Judges Opinions, — December 27, 2023 12:19 — 0 Comments

Marina Aybar v. Wilfredo Cruz

Marina Aybar v. Wilfredo Cruz


Civil Action-Family Law-Divorce-Equitable Distribution-Separation-Fair Rental Credit-Marital Residence-Dispossessed Spouse-Protection From Abuse Order-Economic Justice


The parties filed for divorce more than twenty (20) years following their separation, after which Defendant (“Husband”) enjoyed exclusive possession of the marital residence.  The parties separated and Plaintiff (“Wife”) left the property at that time when protection from abuse orders entered on behalf of two (2) of her adult children had evicted her from the residence.  In a Report and Recommendation of the Special Master in Divorce adopted by the Court, the Special Master awarded Husband credits for post separation payment of real estate maintenance expenses for the marital property while denying Wife credit for fair rental value of the marital residence.  Wife has filed Exceptions on the basis that the Special Master erred and/or abused her discretion in failing to award her credit for fair rental value of the marital residence during the separation.


  1. It is within the discretion of the court to award rental value credit as part of equitable distribution when only one (1) spouse enjoys possession of the marital residence.


  1. The purpose of an award of rental value credit is to compensate the dispossessed spouse for the value of the parties’ residence during the time when that spouse was dispossessed.


  1. It is not necessary to award credit for fair rental value if the total distribution scheme is fair and equitable.


  1. The court should consider whether children have resided in the marital home during all or a portion of the time during which rental credit is sought.


  1. An eviction from the property as a result of a protection from abuse order may constitute an equitable defense to a claim for fair rental value.


  1. A court adjudicating a divorce dispute is charged with the responsibility of effectuating economic justice without regard to marital misconduct.


  1. In light of the fact that a $19,500.00 increase in the value in the marital residence occurred while the parties were living together before separation, Husband paid extensive amounts to maintain the property to which Wife did not contribute, Wife was evicted from the marital residence pursuant to conduct directed against her daughters who continued to reside in the marital residence with Husband through completion of their higher education and Wife never paid any child support to Husband, economic justice compels a payment of $7,500.00 to Wife, which represents thirty-eight percent (38%) of the equity in the marital residence generated while the parties lived together as a married couple.


L.C.C.C.P. No. 1988-20690, Opinion by Bradford H. Charles, Judge, December 7, 2022.









MARINA AYBAR,                                      :                                    

Plaintiff                                                      :        1988-20690

                                                                   :        IN DIVORCE


  1. :       


WILFREDO CRUZ,                                    :

Defendant                                                  :       





AND NOW, this 7th day of December, 2022, upon consideration of the recommendations of the Special Master and in accordance with the attached Opinion, it is ordered and decreed as follows:

  1. Marina Celeste Aybar, (WIFE), and Wilfredo Cruz, (HUSBAND), are divorced from the bonds of matrimony pursuant to Section 3301(d) of the Divorce Code.
  2. The marital property consisting of the Marital Home located at 47 Lehman Street, Lebanon, Pennsylvania, 17046 is awarded to HUSBAND.
  3. HUSBAND shall pay to the WIFE the sum of $7,500.00 within six (6) months following the Final Decree.
  4. Each party shall sign all documents necessary to effectuate the distribution of the property set forth herein.
  5. The fees and costs of the Special Master shall be paid equally between the parties.










cc:     Court Administration (order only)

Greer Anderson, Esq.

Heather Eggert, Esq.

Keith Kilgore, Esq. (Special Master)










MARINA AYBAR,                                      :                                    

Plaintiff                                                      :



  1. :        1988-20690


WILFREDO CRUZ,                                    :

Defendant                                                  :       





Greer Anderson, Esq.                             FOR Plaintiff                                                                                                                                                      

Heather Eggert, Esq.                              FOR Defendant


OPINION BY CHARLES, J.,  December 7, 2022

When a divorce occurs more than twenty (20) years after parties separate, the parties’ entitlement to so-called “credits” can take on outsized importance.  In this case, the decision of a Special Master (SM) to award Wilfredo Cruz (hereafter HUSBAND) with credits for post-separation payment of real estate maintenance expenses and his decision to deny Marina Aybar (hereafter WIFE) any credit for rental value of the marital residence effectively results in an award of the entire current value of the marital residence to HUSBAND.  While we agree with the SM that HUSBAND should receive the vast majority of the marital estate, we are not comfortable with how the SM justified this result.


HUSBAND and WIFE married in December of 1979.  They separated in 2001 when HUSBAND filed Protection from Abuse (PFA) Petitions against WIFE.  The parties have remained separated ever since.

Four children were born to the parties’ marriage.  All are currently adults.  However, at the time of separation, one of the parties’ daughters was 15 and another was 9.  As a result of a PFA Order, these children remained with HUSBAND at the marital home located at 47 Lehman Street in the City of Lebanon.

The parties’ home was purchased in January of 1997 for $69,500.  As of the date of separation, the home was valued at $89,000.  As of May 6, 2021, the value of the home had increased to $114,000.  From separation until today, HUSBAND has enjoyed exclusive possession of the Lehman Street property.  The SM concluded: “WIFE has not made any contribution toward the Lehman Street property since the date of separation.”

In July of 2021, an SM was appointed to hear the parties’ divorce dispute.  A hearing was conducted on March 22, 2022.  At that hearing, WIFE requested to be reimbursed for $1,100 per month fair rental value of the marital home for the entire period that HUSBAND enjoyed exclusive possession.  Although there was some dispute about the total amount of this claim, both parties agree that WIFE’s request for rental value represents an amount that exceeds the current fair market value of the residence.

HUSBAND presented evidence at the hearing that he paid the following amounts to maintain the marital property following separation:

  1. Mortgage payments $67,094.50
  2. Home Owner’s Insurance $  9,480.00
  3. School Taxes $  9,479.02
  4. Municipal Real Estate Taxes $  9,067.83

TOTAL                 $95,121.35

On September 12, 2022, the SM issued a report.  The SM granted HUSBAND’s request for credits totaling $95,121.35.  However, he denied WIFE’s request for rental value credits.  The SM reasoned:

“In the case herein, WIFE is not a dispossessed spouse.  She was evicted from the premises as a result of two PFA Orders filed by an adult child as a result of WIFE’s abuse of two minor children.  As a result, the SM will recommend WIFE not receive a credit for fair rental value.” (SM’s report at page 9)

Two PFA Orders were presented as Exhibits 5 and 6 at the SM’s Hearing.  Exhibit 5 related to the parties’ younger daughters.  The Petition alleged that WIFE grabbed her 9-year old daughter by the neck and threw her out on the street stating “I don’t care what happens to you and you are going to go with your dad.”  The girl also alleged that WIFE hit her, inflicted bruises on her, pulled her hair and instructed her to lie to a doctor about her injuries.  The 14-year old daughter alleged that WIFE slapped, punched and pulled her hair.  A second PFA Order was entered with respect to one of the parties’ adult daughters, who was then attending Lehigh University.  The adult daughter proffered lengthy allegations of abuse against WIFE, including beating her with a hockey stick and inflicting bruises and scars with belts, curtain rods, shoes, phones and other objects.  The older daughter also presented photographic evidence of scarring inflicted by WIFE and she corroborated as a witness the allegation of abuse proffered with respect to her two younger sisters.

A Final PFA hearing was scheduled for September 28, 2001, regarding all of the above allegations of abuse.  HUSBAND and the children appeared.  WIFE did not.  As a result, this honorable Court entered an Order granting HUSBAND’s request for PFA Relief.  As part of that Order, we evicted WIFE from the marital residence located on Lehman Street.  We also afforded HUSBAND with legal custody of the parties’ minor daughters and we prevented any contact between WIFE and those girls.

Following 2001, the parties’ three younger daughters continued to reside with HUSBAND.  Each of these young ladies graduated from high school and college.  Two earned doctorate degrees. (N.T. 53).  Throughout the entire time that the two youngest daughters remained minors, WIFE never paid any child support at all.  (N.T. 37).  HUSBAND was primarily responsible for raising his daughters and financially supporting them.

Following the SM’s report, WIFE filed Exceptions.  Her primary argument is that the SM erred by not awarding her with a credit for fair rental value of the marital home.  In addition, she argues that she should not have been required to pay one-half of the real estate appraisal cost.  We issue this Opinion in order to address WIFE’s primary argument.[1]



When only one spouse enjoys possession of a marital residence, it is within the discretion of the Trial Court to award a rental value credit as part of equitable distribution.  Trembach v. Trembach, 615 A.2d 33 (Pa. Super. 1982).  The purpose of such an award is to compensate a dispossessed spouse for the value of the parties’ residence during the time when he/she was dispossessed.  Ressler v. Ressler, 644 A.2d 753 (Pa. Super. 1994).

An award of rental value to a dispossessed spouse is not mandatory.  Butler v. Butler, 621 A.2d 659 (Pa. Super. 1993)[2]; Cerny v. Cerny, 656 A.2d 507 (Pa. Super. 1995).  Specifically, it is not necessary to award a fair rental value credit if the total distribution scheme is fair and equitable.  Schneeman v. Schneeman, 615 A.2d 1369 (Pa. Super. 1992); Miller v. Miller, 744 A.2d 778 (Pa. Super. 1999). Specifically, a Court should consider whether children have resided in the marital home during all or a portion of the time when rental credits are sought. Macklica v. Macklica, 716 A.2d 653 (Pa. Super. 1998). (Court stated that two-thirds of the property’s fair rental value could be attributed to the children who resided at the premises.)

Pennsylvania Courts have also recognized equitable defenses to rental value credit claims.  Most pertinent to the decision now before this Court is a Superior Court case that emanated from Lebanon County.  In Lee v. Lee, 978 A.2d 380 (Pa. Super. 2009), the Court cited the “full equity power” of courts who are adjudicating divorce disputes.  See, 23 Pa. C.S.A. § 3323(f).  Noting the traditional principle that “he who comes into a court of equity must come with clean hands”, Pennsylvania’s Superior Court held:

“In this instance, it is clear that Husband’s behavior prompted the PFA, which in turn excluded him from the home.  No matter the reason for Husband’s not living in the residence after January 8, 2005, there is no dispute that as of August 18, he was precluded from even visiting the home.  We therefore conclude that equity prohibits Husband from receiving a monetary credit from Wife for the time that he was excluded by the PFA, as the Order was entered on the basis of his misbehavior toward her.  Thus, we agree with Wife that Husband was not entitled to any rental credit after the PFA was issued against him.”

Id at page 388.

See also, Masserrat v. Masseratt, 2017 WL749192 (Pa. Super. 2017). (Court declared that a husband’s 3-year eviction from the marital home pursuant to a PFA constituted an “equitable defense” to a claim for rental value.)[3]



The role of a Court charged with responsibility to adjudicate a divorce dispute is to “effectuate economic justice” for the parties.  See, 23 Pa.C.S.A. § 3102(a)(6)[4].  Moreover, we are instructed to accomplish this “without regard to marital misconduct.”  23 Pa.C.S.A. § 3502.  Accomplishing these goals is sometimes difficult, especially when issues pertaining to economic justice are affected by conduct that most people would view as “misconduct”.

In this case, our role is further complicated by the fact that the parties separated more than twenty (20) years ago.  Ordinarily, when divorce occurs within a few years following separation, the issue of credits represents only a fraction of the value of the marital assets to be divided.  Here, the 20 years of credits collectively sought by both parties totals an amount that is almost double the current market value of the parties’ entire marital estate.  The issue is further complicated by the fact that WIFE has sought rental credit based upon the current rental value of the residence, which is obviously higher than the rental value that would have existed 20 years ago.

With all of the above having been recognized, we would like to articulate numerous equitable factors that will bear upon our decision.  Those factors include the following:

  • The value of the residence when it was purchased during the parties’ marriage was $69,500. The value of the residence at the time of the parties’ separation was $89,000. This is an increase of $19,500 that occurred while HUSBAND and WIFE were living together as spouses.
  • From 2001 until the present, HUSBAND resided in the property and paid extensive amounts to maintain it. WIFE did not contribute in any way toward these amounts. Without the amounts paid by HUSBAND, the real estate would have no value whatsoever today.
  • WIFE was evicted from the marital residence based largely upon the testimony and evidence presented by her daughters. To the extent necessary, we conclude that WIFE’s “dispossession” of the marital residence was the exclusive result of voluntary choices that she made pertaining to her daughters.
  • The parties’ children resided primarily with HUSBAND at the marital residence while they were still minors and through the years of their college and post-graduate education. During this period of time, a significant percentage of the “rental value” of the home must be allocated to the children.
  • At no time did WIFE pay any child support to HUSBAND. The entire expense of raising and support minor and college-age children was borne by HUSBAND.

All of the above factors, with the exception of (1), weigh heavily in favor of HUSBAND.  In fact, we conclude that economic justice in this case requires a result that is at or near what was recommended by the SM.

There are numerous analytical paradigms that would support a result similar to the one the SM awarded.  For example, we could look at the totality of what has occurred since the parties married and conclude that HUSBAND should receive a percentage of marital assets that significantly exceeds the 55% awarded by the SM.  Alternately, we could choose to award credits as requested by HUSBAND and rental credits in an amount far less than WIFE has sought.[5]  Finally, we could adopt the analysis of the SM and simply use HUSBAND’s maintenance expense credit as a means to afford him with the vast majority of the current value of the marital residence.  So that we are crystal-clear, any of the above would effectuate economic justice in a way that WIFE’s argued distribution method would not.

We have taken the time to articulate all of the above because we are not comfortable using credits as the exclusive vehicle by which to award to HUSBAND the vast majority of the value of the parties’ residence.  For 20 years, HUSBAND paid all of the expenses relating to the marital home.  However, those are expenses that he would have been required to pay for housing and shelter regardless of whether he was living in the marital residence or not.  We are not inclined to require a dispossessed spouse to pay one-half of living expenses of the other spouse for 20 years, even if the dispossession resulted initially from a PFA.[6]  Moreover, we must recognize that the PFA was simply not in effect for most of the last twenty years.  Looking at everything globally, we are not comfortable relying completely upon a credits analysis to achieve a fair result.

On the other hand, we do not believe that WIFE should enjoy a windfall based upon the appreciation in value of real estate during a period of time when she contributed absolutely nothing to the maintenance of the property that appreciated.  In addition, HUSBAND’s role as primary parent to children who had been abused and financially abandoned by WIFE is another factor that is particularly compelling in this case.

In consideration of everything outlined above, we will be ordering that HUSBAND pay WIFE the sum of $7,500.  This amount represents roughly 38% of the equity in the marital home that was generated while the parties lived together as husband and wife.  To the extent necessary, we conclude that HUSBAND’s payment of maintenance expenses relating to the marital residence offsets the amount of appreciation of the residence between 2001 and the present date and it offsets the amount of rental credit that we would be willing to award – an amount far less than the sum sought by WIFE.  Cutting through all of the legal superfluity, we conclude that awarding WIFE a sum of $7,500 effectuates economic justice for this family.  Therefore, that is the payment we will order HUSBAND to make.

A Court Order to effectuate the above will be entered today’s date.


[1] In the record, HUSBAND stated that he paid for two real estate appraisals that were admitted into evidence.  The SM awarded HUSBAND with reimbursement for one-half of these expenses.  Although it will not affect the outcome of the case, we agree with the SM’s decision and calculations as it relates to the cost of the appraisals.

[2] Butler was reversed on unrelated grounds at 663 A.2d 148 (1995).

[3] In Masserrat, the Trial Court also declined to award a rental credit because the “total distributary scheme” was deemed equitable.  The Superior Court affirmed this reasoning as well.

[4] In addition, Pennsylvania’s General Assembly also declared as a finding of intent that Divorce Orders should be designed to “mitigate the harm” that children could suffer as a result of the divorce between their parents.

[5] We could reason that the rental value of the home was far less than $1,100.00/month for most of the last 20 years, or that WIFE should be entitled to no rental value whatsoever while the children were living in the residence.

[6] On the other hand,, we cannot ignore the fact that HUSBAND did not receive any child support from WIFE throughout the time he used the marital residence as the hone for the parties’ children.

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Ben has written 972 articles for Lebanon County Legal Journal