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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAUL MACKAY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KAREN MACKAY,
Appellee No. 99 WDA 2014
Appeal from the Order December 16, 2013
In the Court of Common Pleas of Allegheny County
Family Court at No(s): F.D. 09-009303-001
BEFORE: BENDER, P.J.E., BOWES, J., and ALLEN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 24, 2015
Paul Mackay (Husband) appeals from the December 16, 2013 order
resolving numerous issues related to the equitable distribution of his and
Karen Mackay’s (Wife) marital assets and the payment of alimony and
counsel fees. Following our review, we affirm.
The trial court set forth background information and the procedural
history of this matter in its opinion filed pursuant to Pa.R.A.P. 1925(a),
stating:
[Husband] and [Wife] were married on October 3, 1997.
They are the parents of one (1) child [Child], … who is ten (10)
years old and resides primarily with Wife. Husband has little to
no involvement in his son's day to day life, but for the occasional
Friday afterschool until Saturday evening, or no more than 12 to
15 overnights per year. [Child] has been diagnosed with autism,
pervasive development disorder, ADHD, Obsessive Compulsive
Disorder and an eating disorder which requires him to be on a
special gluten-free diet. He has wraparound services, speech
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and occupational therapy and is followed by a developmental
pediatrician who works with him at home and school.
[Child] attends public school at Myrtle Avenue Elementary
School in Castle Shannon, which is in the Keystone Oaks School
District. Joseph Arcuri has been the principal at Myrtle since
[Child] started attending the school. [Child] is one of the
school's leaning support students, which means he receives
special services and a modified curriculum for some subjects, in
addition to participating in general classroom studies. Principal
Arcuri testified that [Child] has had violent outbursts at school in
the past, but has been an excellent student this year.
Wife and Husband have both completed their high school
education. As of the date of the proceedings in this case,
Husband was 44 years old and Wife was 50 years old. Maternal
Grandmother … testified that at the age of 75 years old she
cannot be a primary or even secondary caregiver for [Child], but
rather is occasionally available for emergency care.
Husband was not faithful during the marriage and
ultimately left Wife for his current fiancé. Wife testified that she
was devastated and was left to pick up the pieces of raising a
mentally challenged son alone. At the beginning of this
litigation, Wife qualified and received emergency food stamps, in
part due to Husband's failure to provide enough support for Wife
and his son.
The parties agreed prior to trial to use December 8, 2009
as the separation date, which was the date when Husband filed a
Divorce Complaint. Husband's Divorce Complaint requested a
divorce and equitable distribution of marital property. Wife filed
a Petition Raising Claims seeking divorce and raising financial
claims including alimony pendente lite, spousal support, alimony,
equitable distribution and counsel fees.
A two-day trial was held before the undersigned on
October 23, 2013 and November 8, 2013. Following the first
day of trial, this Court bifurcated the divorce from the economic
issues at Husband’s request to allow for his planned marriage in
Sydney, Australia on New Years’ Eve 2013. A Divorce Decree
was issued on November 8, 2013 by which Husband and Wife
were divorced from the bonds of matrimony.
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This Court filed a Memorandum Opinion and Order of Court
on December 16, 2013[,] resolving the remaining economic
claims raised by the parties. Husband has appealed that
decision. Husband filed a timely Concise Statement of Matters
Complained of on Appeal listing fifteen bases for his appeal,
many of which take issue with this Court's factual findings and
credibility determinations. The contemporaneous Memorandum
Opinion we filed set forth our reasoning in detail. This Opinion
for the most part restates our Memorandum Opinion.
Trial Court Opinion (T.C.O.), 4/3/14, at 2-4.
The court then discussed the parties’ incomes. It explained that five
months after Child was born, Wife resigned her position with US Airways as
a flight attendant, and has worked at various part time positions since that
time. The court noted the necessity for Wife to participate in Child’s care,
particularly citing Child’s after-school therapy, which Wife claims makes it
impractical “for her to work a second job in the evenings.” Id. at 4. Thus,
the court concluded “that Wife’s present earnings are realistic at $7,000 per
year with a net monthly income of $533 per month.” Id. The court also
noted that it gave no weight to the testimony of the vocational expert hired
by Husband, because the expert had not met or interviewed Wife or
reviewed any of her records.
In regard to Husband’s income and expenses, the court “observed that
Husband is a savvy businessman.” Id. at 5. Husband operates an
Australian barbecue business, selling prepared foods at barbecue events that
are held all over the country from the spring through the fall. The court
discussed evidence presented about Husband’s income, “including Husband’s
2009 Partnership Return and his 2009 Profit and Loss statement,” which
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showed “Husband’s total income reported was $403,545 and his total cost of
goods sold [was] $97,581[.]” Id. at 6. However, the court found Husband’s
testimony about his income was not credible and, therefore, “declined to
arbitrarily assign an earning capacity to Husband or to guess as to his actual
income.” Id.
Concerning the alimony and child support awarded, the court
explained its award as follows:
Given: the length of the marriage, minimal marital estate,
Husband's infidelity, Husband's younger age as compared to
Wife, Husband's earnings, Wife's status as a full-time caregiver
and stay-at-home mother to the parties’ special needs son,
leaving her with little opportunity or ability to seek anything
other than part-time employment, the contribution of Wife as
home-maker to allow the increased earning potential of
Husband's businesses, this Court determined that an award of
alimony was both reasonable and appropriate. Wife submitted
an inflated budget to the Court; however, even with the inflated
items removed there was a shortfall between Wife's revised
budget and her income.
On March 8, 2011, Wife filed her claim for child support
and [alimony pendent lite] APL. A hearing was held on May 16,
2011 which awarded Wife with $1,703 per month and allocated
the award: $835.00 in child support and $868.00 in APL.
Considering the uncertainty regarding the parties' incomes, we
decided to award alimony and child support consistent with the
then-current APL/child support award. The equitable distribution
award herein (which is skewed towards Wife) should account for
any additional shortfall between Wife's budget and her income.
As such, this Court awards Wife alimony in the amount of
$868.00 per month for eight (8) years, or until [Child’s]
graduation from high school, whichever is sooner. Commencing
with the entry of the final Decree in Divorce, the APL award shall
terminate and Husband shall continue to pay child support in the
amount of $835.00 and shall pay to Wife alimony in the amount
of $868.00 per month.
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Id. at 6-7.
Next, in its opinion, the court set forth the marital assets contained in
the marital estate and awarded Wife 58% of the total of $394,912, with
Husband’s award set at 42%. Lastly, the court reviewed Wife’s request for
counsel fees, explaining the reasons for its award of $20,000, as follows:
This Court reviewed the Counsel Fees submitted by Wife's
Counsel. As Husband's income was a major issue in the case,
discovery was required to determine this important aspect of the
case: Wife served discovery on May 10, 2010 and received no
response. On August 18, 2010, Wife's Motion to Compel was
granted along with $500.00 in counsel fees. On September 16,
2010, as Husband again failed to serve full and complete
responses, Wife was awarded $750.00 toward Wife's Motion for
Contempt of Discovery. On July 6, 2011, Wife was granted
counsel fees in the amount of $500.00 pursuant to a Motion for
Injunctive Relief as Husband continued to liquidate martial funds
post-separation for his own use. On September 14, 2011, Wife
was granted $1,000 in counsel fees as Husband's counsel failed
to appear for his Motion to Continue the Support Exceptions.
Finally, Wife served discovery on February 12, 2013, and on
March 15, 2013, Husband served inadequate discovery
responses, necessitating an emergency Motion to Continue the
trial.
Further, at the beginning of the support case, Husband
filed exceptions to all aspects of the PACSES Order requiring
Wife to spend substantial fees on writing a brief in opposition
and orally opposing the same. On December 28, 2011, the
undersigned dismissed Husband's exceptions in their entirety.
Wife claims to have incurred counsel fees in excess of
$30,000 in this case, most of which was outstanding at the time
of trial. This Court concluded $20,000 was a reasonable counsel
fee award for litigation that began in 2009. As Husband credibly
testified that he has access to a open PNC Line of Credit which
has been substantially paid in full and is presently seeking to
obtain a Line of Credit for yet another business venture[,] FitFul,
it was clear that Husband has the means to pay this counsel fee
award.
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Id. at 8-9.
In his appeal to this Court, Husband raises the following four issues for
our review:
1. Whether the trial court abused its discretion by a
misapplication of the law in its determination of marital assets
and in the overall scheme of equitable distribution?
2. Whether the trial court abused its discretion by a
misapplication of the law in awarding alimony for eight years in
addition to the four years already paid, based upon the health of
the parties’ son?
3. Whether the trial court abused its discretion by a
misapplication of the law in awarding counsel fees to Wife in
addition to adequate liquid assets in equitable distribution?
4. Whether the trial court abused its discretion in awarding
counsel fees of $1000 in response to counsel’s request for
continuance of a support exception argument where the
underlying support obligation was being paid in full pending
argument?
Husband’s brief at 6-7.
Generally, in addressing the first issue raised in this appeal, we are
guided by the following:
“Our standard of review in assessing the propriety of a
marital property distribution is whether the trial court abused its
discretion by a misapplication of the law or failure to follow
proper legal procedure.” Harasym v. Harasym, 418 Pa. Super.
486, 614 A.2d 742, 746 (Pa. Super. 1992). “An abuse of
discretion is not found lightly, but only upon a showing of clear
and convincing evidence.” Zollars v. Zollars, 397 Pa. Super.
204, 579 A.2d 1328, 1330 (Pa. Super. 1990), appeal denied,
527 Pa. 603, 589 A.2d 693 (1991).
Pursuant to 23 Pa.C.S.A. § 3502(a), when fashioning
equitable distribution awards, the trial court must consider: the
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length of the marriage; any prior marriages; age, health, skills,
and employability of the parties; sources of income and needs of
the parties; contributions of one party to the increased earning
power of the other party; opportunity of each party for future
acquisitions of assets or income; contribution or dissipation of
each party to the acquisition, depreciation or appreciation [of]
marital property[;] value of each party's separate property[;]
standard of living established during the marriage; economic
circumstances of each party and whether the party will be
serving as custodian of any dependent children. 23 Pa. C.S.A. §
3502(a)(1-11). The weight to be given to these statutory
factors depends on the facts of each case and is within the
court's discretion. Gaydos v. Gaydos, 693 A.2d 1368, 1376
(Pa. Super. 1997) (en banc).
Mercatell v. Mercatell, 854 A.2d 609, 611 (Pa. Super. 2004).
“Furthermore, the trial court has ‘the authority to divide the award as the
equities presented in the particular case may require.’” Id. We also
recognize that when reviewing an award of equitable distribution, “we
measure the circumstances of the case against the objective of effectuating
economic justice between the parties and achieving a just determination of
the property rights.” Hayward v. Hayward, 868 A.2d 554, 559 (Pa. Super.
2005). Moreover, “[t]he law is … well settled that the trial court can accept
all, some or none of the submitted testimony in determining the value of
marital property.” Isralsky v. Isralsky, 824 A.2d 1178, 1185 (Pa. Super.
2003).
In support of his argument that the court erred in its assessment of
the parties’ marital estate, Husband indicates that the total marital estate
minus liabilities equals $264,945.74, rather than the $394,912.00
determined by the trial court. Essentially, Husband claims the court erred
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by failing to base its decision on the evidence presented, i.e., that it “ignored
the Asset & Liability Statements and Pre-Trial Statement of the parties … in
setting forth the marital property that they owned.” Husband’s brief at 22.
Husband further identifies specific assets, claiming these assets were held
pre-separation but did not exist at the time of separation. Husband also
identifies assets, which he asserts belong to one of his numerous business
entities. He claims these assets’ values were considered without deducting
for the business’ debts.
We conclude that Husband’s allegations of error are without merit.
Our review of the record reveals that the court’s findings are supported by
the evidence of record. At the same time, Husband’s allegations in many
instances are not supported by the record. Moreover, we note that the court
found that Husband was not credible. Since we are not in a position to re-
weigh the facts presented or to override the court’s credibility
determinations, we conclude that the trial court’s conclusions regarding the
parties’ marital assets should not be disturbed. The court did not abuse its
discretion in assigning values to various assets and in dividing the assets in
an equitable manner as dictated by the circumstances.
We next turn to Husband’s allegations of error relating to the award to
Wife of alimony for an eight-year period. Husband sets forth a review of
what he deems to be the parties’ earnings and earning capacities.
Specifically, he argues that the court’s support award “was based upon
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erroneous earnings for Husband and fails to consider a reasonable earning
capacity for Wife.” Husband’s brief at 31. Moreover, Husband contends that
despite Child’s learning disabilities, Wife “is able to work if she chose to do
so.” Id. at 33. Husband also claims that the court relied on Husband’s
alleged infidelity as a factor in awarding alimony; however, he asserts that
testimony indicated that he had not engaged in sexual relations with his
fiancée until after he and Wife were separated.
We conduct our review of this issue according to the following
standard:
The role of an appellate court in reviewing alimony orders is
limited; we review only to determine whether there has been an
error of law or abuse of discretion by the trial court. Absent an
abuse of discretion or insufficient evidence to sustain the support
order, this Court will not interfere with the broad discretion
afforded the trial court.
Smith v. Smith, 904 A.2d 15, 20 (Pa. Super. 2006). Likewise:
The purpose of alimony is not to reward one
party and to punish the other, but rather to ensure
that the reasonable needs of the person who is
unable to support himself or herself through
appropriate employment, are met. In determining
the nature, amount, duration and manner of
payment of alimony, the court must consider all
relevant factors, including those statutorily
prescribed for at 23 Pa.C.S.A. § 3701. Alimony is
based upon reasonable needs in accordance with the
lifestyle and standard of living established by the
parties during the marriage, as well as the payor's
ability to pay.
Isralsky, [824 A.2d at 1188].
Dalrymple v. Kilishek, 920 A.2d 1275, 1278-79 (Pa. Super. 2007).
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Also, as noted above, the court must consider the relevant statutory
factors listed at 23 Pa.C.S. § 3701. Those factors include:
(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
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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.
23 Pa.C.S. § 3701(b).
Following our review, we conclude that the trial court adequately
examined the specific facts of this case and properly analyzed the
appropriate statutory factors in determining Wife’s reasonable needs and
Husband’s ability to pay. Husband has not convinced this Court that the
findings and conclusion reached by the trial court are in error. The record
supports the findings and, therefore, we conclude that the court did not
abuse its discretion in its award of alimony to Wife.
Husband’s third issue concerns the court’s award of $20,000 in
attorney’s fees to Wife. Husband acknowledges that Wife claimed that she
incurred over $30,000 in legal fees, but he asserts that the fees are
excessive, unreasonable, and resulted from Wife’s repeated assertions that
Husband manipulated his income and/or concealed his interest in various
businesses. Husband further claims that because he would need to borrow
the money to pay this award, he does not have the ability to pay.
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We review an award of attorney’s fees pursuant to the following
principles:
We will reverse a determination of counsel fees and
costs only for an abuse of discretion. 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; the
parties must be “on par” with one another.
Counsel fees are awarded based on the facts of each
case after a review of all the relevant factors. These
factors include 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.
Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. 2004),
quoting Anzalone [v. Anzalone, 835 A.2d 773,] 785-786 [(Pa.
Super. 2003)]. “Counsel fees are awarded only upon a showing
of need.” Teodorski at 201, quoting Harasym v. Harasym,
418 Pa. Super. 486, 614 A.2d 742, 747 (Pa. Super. 1992). “In
most cases, each party’s financial considerations will ultimately
dictate whether an award of counsel fees is appropriate.” Plitka
v. Plitka, 714 A.2d 1067, 1070 (Pa. Super. 1998). Also
pertinent to our review is that, “in determining whether the court
has abused its discretion, we do not usurp the court's duty as
fact finder.” Teodorski at 201, quoting Verdile v. Verdile, 370
Pa. Super. 475, 536 A.2d 1364, 1369 (Pa. Super. 1988).
Busse v. Busse, 921 A.2d 1248, 1258 (Pa. Super. 2007).
Again, we concur with the decision reached by the trial court on the
attorney’s fees issue. The court certainly was aware of the respective
financial positions of the parties and arrived at a reasonable solution based
upon the record before it. The record simply does not support Husband’s
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allegations that Wife failed to submit evidence supporting her counsel fee
claim. Thus, we conclude that Husband’s third issue is without merit.
Husband’s final issue deals with the $1,000 in attorney’s fees awarded
to Wife in response to “Husband’s counsel’s failure to appear for his Motion
to Continue the Support Exceptions.” T.C.O. at 9. The trial court listed this
specific award in its opinion along with a discussion about the award of
various other attorney’s fees imposed on Husband. Notably, the trial count
did not provide any further discussion or reasoning related to this specific
amount due Wife’s counsel because Husband had not raised this issue with
any particularity in his Pa.R.A.P. 1925(b) statement. Rather, in response to
the general attorney’s fees issue raised by Husband, the court provided its
reasoning for its award, which we have concluded was not an abuse of
discretion. Having failed to identify the $1,000 award in his Rule 1925(b),
Husband cannot expect the trial court or this Court to address it; we
conclude this issue is waived. See Pa.R.A.P. 1925(4)(ii) (stating “the
Statement shall concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for
the judge”); Pa.R.A.P. 1925(4)(vii) (stating “[i]ssues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
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