AN APPEAL GAUN WRONG; Lessons from Gaun v. Gaun

There is much to learn from an October 7, 2024 Superior Court ruling in Gaun v. Gaun. Much as we invoke criticism for appellate rulings that are short of facts or those which seem to misapply the law, this is one where the trial and appellate analysis merits commendation and, dare we say it……publication…..because it dispels myths about how equitable distribution works.

The Gauns married in 1968 in Bucks County. Wife filed for divorce in 2016. Curiously, husband responded with a counterclaim for indignities. In a world where fault grounds become irrelevant once a party files a divorce consent, this suggests that husband didn’t know or consciously ignored the prevailing law. He also sought and got exclusive possession of the marital residence. As we will see…..be careful what you ask for. Husband won the issue but it cost him $23,000.

Husband appears to have spent his career at United Parcel Service and supplemented income with additional jobs. The clear undercurrent of this case was that he was not expecting a divorce and wanted consideration given in the distribution process to his extra efforts in working. His unhappiness is compounded by his wife left him with burdensome debt, pets that were ill and a recreational vehicle that he seems not to have wanted. Not to mention that while he was saving for a happy retirement, wife had cosmetic surgery and spent needlessly at “beauty salons.”

Gentlemen of the world, gather around. If you have been married to a spouse for more than 40 years whom you feel was not contributing to the enterprise called “marriage” do not complain about the surgery, the hair coloring, the pets or recreational vehicle expense inflicted upon you by your spouse. And because this is an equal rights jurisdiction realize that women of the world get the same treatment when they come to court to complain about four decades of gambling, adultery and gun collecting. No one compelled you to marry. And if you made a bad deal, no one made you stay in an unhappy marriage.

The opinion informs us that a hearing officer allocated four days to hear this case. Husband filed 27 exceptions to the report and recommendation that followed. Wife had eight of her own. Lesson #2. Any party who files more than 8-10 exceptions to such a report is sending the message that they are a problem. Yes, exceptions are supposed to be specific but do not expect that a reviewing trial judge wants to relive your four days of evidentiary hearings.

We don’t have a specific recitation of assets and values but it appears the big asset in this case was a UPS pension based on 30 years of service. The parties had already filed an election for wife to receive a survivor’s annuity before any divorce proceedings were started. Because that election is irrevocable, the court awarded husband 55% of the present benefit premised on the fact that the payment arrangement assumed that husband would pre-decease wife and she would continue to receive a survivor’s benefit. On appeal husband argued that 55% was not enough. That argument also was headed to oblivion.

Then there are the exceptions which can be best termed “credibility burners.” The parties own a wood lot which they would periodically allow foresters to harvest for payments in the $10-20,000 range. These were awarded to wife as part of an overall 55/45% split of the marital assets.

Here there needs to be a sense of perspective. On any given day the Pennsylvania Superior Court is processing 20-30 cases. Most involve deciding whether people are wrongly convicted or sentenced for a crime. Another batch involve terminating rights of parents to raise their own children. The Gauns were on that same argument list discussing the abusive disposition of their woodlot. If trees could be harvested for $20,000 annually, we might attract some interest but trees don’t grow that way so we are talking an asset that might yield $1,000 a year on a deferred basis.

Husband’s next chosen issue was burial plots. He asserted that the court abused its discretion in awarding him both lots. He thought one lot each was “equitable” even if wife was not favoring residency with him now, let alone for eternity. Again, three appellate judges are being asked to overrule the ruling of one trial judge and one hearing officer over disposition of one burial plot. You can predict the result.

The issue that captured this writer’s attention was the elusive matter of ‘fair rental value.” If one spouse has exclusive use of a marital residence the argument goes that he/she should pay fair rental for the exclusive possession. This issue is commonly misunderstood. If the marital residence would rent for $2,000 a month and the taxes and insurance are $400 a month, there is arguably a fair rental claim. But where the mortgage, taxes and insurance amount to $2,000 a month on a marital residence, not only is the occupant spouse paying the cost to maintain; he/she is reducing the mortgage each month via payment of principal; thereby increasing the home equity for distribution. The other issue which is more recent is that while one spouse is occupying the property post separation that home may have increased by $50-100,000. That needs to be considered as well.

In Gaun wife filed for divorce and husband sought exclusive possession. Had he filed to sell the house and wife had resisted or insisted she had the right to occupy the property, his claim for a contribution pending divorce or sale might have had some weight. But, effectively, he is contending that while he should exclusively occupy the property, his wife should contribute to the cost of keeping him there. How does that work?

What the master did was to average the fair rental evidence, concluding the rental value was $1,750 per month and then subtract from it what husband paid for real estate taxes and insurance of $382 per month (presumably there was no mortgage). The court effectively made husband pay to wife half the net cost of $684 a month for 34 months. Curiously, husband argued that the cost of the house was not sustainable. Yet there is no evidence he sought to have the house sold to relieve that burden. Lesson #3. You can’t occupy a house with a rental value exceeding monthly expenses (mortgage, insurance, taxes) without expecting a fair rental claim. The Superior Court did not expressly endorse the trial court analysis but they saw no error. The lead cases on this are Gee v. Gee, 460 A.2d 358 (Pa. Super. 1983) and King v. King, 481 A.2d 913 (Pa. Super. 1984)

The lesson from this concise (11 page decision) is to avoid arguing over minutiae (whether burial lots & wood lots) and to recognize that if you have been married for 20-40 years courts don’t really care to hear about how your spouse took advantage of you. Last and certainly not least, as you move through the chain of divorce, your “issues” need to be narrowed to those of real economic consequence.

Gaun v. Gaun. J-S26019-24m – 106097056283621499.pdf (pacourts.us)