determination. Husband argues that his testimony demonstrated 

that his company needed to retain those earnings to maintain his trucking 

business. Husband’s Brief at 19-20. Husband contends that he provided 

ample testimony relating to the increase in business expenses and the need 

to purchase new equipment and hire additional employees. Husband asserts 
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that this testimony demonstrated that he was required to retain earnings to 

support the business. Id. at 13. Husband argues that the record does not 

support the finding that some of those earnings actually were available to 

Husband. 

Husband also asserts that the trial court erred in considering 

depreciation as part of Husband’s income. Husband claims that the Master 

erred in finding that the depreciation deduction on his corporate taxes was 

not warranted. Husband’s Brief at 20. Husband also argues that there was 

no proof that Husband took the deduction in an attempt to reduce income 

for support or alimony. Id. at 21-22.

The Master considered that Husband’s trucking company had retained 

income, which was defined as “accumulated profits, i.e., the net sum of the 

corporation’s yearly profits and losses.” Master’s Report and 

Recommendation (“Report”), 10/30/2013, at 18 (quoting Rohrer v. Rohrer, 

715 A.2d 463 (Pa. Super. 1998)).1 Reviewing case law, the Master 

determined that, because Husband had the ability to control the retention or 

distribution of funds, he had the burden to prove that retention was required 

to maintain the business. Id. at 19. The Master found that Husband failed 

to provide any evidence that the retained income was necessary to maintain 

____________________________________________

1 The Report does not have numbered pages. We have supplied page 

numbers for ease of reference.
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the trucking business. Therefore, the Master considered the retained income 

after separation as part of Husband’s income. Id. at 20. 

To determine Husband’s income, the Master then considered that the 

trucking business had increased its retained income each year, from 

$29,161.00 in 2010 to $47,557.00 in 2012. Further, the entire amount of 

retained income available to the business increased from $109,269.00 in 

2010 to $225,861.00 in 2012. Id. at 32. During the same period of time, 

sales increased from $250,000.00 to $873,000.00. Id. at 31. Based upon 

these numbers and Husband’s failure to convince the Master that the entire 

amount was necessary to maintain the business, the Master credited 

$47,557.00 as income to Husband for 2012, increasing his income to a total 

of $95,114.00. In reaching this decision, the Master also considered that 

Husband would receive a tax benefit from any awarded alimony, which 

would reduce the actual effect on Husband’s income. Id. at 32. 

The trial court denied Husband’s exception, finding that Husband’s 

testimony provided no support for the proposition that the retained income 

was necessary to the survival of the business. Further, the trial court noted 

that Husband testified that some of his expenses, such as cell phones and 

meals, were paid directly from the business. Therefore, the trial court found 

that the record supported the Master’s determinations of Husband’s income. 

T.C.O. at 6.

We agree with the trial court. In Rohrer, this Court addressed

whether retained earnings should be considered as income for support or as 
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an asset in equitable distribution. Rohrer, 715 A.2d at 465. There, the trial 

court had ordered that the retained income should be used as income for the 

purpose of child support. The master included the retained earnings from 

the years prior to the support determination as an asset. Id. at 465. This 

Court affirmed the arrangement, holding that it was not an impermissible 

“double-dip,” or counting the same asset as both property for distribution 

and income for support. Id. at 466. While not called to rule specifically

upon the issue, the Rohrer Court did not comment negatively upon the trial 

court’s use of the retained income as part of income.

We addressed the issue more directly in Fennell v. Fennell, 753 A.2d 

866 (Pa. Super. 2000). In that case, the trial court included retained 

earnings as part of the father’s income for child support. Id. at 867. We 

recognized that, in determining income for support, a trial court must 

consider “all benefits flowing from corporate ownership” and “that the owner 

of a closely-held corporation cannot avoid a support obligation by sheltering 

income that should be available for support by manipulating . . . corporate 

distribution amounts.” Id. at 868. However, in that case, the father was a 

minority shareholder who could not control the distribution of profits. 

Further, the retention of earnings was a long-standing practice in the 

corporation and the trial court specifically found that the retention was a 

business decision. Finding no evidence in the record of an intent to shield 

income, we reversed the trial court. Id. at 869.
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Here, the Master followed a similar path as outlined in Rohrer. The 

Master considered retained earnings accumulated during the marriage as an 

asset, namely, part of the valuation of Beltrans. Report at 27-29. The 

Master considered the then-current retained earnings as part of Husband’s 

income for alimony. Id. at 32. In following Fennell, the Master found the 

retained income should be counted as income. Unlike in Fennel, Husband 

had total control over distributions from the business, the business had 

increased its retained income only recently, thus there was no long-standing 

practice, and there was no evidence that the retained income was invested 

for business purposes or necessary to maintain the business. 

The record supports the conclusions reached by the Master. Husband 

testified regarding his business expenses and that he obtained more 

equipment and hired employees in the year prior to the hearing. Notes of 

Testimony (“N.T.”), 7/19/2013, at 82-84, 85-88. Husband also testified that 

he pays himself a salary sufficient to meet his needs and puts the rest of the 

profits back into the business. Id. at 98-100. Husband explained that he 

retains profits to pay unexpected expenses, including the $1000.00-perincident deductible on his business insurance. Id. at 101-02. The Master, in 

making his credibility determinations, found that the retained earnings were 

not all necessary to maintain the business, despite Husband’s testimony. 

Husband was unable to explain the need to retain twice as much income as 

he retained prior to separation. We defer to the Master’s credibility 

determination and find no abuse of discretion.
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As to the depreciation argument, the Master recognized that, at a

support conference, Husband’s income was determined by incorporating half 

of the claimed depreciation into his income. Report at 14. However, the 

Master rejected that method of calculation. Id. at 14-15. While the Master 

found that it was “not clear that all of the depreciation deduction claimed by 

Husband on his tax returns represent[s] the cost of acquiring new 

equipment,” the Master decided to use retained income as an alternative 

method of determining Husband’s income, as discussed above. Id. at 17. 

Because the Master did not consider depreciation in his calculation, 

Husband’s issue relating to depreciation is without merit.

We turn next to Husband’s challenge to the court’s alimony award. 

Husband asserts that, given the circumstances of the case, Wife should not 

have been awarded alimony. Husband contends that the factors did not 

weigh in favor of alimony as Wife has a college degree, gainful employment, 

employment benefits, and the opportunity for raises. Husband also argues 

that, because Wife testified that her income is sufficient to meet her needs 

and because alimony is only available to meet one’s reasonable needs, Wife 

should not have been awarded alimony. Finally, Husband asserts that the 

Master erred in concluding that Wife has understated her expenses and 

reasonable needs. Husband’s Brief at 7-11.

[A]limony provides 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. An 

award of alimony should be made to either party only if the trial 

court finds that it is necessary to provide the receiving spouse 
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with sufficient income to obtain the necessities of life. The 

purpose of alimony is not to reward one party and punish the 

other, but rather to ensure that the reasonable needs of the 

person who is unable to support herself through appropriate 

employment are met.

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.

Balicki v. Balicki, 4 A.3d 654, 659 (Pa. Super. 2010) (citations and 

quotation marks omitted). In granting alimony, the trial court must consider 

the seventeen factors set forth in 23 Pa.C.S.A. § 3701(b).

The Master engaged in a detailed discussion of the seventeen factors. 

Report at 30-38. The Master found that Wife, as a school teacher, was likely 

to receive wage increases, but that there was no certainty about the amount 

or timing of those raises. Id. at 31. The Master determined that Husband’s 

company had more than doubled its sales since the parties’ separation, and 

that Husband, as sole owner, had the ability to retain earnings or distribute 

earnings to himself. Given the record, the Master concluded that Husband 

was retaining more earnings in the company than necessary and included a 

portion of those retained earnings as income for Husband. Therefore, the 

Master calculated Husband’s income as approximately twice that of Wife’s 

income. Id. at 31-32.

The Master credited Wife’s testimony that she had contributed to 

Husband’s business by handling paperwork, dealing with customers, and 

negotiating contracts and that Husband had not supported Wife’s efforts to 

obtain her teaching certificate in the United States. Id. at 33. Also, Wife 
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maintained the home and provided the majority of childcare, which allowed 

Husband to be on the road to develop the trucking company. Id. at 34, 35-

36. 

The Master found that Wife had underestimated her expenses. Wife’s 

expense statement indicated that Wife’s income was greater than her 

expenses. However, Wife neglected to include any expenses for food, 

clothing, car repair, school lunches, child care, or legal fees. The Master 

found that, correcting for this oversight and the fact that Wife would no 

longer be eligible for a mortgage deviation once the divorce became final, 

Wife’s income would not meet her reasonable expenses. Id. at 36-37. 

Conversely, the Master found that Husband had overinflated his expenses 

and that his income, especially with the inclusion of the retained earnings, 

was more than adequate to provide for his reasonable needs. Id. at 36.

The Master found that Wife had limited savings and would be receiving 

the marital residence, which had an associated mortgage and home equity 

loan. The Master determined that alimony would allow Wife to remain in the 

marital residence and maintain the standard of living the parties had

attained during their marriage. Id. at 38. The Master concluded that Wife’s 

income alone would not meet her monthly reasonable needs, especially once 

Wife was responsible for the entire mortgage payment, and that the factors 

weighed in favor of an award of alimony. The Master found it important for 

Wife to maintain the marital residence to provide stability for I.B. Id. at 39. 
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The trial court concurred, finding that that record supported the Master’s 

findings and the award of alimony. T.C.O. at 4.

We agree. Wife testified that the line of credit on the marital 

residence was started to allow Husband to purchase a truck for his business, 

that he continued to take small amounts from the line after separation, and 

that she would be responsible for that payment after the divorce became 

final. N.T., 5/20/2013, at 38-39, 41. Wife also testified that alimony would 

help her meet her monthly obligations. Id. at 64. On cross-examination, 

Husband’s attorney questioned Wife about her failure to include food, 

clothing, car insurance, and other personal expenses. N.T., 7/19/2013, at 

19-21. While Wife testified that these expenses are small, there is no doubt 

that her expense statement was incomplete. Further, Husband testified that 

he was not sure if Wife would be able to maintain the marital residence on 

her salary alone. Id. at 135-37. Given that Wife’s income does not cover 

her reasonable needs and that Husband has a higher income, we find no 

abuse of discretion in the Master’s award of alimony or the trial court’s 

denial of Husband’s exception.

Husband next contends that the Master erred in awarding counsel fees 

to Wife. Husband argues that the Master misapplied the law and failed to 

consider the property awarded to Wife or the value of the attorney’s services 

rendered in determining whether attorney’s fees were warranted. Husband 

also asserts that the evidence did not support the trial court’s conclusion 

that Husband prolonged the litigation. Husband’s Brief at 14-17.
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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.

Counsel fees are awarded only upon a showing of need. In most 

cases, each party’s financial considerations will ultimately dictate 

whether an award of counsel fees is appropriate.

Busse v. Busse, 921 A.2d 1248, 1258 (Pa. Super. 2007) (citations and 

quotations marks omitted).

The Master found that Wife did not receive alimony pendente lite

(“APL”) during the course of litigation because the retained earnings were 

not considered as part of Husband’s income at the time APL was decided. 

The Master also concluded that the debt that Wife carried due to her counsel 

fees would affect significantly her ability to meet her reasonable needs. 

Report at 41. Wife incurred approximately $35,000.00 in total counsel fees 

for the divorce and related litigation. The Master apportioned $15,000.00 of 

that amount to the divorce litigation. Id. at 37.

As noted above, Husband’s income is greater than Wife’s. The vast 

majority of what Wife received in equitable distribution is the marital 

residence, which is not a liquid asset. In contrast, Husband received his 

business, which has a significant amount of retained earnings. The Master 

noted that Wife included neither her legal expenses nor the credit cards she 

used to finance her legal fees as part of the expenses statements that Wife 

submitted for her alimony claim. Id. at 37. 
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The parties’ financial circumstances largely dictate the award of 

counsel fees. Busse, supra. Even with alimony, Husband is in a better 

financial position than Wife. Given this record, there was no abuse of 

discretion in the imposition of an award of $7,500.00 in counsel fees.

Husband next contests the Master’s consideration of appraisals of 

Beltran equipment. Husband argues that the Master’s statement that 

“appraisal are inherently suspect” was in error. Husband’s Brief at 18. 

Husband asserts that he obtained independent appraisals while Wife 

researched the value of the vehicles. Husband argues that the Master erred 

in not using his valuations of the vehicles. Husband’s Brief at 19-20.

As part of his determination of the value of Beltrans, the Master 

assigned a value to the business’ trucks and trailers. Wife provided values 

based upon an internet search of similar vehicles and provided a total value 

of $78,550.00. Husband provided appraisals with a total value of 

$44,300.00. As a compromise, the Master valued the vehicles at $50,000, 

“electing to honor the appraisals done for Husband but taking into account a 

possible ‘discount.’” Report at 10.

A fact-finder need not accept even the uncontradicted opinion of 

a valuation expert, although the fact-finder should offer some 

explanation of the basis on which it sets value where that value 

varies from the only value given in evidence.

Gaydos v. Gaydos, 693 A.2d 1368, 1377 (Pa. Super. 1997). Here, the 

Master had two potential values. Neither party chose to have the business 

as a whole valued by an expert. Instead, they submitted values for the 
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trucks and trailers owned by the business. The fact that the Master chose to 

use neither Husband’s nor Wife’s submitted value, but to find a value 

between the two, is within his purview as the fact-finder. The Master 

provided a rationale for his valuation, namely that he found that Husband’s

estimate undervalued the company’s vehicles. While we do not condone the 

Master’s statement regarding the inherent unreliability of appraisals, and it 

was unnecessary to the resolution of the issue, the Master’s determination of 

the value of the equipment was reasonable and was based upon the 

evidence presented. Therefore, we find no abuse of discretion.

Finally, Husband argues that the Master erred by considering the 

retained earnings of the business as both an asset to be divided in equitable 

distribution and as income for the purposes of awarding alimony. Husband’s 

Brief at 22-23.

The Master included the retained earnings accumulated during the 

marriage as part of the value of Beltrans for equitable distribution. The 

Master considered only at the retained earnings until December 2009, the 

date of separation. The Master discounted the earnings for the part of the 

year that the parties were separated and because, should the business be 

sold, the retained earnings would be not received on a dollar-for-dollar 

basis. Therefore, the Master concluded the business should be valued based 

upon $50,000.00 worth of equipment and $66,727.00 in retained earnings. 

Reports at 28-29.
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For the purposes of alimony, as noted above, the Master found that 

Husband could have distributed additional earnings to himself as income 

without harming the business. Therefore, for 2012, the Master found 

Husband’s income to be higher than reported by Husband to reflect more 

accurately the amount of income available to Husband. While the Master 

used retained earnings as both an asset and income, it was for different 

periods of time and there was no impermissible double dipping.

As noted above, this approach was similar to that used by the trial 

court in Rohrer. There, the trial court ordered that the retained earnings 

were to be used as income for support. 715 A.2d at 464. However, the 

master included the pre-date of separation retained income in the value of 

the husband’s business. Id. at 465. While recognizing that “doubledipping” was impermissible, we found this approach not to be a double-dip 

because it involved two separate amounts of revenue. We condoned this 

practice because it permitted “monies accumulated during the marriage to 

be equitably divided.” Id. at 466. The Master here used a similar rationale. 

The retained earnings accumulated during the marriage were included in the 

value of Husband’s business to be divided in equitable distribution. The 

retained earnings going forward were counted as income for the purpose of 

determining whether alimony was warranted. We find no abuse of 

discretion.

Decree affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015