Public Notices, November 3, 2021

Volume 59, No. 14

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

FICTITIOUS NAMES

ARTICLES OF INCORPORATION

CHANGE OF NAMES

 

TABLE OF CONTENTS

Thomas Erb, v. Amanda R. Erb

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF ANNA M. ZERMAN a/k/a ANNA MARIE ZERMAN, late of Cleona Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Harry F. Zerman Jr., Executor

601 E. Pine Street

Cleona, PA 17042

 

Edward Coyle, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF EVELYN J. KLEINFELTER, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jeffrey L. Kleinfelter, Executor

1585 Back Rd

Halifax, PA 17032

 

Scott L. Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF RICHARD S. RUNKEL, late of Jonestown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Denis R. Runkel, Co-Executor

 

James B. Runkel, Co-Executor

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF HERVY S. GIBSON, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Fern L. Gibson, Administratrix

164 Chase Drive

Lebanon, PA 17046

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF ROY R. PATCHES, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Royce R. Patches, Executor

17 Ketterman Hill Road

Richland, PA 17087

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF ELLA M. FETTERHOFF, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Guardian Services of PA, Executor

P.O. Box 418

Elizabethville, PA 17023

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF CATHERINE E. KREISER, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Keith R. Bender, Executor

822 Marcon Drive

Lebanon, PA 17046

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF ELISE R. ACRI, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Richard B. Acri, Executor

 

Gerald J. Brinser, Esquire

P.O. Box 323

Palmyra, PA 17078

 

ESTATE OF SCOTT LEE DINGER, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Terry Dinger, Administrator

 

Michael J. Gombar, Jr., Esquire

Masano ♦ Bradley

1100 Berkshire Boulevard, Suite 201

Wyomissing, PA 19610

 

ESTATE OF ISABEL C. ZULKER, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Elizabth A. Mellon, Executrix

327 Winding Way

Womelsdorf, PA 19567

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF GRACE E. DERR, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Cynthia Ann Behler, Executrix

31 Hickory Drive

Bethel, PA 19507

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF MARGARET N. DISSINGER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Anthony Gulotta, Executor

 

Matthew M. Karinch, Esquire

Weiss Burkett, LLC

802 Walnut Street

Lebanon, PA 17042

 

ESTATE OF ANNA MAE SNYDER, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Judy K. Umbenhauer, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

SECOND PUBLICATION

 

ESTATE OF JEAN M. MAENZA, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Christina Zezenski, Executrix

384 Mountain Blvd.

Wernersville, PA 19565

 

Frederick M. Nice, Esquire

Leisawitz Heller Abramowitch Phillips, P.C.

2755 Century Blvd.

Wyomissing, PA 19610

 

ESTATE OF CHARLES W. DUMBAULD a/k/a CHARLES WILLIAM DUMBAULD, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Sherri L. Dumbauld, Executrix

 

Keith D. Wagner, Esquire

1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF DONALD H. SHUE, JR., late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Marianne Adams, Executrix

 

John R. Elliot, Esquire

Anstine & Sparler

117 East Market St.

York, PA 17401

 

ESTATE OF CAROL K. BRANDT, late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David K. Brandt, Executor

1100 Willoughby Road

Harrisburg, PA 17111

 

Theresa L. Shade Wix, Esquire

Wix, Wenger & Wedner

4705 Duke Street

Harrisburg, PA 17109-3041

 

ESTATE OF BETTY C. MILLER a/k/a BETTY CAROLYN MILLER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Bonita F. Miller, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF EDWARD P. ROOT, JR. A/K/A EDWARD PAUL ROOT, JR., late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Cindy S. Rivers, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF URSEL RANDOLPH ADKINS a/k/a URSEL R. ADKINS, late of South Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Debra E. Mrakovich, Executrix

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF MARY K. STOLTZFUS, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Elam G. Stoltzfus, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF ROBERT WITMAN GROFF, late of West Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Charles Nelson Groff, Executor

 

Young and Young

44 S. Main Street

P.O. Box 126

Manheim, PA 17545

 

TRUST ESTATE OF BETTY JANE HARTMAN, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Successor Trustees.

 

Michael Lee Hartman, Trustee

519 Albright Road

Myerstown, PA 17067

 

Andrew Hartman, Trustee

548 Pancake Road

Clarence, PA 16829

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF HENRY JAVIER RIVERA ALVAREZ, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Yamilis Yaire Rivera Melendez, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF WANDA S. REID, a/k/a WANDA SPENCE REID, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased September 13, 2021. Letters Testamentary have been granted to the undersigned Executor.

 

Gail L. Wagner, Executor

 

Elizabeth P. Mullaugh, Esquire

McNees Wallace & Nurick LLC

100 Pine Street

1. O. Box 1166

Harrisburg, PA 17108-1166

(717) 232-8000

 

ESTATE OF BETTY J. MURRAY, a/k/a BETTY JANE MURRAY, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrices.

 

Susan L. Weiman, Co-Executrix

 

Virginia L. Kline, Co-Executrix

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

ATTORNEY

 

ESTATE OF JAMES A. HEISEY, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jennifer R. Noel, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

THIRD PUBLICATION

 

ESTATE OF JOHN S. SWEIGART, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Joseph Sweigart, Executor

241 Avenue of the Americas, Apt 10E

New York, NY 10014

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF YVONNE J. BAREIS, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kevin M. Richards, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF JAMES WEST a/k/a JAMES A. WEST a/k/a JAMES ALLEN WEST, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Melissa Carruthers, Executrix

 

Candis A. Tunilo, Esquire

Nestico Druby, P.C.

1135 East Chocolate Avenue

Suite 300

Hershey, PA 17033

 

ESTATE OF JOHN C. ZIMMERMAN, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jeremiah J. Zimmerman, Executor

5 Beckley’s Corner

Lebanon, PA 17042

 

Thomas S. Long, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF ROBERT E. KISCADDEN, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrixes.

 

Linda L. Progin, Executrix

 

Diana L. Hromco, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF HARRY C. JAMES a/k/a HARRY CRAIG JAMES, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Elizabeth Jane Jonovich, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ESTATE OF NANCY MARIE GABNER, late of East Hanover Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Lisa M. Reigel, Administrator

5928 York Rd.

Spring Grove, PA 17362

 

Bret M. Wiest, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF ESTATE OF JEAN F. COOL, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Timothy J. San Martin, Administrator

2108 Leinbaugh Ave.

Lebanon, PA 17042

 

Scott L. Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF LUCILLE J. ZETTLEMOYER, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Sharon P. Tyson, Co-Executor

 

Timothy L. Tyson, Co-Executor

 

Joel A. Ready, Esquire

Cornerstone Law Firm, LLC

8500 Allentown Pike, Suite 3

Blandon, PA 19510

 

ESTATE OF ESTATE OF ROY M. WEIDNER a/k/a ROY MICHAEL WEIDNER, late of 570 Charles Street, South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Sonia R. Weidner, Administratrix

 

Andrew S. George, Esquire

Kozloff Stoudt Attorneys

2640 Westview Drive

Wyomissing, PA 19610

 

ESTATE OF RENE LYN WEDDELL a/k/a RENE L. WEDDELL, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrixes.

 

Lucy Houle, Co-Executrix

 

Natalie Houle, Co-Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF LARRY R. SHOLLY, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Patricia A. Sholly, Administrator

P.O. Box 4

Richland, PA 17087

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8^th Street

Lebanon, PA 17042

Attorney

 

FICTITIOUS NAMES

 

Notice is hereby given that an Application for Registration of Fictitious Name was filed in the Department of State of the Commonwealth of Pennsylvania on August 30, 2021 for Radiant Media at 232 West Locust Street Cleona, PA 17042. The name and address of each individual interested in the business is Erin Morgan Dundore at 232 West Locust Street Cleona, PA 17042. This was filed in accordance with 54 PaC.S. 311.417

 

Penncorp Servicegroup, Inc.

600 North Second Street

Harrisburg, PA 17101

 

Notice is hereby given that an Application for Registration of Fictitious Name was filed in the Department of State of the Commonwealth of Pennsylvania on September 02, 2021 for KT Robins Enterprises at 208 Weymouth Drive, Lebanon, PA 17042. The name and address of each individual interested in the business is Kyle T. Robins at 208 Weymouth Drive, Lebanon, PA 17042. This was filed in accordance with 54 PaC.S. 311.417

 

Penncorp Servicegroup, Inc.

600 North Second Street

Harrisburg, PA 17101

 

ARTICLES OF INCORPORATION

 

NOTICE IS HEREBY GIVEN that Articles of Incorporation were filed with the Department of State of the Commonwealth of Pennsylvania, at Harrisburg, Pennsylvania, on the 7th of October, 2021, for the purpose of obtaining a Certificate of Incorporation for a nonprofit corporation organized under the Nonprofit Corporation Law of 1988, Act of December 21, 1988, P.L. 1444, No. 177, Section 103. The name of the corporation is Chestnut Street Community Center. The purpose for which the corporation has been organized is: Exclusively for charitable, religious or educational purposes or making contributions to organizations that qualify as exempt organizations under Section 501(c)(3) of the Internal Revenue Code of 1986.

 

Kevin M. Richards, Esquire

Henry & Beaver LLP

937 Willow Street

P.O. Box 1140

Lebanon, PA 17042-1140

Solicitor for the Corporation

 

CHANGE OF NAME

 

Notice is hereby given that on the 18th day of October, 2021, the Petition of Cassandra Underkoffler

was filed in the Court of Common Pleas of Lebanon County, PA, requesting an Order to change the name of Ethan Bricker. The Court has fixed the 7th day of December, 2021 at 9:30 a.m. before the Honorable Bradford H. Charles, in Courtroom No. 3 of the Lebanon County Courthouse located at 400 S. 8th Street, Lebanon, PA 17042 as the time and place for the hearing of this Petition, where any and all interested parties may appear and show cause, if they have any, why the request of Petitioner should not be granted.

 

Cassandra Underkoffler

9 Aspen Way

Lebanon, PA 17046

 

NOTICE IS HEREBY GIVEN that on October 28, 2021, the Petition of Radhames Sanchez was filed in the Court of Common Pleas of Lebanon County, Pennsylvania, to Civil Action No. 2021-01343, praying for a decree to change his birth name from Radhames Sanchez to Radhames Luciano.

The Court has fixed the 29th day of November, 2021, at 3:00 o’clock P.M., in Courtroom No. 2, of the Municipal Building, 400 South Eighth Street, Lebanon, Pennsylvania, as the time and place for the hearing of said Petition, when and where all persons interested may appear and show cause, if any they have, why the prayer of said Petition should not be granted.

 

Long Brightbill

Greer H. Anderson, Esquire

315 South Eighth Street

Lebanon, PA 17042

Attorney for Petitioner

 

 

 

 

 

 

 

 

 

 

 

JUDGES OPINION

 

Thomas Erb, v. Amanda R. Erb

 

Civil Action-Family Law-Divorce-Equitable Distribution-Exceptions-Special Master in Divorce-
Discretion-Credibility-Nonmarital Property-Gift-Transfer of Stock by Family Business-Increase in Value of Nonmarital Property-Alimony-Factors Considered-Duration-Counsel Fees

 

Amanda R. Erb (“Wife”) filed Exceptions to the Report and Recommendation of the Special Master in Divorce (“SM”) that was adopted by the Court distributing the marital estate.  The Exceptions filed allege that the SM erred and/or abused his discretion in finding that a transfer of stock of the family business to Thomas Erb (“Husband”) was a gift and a nonmarital asset not subject to equitable distribution and in determining the amount of alimony awarded of $650.00 per month for two (2) years and $5,000.00 in counsel fees.

 

1. The report and recommendation of the special master are advisory only, and the trial court is required to make an independent review to determine whether the report and recommendation is appropriate.

 

2. In determining issues of credibility, the SM’s findings are to be given the fullest consideration and weight.

 

3. Title 23 Pa.C.S. § 3501(a)(3) provides that gifts received by one spouse during the marriage generally are excluded from the marital estate.

 

4. The term “gift” generally is defined as something voluntarily transferred by one (1) person to another without compensation.

 

5. The SM did not err or abuse his discretion in finding that the stock transfer was a gift to Husband that is not subject to equitable distribution where Husband’s father who is the chief executive officer of the business testified that he controls all dividend distributions, stock transfers were made only to family members, the stock was not transferred to Husband as compensation for work he performed for the business, the stock transfer was part of his succession plan to pass on assets to his family members after experiencing health issues and evidence was presented that Husband’s father filed a gift tax return for the conveyed stock transfer.

 

6. Title 23 Pa.C.S. § 3501(a) provides that an increase in value of nonmarital property during the marriage is marital property.

 

7. Where no evidence was presented that the stock transferred increased in value during the marriage, the SM did not err or abuse his discretion in failing to include an increase in value of the stock transferred as marital property.

 

8. While the SM did not err in determining the monthly amount of alimony awarded, the two (2) year duration of the award fails adequately to account for Wife’s role as the primary homemaker during the marriage while working fulltime, the fact that Wife is the sole custodian of the parties’ child and Wife’s incurrence of debt and decline in her standard of living after the separation.

 

9. The Court in a divorce has the authority to award reasonable counsel fees and expenses.

 

10. Counsel fees are to be awarded only upon a showing of need.

 

11. The purpose of an award of counsel fees is to ensure that a financially dependent spouse will be able to maintain or to defend against an action for divorce and to effectuate economic justice.

 

12. The SM committed no error of law or abuse of discretion in awarding Wife $5,000.00 in counsel fees where the SM gave due consideration to Husband’s ability to pay, Wife’s need and the extent of Wife’s separate assets and noted that the award of counsel fees should be utilized to prevent the denial of justice, not fully to reimburse the party requesting the award.

 

L.C.C.C.P. No. 2018-20670, Opinion by Charles T. Jones, Jr., Judge, October 30, 2020.

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

FAMILY DIVISION

 

THOMAS ERB,                                 :         NO. 2018-20670

Plaintiff                          :

:

1. :

:

AMANDA R. ERB,                                    :

Defendant                      :

 

ORDER OF COURT

 

AND NOW, this 30^th day of October, 2020, upon consideration of Defendant’s Exceptions to the Report and Recommendations of the Special Master, the Briefs submitted by the parties, and after Oral Argument conducted on September 4, 2020, it is hereby Ordered as follows:

1. Defendant’s Exception to the Special Master’s finding that Plaintiff’s interest in E & E Metal Fab, Inc. is non-marital property is OVERRULED.
2. Defendant’s Exception to the Special Master’s Recommendation of a 60/40 split of the marital estate is OVERRULED.
3. Defendant’s Exception to the amount and duration of alimony awarded to Defendant is SUSTAINED, in part, and OVERRULED, in part.  Plaintiff is directed to pay to Defendant alimony in the amount of $650.00 per month for a period of four years.
4. Defendant’s Exception to the amount of counsel fees and costs awarded to Defendant is OVERRULED.  In accordance with the Recommendation of the Special Master, Plaintiff is directed to reimburse Defendant counsel fees in the amount of $5,000.00 within sixty (60) days.
5. All other aspects of the Report of the Special Master are affirmed.
6. Plaintiff Thomas Erb and Defendant Amanda R. Erb are divorced from the bonds of matrimony pursuant to Section 3301(c) of the Divorce Code of 1980, as amended.

BY THE COURT:

 

                                                                   ___________________________, J.

                                                                   CHARLES T. JONES

 

CTJ/jah

 

Cc:  Loren A. Schrum, Esquire/Sarah E. Hund-Hagemeyer, Esquire/Reilly Wolfson

        Max J. Smith, Esquire/JSDC Law Offices/11 East Chocolate Avenue, Suite

              300/Hershey, PA  17033

       Eden Rittle/Judges’ Chambers

       Judith Huber, Esquire/Law Clerk

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

FAMILY DIVISION

 

THOMAS ERB,                                 :         NO. 2018-20670

Plaintiff                          :

:

1. :

:

AMANDA R. ERB,                                    :

Defendant                      :

 

APPEARANCES:

 

LOREN A. SCHRUM, ESQUIRE                                FOR THOMAS ERB

SARAH E. HUND-HAGEMEYER, ESQUIRE

REILLY WOLFSON

 

MAX J. SMITH, ESQUIRE                                         FOR AMANDA ERB

JSDC LAW OFFICES

 

OPINION, JONES, J., OCTOBER 30, 2020.

 

The parties in this divorce action were married on May 22, 2009 and separated on June 15, 2018.  This was the first marriage for Plaintiff Thomas Erb (“Husband”) and the second marriage for Defendant Amanda R. Erb (“Wife”).  The couple have a twelve-year-old daughter and Wife has two daughters, aged sixteen and twenty-one, from her previous marriage.  Husband left the marital home and initiated divorce proceedings after Wife learned that he was engaged in an extramarital affair with the couple’s neighbor/Wife’s friend.  There is no formal custody or support Order for the parties’ daughter.  Wife has remained in the marital home with her three daughters.  The parties’ daughter resides with Wife and Father spends approximately two to four hours per week with her.  Husband is thirty-nine years old and Wife is forty-five years old.  During the marriage, Wife was the primary homemaker and caretaker of the parties’ daughter and Husband was responsible for the exterior maintenance of the marital home.

Special Master Keith Kilgore, Esquire (“SM”) conducted hearings on the issues of equitable distribution, alimony, and counsel fees and expenses on November 26, 2019 and January 16, 2020.  The SM issued his Report and Recommendations on June 15,2020.  Wife has filed Exceptions to the Report which are presently before the Court for disposition.

The record of this matter reveals that both parties are in good health and worked full-time throughout the marriage.  Husband worked intermittently at his family’s business, E & E Metal Fab, Inc. (“E & E”), since 2003 as a fitter-welder.  He left E & E in 2012, but returned in 2013 under certain conditions imposed by his father.  At the time of the SM hearings, he was a shareholder of E & E and held the position of Vice-President and Plant Supervisor.  In 2019, he had a gross salary of $93,754.00 including a bonus plus stock distributions of $42,156.00 for a total income of $135,910.00.  In 2018, his gross salary was $103,451.00 and his shareholder distributions were $79,647.00 for total income of $183,098.00.  He has been able to save $52,000.00 since separation.

Wife has worked as a Senior Case Manager at Gallagher Bassett Services, a third-party administrator for commercial insurance companies, for nearly fourteen years. Her gross salary in 2018 was $63,609.00 and $60,443.00 in 2019.  She has health insurance and retirement benefits through her employer.  Husband had been paying Wife $2,166.00 monthly in unallocated child and spousal support.  In November 2019, the parties agreed that the amount would increase to $3,073.00 monthly.  He also provides health insurance for the parties’ daughter.  Wife also receives $800.00 monthly child support for her sixteen-year-old daughter from her first marriage.

E & E was started by Husband’s father, Wilfred Erb (“Wilfred”), who is Chief Executive Officer of the business.  The business has always employed various family members, including Husband.  Prior to 2011, Wilfred had been the sole shareholder.  After Wilfred suffered a bout with cancer in 2010, he gifted shares of stock to his daughter, Liane, and his nephew, Steve, so that both became 24 ½ percent shareholders, with Wilfred retaining 51 percent of the stock.  After Steve left the business in 2017, Husband was made a shareholder.

The SM determined that the transfer of E & E stock to Husband constituted a gift and that Husband’s interest in the business was non-marital property not subject to equitable distribution.  The SM determined that the marital estate should be divided 60 percent to Wife and 40 percent to Husband.  Wife was awarded alimony in the amount of $650.00 for two years and Husband was directed to reimburse Wife $5,000.00 for her counsel fees and expert witness expenses incurred in this divorce action.  Wife’s Exceptions are directed to these findings and Recommendations.

The master’s report and recommendations are advisory only; the trial court is required to make an independent review of the report and recommendations to determine whether they are appropriate.  Kohl v. Kohl, 564 A.2d 222 (Pa. Super. 1989).  Although not bound by the Report of a SM, the Court is to give great consideration to the SM’s findings and recommendations.  Morschauser v. Morschauser, 516 A.2d 10 (Pa. Super. 1986).  In determining issues of credibility, the SM’s findings are to be given the fullest consideration and weight. Schuback v. Schuback, 603 A.2d 194 (Pa. Super. 1992).  Findings of credibility are not to be disturbed absent an abuse of discretion.  Doherty v. Doherty, 859 A.2d 811 (Pa. Super. 2004).   A master’s findings are given such deference, particularly on the question of credibility of witnesses, because the master has had the opportunity to observe and assess the behavior and demeanor of the parties. Moran v. Moran, 839 A.2d 1091, 1094 (Pa. Super. 2003).

E & E Stock

Wife contends that the SM erred in determining that Husband’s interest in E & E is a non-marital asset.  She charges that the SM failed to conduct a factual analysis as to whether the transfer of stock was actually a gift or whether it was instead earned through Husband’s employment at E & E during the marriage.  She further argues that, in the event we accept the SM’s finding that this stock transfer constituted a gift, the SM erred in failing to include the increase in value during the marriage as a marital asset.

After careful consideration of the record and arguments of the parties, we find that the SM did not err in determining that the transfer of stock to Husband was a gift.  At the hearing on November 26, 2019, Wilfred testified that he started E & E and is still actively involved in the business as Chief Executive Officer.  He controls all dividend distributions.  Besides Husband, Wilfred’s daughter (Liane), grandson, granddaughter, and brother are also E & E employees.  Wilfred explained that he had always wanted E & E to remain a family business and that only family members were given stock.  He had always told his children that they would be part of the company and he had always intended to take care of his family through E & E.  He denied that the stock was transferred to Husband in exchange for his work as an employee of the business.

After his 2010 cancer diagnosis, Wilfred did not want to leave his family dry if something happened to him.  After he consulted with an attorney, he decided that the best solution would be to give stock to other family members and keep 51 percent himself.  He initially gave 24 ½ percent to his nephew, Steve, who was President at the time, and his daughter, Liane.  The three entered a Shareholders Agreement to effectuate his stock gifting program in September 2014.  The agreement prevented the sale of the stock and established the value of the business at $1.6 million dollars.  After that, he gave additional shares of stock to Steve and Liane.

When Steve left the business in 2017, Wilfred paid Steve for his stock.  At that time, Wilfred’s wife urged him to give stock to Husband.  Wilfred explained that he agreed to do so because he wanted to treat his family members fairly. He entered into an Agreement to Make Gift of Stock (Exhibit “3”) in which both Liane and Wilfred gave certain amounts of their stock to Husband.  As per the Shareholders’ Agreement entered by the three, the business was valued at $1.6 million dollars and sale of the stock was restricted.   Husband’s interest was valued at $392,000.00.  Husband did not pay for the stock.   Wilfred and his wife had their accountant prepare and file gift tax returns on the transfer.  Wilfred described the transfer as part of his succession plan to ensure that Husband received the same amount of stock as his sister and to plan for his own retirement.  Brian Ammerman, Wilfred’s accountant, believed that the stock was gifted to Husband so that he would continue to work at and eventually run E & E.

Gifts received by one spouse during the marriage are generally excluded from the marital estate.  23 Pa.C.S.A. §3501(a)(3).  As noted by Wife, the term “gift” is not defined in the Divorce Code and is generally defined as “something voluntarily transferred by one person to another without compensation.” www.merriam-webster.com/dictionary/gift.  In his Report, the SM explained that he was persuaded by the testimony of Wilfred Erb and Brian Ammerman that the stock transfer to Husband was a gift which should not be included as part of the marital estate.  We agree.

Wilfred’s testimony clearly established that the transfer of stock was a result of Husband being part of Wilfred’s family, was not connected to the services he performed in his employment with the business, and was part of the succession plan to pass on his assets to his family members in equal measure.  Wilfred explained that he had always intended that E & E would remain a family business, that Husband would be involved in the business, and that Husband and his sister would be treated equally long before the transfer was made.  When Steve left the business in 2017, it was a convenient time to effectuate the transfer because Wilfred had just purchased back Steve’s shares.  Wilfred and his wife filed the appropriate gift tax returns.  Wilfred explained that when he dies, his 51 percent would go to his wife and would ultimately pass to Liane and Husband upon her death.  The SM was in the best position to assess the credibility of Wilfred and Ammerman.  We accept his assessment and believe that this evidence fully supported his finding.

Wife also charges that the SM erred in failing to include an increase in value of Husband’s stocks in his calculation of marital assets.  When nonmarital propery increases in value during the marriage, the increase is marital.  23 Pa.C.S.A. §3501(a).  However, there is no evidence of an increase in value here.  The SM valued Husband’s share of E & E at the time of receipt in 2017 at $392,000.00 as per the Shareholder’s Agreement.  Wife’s expert opined that the value of Husband’s interest was $411,000.00 as of December 31, 2018, a difference of $19,000.00.  The SM reasoned that Wife’s expert did not value the stock at the time Husband received the gift or at the time of separation.  The SM further noted that Wife’s expert had used the income approach for valuation, which is based on cash flow and dividend-paying ability.

We find no error on the part of the SM in this regard.  The $411,000.00 figure set by Wife’s expert was reached via the income-based approach to the valuation of a small business.  As was noted by Ammerman, E & E’s accountant, income and earnings for the business had decreased from the 2017 figures in 2018 and that trend was expected to have continued in 2019.  Thus, this figure was questionable and we do not believe that the SM erred in disregarding it for purposes of the calculation of an increase in value which would be a marital asset.

Split of Marital Assets

The SM awarded Wife 60 percent of the marital estate.  Wife assigns error to this award, contending that she is entitled to 75 percent in light of the SM’s findings.

Factors which are relevant to the equitable division of marital property include the following:

 

(1) The length of the marriage.

(2) Any prior marriage of either party.

(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

(4) The contribution by one party to the education, training or increased earning power of the other party.

(5) The opportunity of each party for future acquisitions of capital assets and income.

(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.

(8) The value of the property set apart to each party.

(9) The standard of living of the parties established during the marriage.

(10) The economic circumstances of each party at the time the division of property is to become effective.

(10.1) The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.

 

(10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.

(11) Whether the party will be serving as the custodian of any dependent minor children.

 

23 Pa.C.S.A. §3502(a).

 

[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 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).

 

In determining the scheme of distribution of the parties’ marital assets, the SM found that each of the factors was either neutral or weighed in favor of Wife.  The SM noted that Husband now earns significantly more than Wife, has a far greater opportunity to acquire capital assets and income in the future, and has been able to save a significant amount of money since the parties’ separation.  He also considered the decline in Wife’s standard of living and the fact that she has had to incur post-separation debt in order to pay bills.   Wife argues that the SM failed to give sufficient weight to her role as sole custodian of the parties’ daughter.

We agree with the SM’s assessment of the factors regarding equitable distribution.  We also note that during the marriage, there was not a great difference in the parties’ respective earnings and that Husband’s current salary is not astronomically higher than Wife’s at present.  We also note that E & E’s accountant testified that the business earnings and income had decreased over 2018 and that would have likely been the case for 2019.  This would possibly affect any potential distributions to Husband which are given at the discretion of his father.   Husband will also be paying a substantial amount in child support for the parties’ daughter for the next six years.

We believe the SM correctly dealt with the disparity in income by awarding Wife a ten percent greater share of the marital estate and in determining the award of alimony.  We do believe that Wife should be given additional consideration due to her role as primary homemaker and caretaker of the parties’ child.  However, we believe that those factors are better realized by our extending the period of alimony to which Wife is entitled rather than in the percentage of the marital property.   For these reasons, we find no reason to disturb the SM’s division of the marital estate and will overrule this Exception.

Alimony

The parties have agreed that an award of alimony is appropriate in this case.  In fashioning an award of alimony, the following factors are to be taken into consideration:

(b) Factors relevant.–In determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including:

(1) The relative earnings and earning capacities of the parties.

(2) The ages and the physical, mental and emotional conditions of the parties.

(3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

(4) The expectancies and inheritances of the parties.

(5) The duration of the marriage.

(6) The contribution by one party to the education, training or increased earning power of the other party.

(7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.

(8) The standard of living of the parties established during the marriage.

(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.

(10) The relative assets and liabilities of the parties.

(11) The property brought to the marriage by either party.

(12) The contribution of a spouse as homemaker.

(13) The relative needs of the parties.

(14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony, except that the court shall consider the abuse of one party by the other party. As used in this paragraph, “abuse” shall have the meaning given to it under section 6102 (relating to definitions).

(15) The Federal, State and local tax ramifications of the alimony award.

(16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs.

(17) Whether the party seeking alimony is incapable of self-support through appropriate employment.

 

(c) Duration.–The court in ordering alimony shall determine the duration of the order, which may be for a definite or an indefinite period of time which is reasonable under the circumstances.

 

23 Pa.C.S.A. §3701(b),(c).

 

Wife assigns error to the SM’s award of $650.00 monthly alimony for a period of two years and argues that she should receive $1,500.00 monthly as an award of continuing alimony.  The SM based his decision on the fact that Wife has a well-paying job, good benefits and will be receiving child support.  He opined that an award of unlimited alimony in the amount suggested is unnecessary as her economic circumstances indicate her capability of self-support.

While we agree with the amount of the award determined by the SM, we do believe that the duration should be extended.  Although Wife’s salary enables her to provide for herself, we cannot ignore the fact that she was the primary homemaker during the marriage and has been and will continue to be the sole custodian of the parties’ daughter.  She performed the tasks associated with these roles while working full-time during the marriage and post-separation.  Her assumption of these responsibilities has enabled Husband to concentrate on his own economic endeavors and we believe Wife should receive some consideration in this regard.  We also believe that the fact of Wife’s incurring debt and the decline in her standard of living should be taken into consideration.  Moreover, despite the fact that she will be receiving child support from Husband, Wife will  continue to incur greater expenses than Husband in raising the parties’ daughter and in providing a suitable home for her.  For these reasons, we will award Wife the monthly sum of $650.00 for a period of four years.  The additional duration of the alimony payments will provide Wife with time to pay off any post-separation debt and give her additional help with expenses to a point where the parties’ daughter will be only two years away from high school graduation/majority.

Counsel Fees and Costs of Litigation

The Court has the authority to award reasonable counsel fees and expenses when appropriate. 23 Pa.C.S.A. §3702.  However, counsel fees are to be awarded only upon a showing of need.  Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. 2004).  The purpose of an award of counsel fees is to insure that a financially dependent spouse will be able to maintain or defend against an action for divorce as well as to effectuate economic justice between the parties.  Schubert v. Schubert, 580 A.2d 1351, 1356 (Pa. Super. 1990).  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.”  Busse v. Busse, 921 A.2d 1248, 1258 (Pa. Super. 2007).  In determining whether to award counsel fees, all relevant factors must be considered, including “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.”  Id.

Wife had incurred $20,638.00 in attorney’s and expert witness fees as of the dates of the hearings before the SM.  The SM award her $5,000.00 in counsel fees.  Wife claims that the fees incurred were reasonable, and that Husband has the ability to pay Wife’s counsel and expert fees, while she is unable to do so.

After careful consideration, we will not disturb the award of the SM.  In considering Wife’s request, the SM gave due consideration to Husband’s ability to pay, Wife’s necessity, and the extent of Wife’s separate assets.  He also noted that an award of counsel fees in a divorce is not intended to fully reimburse the party requesting the award, but should be utilized only to prevent the denial of justice.  We believe that under the total circumstances of the parties’ situations, and in consideration of Wife’s income along with the assets and alimony awarded to her in this divorce litigation, she will have the means to pay off her attorney and expert fees with the aid of the $5,000.00 which is to be paid by Husband.  Thus, we will accept the figure determined by the SM and overrule this Exception.