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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LINDA MARIE PERRY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WAYNE J. PERRY
Appellant No. 363 EDA 2013
Appeal from the Order Entered December 28, 2012
In the Court of Common Pleas of Lehigh County
Domestic Relations at No(s): 2009-FC-1619
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED JULY 29, 2014
Wayne J. Perry (Husband) appeals from the order entered in the Court
of Common Pleas of Lehigh County on December 28, 2012, granting a final
decree of divorce and incorporating, but not merging, the terms and
conditions of
Preliminary Order and Decree. In this timely appeal, Husband has raised
seven claims of trial court error. Following a thorough review of the certified
record, submissions by the parties, and relevant law, we affirm on the basis
of the trial court opinion, in part, and remand for clarification, in part.
Although we are relying upon the trial court opinion, we will briefly
reiterate the factual history. The Perrys were married in 1979 and remained
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*
Retired Senior Judge assigned to the Superior Court.
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married for approximately 21 years. During their marriage, Linda Marie
Perry (Wife) worked full-time for South Whitehall Township while Husband
was a self-employed photographer. After separating in April 2000, Husband
moved to California where he occasionally obtained part-time work, attended
classes to obtain an Associate Degree, and obtained Social Security disability
living expenses and debt. Husband did not inform Social Security of the
money he was receiving from his estranged wife. Almost ten years after the
parties separated, Wife filed for divorce. By the time of the hearings, Wife
had been providing financial support to Husband in California for almost 13
years.
Multiple hearings were held before the Divorce Master, who entered
findings and recommendations. Husband filed exceptions and the trial court
supported by the record and was legally proper. Accordingly, the trial court
entered the order currently appealed from, granting divorce and
Preliminary Order.
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1
1) The trial court erred in terminating Hu ] while the
divorce was still pending and economic issues remained
unresolved.
2) The trial court
of separation was 2000, rather than 2003.
3) The trial court erred in its determination that Husband was
not entitled to post-divorce alimony.
4) The trial court erred in the distribution of marital assets,
including its determination that Husband should waive his rights
5) The trial court erred in failing to award [Husband] the full
amount of counsel fees incurred.
6) The trial court erred in failing to provide any type of
benefits while the action was pending.
7) The trial court erred in denying Husband a revision to the
QDRO[2
could be paid to his special needs trust.
-ii.
Our scope and standard of review are well settled:
Awards of alimony, counsel fees, and property distribution are
within the sound discretion of the trial court and this court will
not reverse, nor interfere with the determination of the trial
court unless there has been a clear abuse of discretion. Ruth v.
Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). An abuse of
discretion is not found lightly, but only upon a showing of clear
and convincing evidence. As a result, under the abuse of
discretion standard, we do not usurp the trial court's duty as fact
finder; rather, we carefully scrutinize each of the guidelines to
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1
Alimony pendente lite.
2
Qualified Domestic Relations Order.
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determine whether the lower court has abused its discretion.
Ruth, supra. However, an abuse of discretion will be found by
this court if the trial court failed to follow proper legal procedures
or misapplied the law. Banks v. Banks, 275 Pa.Super. 439, 418
A.2d 1370 (1980).
Braderman v. Braderman, 488 A.2d 613, 615-16 (Pa. Super. 1985)
(footnote omitted).
Our review of this matter leads us to conclude that Husband is largely
seeking to re-litigate an order he does not agree with before our Court.
Mindful of our standard of review, we have examined the extensive certified
record, including all notes of testimony for the hearings and the exhibits, the
exceptions taken from the Report and Recommendations; as well as relevant
law. In doing so, we find no abuse of discretion or errors of law by the trial
court regarding issues 1-4, 6, and 7. Accordingly, we affirm the order based
dated June 12, 2013.3
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3
The trial court
is found in the History section of the trial court opinion rather than the
Discussion. In denying the amendment, the trial court noted the late
request to amend the QDRO, after Husband improperly delayed execution of
the Order, as well as the failure to provide any supporting documentation,
evidence or law. We discern no abuse of discretion or error of law therein.
We comment on this aspect only because the discussion is located apart
from the remaining analysis.
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Rather, the trial court awarded Husband $2,000.00 for counsel fees out of
the approximately $16,000.00 sought, but provided no reasoning for this
award. Therefore, we have no basis upon which we may review the award.4
Accordingly, we remand this issue to the trial court for issuance of a
supplemental Pa.R.A.P. 1925(a) opinion providing explanation/clarification
for the award. Trial court is directed to file this supplemental opinion within
30 days of the receipt of the certified record. Thereafter, the certified record
is to be returned to this Court forthwith.
Order affirmed in part, remanded in part for action consistent with this
decision. Jurisdiction retained.
Judge Strassburger files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2014
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4
We do not suggest that the $2,000.00 award was improper. We simply do
not have a basis upon which to review the award.
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