J-S01033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LISA BEURY : IN THE SUPERIOR COURT OF

:

v. :

:

KENNETH BEURY, :

:

Appellant : No. 1112 MDA 2016

Appeal from the Decree June 9, 2016

in the Court of Common Pleas of Northumberland County,

Civil Division, No(s): 14-CV-72

BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 09, 2017

Kenneth Beury (“Husband”) appeals from the Decree (hereinafter “the 

Divorce Decree”) that divorced him and Lisa Beury (“Wife”) from the bonds 

of matrimony, equitably distributed the parties’ marital property, and 

awarded Wife alimony and attorney’s fees. We affirm.

The parties married in 1989. At the time of the hearing before the 

Divorce Master, Cindy Kerstetter, Esquire (hereinafter “the Master”), Wife 

was 56 and Husband was 57. The parties never had children of their own, 

though Husband had two children from a prior marriage,1 which ended upon 

the untimely death of Husband’s first wife. In connection with his first wife’s 

death, Husband receives an annuity of $1,250 per month, which he will 

receive until his death. 

 

1 At the time of the Master’s hearing, Kenneth Beury, Jr. (“Kenneth”) was 

36, and Sarah Beury (“Sarah”) was 29. 
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Throughout their 24-year marriage, the parties resided at 142 East 

Melrose Street, Marion Heights, Pennsylvania (hereinafter “the marital 

residence”).2 Before the parties married and moved into the marital 

residence, Wife resided with her father and sister, Cheryl Roseman 

(“Roseman”), in a house in Ashland, Pennsylvania (hereinafter “the Ashland 

residence”), which is approximately 15 minutes away from the marital 

residence. Wife and Roseman jointly own the Ashland residence. At the 

time of the Master’s hearing, Roseman continued to reside in the Ashland 

residence, though her father had passed away. Roseman testified that the 

Ashland residence has no heat on the second floor, and only one “usable 

bedroom,” located on the second floor (which Roseman does not use during 

the winter due to the lack of heat).3 Accordingly, Roseman testified that it 

would not be prudent for Wife to live in the Ashland residence after the 

divorce.

Wife was a homemaker during the entirety of the parties’ marriage, 

and cared for Husband’s children. Wife’s employment history is limited to 

one year of working in a sewing factory following her graduation from high 

school, before the parties married. Wife has no postsecondary education. 

 

2 Husband placed a $10,000 down payment on the marital residence when 

he purchased it in 1989. At the time of the Master’s hearing, the mortgage 

on the marital property had been satisfied.

3 Husband’s appraiser valued the Ashland residence at $15,700. 
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Husband works as a laborer, and currently earns $19 per hour.4 

Husband did not graduate from high school. He was the sole income-earner 

during the parties’ marriage. Wife was financially dependent on Husband’s 

income. The parties had a relatively modest standard of living during the 

marriage, given their limited income and assets.

Both parties suffer from health ailments, and seek treatment from the 

same local physician. Importantly, this physician issued a letter stating her 

medical opinion that Wife was “indefinitely” unfit to seek any employment 

due to her multiple ailments (which include, inter alia, diabetes, glaucoma, 

depression, and hypertension). Husband suffers from neuropathy in his feet 

and arthritis. 

The parties separated in January 2014, after Husband allegedly 

engaged in an affair, which Husband disputes. Wife continues to reside in 

the marital residence, along with Sarah, who does not pay rent. In January 

2014, Husband left the marital residence and initially moved in with his 

then-girlfriend. According to Husband, however, that relationship ended and 

he now lives in Kenneth’s house.

Wife filed a Divorce Complaint in January 2014. The parties’ only 

significant marital asset is the marital residence, which an appraiser valued 

at approximately $79,000. A separate appraiser valued the parties’ personal 

property at $18,745, much of which pertained to Husband’s hobbies, and 

 

4

Prior to the divorce, Wife received health insurance through Husband’s 

employer.
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included various hunting and fishing items. Additionally, Husband has a 

401(k) account through his employer, which was worth approximately 

$10,000 at the time of Wife’s filing of the Divorce Complaint.5

Following the Master’s hearing on August 25, 2015, the Master issued 

a Report and Recommendations (hereinafter “Master’s Report”) on January 

13, 2016, wherein she recommended, inter alia, that (1) Wife be awarded 

the marital residence, in full;6(2) Husband retain the full value of his 401(k) 

account; (3) Husband continue to pay Wife APL in the amount of $1,362 per 

month, until the divorce was finalized, at which time Husband shall pay Wife 

alimony of $1,000 per month; and (4) Husband pay half of Wife’s attorney’s 

fees, or $2,694.24. Husband filed timely Exceptions to the Master’s Report, 

asserting, inter alia, that the Master erred in awarding Wife the marital 

residence where (1) if Husband received the marital residence, Wife could 

live in the Ashland residence that she jointly owns with Roseman; and (2) 

Wife was not required to compensate Husband for any of his equity in the 

marital residence.

On June 9, 2016, the trial court entered the Divorce Decree, which 

provides as follows:

 

5 At the time of the Master’s hearing, Husband’s 401(k) had a vested 

balance of approximately $6,300, as he had taken out a loan from the 

account to purchase a second car. Wife has no separate retirement savings.

6 The Master did not award Husband a rental credit, stating that Wife has no 

income aside from the alimony pendente lite (“APL”) that she receives from 

Husband.
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... [Husband’s] Exceptions to [the] Master’s Report are 

GRANTED, in PART, as follows:

1. The Master’s conclusion to award the marital residence to 

Wife, in toto, was proper under the circumstances; however, the 

failure to award Husband any rental credit due to Wife’s lack of 

income was not equitable here. Compare Schneeman v. 

Schneeman, 615 A.2d 1369 (Pa. Super. 1992) (fair rental credit 

awarded indirectly due to reduction in alimony).

2. The marital [residence] was the only significant asset 

accumulated by the parties during their marriage.

3. In recompense for his contributions toward the acquisition of 

the asset, the Master did not adequately provide for Husband’s 

interest and share of the marital residence.

4. In the event Wife remains in the marital residence, she will 

have to pay Husband a fair rental value [] (one-half of $500.00 

per month) in the sum of $250.00 per month.[FN] Husband shall 

convey his interest in the marital [residence] to Wife by deed 

within 90 days of notice of intent to remain in the premises from 

Wife. The transfer expenses are to be borne by Husband. Wife 

is responsible for all taxes, utilities and expenses of the marital 

[residence].

[FN] A concern is the ability of [Wife,] with her limited 

income[,] to maintain the expense of home ownership, so 

she might just sell it. This would be unfair to Husband to 

not share in the net proceeds of a sale of the home by 

[Wife].

5. Wife may not encumber or permit any liens to be entered as 

to the marital residence without the consent of Husband.

6. If Wife sells the marital residence, she will have to pay 

$28,870.00 out of the net proceeds to Husband within 10 days 

of the closing on the sale.

7. In the event of Wife’s death[,] and the marital residence has 

not been sold to a third party, Husband shall be entitled to the 

sum of $28,870.00 from her estate upon sale or transfer of this 

residence.
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 * * *

9. In all other respects, the recommendations of the Master are 

adopted by this [c]ourt.

Divorce Decree, 6/9/16 (footnote in original). 

Husband timely filed a Notice of Appeal from the Divorce Decree. The 

trial court ordered Husband to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal, and Husband timely complied. In response, 

the trial court issued a Statement in Lieu of Opinion.

Husband now presents the following issues for our review:

1. Whether the trial court abused its discretion when it awarded 

ninety percent of the parties’ assets to [Wife,] even though 

the parties are of similar advanced age, have similar 

education, are both in poor health, and when [Wife] owns a 

one-half interest in a non[-]marital residence where she 

resided prior to her marriage to [Husband]?

2. Whether [Wife’s] alimony should be terminated[,] when the 

parties’ situations are similar and [Wife] has received 90% of 

the parties’ assets?

3. Whether [Husband] should be required to make payment 

toward [Wife’s] attorney’s fees when he is already paying 

alimony each month and when he received only ten percent 

of the assets[,] and his income is insufficient to both support 

himself and pay Wife alimony? 

Brief for Appellant at 4 (issues renumbered for ease of disposition).

Husband first argues that the trial court abused its discretion by 

fashioning an inequitable distribution of the parties’ marital property, 

wherein Wife purportedly received approximately 90% of the property, while 

Husband is “left destitute” because of the “lopsided ... 90/10 split” of the 
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parties’ assets. Id. at 8, 14; see also id. at 12 (asserting that the parties’ 

age, ill health, and education level is similar). Husband emphasizes that 

Wife was awarded the marital residence, but, according to Husband, “Wife 

can easily move back to the Ashland residence[,] whereas it is Husband who 

now has no place to live[.]” Id. at 11. Husband disputes the Master’s 

finding that it was not possible for Wife to move into the Ashland residence 

because it has only one suitable bedroom and no heat on the second floor. 

Id. at 12-13. According to Husband, “[t]hat finding, and the Master’s 

complete ignoring of the fact that Husband is currently living on his son’s 

couch[,] demonstrates that the Master was either biased, or was manifestly 

unreasonable in her decision.” Id. at 13.

We review equitable distribution matters as follows:

Our standard of review in assessing the propriety of a marital 

property distribution is whether the trial court abused its 

discretion by a misapplication of the law or failure to follow 

proper legal procedure. An abuse of discretion is not found 

lightly, but only upon a showing of clear and convincing 

evidence. When reviewing an award of equitable distribution, 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.

Smith v. Smith, 904 A.2d 15, 18 (Pa. Super. 2006) (internal citations and 

quotation marks omitted). A trial court has “the authority to divide the 

award as the equities presented in the particular case may require.” Drake 

v. Drake, 725 A.2d 717, 727 (Pa. 1999); see also Williamson v. 

Williamson, 586 A.2d 967, 970 (Pa. Super. 1991) (observing that equitable 
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distribution must be equitable, but it need not be equal). Section 3502(a) of 

the Divorce Code outlines the factors that a trial court should consider in 

fashioning an equitable distribution of marital property. See 23 Pa.C.S.A. 

§ 3502(a)(1)-(11). “We are also aware 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.” Morgante v. Morgante, 119 A.3d 382, 387 

(Pa. Super. 2015) (citation omitted). 

Here, the trial court addressed Husband’s challenge to the division of 

the marital property as follows:

The Master awarded Wife the marital [residence] on the basis 

that [Wife] was totally dependent financially on [] Husband; she 

needs a place to live after twenty-four years there; she is 

medically unable to work; [] Husband’s daughter[, Sarah,] is in 

the home [still]; and, [Wife] has no other security for her 

future.[FN 1] [Wife] would have to subsist on alimony from 

Husband of only $1,000.00 a month until she receives social 

security benefits.

[FN 1] Husband’s argument that [Wife] could live with 

[Roseman in the Ashland residence] was properly 

rejected by the [M]aster on the basis that it was unfit for 

both [Wife and Roseman] to live there[,] and it could not 

be imposed against their wishes.

In view of the circumstances, [the trial c]ourt accepted the 

Master’s recommendation; however, in an attempt to provide 

some offset to Husband[,] there was imposed a rent payment 

back to him of $250.00 per month. Another concern was that if 

Wife realized she could not afford to maintain the marital 

[residence], it would be unfair to Husband to allow Wife to sell it, 

or if she predeceased him, for her estate to realize the benefits 
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of the value of the home to the exclusion of Husband. Thus, 

[the trial c]ourt determined that the sum of $28,870.00 would 

be paid to Husband out of the proceeds of any sale (or transfer 

upon [Wife’s] death) of the marital [residence]. 

 * * *

 The case at bar does not present circumstances that 

indicate any present or future ability on the part of Wife to make 

substantial payments [toward Husband’s interest in the marital 

residence]. On the contrary, her sole support is the alimony 

from Husband.[FN 2] The rental obligation was imposed to require 

some monthly payment as to [Husband’s] interest. ... 

Moreover, [Sarah] benefits [by continuing to reside in the 

marital residence with Wife]. On balance, Husband could also 

have been held to the prior APL amount of $1,362.00 [per 

month], which was reduced to $1,000.00 as alimony; thus the 

$362.00 savings can also be considered to offset a theoretical 

payment plan by Wife on the marital [residence]. (This is then a 

total payment of $250 rent + $362 = $612.00 per month[,] and 

this would equate to $7,344.00 per year, which would pay for 

Husband’s interest [in the marital residence] in four years). 

Husband is benefitting from these monthly adjustments[,] as 

well as receiving a lump sum in the event of a sale or upon 

Wife’s death. Economic justice is being achieved.

[FN 2] At only $1,000.00 per month, [W]ife would likely 

also require governmental assistance to reside 

elsewhere.

Trial Court Statement in Lieu of Opinion, 8/24/16, at 3-4 (footnotes in 

original). We are persuaded by the trial court’s rationale, which is supported 

by the record. 

Initially, Husband does not explain how he came to the conclusion that 

Wife received approximately 90% of the marital assets. Indeed, Husband 

received a significant portion of the parties’ personal property, as well as his 

401(k) account. Though we are sympathetic to Husband’s position, the trial 
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court’s distribution of marital property was the most equitable division 

possible under these particular circumstances, wherein Wife is undisputedly 

medically incapable of seeking any type of employment, and the parties’ 

only significant asset is the marital residence. Moreover, the trial court 

properly exercised its discretion in modifying the Master’s initial 

recommendation as to the division of the marital residence in order to 

compensate Husband for his interest in this asset. To the extent that 

Husband challenges the Master’s assessment of Roseman’s testimony that it 

would not be prudent/possible for Wife to move into the Ashland residence 

(given that it has only one functional bedroom and no heat on the second 

floor), we must defer to the Master’s credibility finding. See Morgante, 

supra. In any event, as the trial court correctly pointed out, it lacks the 

power to compel Wife and Roseman to live together. Finally, contrary to 

Husband’s claim, our review of the record reveals no bias on the part of the 

Master. Accordingly, as we discern no abuse of discretion in the trial court’s 

equitable distribution award, Husband’s first issue lacks merit.

In his second issue, Husband asserts that the trial court abused its 

discretion when it awarded Wife alimony of $1,000 per month, as “Wife 

either has the money available to support herself or does not need it.” Brief 

for Appellant at 16. Husband contends that “[e]ven though Wife is unable to 

work, the equitable distribution award, the marital [residence], and the 

money she received in [APL] are sufficient for Wife to provide for her own 
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reasonable needs, particularly when [Sarah] lives with Wife and earns a 

gross income of $591.04 per week.” Id. at 15-16.

Our standard of review over an alimony award is an abuse 

of discretion. We previously have explained that the purpose of 

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

rather to ensure that the reasonable needs of the person who is 

unable to support himself or 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. Moreover, alimony following a 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.

Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004) (citation 

and quotation marks omitted). In considering a request for alimony, the 

trial court must consider the statutory factors enumerated in 23 Pa.C.S.A. 

§ 3701(b), which include, inter alia, the duration of the marriage; the 

contribution of a spouse as homemaker; the relative needs of the parties; 

and whether the party seeking alimony is incapable of self-support through 

appropriate employment. Id. § 3701(b)(5), (12), (13), (17).

Here, it is undisputed that Wife is medically unable to self-support 

through any means of employment, and was financially dependent upon 

Husband for the entirety of their 24-year marriage. Wife contributed to 

Husband’s earning power and overall quality of life by being a homemaker 

and caring for his two children from a prior marriage. Moreover, when the 

parties’ divorce is final, Wife, who suffers from several serious maladies, will 
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lose her health insurance, which she previously received through Husband’s

employer. Accordingly, Wife could conceivably incur significant out-ofpocket medical expenses in the future, and, absent alimony from Husband, 

Wife would have no source to cover such expenses. Additionally, even 

though Wife received the marital residence in equitable distribution, she 

must pay for its upkeep (including taxes, utilities, maintenance, et cetera).7 

Wife must also pay Husband $250 per month in rent. Finally, of

 

7 The Master found that Sarah did not pay any rent to live in the marital 

residence, either before or after the parties separated. Accordingly, contrary 

to Husband’s urging, Sarah’s income is irrelevant insofar as Wife’s need for 

reasonable alimony is concerned.
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particular note is that Husband’s income from his job8is supplemented by 

the $1,250 per month that he receives from his first wife’s annuity.

In short, Wife’s needs are great; if she did not receive reasonable 

alimony from Husband, she would have no income upon which to survive 

(until she is eligible to receive Social Security benefits). We conclude that 

the alimony award achieved economic justice and was in accordance with 

ensuring that the reasonable needs of Wife, who is unable to support herself

through any employment, were met. See Teodorski, supra. Accordingly, 

Husband is not entitled to relief on his second issue.

In his third and final issue, Husband contends that “[i]n light of the 

award of approximately ninety percent of the [marital] assets to Wife, the 

trial court abused its discretion in ordering Husband to pay Wife one-half of 

her attorney’s fees.” Brief for Appellant at 17. According to Husband, Wife 

“has more than enough money to pay her attorney’s fees[,]” and “has not 

demonstrated ... [that] Husband committed any dilatory, obdurate or 

vexatious conduct throughout the proceedings.” Id. at 16, 17. Husband 

argues that in addition to Wife being awarded the marital residence, she also 

“received [APL] of $1,362.00 for over two years and now receives alimony of 

 

8

Pa.R.C.P. 1910.16-2(e)(1)(B) addresses low income cases in support 

actions, and sets a “self-support reserve” for the obligor of $931 per month. 

In the instant case, the Master found that Husband has a monthly gross 

income from his job of approximately $2,900 per month. After the 

deduction of $1,000 per month in alimony to Wife, Husband’s net income is 

above the self-support reserve.
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$1,000.00 per month, and therefore[,] Wife is not at a financial 

disadvantage.” Id. at 17-18.

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 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.

Anzalone v. Anzalone, 835 A.2d 773, 785-86 (Pa. Super. 2003) (citation 

and paragraph break omitted); see also id. at 786 (stating that 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. Also pertinent to our review is that, in 

determining whether the court has abused its discretion, we do not usurp 

the court’s duty as fact finder.” Busse v. Busse, 921 A.2d 1248, 1258 (Pa. 

Super. 2007) (citations and quotation marks omitted).

At the time of the Master’s hearing, Wife had accrued attorney’s fees 

in the amount of $5,588.47.9 The Master recommended that as “[t]he 

substantial income inequality between the parties is unquestionable[, 

t]herefore, some contribution by Husband towards Wife’s counsel fees is 

 

9 Wife has obviously incurred additional attorney’s fees following Husband’s 

filing of the instant appeal. Wife asserts in her brief that she has incurred 

attorney’s fees in excess of $10,000.00. Brief for Appellee at 22.
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appropriate.” Master’s Report, 1/13/16, at 17 (unnumbered). The trial 

court agreed with the Master. Both the Master and the trial court were 

aware of the parties’ respective financial situations and arrived at a 

reasonable determination that is appropriate under the circumstances. 

Contrary to Husband’s assertion, simply because Wife received the marital 

residence and APL/alimony does not mean that she is no longer at a financial 

disadvantage insofar as paying for her considerable attorney’s fees is 

concerned. Additionally, Husband is mistaken in implying that, in order for 

an award of attorney’s fees to be proper, there must have been a finding 

that his conduct was dilatory, obdurate or vexatious. See Anzalone, supra

(stating that counsel fees are awarded upon a showing of need). 

Accordingly, we conclude that the trial court did not abuse its discretion in 

awarding $2,694.24 in counsel fees to Wife.

Based on the foregoing, we affirm the Divorce Decree.

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2017