J-S23030-14
2014 PA Super 190
DONG YUAN CHEN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFAR SAIDI
Appellant No. 2405 EDA 2013
Appeal from the Order Entered July 26, 2013
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 04-09396
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and WECHT, J.
OPINION BY LAZARUS, J.: FILED SEPTEMBER 02, 2014
Jeffar Saidi (Husband) appeals from the order entered in the Court of
property and awarding counsel fees to Dong Yuan Chen (Wife). After our
review, we affirm in part and reverse in part.
The trial court set forth the facts underlying this appeal as follows:
This action began with the commencement of a Complaint in
Divorce on May 5, 2004 and has a nine-year history with the
filing of petitions in support, custody, contempt, and appeals.
For purposes of this instant appeal, on February 6, 2013, a
Distribution, Alimony, Counsel Fees and Costs was entered which
recommended that judgment be entered in favor of [Wife] and
against [Husband] in the amount of $30,382.50 ($5,000 of
Judgment Upon Equitable Distribution, Alimony, Counsel Fees
and Costs, 2/6/13, p. 10). This award represented counsel fees
to [Wife] and one- are. Id. at 9-10.
Thereafter, on February 8, 2013, [Husband] filed timely
(Support Exceptions, 2/8/13).
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On June 14, 2013, [the trial] court issued an order ruling that
, Agreed Order legally binds the
said Agreed Order was non-modifiable by [the trial] court.
Subsequently, [the trial] court issued its above-mentioned July
25, 2013 Order and Decree in Divorce. In response to these
orders filed on July 25, 2013, [Husband] filed a Motion for
Reconsideration on August 2, 2013 arguing that [he had the
[Wife] was improper. In response, [the trial court] issued an
August 19, 2013 which denied said motion. However, [the trial
court concluded] the parties were still bound to the terms of the
Trial Court Opinion, 10/17/2013, at 1-2.
Husband filed a notice of appeal on August 19, 2013 and a concise
statement of errors complained of on appeal on August 30, 2013. He raises
the following three issues:
1) Did the trial court err as a matter of law or abuse its
discretion when it determined that Husband, pursuant to
the August 22, 2011 Agreed Order, had waived his right to
take exceptions to the Equitable Distribution
Report dated February 6, 2013?
2) Did the trial court err or abuse its discretion when it
awarded counsel fees to be paid by Husband pursuant to
section 5339 of the Child Custody Act, 23 Pa.C.S. § 5339?
3) Did the Master in Equitable Distribution disregard
Section 3501(a.1) of the Divorce Code, 23 Pa.C.S. §
3501(a.1), by failing to consider the substantial decrease
in residential real estate values and instead used the 2004
increase in value of the marital residence during the
duration of the marriage which lasted less than five (5)
years?
Brief of Appellant, at 3.
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We note initially that the trial court issued two separate
orders on July 25, 2013: the first, a divorce decree, and
the sec
custody and granting Wife counsel fees. Although it was
not clear which July 25, 2013 order Husband appealed, his
Rule 1925(b) statement of errors complained of on appeal
indicated he was challenging both orders.1
In his first issue, Husband argues the trial court erred in determining
that pursuant to the August 22, 2011 Agreed Order, Husband had waived his
The relevant portion of the August 22, 2011 Agreed Order states:
Claim back to Master is GRANTED.
binding upon the parties and shall be issued with a 236
Notice entered as a Judgment Lien. The Proceedings shall be
on the Record with [Husband] responsible to pay all Court
Reporter fees. All financial records are admissible as business
records without authentication.
3. [Husband] maintains his appellate rights to the Superior Court
for legal issues.
4. [Husband] waives his right to stay enforcement of the Masters
Order pending appeal.
Agreed Order, 8/22/11 (emphasis added).
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1
eal from separate judgments is not acceptable
Gen. Elec. Credit Corp. v. Aetna Cas. &
Sur. Co., 263 A.2d 448, 452 (Pa. 1970); see also Pa.R.A.P. 341, Note;
Pa.R.A.P. 512, Note. Although Wife has objected to Husband filing one
appeal from two separate final orders, the trial court has addressed the
issues pertaining to each order. Under these circumstances, we do not find
See TCPF Ltd.
Partnership v. Skatell, 976 A.2d 571 (Pa. Super. 2009).
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y.
Thereafter, on June 23, 2011, Husband filed a motion to remand the matter
for a de novo hearing. In that motion to remand, Husband averred that the
and, accordingly, the parties presented no testimony at the hearing. The
and he did not understand that stipulating to certain facts would preclude
him from testifying.2
The Honorable Carolyn Tornetta Carluccio granted the motion to
the parties and entered as a judgment lien. See Order, supra. Thereafter,
a second hearing before the Master was conducted on December 17, 2012.
and cannot be enforced. First, we point out that Husband cites to no case
law or authority to support his argument that the August 22, 2011 Agreed
____________________________________________
2
did not understand the effect of stipulating to certain facts seem to point
more toward his communications and relationship with counsel than to
on that the parties share equally in
the marital property.
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Order is unenforceable. He does not argue that he was denied a hearing,
nor does he claim that his consent to this order was obtained through fraud.
Second, we perceive no violation of public policy. The trial judge, the
Hon
agreement to arbitrate. Generally, procedures that permit parties to agree
to resolve disputes outside the court system, whether through arbitration,
mediation, or as here, agreeing to be
are favored remedies. Miller v. Miller, 620 A.2d 1161 (Pa. Super. 1993).
In Miller, this Court held that an arbitration award regarding custody was
not void as against public policy, but it was not binding on a court of
competent jurisdiction in the event the award were challenged by one of the
parties as not being in the best interests of the child. Id. at 1164. Here,
did not concern the
The court further cited to section 3105 of the Divorce Code, which
provides:
In the absence of a specific provision to the contrary appearing
in the agreement, a provision regarding the disposition of
existing property rights and interests between the parties,
alimony, alimony pendente lite, counsel fees or expenses shall
not be subject to modification by the court.
23 Pa.C.S. § 3105(c).
There is no specific provision in the Agreed Order of August 22, 2011
providin
Order was incorporated into the final decree in divorce. See Karkaria v.
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Karkaria
in an order or judgment will not later be cf. Miller,
supra (parties who have agreed to arbitrate should be bound by that
decision).
agreement. Husband cannot claim that he was denied a hearing, nor does
he claim that fraud, misconduct, or corruption caused an unfair award. We
agree with the trial court that absent a provision to the contrary, the
agreement is not subject to modification.
In his second issue, Husband argues that the trial court erred or
abused its discretion in awarding Wife counsel fees. Our standard of review
of an award of counsel fees is we
determination absent an abuse of discretion. Verholek v. Verholek, 741
A.2d 792, 795 (Pa. Super. 1999). A trial court has abused its discretion if it
failed to follow proper legal procedures or misapplied the law. Id. See also
Thunberg v. Strause
review in cases involving counsel fees is limited to determining whether trial
court abused its discretion).
Here, the court relied on section 5339 of the Child Custody Act3 as the
basis for the award. No case law exists regarding interpretation or
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3
23 Pa.C.S. § 5339. Section 5339 of the Child Custody Act was enacted in
2010 and took effect on January 24, 2011.
(Footnote Continued Next Page)
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construction of this statute. The statute was adopted as proposed, with
legislative remarks on the overall goal of the new custody law, but without
legislative comment with respect to counsel fees.4 Section 5339 provides
the authority for the award of counsel fees and costs in custody matters, not
Id. Section 5339 states:
Under this chapter, a court may award reasonable interim or
final counsel fees, costs and expenses to a party if the court
finds that the conduct of another party was obdurate, vexatious,
repetitive or in bad faith.
23 Pa.C.S. § 5339 (emphasis added). This language is essentially identical
to the language in sections 2503(7) and (9) of the Judicial Code, 42 Pa.C.S.
§ 2503, which allows an award of counsel fees under the following
circumstances:
(7) Any participant who is awarded counsel fees as a sanction
against another participant for dilatory, obdurate or vexatious
conduct during the pendency of a matter.
(9) Any participant who is awarded counsel fees because the
conduct of another party in commencing the matter or otherwise
was arbitrary, vexatious or in bad faith.
42 Pa.C.S. §§ 2503(7), (9).
_______________________
(Footnote Continued)
4
http://www.legis.state.pa.us/cfdocs/billinfo. See Pa. House Legislative
Journal, June 9, 2010, at 788-
enacted into law, [HB 1639] will . . . improve the functioning of family court
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The distinction between section 5339 of the Domestic Relations Code
and section 2503 of the Judicial Code is simply the addition of the word
serious concern since Pennsylvania liberally allows custody modification
Changing Child Custody Law- The Best
Interests of Our Children Demand Our Best Efforts, Pennsylvania Law
Weekly, 2009 December 14.
of statutes is to ascertain and effectuate the intention of the General
Carrozza v. Greenbaum, 916 A.2d 553, 564 (Pa. 2007)
(quoting 1 Pa.C.S. § 1921(a)). We must also presume that the legislature
did not intend any language of a statute to exist as mere surplusage.
Burdick v. Erie Ins. Group, 946 A.2d 1106 (Pa. Super. 2008).
Because this is a matter of first impression, we are inclined to look to
case law interpreting section 2503 for guidance in determining whether
Wife. A suit is vexatious, such as would support an award of counsel fees, if
it is brought without legal or factual grounds and if the action served the
sole purpose of causing annoyance. In re the Barnes Foundation, 74
that protracts litigation may nonetheless not rise to the level of obdurate,
West's Pa. Prac., Family Law § 13:2 (7th ed.) (citing Gardner v. Gardner,
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538 A.2d 4 (Pa. Super. 1988)). Section 2503(9) serves not to punish all
those who initiate legal actions that are not ultimately successful, or which
may seek to develop novel theories in the law, as such a rule would have a
chilling effect on the right to bring suit for real legal harms suffered. Rather,
the statute focuses attention on the conduct of the party from whom counsel
Thunberg
v. Strause, supra.
5
on a definition from Merriam-
counsel fees under the new custody statute to deter repetitive filings that
may affect the best interest of a child and require that the child constantly
6
Id. at 7. The best
interest of a child is the foundation of the child custody law, and that
includes section 5339. However, although repetition alone may be grounds
for imposition of counsel fees, we conclude that the circumstances here do
____________________________________________
5
http://www.merriam-webster.com/dictionary.
6
We note that this case is not a Family Fast Track appeal. The appeal is
from the order entering a decree in divorce and resolving the economic
claims of the parties. See Pa.R.A.P. 102. This Court entered an order on
September 4, 2013 directing the Prothonotary to remove the Family Fast
Track designation.
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not warrant an award. The trial court correctly points out that great
emphasis must be placed on the best interest of the child based on a
intellectual, moral, and spiritual well-being. See Wheeler v. Mazur, 793
A.2d 929, 933 (Pa. Super. 2002). However, the trial court failed to explain
in its opinion how the filing of seven petitions to modify custody in the span
of a seven-year proceeding legitimately affected the well-being of the child
or how the filings in any way altered the status quo.
The various petitions, filed typically at least one year apart from each
other, involved a range of issues. The first petition for modification was filed
on February 7, 2007, seeking primary custody. The second petition was
filed on February 19, 2008, seeking a modification of the school-holiday and
summer-break schedule. In the third petition, filed on May 26, 2009, Father
sought to amend the school-year custody schedule, seeking custody every
other Friday night. In his fourth petition, filed on April 26, 2010, Father
requested an increase in the summer shared custody schedule, from two
weeks of summer vacation time to four weeks. The fifth petition was filed
on April 5, 2011, seeking modification of the school-year schedule. The
sixth petition was filed on December 5, 2011 seeking to travel internationally
with the child. Lastly, the seventh petition was filed on July 5, 2012, and in
that petition, Father sought, again, to modify the school-year schedule. We
see
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Agreed Order, 4/23/2008, filed May 8, 2008, and his fourth petition, filed
April 26, 2010, was granted in part.7
Given the fact that Husband filed the seven petitions over as many
years, and in light of the fact that each petition sought distinct relief
pertaining to a variety of legitimate issues that typically arise in a custody
say that each of the petitions was without relative merit. Additionally, there
8
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7
This order reads: AND NOW, this 15th day of July, 2010, after Hearing in
the above captioned matters, it is hereby ORDERED and DECREED that
DENIED in part. Father shall have custody of minor child on Mondays from
4:00 p.m. through Fridays at 9:00 a.m. Mother shall have custody of minor
Exceptions in Support filed 5/13/2010 is referred to DRO for determining of
whether or not [Defendant] is entitled to receive direct credit for expense
payments at the same time as the pending scheduled recalculation in
September.
8
A childhood marked by custody and equitable distribution disputes is never
ongoing conflict is harmful to children of divorce and, therefore, it is not in
ests, and that one way to discourage the conflict is to
hold parties accountable through the award of counsel fees. Again,
however, we are not presented with any specific information as to how these
petitions for modification affected the child in this case. Moreover, we
emphasize that the majority of the conflict in this litigation pertained to the
intractable p See
(Footnote Continued Next Page)
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section 5339 was unwarranted and an abuse of discretion in this case.
Verholek, supra. Thus, we reverse the award of counsel fees.
Finally, Husband argues the marital residence should have been valued
as of the date of distribution (2013) instead of the date of separation
(2004), and that using the 2004 date disregarded the substantial decrease
in the value of real estate. This issue is waived.
In his Rule 1925(b) statement of errors complained of on appeal, filed
Report on equitable distribution,
Wife. Thereafter, Husband filed a supplemental Rule 1925(b) statement,
raising the claim that the court erred in the valuation of the marital
residence. However, Husband did not seek permission to file a supplemental
Rule 1925(b) statement, nor did the court grant an extension to file a
supplemental statement. Consequently, the trial court did not address this
claim in its opinion.
Rule 1925(b) provides, in relevant part:
The judge shall allow the appellant at least 21 days from the
of the Statement. Upon application of the appellant and for good
_______________________
(Footnote Continued)
husband was vexatious and obdurate is not before us and need not be
addressed.
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cause shown, the judge may enlarge the time period initially
specified or permit an amended or supplemental Statement to be
filed. Good cause includes, but is not limited to, delay in the
production of a transcript necessary to develop the Statement so
long as the delay is not attributable to a lack of diligence in
ordering or paying for such transcript by the party or counsel on
appeal. In extraordinary circumstances, the judge may allow for
the filing of a Statement or amended or supplemental Statement
nunc pro tunc.
Pa.R.A.P. 1925(b)(2) (emphasis added).
Because Husband filed a supplemental Rule 1925(b) statement without
seeking permission from the trial court, we are precluded from reviewing the
issue on appeal. See Commonwealth v. Woods, 909 A.2d 372, 378 (Pa.
Super. 2006) (holding appellants must file separate petition seeking leave of
court to file untimely supplemental statement); see also Commonwealth
v. Hill, 16 A.3d 484, 493 (Pa. 2011) (rule governing statements of matters
complained of on appeal sets out simple bright-line rule, which obligates
appellant to file and serve statement, when so ordered; any issues not
raised in statement will be deemed waived); Tucker v. R.M. Tours, 977
A.2d 1170, 1173 (Pa. 2009) (Rule 1925(b) ensures trial judge writing
opinion the opportunity to identify and focus only on issues appellant plans
to raise on appeal and, thus, facilitates meaningful appellate review by
Order affirmed in part and reversed in part. Case remanded to the
trial court for an order consistent with this decision. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/2/2014
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