J. A11029/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ROBERT A. RYAN, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. : No. 1249 WDA 2013

:

PATRICIA A. RYAN :

Appeal from the Order Entered July 2, 2013,

in the Court of Common Pleas of Fayette County

Civil Division at No. 2797 of 2009, G.D.

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2014

Robert A. Ryan (“Husband”) appeals from the July 2, 2013 order of the 

Court of Common Pleas of Fayette County which adjudicated the parties’ 

economic issues in a bifurcated divorce proceeding. We affirm.

The pertinent factual and procedural history of the case as taken from 

the certified record follows. Husband and Patricia A. Ryan (“Wife”) were 

married on April 17, 2004. The marriage was the second for Husband and 

the fourth for Wife. The parties do not have any children together. 

Husband, a high school graduate, had been working as a carpet installer for 

23 to 25 years at the time of the marriage. At the time of equitable 

distribution hearings in 2011, Husband was receiving workers’ 

compensation. At the time of the marriage, Wife was working at 
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Ruby Memorial Hospital while attending LPN school to obtain her RN which 

she attained in 2005.

The parties separated in September of 2009. Husband filed a 

complaint in divorce on October 6, 2009, including counts for alimony and 

equitable distribution of marital property. Wife filed an answer. 

Amber N. Shipley, Esq., was appointed special master; and hearings took 

place on July 8, 2011, July 27, 2011, and August 8, 2011. Attorney Shipley 

filed her report on March 14, 2012, recommending a 60/40 division of the 

marital assets in favor of Wife. Husband filed exceptions, and oral argument 

occurred on May 29, 2012, before the Honorable Ralph C. Warman. On 

January 7, 2013, the trial court bifurcated the divorce action. On March 8, 

2013, the trial court granted the parties a divorce under Section 3301(d) of 

the Divorce Code. On July 2, 2013, the trial court entered an order denying 

Husband’s exceptions and affirming the report of the special master 

regarding the parties’ economic issues. This appeal followed.

Husband raises the following issues for our review:

I. DID THE LOWER COURT ERR AND ABUSE ITS 

DISCRETION BY FAILING TO CONSIDER ALL 

OF THE PARTIES’ ASSETS IN ITS EQUITABLE 

DISTRIBUTION AWARD, FAILING TO PROPERLY 

IDENTIFY AND VALUE CERTAIN ASSETS, AND 

FAILING TO APPROPRIATELY ATTRIBUTE 

CERTAIN ASSETS TO THE RESPECTIVE PARTY 

SUCH THAT WIFE WAS AWARDED 60% OF THE 

MARITAL ESTATE AND HUSBAND ONLY 40%.

A. DID THE LOWER COURT ERR AND 

ABUSE ITS DISCRETION IN 
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FINDING THAT WIFE DID MORE TO 

PRESERVE MARITAL ASSETS THAN 

HUSBAND?

B. DID THE LOWER COURT ERR AND 

ABUSE ITS DISCRETION IN NOT 

CREDITING HUSBAND WITH 

PAYMENTS ON THE 2007 DODGE 

NITRO AND FAILING TO CREDIT 

HUSBAND WITH THE BALANCE 

DUE ON SAID NITRO AT THE TIME 

OF DISTRIBUTION[?]

C. DID THE LOWER COURT ERR AND 

ABUSE ITS DISCRETION IN NOT 

INCLUDING CERTIFICATE OF 

DEPOSIT IN THE AMOUNT OF 

$15,000.00 AS A MARITAL ASSET?

II. DID THE LOWER COURT ERR AND ABUSE ITS 

DISCRETION IN DETERMINING THAT THE 

DEBT INCURRED BY WIFE COMMENCING 

SEPTEMBER 30, 2009 UNTIL OCTOBER 14, 

2009 WAS MARITAL DEBT SINCE THE SAME 

WAS INCURRED FOLLOWING THE DATE OF 

SEPARATION BY WIFE ONLY WITHOUT 

HUSBAND’S KNOWLEDGE?

III. DID THE LOWER COURT ERR AND ABUSE ITS 

DISCRETION IN GIVING WIFE CREDIT FOR 

APPROXIMATELY $12,540.24 REP[R]ESENTING 

WORKER’S COMPENSATION ANNUITY 

MONTHLY PAYMENTS MADE TO HUSBAND AND 

COUNTED AS INCOME IN DETERMINATION OF 

WIFE’S OBLIGATION TO SUPPORT HUSBAND 

IN CONTRAVENTION OF THE COURT’S ORDER 

OF JULY 15, 201[1]?

IV. DID THE LOWER COURT ERR AND ABUSE ITS 

DISCRETION IN NOT AWARDING ALIMONY 

AND EXPENSES TO HUSBAND?

V. DID THE LOWER COURT ERR AND ABUSE ITS 

DISCRETION IN NOT SETTING FORTH 
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HUSBAND’S NON-MARITAL PROPERTY ON 

EXHIBIT 12 AND MAKING PROVISION FOR HIM 

TO OBTAIN THE SAME?

Husband’s brief at 5-6. Husband’s sub-issues I(B) and I(C) were not 

addressed in his brief. Therefore, we consider them abandoned.

Husband’s first three claims of error relate to the trial court’s equitable 

distribution order. Our standard of review of a trial court’s equitable 

distribution award is well settled: “The trial court has broad discretion in 

fashioning [equitable distribution] awards, and we will overturn an award 

only for an abuse of that discretion.” Wang v. Feng, 888 A.2d 882, 887 

(Pa.Super. 2005). An abuse of discretion is not merely an error of 

judgment. Rather, we will find an abuse of discretion only if “the law is 

overridden or misapplied or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown 

by the evidence or the record[.]” Id., quoting Zullo v. Zullo, 613 A.2d 544, 

545 (Pa. 1992). “[Further,], the finder of fact 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.” Lee v. Lee, 978 A.2d 380, 382 

(Pa.Super. 2009) (citation omitted).

“In fashioning an equitable distribution award, the trial court must 

consider, at a minimum, the [13]1factors set forth in 23 Pa.C.S.A. § 3502, 

 

1 Since Section 3502 was enacted, the legislature has added two additional 

factors to be considered when forming an equitable distribution award.
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Equitable division of marital property, (a) General Rule.” Gates v. Gates, 

933 A.2d 102, 105 (Pa.Super. 2007). “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.” 

Lee, supra at 383 (citation omitted). Rather, “[i]n determining the 

propriety of an equitable distribution award, the court must consider the 

distribution scheme as a whole.” Wang, supra at 887, quoting Schenk v. 

Schenk, 880 A.2d 633, 643 (Pa.Super. 2004) (examining equitable 

distribution award as a whole to determine trial court did not abuse its 

discretion in awarding wife 60% of marital property).

In his first issue, Husband complains the equitable distribution scheme 

proposed by the special master and accepted by the trial court did not 

achieve economic justice. (Husband’s brief at 21.) Husband claims that 

according to the relevant factors set out at Section 3502, Husband should 

have been awarded 50% of the marital assets with Wife receiving the 

remaining 50%. Instead, Husband was awarded 40% with Wife receiving 

60%. 

Husband’s complaint centers on the weight given to those factors. We 

observe:

[T]here is no simple formula by which to divide 

marital property. The method of distribution derives 

from the facts of the individual case. The list of 

factors [in the Code] serves as a guideline for 

consideration, although the list is neither exhaustive 

nor specific as to the weight to be given the various 
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factors. Thus, the court has flexibility of method and 

concomitantly assumes responsibility in rendering its 

decisions.

Isralsky v. Isralsky, 824 A.2d 1178, 1191 (Pa.Super. 2003), quoting 

Fonzi v. Fonzi, 633 A.2d 634, 638 (Pa.Super. 1993) (brackets in the 

original).

The record indicates that the special master considered each of the 

Section 3502 factors.2 (See report, 3/14/12 at 5-12.) The special master 

then went on to explain her reasoning for the 60/40 split: 

While [Husband] has a slightly lower earning 

capacity than [Wife], [Wife] has preserved what little 

marital assets the parties have from being dissipated 

by paying the marital debts, insurance, the property 

taxes on the parties’ property alone since the parties’ 

separation and contributed more of the assets to the 

marriage. Specifically, since the marital home was a 

gift from [Wife’s] mother to the couple, it is apparent 

that [Husband] did not contribute anything to the 

acquisition of that asset. While [Husband] tried to 

show that he made significant improvements on the 

property by introducing numerous photographs as 

Exhibits, the Special Master determines that she is 

unable to discern how much of an improvement he 

contributed since she was not provided with both 

before and after photographs. Thus, it is the 

determination of the Special Master that [Husband]

did not make any significant contribution to the 

worth of the marital home. Additionally, as to 

[Husband’s] earning capacity, he has testified that 

he is “able and available to work,” thus, the Special 

Master determined that he has the ability to find 

employment to support his monthly expenses.

 

2

In the interest of brevity, we will not set forth the 13 factors herein, but 

instead refer to the subsection listing the factors.
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Id. at 19 (footnote omitted).

Based on the above, the special master placed added weight on the 

fact that Wife preserved the most significant of the marital assets, i.e., the 

marital home. 

Here, Husband’s disagreement with the weight assigned to the 

statutory factors affords him no relief. In Gates, we rejected a similar 

argument where appellant argued for a reweighing of the factors. We 

stated: “[I]t is apparent appellant is urging us to simply reweigh the section 

3502 factors in the hope the scales will tip in his favor the second time 

around. We cannot do so in the absence of an abuse of discretion, which 

appellant has failed to demonstrate.” Gates, supra at 106. See also

Mercatell v. Mercatell, 854 A.2d 609, 612 (Pa.Super. 2004) (the weight 

assigned to each of the statutory equitable distribution factors is at the 

discretion of the trial court). 

In the present case, Husband has failed to demonstrate an abuse of 

discretion in the trial court’s application of the Section 3502 factors beyond 

its failure to assign more weight to certain factors that Husband deems to be 

in his favor. As such, we cannot reweigh the Section 3502 factors and 

substitute our judgment for that of the trial court. 

In his next issue, Husband takes issue with certain debts that were 

characterized as marital. He contends those debts were Wife’s alone 

because they occurred after the parties separated. According to Husband, 
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the debts occurred on September 30, 2009, to Centra Bank for $12,143.22; 

on October 8, 2009, to PNC Bank, formerly known as National City Bank, for 

$9,875; and on October 14, 2009, to First Federal Bank for $7,537.24. The 

total amount of the three debts is $29,555.46. This amount was deducted 

from the total value of the marital estate ($245,791.05 minus $29,555.46 

equals $216,235.59). 

Wife testified that the three debts were incurred to purchase the 

property located at 395 North Gallatin Avenue in 2008 while the parties were 

married. (See notes of testimony, 8/8/11 at 500-505.) Wife testified she 

continued to make payments on the debt after the parties’ separation. (Id.) 

On the above dates, September 30, 2009, October 8, 2009, and October 14, 

2009, the balance showing on each bank loan was the amount still owed for 

the debt. The trial court determined “the debt incurred to purchase the 

property located at 395 North Gallatin Avenue is tied to ownership of that 

property, which clearly is a marital asset.” (Trial court opinion, 7/2/13 at 3.) 

Between divorcing parties, debts which accrue to them jointly prior to 

separation are marital debts. Litmans v. Litmans, 673 A.2d 382, 391 

(Pa.Super. 1996). Husband’s argument that the debts occurred after the 

parties’ separation is not supported by the record. Accordingly, there is no 

merit to Husband’s claim, and we discern no abuse of discretion here.

Husband’s next issue concerns his workers’ compensation settlement. 

In early 2009, Husband sustained a back injury at work. (Notes of 
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testimony, 7/27/11 at 133.) A worker’s compensation claim was filed and 

subsequently settled in early 2011. (Id. at 135-136.) Husband was 

awarded an indemnity settlement of $70,000. After attorney’s fees were 

deducted, Husband was left with $56,000. (Id. at 136.) Husband elected to 

receive annuity payments of $1,145.02 per month for four years. (Id.) 

According to Husband’s testimony, he started receiving the payments “two 

or three months ago.” (Id. at 136-137.) Those payments were put in an 

escrow account by court order. (Id. at 137.) 

Following a hearing on July 15, 2011, Judge Warman entered an order 

releasing the monthly payments of $1,145.02 over the next four years to 

Husband. The special master concluded that the settlement of $56,000 was 

a marital asset and awarded it to Husband. Husband complains the trial 

court erred by including the entire sum of $56,000 as part of the marital 

assets, especially in light of the following wording in the court’s July 15, 

2011 order: 

it is further ORDERED and DIRECTED that the Master 

in the divorce proceedings will determine if any 

balance remaining on the workmen’s compensation 

settlement constitutes marital property or is the sole 

property of the [Husband].

Order, 7/15/11 at 2.

Based on the above, Husband argues the special master should have 

“backed out” of the equitable distribution award the payments already made 

to him. According to Husband, there are 18 payments left which total 
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approximately $21,649.40, and that is the amount that should have been 

listed as a marital asset rather than the full amount of $56,000. (See

Husband’s brief at 33, 35-36.)

On November 23, 2011, the Pennsylvania Supreme Court decided the 

case of Focht v. Focht, 32 A.3d 668, 674 (Pa. 2011), which held that 

settlement monies received by husband, post-separation from wife, in his 

personal injury tort action, were marital property because his cause of action 

accrued prior to separation. Clearly, Husband’s $56,000 settlement is 

marital property because his work-related injury that gave rise to the 

settlement occurred before the parties’ separated. 

Wife counters Husband’s argument by asserting that to allow Husband 

to receive the monthly annuity payments throughout the period of the 

equitable distribution hearings and appeal would constitute a windfall to 

Husband; specifically, he would receive a double benefit of having exclusive 

use of those funds while depleting a marital asset. Wife maintains that to 

reduce her interest in the funds while Husband has exclusive control of them 

would be inequitable. We agree, and discern no abuse of discretion in the 

assignment of this particular marital asset in the amount of $56,000 to 

Husband.

Next, Husband argues the trial court erred when it failed to award him 

alimony or expenses. Our standard of review in considering whether the 

trial court erred in granting or denying alimony is whether the trial court 
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abused its discretion or committed an error of law. Gates, 933 A.2d at 106; 

Polito v. Polito, 655 A.2d 587 (Pa.Super. 1995). As this court has 

explained:

[T]he 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.

In determining whether alimony is necessary, 

and in determining the nature, amount, duration and 

manner of payment of alimony, the court must 

consider numerous factors including the parties’ 

earnings and earning capacities, income sources, 

mental and physical conditions, contributions to the 

earning power of the other, educations, standard of 

living during the marriage, the contribution of a 

spouse as homemaker and the duration of the 

marriage.

Gates, 933 A.2d at 106 (internal citation and quotations omitted) (emphasis 

in original).

“The Divorce Code dictates that in determining the nature, amount, 

duration and manner of payment of alimony, the court must consider all 

relevant factors, including those statutorily prescribed for at 23 Pa.C.S.A. 
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§ 3701, Alimony, (b) Relevant Factors (1)-(17).” Smith v. Smith, 904 A.2d 

15, 20 (Pa.Super. 2006) (internal quotation marks and citation omitted).

In the case sub judice, Husband argues that he should have been 

awarded some alimony and expenses based on the parties’ disparity of 

employability, income, and assets available. (Husband’s brief at 39.) 

Preliminarily, we observe that a review of the special master’s findings 

reflects that she did consider the relevant factors identified in 23 Pa.C.S.A. 

§ 3701(a).3 (See report, 3/14/12 at 25-28.) The trial court adopted the 

special master’s recommendation against alimony. The determination that 

alimony was not warranted was explained by the special master in her 

report as follows: 

While [Husband] has offered testimony that he is 

incapable of engaging in meaningful employment 

and providing for his reasonable needs, he also 

testified that he held himself out as “able and 

available” to work in order to receive unemployment 

compensation benefits. It is the finding of the 

Special Master that [Husband] chose to receive 

unemployment compensation benefits to their 

exhaustion, and is now choosing to receive benefits 

from his worker’s compensation settlement, rather 

than to seek out and engage in appropriate 

employment. Based on the foregoing, the Special 

Master finds that [Husband] is capable of supporting 

his reasonable needs.

. . . . The Special Master cannot recommend an 

award of alimony where there is no apparent need 

upon which to base such a recommendation. There 

simply was nothing to indicate that the same is 

 

3

In the interest of brevity, we will not set forth the 17 factors herein, but 

instead refer to the subsection listing the factors.
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necessary. Although [Wife’s] income is greater than 

[Husband’s], that factor alone is not determinative. 

Given that [Husband] is capable of self[-]support 

through appropriate employment, as well as the fact 

that [Husband] has received APL for a duration of 

time roughly half of the duration of the parties’ 

marriage, the Special Master believes that a 

recommendation of an award of alimony would not 

be appropriate or just in fact contrary to the 

Pennnsylvania Divorce Code.

Id. at 28-29.

There is sufficient evidence in the record to support the denial of 

alimony. We find no abuse of discretion on the part of the trial court in 

adopting the master’s determination in this regard. 

Last, Husband argues the trial court failed to specifically identify his 

separate property in Wife’s possession and make provisions for him to obtain 

same. More specifically, Husband refers to his Exhibit 12 which is comprised 

of five single-spaced, handwritten pages that list personal items, such as, 

work coats, hunting coats, boots, electric razor, etc.; tools, such as, pipe 

wrenches, levels, shovels, rakes, sockets, saw, post hole digger, carpet 

seam iron, etc.; sporting equipment, such as, fishing pole, tackle box and 

fishing supplies, turkey call, etc.; personal jewelry, such as, wedding ring 

and watches, and other miscellaneous items. (See Exhibit 12.)

In her report, the special master referred to Husband’s Exhibit 13 

which was a one-page, handwritten list of items bought while the parties 

were married. The special master awarded all of the items on the list to 

Husband except for pots and pans that Husband valued at $50. (Report, 
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3/14/12 at 16.) There was no specific mention of Exhibit 12 in the special 

master’s report. However, Husband points out that later in the special 

master’s report, the master stated: “In addition, each of the parties shall 

keep any of the property that they each brought into the marriage that has 

not been deemed marital property by this decree.” (Id. at 22.)

Our review of the record reveals Wife testified that many of the items 

on Husband’s Exhibit 12 were either bought during the marriage or were 

junk that Husband picked out of the trash. (Notes of testimony, 8/8/11 at 

407-412). This contentious matter has been going on since October 2009. 

It is now five years later. The items listed by Husband in Exhibit 12 were 

not valued; however, any value is certainly diminished at this point in time. 

We find no basis to remand. Accordingly, the order is affirmed. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2014