Wilson v. Wilson, 1319 WDA 2021

279 A.3d 1269 (Table)

Brett A. WILSON, Appellant

v.Terri S. WILSON

No. 1319 WDA 2021

Superior Court of Pennsylvania.

Filed: May 23, 2022

MEMORANDUM BY PELLEGRINI, J.

Brett A. Wilson (Husband) appeals a divorce decree entered on October 5, 2021, by the Court of Common Pleas of Blair County (trial court) terminating the marriage between Husband and Terri S. Wilson (Wife), distributing their marital assets and awarding Wife alimony. We affirm.

I.

Husband and Wife were married on January 4, 1991. They had two children who are now both adults. In early December 2016, Husband moved out of the marital residence, where Wife continued to live. From that time until April 2018, Husband tried to reconcile with Wife. Although Husband moved back into the marital residence in April 2018, no reconciliation occurred.

On June 28, 2018, Husband filed for divorce and Wife counterclaimed. In July 2018, Husband and Wife obtained PFA orders¹ against each other, following an incident in which Wife allegedly assaulted Husband. The parties soon thereafter agreed that Husband would take exclusive possession of the marital residence, and a court order was entered on August 9, 2018, to that effect. Wife moved out of the marital residence that same month. After a settlement agreement could not be reached, on April 10, 2019, Husband filed a Motion for Appointment of Divorce Master and a Master was appointed.

Following a four-day evidentiary hearing, the Master submitted a Report and Recommendation to the trial court. The entire marital estate was valued at $540,495.00. The Master recommended that a 50/50 division of the marital assets was appropriate and that Husband pay alimony to Wife ($932.00 per month) for five years and five months. The parties were also directed to return each other's personal property and to exchange vehicle titles as needed. In addition, Husband was directed to pay Wife $3,247.68 as fair rental value for his exclusive use of the marital residence after the filing of the divorce complaint. Husband filed exceptions to the Report and Recommendation as to equitable distribution and alimony. Wife also filed exceptions, but they are not at issue in this appeal.

Following a hearing, the trial court denied all of Husband's exceptions. The trial court's order, entered on May 20, 2021, was limited to the rulings on the exceptions and did not formally terminate the marriage.² The divorce proceedings concluded on October 5, 2021, when the trial court entered a final decree terminating the parties’ matrimonial bonds and denying Husband's exceptions to the Master's Report and Recommendation. Husband then timely appealed that decree, and in his brief, he raises six issues for our consideration:

[1]: Did the trial court err in determining the date of separation to be June 2018, thus directing that Fair Rental Value [for use of the marital residence] be awarded to [Wife] from August 2018 until [the] date of [the] order?

[2]: Did the trial court err in determining that the John Hancock Life Insurance Policy and the savings bonds were all pre-marital [property]; therefore, having no marital value?

[3]: Did the trial court err by assessing the values of vehicles to [Husband] when he testified that he does not wish to keep the vehicles, and that they should be sold?

[4]: Did the trial court err by not giving [Husband] credit for [Wife's] withdrawals from the joint bank accounts after [the] date of [their] separation?

[5]: Did the trial court err by failing to direct that [Husband's] payment to [Wife] be reduced by his reimbursement claims for furniture, expenses, and property taxes paid while [Wife] was in exclusive possession of the marital residence?

[6]: Did the trial court err in awarding alimony?

Appellant's Brief, at 4-5 (suggested answers omitted).

II.

Husband's first claim is that the trial court erred in using the separation date of June 28, 2018, to calculate the beginning of a 24-month rental period in which Husband had exclusive use of the marital residence. According to Husband, the separation began earlier, prior to Wife's exclusive possession of the home from December 2016 to April 2018, cancelling out much of the rental award that had been imposed in Wife's favor. Further, Husband argues that the rent calculation should not have been based on the fair rental value of $750.00 per month.³ As the trial court's findings in this regard were adopted from the recommendation of the Master, which are, in turn, supported by the record, the rent award to Wife must be upheld.

The propriety of the rent calculation in this case hinges on the date of the parties’ separation, which the Divorce Code defines as a "[c]omplete cessation of any and all cohabitation, whether living in the same residence or not." 23 Pa.C.S. § 3103. "Cohabitation" in this context means "the mutual assumption of those rights and duties attendant to the relationship of husband and wife." Thomas v. Thomas , 483 A.2d 945, 948 (Pa. Super. 1984).

The Code provides further that "[i]n the event a complaint in divorce is filed and served, it shall be presumed the parties commenced to live separate and apart not later than the date the complaint was served." 23 Pa.C.S. § 3103 ; see also McCoy v. McCoy , 888 A.2d 906, 912 (Pa. Super. 2005). The party seeking to rebut the presumption has the burden of proving that at a time other than when the complaint was filed, one of the parties had the " ‘independent intent ... to dissolve the marital union’ and that the intent was ‘clearly manifested and communicated to the other spouse.’ " McCoy , 888 A.2d at 912 (quoting Sinha v. Sinha , 526 A.2d 765, 767 (Pa. 1987) ).

"Absent an abuse of discretion, the trial court's findings of fact, if supported by credible evidence of record, are binding upon a reviewing court." Wellner v. Wellner , 699 A.2d 1278, 1280 (Pa. Super. 1997).⁴ During divorce proceedings, it is within the discretion of the trial court to award a rental credit and determine the rental credit amount. See Schneeman v. Schneeman , 615 A.2d 1369,1377 (Pa. Super. 1992).

Here, the Master and the trial court determined that Husband would owe rent to Wife for his exclusive possession of the marital residence for 24 months beginning on the date of separation – June 28, 2018 – when Husband filed a divorce complaint. Husband argues that the separation began earlier when he moved out of the marital residence in December 2016, entitling him to a credit based on Wife's period of exclusive possession of the marital home from that point until April 2018.

At the hearing before the Master, Husband and Wife each provided evidence as to when the date of their separation commenced. It was undisputed that Husband moved out of the marital residence in 2016 after he admitted to an extramarital affair. However, Husband also testified that even after moving out and continuing the affair into 2017, he had consistently attempted to reconcile with Wife. See Transcript of Testimony, 11/25/2019, at p. 27. During this period of attempted reconciliation, Husband and Wife traveled on multiple occasions and often shared meals. Husband would also perform a number of domestic tasks around the marital residence while Wife was residing there. The parties regularly attended counseling together and had sexual intercourse on at least one occasion during this period.

In April 2018, Husband moved back into the marital residence in a further attempt at reconciliation. When these attempts at reconciliation failed, Husband filed for divorce on June 28, 2018, and Wife moved out of the marital residence less than two months later.

The Master and the trial court considered this evidence and found that a separation did not occur until the date Husband filed for divorce and, as a result, Wife was not ordered to pay rent for her use of the residence between December 2016 and April 2018. See Trial Court Opinion, 5/21/2021, at 22-25. This finding coincided with the statutory presumption that separation occurs on the date that a divorce complaint is served. See 23 Pa.C.S. § 3103.

While Husband had presented evidence that a separation had taken place earlier when he had moved out in 2016, this fact did not necessarily rebut the statutory presumption as to the separation date or otherwise preclude a finding that the parties’ efforts at reconciliation delayed the separation date until divorce proceedings began. Husband presented no definitive evidence that either of the parties, prior to the filing of the divorce complaint, had an "independent intent ... to dissolve the marital union" and that this intent was "clearly manifested and communicated to the other spouse." McCoy , at 888 A.2d at 912. Moreover, that Husband moved back into the marital residence in April 2018 belies his claim that he and Wife had already decided in 2016 to dissolve the marital union or live separate and apart from each other.

Due to the ample evidence of reconciliation during the period of Wife's exclusive possession of the home, we find that the trial court did not abuse its discretion in fixing June 28, 2018, as the date of separation and then calculating Husband's rent obligations from that date. See Brubaker v. Brubaker , 201 A.3d 180 (Pa. Super. 2018).

As for the sub-issue of the monthly rental amount, we likewise find no abuse of discretion in awarding Wife a fair rental value of $750.00 per month during Husband's period of exclusive possession of the marital residence. The fair market value of the residence was undisputed, and Wife presented evidence in the form of an appraisal establishing fair market rental value. See Transcript, 11/25/2019, at pp. 21-22. The trial court did not abuse its discretion in crediting that evidence. See generally Trembach v. Trembach , 615 A.2d 33 (Pa. Super. 1992).

III.

Husband's second claim is that the trial court erred in determining that a life insurance policy and savings bonds were premarital property which were not subject to equitable distribution. This issue is difficult...