J-A11014-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JULIE S. SELWOOD IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL J. SELWOOD
Appellant No. 1214 WDA 2013
Appeal from the Decree June 28, 2013
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD-10-007983-008
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED JULY 31, 2014
divorce entered June 28, 2013. We affirm in part, reverse in part, and
remand.
As we write solely for the parties, we only outline the portions of the
factual and procedural history of this case necessary to our disposition.
union produced three children, 17-year-old C.S., 14-year-old A.S., and nine-
year-old T.S. Wife works as a part-time teacher while Husband works as a
bankruptcy and restructuring consultant.1 On April 5, 2010, the parties
separated. On May 24, 2010, Husband signed a new employment contract.
1
Husband avers that less than a week after the decree of divorce was
entered he was laid off.
J-A11014-14
As part of that contract, Husband was given restricted stock, stock options,
and a forgivable loan.
Prior to marriage, Wife opened an investment account with Janney
family. At the time the parties were married, the account had a balance of
$29,253.29. During their marriage, Wife received approximately
$134,121.00 in gifts from her family which she deposited in her JMS
account. At the time Wife and Husband separated, the account had a
balance of $158,395.93. Also prior to marriage, Wife and her brother were
owners of a second-to-die policy on the lives of their parents. During the
marriage, that policy was rolled over into a new policy.
On July 23, 2010, Wife filed a complaint in divorce. The resulting
litigation has been acrimonious and has exhausted a great deal of judicial
master held a six day trial, four days in May 2012 and two days in
September 2012. Prior to the two days in September 2012, Wife filed a
supplemental pre-trial statement. The master permitted Wife to present
evidence included in her supplemental pre-trial statement that was not
re-trial statement. On October 26, 2012, the
master submitted a report and recommendation to the trial court.
-2-
J-A11014-14
November 9, 2012. Husband then filed cross-exceptions. On May 20, 2013,
t
account and the life insurance policy held jointly by Wife and her brother
were non-marital property. The trial court also ordered Husband to maintain
life insurance to insure his future alimony and child support obligations. The
previous alimony pendente lite
and 2012 were retroactively made allocated instead of unallocated. The trial
court ordered Husband to pay for any extracurricular activities in which the
alimony and counsel fees. On June 28, 2013, the trial court entered a
decree of divorce. This timely appeal followed.2
Husband raises seven issues for our consideration:
1. [Did t]he trial court abuse[] its discretion in reversing the
property[?]
2. [Did the trial court abuse[] its discretion by (a) granting
-trial statements
and (b) permitting Wife to present evidence that was only
identified in a belatedly filed amended pre-trial statement?]
3. [Did t]he trial court abuse[] its discretion in failing to
designate as marital property any component of the life
2
Husband and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
-3-
J-A11014-14
insurance policy titled in the joint names of Wife and her
brother[?]
4. [Did t]he trial court abuse[] its discretion in ordering Husband
to maintain life insurance coverage to secure his [child] support
and alimony obligations[?]
5. [Did t]he trial court abuse[] its discretion in retroactively
modifying the unallocated [APL] and child support awards for
2011 and 2012 by making them allocated[?]
6. [Did t]he trial court abuse[] its discretion in vacating the
parents agree upon, and instead delegating final authority to the
children to bind their parents to the cost of their activities[?]
7. [Did t]he trial court abuse[] its discretion in awarding both
alimony and legal fees to Wife in the absence of actual need[?]
-6.3
Our standard of review is well settled.
A trial court has broad discretion when fashioning an award of
equitable distribution. Our standard of review when assessing
the propriety of an order effectuating the equitable distribution
of marital property is whether the trial court abused its
discretion by a misapplication of the law or failure to follow
proper legal procedure. We do not lightly find an abuse of
discretion, which requires a showing of clear and convincing
evidence. This Court will not find an abuse of discretion unless
the law has been overridden or misapplied or the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the evidence in
the certified record. In determining the propriety of an equitable
distribution award, courts must consider the distribution scheme
as a whole. We measure the circumstances of the case against
the objective of effectuating economic justice between the
parties and achieving a just determination of their property
rights.
3
We have re-numbered the issues for ease of disposition.
-4-
J-A11014-14
Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super. 2012) (citation omitted).
for an abuse of discretion. See S.M.C. v. W.P.C., 44 A.3d 1181, 1190 (Pa.
Super. 2012).
In his first issue on appeal, Husband claims that the trial court abused
and non-marital assets. However, the master determined that it was not
possible to determine what portions of the JMS account was marital
property. Therefore, she concluded that she was required to consider the
full amount of the JMS account as marital property. Wife filed an exception
report and recommendation, arguing that the
JMS account was solely non-marital property.
called by Wife, that the account was not marital property. The trial court
MS account were gifts to Wife from
her family. The trial court further found that all marital expenses paid from
account.
-5-
J-A11014-14
On appeal, Husband argues that the trial court overturned a credibility
recommendation does not include any credibility determination as to this
issue. The master did not find
credible. Instead, the master found that, because it was impossible to
full amount must be considered marital property.
Under Pennsylva
either party during the marriage is presumed to be marital property
regardless of whether title is held individually or by the parties in some form
of co-
prior to marriage or property acquired in exchange for property acquired
spouses, bequest, devise or descent or property acquired in exchange for
s non-marital property. 23 Pa.C.S.A. § 3501(a)(1,3); see
23 Pa.C.S.A. § 3501(b). Even if the property were acquired prior to
marriage or by gift, any increase in the value of that property during the
marriage is marital property. 23 Pa.C.S.A. §§ 3501(a), 3501(a.1).
-marital
property. The undisputed evidence presented at trial showed that between
her pre-
account included over $163,000.00 in non-marital assets. See, e.g., Trial
-6-
J-A11014-14
Exhibits V, W, X, Y, Z, AA, BB, and CC. There was no testimony or evidence
presented that Wife made any personal expenditures from the JMS account.
Instead, the undisputed evidence was that Wife made approximately
expert testified at trial that he assumed for the purposes of his analysis that
those funds were the increased value of the JMS account during marriage,
which would be a marital asset. Husband attacks this assumption, arguing
marital asset. However, this is simply not the case. The statute is clear,
only the increase in value of any non-marital property acquired prior to
marriage or through gift is marital property.
With an asset like the JMS account, there was likely to be some
increase in value of the non-marital property. Wife could have chosen to
keep those marital funds with her non-marital funds in the JMS account.
However, there was no requirement that she do so. Instead, there was
testimony that showed she chose instead to use the marital portion of the
JMS account to pay for marital expenses. There was nothing improper about
the fact that Wife used the marital portion of her JMS account to pay for
marital expenses did not tend to prove that the entire account was marital
property.
-7-
J-A11014-14
Husband cites Busse v. Busse, 921 A.2d 1248 (Pa. Super. 2007),
appeal denied, 934 A.2d 1275 (Pa. 2007), and Winters v. Winters, 512
A.2d 1211 (Pa. Super. 1986), for the proposition that the co-mingling of
funds caused the JMS account to become marital property. However, both
Busse and Winters are easily distinguishable. In Busse, the husband had
a pre-marital account. Busse, 921 A.2d at 1257. The husband admitted
that he deposited funds into his pre-marital account during the course of the
marriage. Id. Furthermore, he admitted that he combined his pre-marital
account with various marital accounts. Id. These deposits and the merging
of a pre-marital account with marital accounts caused his pre-marital funds
to become marital property. None of those facts are present in the case at
bar. To the contrary, Wife testified that she never deposited marital
property into her JMS account. Husband offered no testimony or evidence to
the contrary.
In Winters, this Court expressly rejected the same argument being
made by Husband in the case at bar. In particular, we noted that the
comingling of assets does not result in the funds being transmuted from
non-marital property to marital property. Winters, 512 A.2d at 1215, citing
Anthony v. Anthony, 514 A.2d 91 (Pa. Super. 1986) (en banc). As we
noted in Anthony
from that in many other jurisdictions. Anthony, 514 A.2d at 94. Taking
-marital asset
-8-
J-A11014-14
were to appreciate in value the asset would be converted to a marital asset
because the non-marital and marital portions of the asset would be
comingled. That would be an absurd result. Accordingly, we conclude that
ount was a non-
marital asset.
In his second issue on appeal, Husband challenges two procedural
determinations by the trial court. We conclude that both challenges are
waived. First, Husband contends that the trial court abused its discretion by
grantin -trial statements.
In that petition, Wife sought to enforce prior court orders relating to
discovery by ending discovery 30 days prior to trial and requiring all pre-trial
statements be filed 15 days prior to trial.
As this Court has explained, Pennsylvania Rule of Appellate Procedure
any discussion of a claim with citation to relevant authority or fails to
develop the issue in an
Tosi v. Kizis, 85 A.3d 585, 589 n.6 (Pa. Super. 2014) (citation omitted). In
amended pre-trial
-9-
J-A11014-14
Branch Banking & Trust v. Gesiorski, 904 A.2d 939, 942 943 (Pa. Super.
to enforce and limit amended pre-trial statements is waived.
introduce, at the September portion of the trial, evidence relating to the life
by exceptions [to a
waived unless, prior to entry of the final decree, leave is granted to file
-2(b); Hayward v.
Hayward, 868 A.2d 554, 561 (Pa. Super. 2005). Less than a week before
the trial was to resume, Wife filed a supplemental pre-trial statement which
included the new exhibits. Husband filed a motion in limine requesting that
the exhibits be excluded as they were untimely filed with the master. The
master heard argument on the motion in limine and deferred ruling until
after the evidence was presented. After the evidence was presented, the
master denied the motion in limine. Husband did not object to the
admission of these exhibits in his cross-exceptions. See Hus -
determination that the life insurance policy was non-marital property. See
id. at 2. Accordingly, his argument that the master erred by permitting the
exhibits into evidence is waived.
- 10 -
J-A11014-14
In his statement of questions involved, Husband argues that the
interest in life insurance policies and failure to produce evidence in discovery
related to the JMS account. See -6. These arguments
are also waived. See Pa.R.A.P. 2119(a). As such, all of the arguments
In his third issue on appeal, Husband contends that the trial court
erred by designating the life insurance policy held by Wife and her brother as
a non-marital asset.4 Husband contends that the evidence used by Wife to
prove the non-marital status of the property should have been excluded by
the master. Husband also contends that, even with that evidence, at least
some portion of the insurance policy should be considered marital property.
The trial court found that the premiums for the policy were paid by
parents. Wife contends that the policy was non-marital property as the
As we have noted above, Husband has waived his argument relating to
the admission of evidence at the September 2012 portion of the trial. As
such, we must view all of the evidence presented during the trial, including
4
Yuhas v. Yuhas, 79 A.3d 700, 707 n.1 (Pa. Super.
2013) (citations omitted).
- 11 -
J-A11014-14
the evidence belatedly produced by Wife, when determining if any portion of
the insurance policy is marital property.
First, Wife presented evidence that the insurance policy, which was
issued during the marriage, arose from a life insurance policy issued prior to
the marriage that was later rolled over into a new policy. See N.T.,
9/10/12, at 66-67. Husband offered no evidence to the contrary. As such,
time of marriage is non-marital property is supported by the record. See 23
Pa.C.S.A. § 3501(a)(1). Thus, the issue is whether the increase in the value
of the life insurance policy (and its predecessor policy) from the time of
We conclude that a portion of the increase in the value of the policy is
marital property and a portion is non-marital property. Wife testified and
presented documentary evidence that her parents gave her gifts which she
then spent on the life insurance premiums. See N.T., 9/10/12, at 67;
Exhibits PPP2, RRR, QQQ. There was no evidence presented that Wife ever
paid life insurance premiums from the joint checking account with funds that
life insurance policy that derived from the continued premium payments was
property acquired in exchange for a gift. Such property is non-marital. See
23 Pa.C.S.A. § 3501(a)(3). However, Wife also admits in her brief that the
life insurance policy earned interest and dividends. See
- 12 -
J-A11014-14
citing Exhibit 16. Wife avers that a portion of the interest and dividends was
the total premiums owed on the policy. Wife also admits that the value of
the policy increased as a result of the interest and dividends earned on the
account.
insurance policy, whether used to pay premiums or to increase the value of
the policy, is marital property. See 23 Pa.C.S.A. § 3501(a). We therefore
non-marital property. In the interest of judicial economy, we direct the trial
court on remand to determine the value of the insurance policy that was
marital property. The trial court shall then determine what percentage of
the marital asset, if any, should be awarded to Husband and what
percentage should be awarded to Wife. After making any required
adjustment for taxes, Husband shall be awarded a credit on the equitable
distribution of liquid assets in that amount.
In his fourth issue on appeal, Husband argues that the trial court
abused its discretion by requiring him to maintain life insurance to secure his
child support and alimony obligations. The trial court determined that the
minor children. Trial Court Opinion, 10/29/13, at 8. Wife contends that
- 13 -
J-A11014-14
section 3502(d) authorized the trial court to require Husband to maintain his
life insurance. Husband contends that section 3707 barred the trial court
from requiring him to maintain life insurance. To the extent that this issue
requires us to interpret a statute, our standard of review is de novo and our
scope of review is plenary. See Pilchesky v. Lackawanna Cnty., 88 A.3d
954, 965 (Pa. 2014) (citation omitted).
The maintenance of an insurance policy is governed by section
3502(d), which provides that:
The court may direct the continued maintenance and beneficiary
designations of existing policies insuring the life or health of
either party which were originally purchased during the marriage
and owned by or within the effective control of either party.
Where it is necessary to protect the interests of a party, the
court may also direct the purchase of, and beneficiary
designations on, a policy insuring the life or health of either
party.
pon the
death of the payee party, the right to receive alimony pursuant to [the
Divorce Code] shall cease. Upon the death of the payor party, the obligation
to pay alimony shall cease unless otherwise indicated in an agreement
between the parties or an or
In support of his argument, Husband relies upon Balicki v. Balicki, 4
A.3d 654, 667 (Pa. Super. 2010). However, our holding in Balicki regarding
life insurance was narrow. In that case, we determined that the trial court
did not abuse its discretion in declining to order the husband to maintain a
life insurance policy. Id.
- 14 -
J-A11014-14
alimony requirement ceased upon his death, there was no obligation to
maintain life insurance to secure alimony payments after his death. Id.
(citations omitted). We did not say, however, that it would be an abuse of
discretion for a trial court to order a party to maintain life insurance in order
to secure alimony obligations after death. See id.
Section 3707 specifically provides that alimony obligations only cease
upon death of the payor if there is no agreement of the parties or court
order to the contrary. See 23 Pa.C.S.A. § 3707. In the case sub judice, the
should not terminate upon his death. Such a determination is clearly
permitted by section 3707. Thus, because Husband was required to
continue making alimony payments even if he passed away, the trial court
was authorized by section 3502(d) to require that Husband maintain life
insurance to secure his future alimony obligations.
Husband also relies upon Benson ex rel. Patterson v. Patterson,
830 A.2d 966 (Pa. 2003), in support of his argument that child support
obligations end at death. In Patterson, our Supreme Court determined that
an estate could not be sued for child support. Id. at 969-970. In so doing,
our Supreme Court examined the laws of our sister states relating to child
support obligations upon death. Id. at 968-969. Our Supreme Court
contract or an express provision in a judicial decree (e.g., divorce
- 15 -
J-A11014-14
decree, child support order), that the duty to support minor children ends at
Id. at 968 (emphasis added). It then adopted the majority position
when determining that the estate had no duty to pay child support. Id. at
969.
In so adopting the majority rule, our Supreme Court implicitly held
that an express provision in a judicial decree could make a child support
obligation continue, even upon the death of the payor. In this case, the trial
court explicitly provided for child support payments to continue upon
Therefore, the trial court had the authority to order that Husband maintain
his life insurance policy to secure his alimony and child support payments.
3502(d) authority was not an abuse of discretion. We agree with the trial
potential. See Trial Court Opinion, 10/29/13, at 8. Furthermore, the trial
to maintain the life insurance is relatively small when compared to the
support and alimony payments provide Wife. Accordingly, we conclude that
- 16 -
J-A11014-14
In his fifth issue on appeal, Husband argues that the trial court abused
its discretion by retroactively making his APL and child support awards for
2011 and 2012 allocated instead of unallocated. In its Rule 1925(a) opinion,
the trial court concedes that remand on this issue may be appropriate. See
Trial Court Opinion, 10/29/13, at 9-10. Wife argues that it was correct for
the trial court to retroactively allocate the APL and child support because it
Pennsylvania Rule of Civil Procedure 1910.15-4 provides, in relevant
award giving consideration to the federal income tax consequences of an
1910.16-4(
evidence that the trial court made such a determination that it was not
appropriate under the circumstances. As such, the trial court abused its
discretion in failing to consider the federal tax implications of retroactively
making the payments allocated.
Furthermore, as a matter of law, the APL and child support payments
for 2011 and 2012 must remain unallocated. Wife already filed her income
tax returns for 2011 and 2012 listing the awards as unallocated. Wife would
not be able to file an amended tax return to reap the benefits of the
- 17 -
J-A11014-14
allocation order. , T.C. Summ. Op. 2010-15
(2010) (citations omitted); , T.C. Summ. Op. 2009-185
(2009) (citations omitted); , 45 T.C. 530, 532-533
(1966); see also Rev. Rul. 71-416. Thus, there would be no benefit to
retroactively making the APL and child support allocated. The only result of
such action would be to cause confusion and possible further expenses for
making the APL and child support allocated. Upon remand, the trial court is
directed to reinstate its order which made the APL and child support
payments for 2011 and 2012 unallocated.
In his sixth issue on appeal, Husband argues that the trial court
abused its dis
extracurricular activities because he should not be required to pay for
activities in which he does not believe the children should participate. Wife
ould be quashed as it attacks
the custody order, not the child support order. Wife also defends this
requirement as she argues that Husband may be relieved of his obligation to
pay for certain extracurricular activities by filing a motion with the trial
court.
portion of the child support order should be quashed. When the briefs in this
- 18 -
J-A11014-14
However, after briefing was completed in this case, this Court vacated the
child custody order and remanded the matter to the trial court to expressly
consider the statutory best interest factors. See J.S.S. v. M.J.S., 641 WDA
2013 (Pa. Super. Feb. 11, 2014) (unpublished memorandum). After
remand, the trial court filed an opinion addressing each of the best interest
factors. See Trial Court Opinion, 3/6/14. Husband then filed a new appeal
to this Court from the child custody determination. See J.S.S. v. M.J.S.,
850 WDA 2014. In his Rule 1925(b) statement in that case, Husband does
ild Custody Order, 1/18/13, at
10.
extracurricular activities. See rly
granted from the child support order and not the child custody order.
children in the manner he deems fit is properly construed as a challenge to
the child custody order and not the child support order. Thus, we will not
custody order but confine our review to his challenge to the requirement
- 19 -
J-A11014-14
that he pay for extracurricular activities in which the children choose to
participate.
Pennsylvania Rule of Civil Procedure 1910.16-6(d) provides that:
The support schedule does not take into consideration
expenditures for private school tuition or other needs of a child
which are not specifically addressed by the guidelines. If the
court determines that one or more such needs are reasonable,
the expense thereof shall be allocated between the parties in
s share may be
added to his or her basic support obligation.
Pa.R.C.P. 1910.16-6(d).
A parent can be required to pay for extracurricular activities under
Rule 1910.16-6(d), even if he or she does not believe they are necessary,
when the activities are
Silver v. Pinskey, 981 A.2d 284, 302 (Pa. Super.
2009) (en banc), citing Holland v. Holland, 663 A.2d 768 (Pa. Super.
1995); Marshall v. Marshall, 591 A.2d 1060 (Pa. Super. 1991).
In this case, the trial court found that Husband refused to pay for
extracurricular activities in bad faith. See Trial Court Opinion, 10/29/13, at
10-11. Thus, instead of imposing the burden upon Wife to file a motion
every time a child wanted to participate in a particular activity, the trial court
shifted the burden to Husband to file a motion when he believed that an
activity was not beneficial or consistent with th
- 20 -
J-A11014-14
and situation in life. We agree with the trial court that this step was a
Id. at 11.
We conclude, however, that this extraordinary solution was not an
abuse of discretion. The trial court found that husband unreasonably, and in
bad faith, withheld payments for reasonable extracurricular activities. See
id. at 10-11. This finding is supported by the record. At a hearing on
November 15, 2011, Husband testified to his position regarding the
See N.T., 11/15/11, at 193-199. He testified that he
was only willing to pay for activities to which he had agreed. Id. at 194-
195. The trial court actively questioned Husband with respect to this issue
in order to ascertain his position with respect to extracurricular activities.
See id. at 193-197. Thus, we conclude that the trial court was presented
activities and crafted a unique solution that ensured the children are able to
participate in appropriate activities. In addition, the trial court provided
Husband with the opportunity to challenge certain expenditures.
In his final issue on ap
decision to award alimony and counsel fees to Wife. We first consider the
need for alimony because her income was sufficient to cover her expenses.
- 21 -
J-A11014-14
standard of living while she attempted to garner full-time employment. Wife
permitted Wife to maintain her standing of living.
lifestyle and standard of living established by the parties during the
Kent v. Kent, 16 A.3d
1158, 1161 (Pa. Super. 2011), appeal denied, 29 A.3d 797 (Pa. 2011)
(citation omitted). When determining if alimony is appropriate, the trial
court must consider the following 17 factors:
(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.
- 22 -
J-A11014-14
(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
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.
23 Pa.C.S.A. § 3701(b)(1-17).
Husband argues that many of the statutory factors weigh in favor of a
Husband argues that the gap in
was not as large as it appeared. However, the exhibits entered into
evidence show that Husband earned over 13 times more than Wife in 2010.
See ny were
accepted, Husband had an earnings potential 5 times that of Wife. These
- 23 -
J-A11014-14
figures indicate that the first statutory alimony factor weighed in favor of a
large alimony award.
Husband contends that the other sources of income for the parties
weighed in favor of a lower alimony award. He lists the many other forms of
income available to Wife. However, it is at this point in his brief that
Husband fails to recognize the forgivable loan, restricted stock, and stock
options that the trial court found to be non-marital property. When these
are considered, the third factor does not weigh in favor of a smaller alimony
award. In fact, it may weigh in favor of a larger alimony award.
Husband also argues that the duration of the marriage weighs in favor
order to advance his position. The reason is obvious; the length of alimony
and APL actually ordered by the trial court was less than the duration of the
ument that the fifth statutory factor weighs
in favor of a smaller alimony award is without merit.
Husband contends that the relative education of the parties and the
time necessary for Wife to find appropriate employment weighs in favor of a
smaller alimony award. He contends that throughout the course of the
divorce litigation, Wife did not attempt to further her education or gain other
employment skills. It is only in this section of his brief that Husband
29. However, even with these qualities, it is not possible for Wife to find
- 24 -
J-A11014-14
determination that Wife needed five years to garner such employment was
not an abuse of discretion.
Husband argues that the relative needs of the parties weigh in favor of
a smaller alimony award. However, Husband is using his own calculations
Wife. Wife listed $1,722.37 per month in income and $5,015.50 in
Furthermore, Husband ignores the eighth statutory factor, the
standard of living established by the parties during their marriage, which this
Court has repeatedly stated is the key in determining the size of an alimony
award. Instead, he argues that Wife should only receive alimony based
upon a lower standard of living. For example, Husband argues that certain
expenditures. See -27. The master agreed with
Husband and reduced the alimony award to eliminate these discretionary
to this
determination.
Husband and Wife chose to live a luxurious lifestyle during their
marriage. Almost every expense of the parties during their marriage was
discretionary in nature. The parties combined income was over 34 times the
federal poverty level for a family of five. See Exhibits U, 13. The parties
- 25 -
J-A11014-14
spent their funds in a manner consistent with such an income and had a
lifestyle after the divorce is contrary to the Divorce Code and the well-settled
alimony award was not an abuse of discretion.
counsel fees. Remarkably, according to the parties, combined they have
expended well over $500,000.00 in legal fees contesting this divorce case
and the accompanying child custody dispute.5 Under the Divorce Code, in
proper cases, the trial court may award counsel fees. See 23 Pa.C.S.A.
§ 3702. As we have explained:
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; th
another. Counsel fees are awarded based on the facts of each
case after a review of all the relevant factors. These factors
resources, the value of the services rendered, and the property
received in equitable distribution. Counsel fees are awarded only
upon a showing of need.
Busse, 921 A.2d at 1258 (internal quotation marks and citations omitted).
Husband contends that counsel fees were unnecessary because Wife
5
As the master in this case aptly noted, the parties have attempted to
make this case as complicated as taking the cube root of pi. See N.T.,
9/10/12, at 66.
- 26 -
J-A11014-14
10/29/13, at 9. Furthermore, the trial court determined that Husband was
unreasonably litigious in prosecuting this case. Wife defends the counsel fee
as reasonable when compared to her total expenditures to litigate this
divorce action and her child custody case.
We first note that although the total amount of counsel fees expended
in the child custody dispute is startling, we may not consider that when
determining if the award of counsel fees in the divorce action was
parents, grandparents, siblings, and other family members are not obligated
satisfying the legal fees accrued over the course of this litigation.
an award of a significant portion of the marital estate precludes an
because the wife will
receive [APL] and [55] percent of the marital estate does not preclude an
Butler v. Butler, 621 A.2d 659, 667 (Pa.
Super. 1993), , 663 A.2d 148 (Pa. 1995).
Although the marital estate award in this case was slightly larger than that
in Butler, that does not impact our reasoning. In Butler, we affirmed the
- 27 -
J-A11014-14
earnings of the two parties. Id. As we have discussed above, there is a
relatively vast disparity in incomes between the two parties in this case.
Husband had an almost unlimited war chest to spend on litigating every
issue in this divorce proceeding and, without an award of counsel fees, Wife
6
case was not an abuse of discretion.
In sum, we conclude that the trial court erred by retroactively
making the 2011 and 2012 APL and child support payments allocated. We
conclude that a small portion of the life insurance policy held by Wife and
her brother is marital property and, therefore, we remand this case for a
determination by the trial court as to which portion of the policy was marital
property and what percentage of the marital asset shall be awarded to
Husband. Finally we conclude that the trial court did not abuse its discretion
with the remainder of its equitable distribution award and its counsel fee
6
frivolous issues. We disagree. Although Wife did not succeed on every
position she advanced in the trial court, our review of the record indicates
that none of the positions taken by Wife were frivolous.
- 28 -
J-A11014-14
determinations.7
Decree affirmed in part and reversed in part. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2014
7
Although not included as a question presented on appeal, we believe it
hat the trial
court in this case was biased. Husband never filed a motion for
disqualification in the trial court. Yet, throughout his appellate brief he
attacks the trial judge as being biased. Such accusations are serious and
experienced counsel for Husband should know better than to make such bold
Cf. Lewis v. Smith
bar should not make unfounded accusations of judicial bias). Furthermore,
our review of the record indicates that the trial court in this matter was not
biased against Husband. Instead, the trial court decided issues in a manner
it believed correct, much like a baseball umpire calls balls and strikes as he
sees them. Cf. Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d
the Senate Judiciary Committee regarding the role of judges).
- 29 -