P.S.M. v. A.R.M.

J. A20040/17 & J. A20041/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

P.S.M., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1915 MDA 2016
:
A.R.M. :

Appeal from the Order Entered October 25, 2016,
in the Court of Common Pleas of Berks County
Civil Division at No. 02-01363

P.S.M., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 2102 MDA 2016
:
A.R.M. :

Appeal from the Order Entered November 22, 2016,
in the Court of Common Pleas of Berks County
Civil Division at No. 02-01363

P.S.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
A.R.M., : No. 2094 MDA 2016
:
Appellant :

Appeal from the Order Entered November 22, 2016,
in the Court of Common Pleas of Berks County
Civil Division at No. 02-01363
J. A20040/17 & J. A20041/17

BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 24, 2018

P.S.M. (“Husband”) appeals from the October 25, 2016 order entered

in the Court of Common Pleas of Berks County that set forth Husband’s child

support obligations, as well as the parties’ obligations for college tuition for

their oldest child, M.M. A.R.M. (“Wife”) appeals from that part of the

November 22, 2016 order entered in the Court of Common Pleas of Berks

County that awarded her $4,725.00 in reasonable attorneys’ fees that Wife

incurred to enforce the parties’ July 1, 2003 Post-Nuptial Agreement (“PNA”)

after the trial court found Husband in breach of the PNA. Husband cross-

appeals from the November 22, 2016 order. For ease of review, this court

consolidated the appeals from October 25, 2016 and the November 22, 2016

orders sua sponte. For the reasons that follow, we affirm both orders.

The trial court set forth the following:

[Husband and Wife] were married on May 30, 1993
in New Jersey. They were divorced on January 30,
2007 in Berks County, Pennsylvania. On or about
July 1, 2003, [Husband and Wife] entered into a
[PNA] which settled their claims and ancillary issues
with respect to divorce, equitable distribution and
support. On November 13, 2015, [Wife] filed a
Petition for Enforcement and Contempt of the July 1,
2003 [PNA], alleging that [Husband] failed to abide
by a multitude of the provisions of the PNA,
compromising [Wife’s] financial well-being and
benefit of the bargain. The petition contained seven
counts, only one of which, Count I, applies to

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[Husband’s] appeal. Unfortunately, this case had a
protracted course of proceedings before it was
reassigned to the undersigned in July of 2016[;]
argument was held on February 1, 2016 before the
Honorable Madelyn Fudeman; two subsequent
hearings were held on the outstanding issues, on
March 2, 2016, [and] June 2, 2016.

On October 25, 2016, after hearing and review of all
the transcripts of the prior proceedings, we issued an
Order determining, inter alia, the issue of child
support for the parties’ oldest child[, M.M.]. On
November 22, 2016, [Husband] filed a Notice of
Appeal to the Superior Court. In response to our
Order, [Husband] filed a Concise[Footnote 2]
Statement of [Errors] Complained of on Appeal,
asserting that we erred by, inter alia, finding he has
a child support obligation for [M.M.,] an emancipated
child/adult.

[Footnote 2] [Husband’s] concise
statement is anything but concise. We
will address his overriding claim of error,
which is his continuing obligation to pay
child support for his daughter, who is in
college.

Trial court opinion, 12/21/16 at 1-2.

Husband raises the following issues for our review:1

1. Did the Trial Court err in the Order dated
October 25, 2016, by finding that [Husband] is
required to continue to pay $1,615.00 every

1 We note that Husband’s statement of questions involved contains thirteen
questions for our review, two of which contain subparts. Eight of Husband’s
questions involved concern his cross-appeal from the November 22, 2016
order. Therefore, we only set forth the five questions involved that raise the
issues that Husband requests that we review with respect to his appeal of
the October 25, 2016 order. We also note that issue number 5, above, was
originally numbered in Husband’s brief as issue number 13. Additionally, we
set forth the remainder of Husband’s issues in that part of this memorandum
that resolves Husband’s cross-appeal from the November 22, 2016 order.

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two weeks for the support of the parties’ two
children until such time as [Wife’s] alimony
terminates, for reasons that include the
following:

a. The finding by the Trial Court
results in [Husband] continuing to
have a child support obligation for
a child who is emancipated/adult;
and/or

b. The finding by the Trial Court
results in the receipt by [Wife] of
child support for an emancipated
child/adult; and/or

c. The finding by the Trial Court
results in the receipt by [Wife] of
child support for an emancipated
child/adult for whom [Wife] does
not incur any expenses due to the
emancipated child/adult residing at
the college attended by the
emancipated child/adult; and/or

d. The finding by the Trial Court
results in a double support
obligation by [Husband] for the
emancipated child/adult, as in the
Order dated October 25, 2016,
[Husband] is also required to pay
one-half of the emancipated
child/adult’s college tuition
including all course credits, room
and board costs at the college
attended by the emancipated
child/adult?

2. Did the Trial Court err in the Order dated
October 25, 2016 by finding that [Husband]
has a child support obligation for two children,
payable to [Wife], notwithstanding the
emancipation of one of these children, as the
finding by the Trial Court results in the receipt

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by [Wife] of child support for an emancipated
child/adult who does not reside with [Wife]?

3. Did the Trial Court err in the Order dated
October 25, 2016, by finding that [Husband]
has a child support obligation for an
emancipated child/adult payable to [Wife],
rather than payable directly to the
emancipated child/adult?

4. Did the Trial Court err in the Order dated
October 25, 2016, by finding that [Husband] is
required to continue to pay $1,615.00 every
two weeks for the support of the parties’ two
children until such time as [Wife’s] alimony
terminates, as [Husband’s] child support
obligation is separate and apart from
[Husband’s] alimony obligation for reasons
that are as follows:

a. The provision requiring [Husband]
to pay child support is separate
and apart from the provision
requiring [Husband] to pay
alimony; and/or

b. The finding by the Trial Court that
[Husband’s] child support
obligation is “tied” to [Husband’s]
alimony obligation is against public
policy as it results [in] the receipt
by [Wife] of alimony in the “guise”
of child support?

[5.] Did the Trial Court err by failing to grant the
Motion to Dismiss to [Wife’s] Petition for
Enforcement and Contempt of the July 1, 2003
[PNA] for reasons that include the following:

a. [Wife] cannot seek the
enforcement of a child support
obligation in a [PNA] by the filing
of a Petition for Contempt in a
divorce action; and/or

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b. [Wife] is required to seek
enforcement of a child support
obligation in a [PNA] by filing a
lawsuit based on a breach of
contract; and/or

c. [Wife] did not plead facts sufficient
for the Trial Court to grant the
relief requested in [Wife’s] Petition
for Enforcement and Contempt of
the July 1, 2003 [PNA]?

Husband’s brief at 9-10, 12.

The following principles guide our review of a PNA:

A marital settlement agreement incorporated but not
merged into the divorce decree survives the decree
and is enforceable at law or equity. A settlement
agreement between spouses is governed by the law
of contracts unless the agreement provides
otherwise.

In conducting our review of the court’s holding as to
the marital settlement agreement, we remain
cognizant of the following:

Because contract interpretation is a
question of law, this Court is not bound
by the trial court’s interpretation. Our
standard of review over questions of law
is de novo and to the extent necessary,
the scope of our review is plenary as the
appellate court may review the entire
record in making its decision. However,
we are bound by the trial court’s
credibility determinations.

When interpreting a marital settlement agreement,
the trial court is the sole determiner of facts and
absent an abuse of discretion, we will not usurp the
trial court’s fact-finding function. On appeal from an
order interpreting a marital settlement agreement,

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we must decide whether the trial court committed an
error of law or abused its discretion.

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa.Super. 2007) (quotation

marks and internal citations omitted).

A property settlement agreement between spouses is interpreted “in

accordance with the same rules applying to contract interpretation.”

Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa.Super. 2004). The goal of

contract interpretation is, “to ascertain and give effect to the parties’ intent.”

Id. Furthermore, where “the words of a contract are clear and

unambiguous, the intent of the parties is to be ascertained from the express

language of the agreement itself.” Id. The parties’ intent, “must be

ascertained from the entire instrument,” and “effect must be given to each

part of a contract.” Purdy v. Purdy, 715 A.2d 473, 475 (Pa.Super. 1998)

(citation omitted), appeal denied, 794 A.2d 363 (Pa. 1999).

At the outset, we note that Husband and Wife agreed within the terms

of the PNA that the PNA would “continue in full force and effect after such

time as a final decree in divorce may be entered.” (PNA, 7/1/03 at 2, ¶ 2.)

The record further reflects that the parties’ PNA was incorporated into their

divorce decree. (Decree, 1/30/07.) Therefore, the PNA survives the divorce

decree and is enforceable. Kraisinger, 928 at 339.

With respect to his child support obligation for the parties’ oldest child,

M.M., Husband first complains that he should not be required to pay child

support for that child because M.M. is emancipated; that requiring him to

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pay child support for an emancipated child results in a double support

payment because he must also share in the cost of M.M.’s college education

expenses; and that his child support obligation to the emancipated child

should not be tied to his alimony obligation as against public policy.

Part C of the parties’ PNA sets forth the parties’ agreement regarding,

among other things, child support and alimony, in relevant part, as follows:

1. Support For The Children—Husband shall
pay One Thousand Six Hundred and Fifteen
Dollars ($1,615.00) every two weeks for the
support of the parties’ two children. This
amount shall be fixed and non-modifiable
during the period of time Husband is paying
alimony to Wife, but thereafter may be
adjusted upon appropriate petition by either
party to reflect the actual incomes of the
parties at the time. . . .

2. Alimony Pendente Lite/Alimony—Husband
shall pay alimony pendente lite to Wife in the
amount of One Thousand Two Hundred Sixty
Nine Dollars ($1,269.00) every two weeks until
January 1, 2004. Thereafter, Husband shall
pay to Wife the sum of One Thousand Eighty
Three and 33/100 Dollars ($1,083.33) per
month, payable at the rate of Five Hundred
Dollars ($500.00) every two weeks, as alimony
commencing on January 1, 2004 and
continuing for a period of one hundred eighty
(180) months thereafter. . . .

PNA, 7/1/03 at 10-11, § C, ¶¶ 1-2.

By the clear and unambiguous language of the PNA, Husband and Wife

intended that Husband’s child support obligation be fixed and non-modifiable

during the 15-year alimony period that commenced on January 1, 2004, and

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will end on December 31, 2018, at which time Husband’s child support

obligation “may be adjusted upon appropriate petition by either party to

reflect the actual incomes of the parties at the time.” (Id. at 11, § C, ¶ 1.)

Therefore, Husband’s claims that he should not be required to pay child

support for the parties’ oldest child because that child is emancipated and/or

because the duration of his child support obligation should not be tied to his

alimony obligation are belied by the clear and unambiguous language of the

PNA. Certainly, the parties knew how old their children were when they

entered into the PNA. Within the clear and unambiguous language of the

PNA, the parties agreed that Husband would pay alimony for a 15-year

period beginning on January 1, 2004, and that Husband’s child support

obligation would be fixed and non-modifiable during that 15-year time

period, but “thereafter may be adjusted.” (Id.) This clear and unambiguous

language demonstrates that the parties intended that the duration of

Husband’s child support obligation be tied to the duration of Husband’s

alimony obligation. Moreover, the parties had to know how old their children

would be at the end of the 15-year alimony period during which time

Husband’s child support payments were fixed and non-modifiable. The clear

and unambiguous language of the PNA demonstrates the parties’ intent that

following the expiration of the 15-year alimony period, Husband’s child

support obligation may be adjusted. As such, the parties intended that

Husband’s child support obligation could continue after December 31, 2018.

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J. A20040/17 & J. A20041/17

Therefore, Husband’s claims that he should not be required to pay child

support for M.M. because she is an emancipated child and that his child

support obligation should not be tied to his alimony obligation necessarily fail

on the basis of the clear and unambiguous language of the parties’ PNA.

Husband also complains that requiring him to pay child support for

M.M. and share the cost of M.M.’s college education expenses results in a

double child support payment. Once again, the clear and unambiguous

language of the PNA demonstrates the parties’ intent and, consequently,

belies Husband’s claim. The parties’ PNA contains a separate provision that

addresses the children’s education expenses, including higher education

expenses, within the same section that contains the child support provision.

In the educational expenses provision, the parties agreed to establish a

college fund for each child. (Id. at 14, C(6)(B).) The parties further agreed

that to the extent that the college funds proved insufficient to cover the full

cost of the respective child’s undergraduate college expenses, the parties

would determine their contributions to additional costs based on their

financial circumstances at the time or, if they were unable to agree, the

matter would be determined by a court of competent jurisdiction. (Id. at

15.) Therefore, the plain language of the PNA demonstrates the parties’

intent that Husband’s child support obligation remain separate and distinct

from the parties’ funding of their children’s higher education. As such, this

claim fails.

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Husband also complains that to the extent that he is obligated to pay

child support for M.M., he should pay that child support directly to M.M. and

not to Wife. Husband cites no case law, and we are aware of none, that

supports his claim that his payment should be made directly to the child

because the child is emancipated. In fact, Husband fails to develop a legal

argument on this issue. Rather, within this section of his brief, Husband

continues to complain that M.M. is emancipated and, despite the plain

language of the PNA to the contrary, that he should be relieved of his child

support obligation to M.M. As such, Husband waives this issue on appeal.

See Pa.R.A.P. 2119(a) (an appellate brief must contain “discussion and

citation of authorities” to each issued raised); see also Butler v. Illes, 747

A.2d 943, 944 (Pa.Super. 2000) (“When issues are not properly raised and

developed in briefs, when briefs are wholly inadequate to present specific

issues for review, [this] court will not consider the merits thereof.” (citations

omitted)).

Husband next complains that the trial court erred in denying his

motion to dismiss Wife’s petition for enforcement of the PNA and contempt

that resulted in the entry of the October 25, 2016 order from which he now

appeals. Husband claims that Wife was procedurally unable to bring her

breach of the PNA claim in a contempt proceeding under the Divorce Code.

Pursuant to the Divorce Code,

[a] party to an agreement regarding matters within
the jurisdiction of the court under this part, whether

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or not the agreement has been merged or
incorporated into the decree, may utilize a remedy or
sanction set forth in this part to enforce the
agreement to the same extent as though the
agreement had been an order of the court except as
provided to the contrary in the agreement.

23 Pa.C.S.A. § 3105(a).

The Divorce Code further provides that

[a] decree granting a divorce or an annulment shall
include, after a full hearing, where these matters are
raised in any pleadings, an order determining and
disposing of existing property rights and interests
between the parties, custody, partial custody and
visitation rights, child support, alimony, reasonable
attorney fees, costs and expenses and any other
related matters, including the enforcement of
agreements voluntarily entered into between the
parties. In the enforcement of the rights of any party
to any of these matters, the court shall have all
necessary powers, including, but not limited to, the
power of contempt and the power to attach wages.

Id. at § 3323(b).

Here, Wife filed a 7 count “petition for enforcement and contempt of

the [PNA]” wherein she sought, among other things, enforcement of the

parties’ PNA and a contempt finding against Husband. (Docket # 15.) In his

brief, Husband refers to Wife’s petition as a “petition for contempt and

enforcement” and argues that Wife was procedurally barred from filing a

contempt action because no court order existed of which Husband failed to

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comply.2 (Husband’s brief at 31-32.) Husband, however, ignores that

Wife’s petition sought enforcement of the PNA. Husband also ignores that

the trial court made no contempt finding. Therefore, despite the arguably

imprecise title of Wife’s petition, our review of that petition demonstrates

that Wife brought an action seeking enforcement of the PNA, reimbursement

of child-related expenses, and attorney’s fees for enforcement of the PNA

which the Divorce Code and the PNA permitted Wife to do. Therefore, this

claim lacks merit.

For the reasons set forth above, we affirm the October 25, 2016 order.

We now turn to Wife’s appeal and Husband’s cross-appeal of the

November 22, 2016 order. The trial court set forth the following:

On November 13, 2015, [Wife] filed a petition for
Enforcement [of] Contempt of the [PNA], alleging
that [Husband] failed to abide by a multitude of the
provisions of the PNA, compromising [Wife’s]
financial well-being and benefit of the bargain. The
petition contained seven counts, only one of which,
Count I, was brought before this Court.[Footnote 2]

[Footnote 2] This case had a protracted
course of proceedings before it was
reassigned to the undersigned in July of
2016[;] argument was held on
February 1, 2016 before the Honorable

2 Generally, in civil contempt proceedings, the complainant bears the burden
of proving that the defendant failed to comply with a court order.
MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012) (citation
omitted). To sustain a finding of civil contempt, the complainant must prove
by a preponderance of the evidence that (1) the contemnor had notice of the
order that she alleges the contemnor disobeyed; (2) the act constituting the
alleged violation was volitional; and (3) the contemnor acted with wrongful
intent. Id. (citation omitted).

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Madelyn Fudeman; two subsequent
hearings were held before her on the
outstanding issues, on March 2, 2016
and June 2, 2016.

On October 25, 2016, after hearing and review
of all the transcripts of the prior proceedings, we
issued an Order determining, inter alia, the issues
of child support and college tuition for the parties’
oldest child. We took the matter of unreimbursed
expenses and credits, as well as a claim for counsel
fees for [Wife], under advisement and gave the
parties ten days to submit documentation to the
Court to substantiate their claims. On November 22,
2016, we entered an Order addressing these
outstanding claims, which are the subject of the
instant appeal. On December 21, 2016, [Wife] filed
a Notice of Appeal to the Superior Court. On
December 23, 2016, we ordered [Wife] to file a
concise statement of the errors complained of on
appeal, which she filed on January 17, 2017.

Trial court opinion, 1/19/17 at 1-2 (footnotes 3 and 4 omitted).

The record reflects that on December 2, 2016, Husband filed a notice

of appeal of the November 22, 2016 order to this court. The trial court then

ordered Husband to file a Rule 1925(b) statement. Husband timely

complied. The trial court then filed its Rule 1925(a) opinion.

Wife raises the following issues for our review:

[1.] Despite the Trial Court’s unambiguous finding
in its October 25, 2016 Order that [Husband]
breached the parties’ [PNA], did the Trial Court
abuse its discretion and misapply the law when
it required [Husband] to only pay a
substantially reduced sum of the attorney’s
fees incurred by [Wife] in her attempt to
enforce the terms of the [PNA]?

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[2.] Specifically, did the Trial Court abused [sic] its
direction [sic] and misapply the law when it
ignored the clear and unambiguous language
of Chapter H, Subpart 3 (page 30) of the
parties’ [PNA] which requires the payment of
counsel fees in enforcement matters, when it
awarded [Wife] a reduced sum of counsel fees
in the amount of $4,725.00 rather than the full
amount of fees incurred, or $20,479.00?

[3.] Did the Trial Court abuse its discretion and
misapply the law and fail to follow proper legal
procedure when it rendered the reduced award
without issuing any findings on the record or
written opinion, as to the basis and
reasonableness of the fee award?

[4.] Did the Trial Court abuse its discretion,
misapply the law and fail to follow proper legal
procedure by failing to properly assess the
reasonableness of the fee award by reducing it
to more than half of that requested by [Wife],
without giving any consideration as to (i) the
scope of the amount of work performed;
(ii) the complexity and subject matter of the
litigation; and the (iii) favorable results
obtained?

[5.] Did the Trial Court abuse its discretion and
misapply the law when it contradicted public
policy by failing to uphold in its entirety, the
mutually agreed upon counsel fee enforcement
provision of the [p]arties’ [PNA]?

Wife’s brief at 3-4.

In his cross-appeal of this order, Husband raises the following issues

for our review:

[1.] Did the Trial Court err by finding that
[Husband] breached the parties’ [PNA] dated
July 1, 2003?

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[2.] Did the Trial Court err by finding that
[Husband] was required to pay [Wife] any
attorney fees for breaching the parties’ [PNA]
dated July 1, 2003, including, but not limited
to, the sum of $4,725.00?

[3.] Did the Trial Court err by finding that the sum
of $4,725.00 was a reasonable amount of
attorney fees incurred by [Wife] for the
enforcement of the [PNA] dated July 1, 2003?

[4.] Did the Trial Court err by finding [Husband]
was required to pay [Wife] any amount,
including, but not limited to, the sum of
$4,725.00, as attorney fees for the
enforcement of the [PNA] dated July 1, 2003?

[5.] Did the Trial Court err in not including in its
Order, its calculation of the amount of
allowable expenses as well as its calculation of
the amount of credit due to [Husband] towards
the allowable expenses?

[6.] Did the Trial Court err in calculating the
amount of allowable expenses to be
$15,685.22?

[7.] Did the Trial Court err in calculating the
amount of credit due to [Husband] for
allowable expenses to be $10,500.00?

[8.] Did the Trial Court err in requiring the payment
by [Husband] to [Wife] of the sum of
$5,185.22 as the amount due by [Husband] to
[Wife] for payment of expenses?

Husband’s brief at 11-12.

At the outset, we note that for ease of discussion, we will dispose of

Wife’s and Husband’s issues in the most logical order.

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Generally, each side is responsible for the payment of its own costs

and counsel fees, absent bad faith or vexatious conduct. McMullen v.

Kutz, 985 A.2d 769, 775 (Pa. 2009) (citations omitted). “This so-called

‘American Rule’ holds true ‘unless there is express statutory authorization, a

clear agreement of the parties or some other established exception.’” Id.

(citations omitted).

Here, with respect to “counsel fees and expenses,” the PNA provides

that:

[e]ach party hereby agrees to be solely responsible
for her or his own counsel fees, costs and expenses
and that neither shall seek any contribution thereto
from the other party except as otherwise provided
herein.

PNA, 7/1/03 at 25, § E, § 1.

With respect to “attorneys’ fees for enforcement,” the PNA provides

that:

[i]n the event that either party breaches any
provision of [the PNA] and the other party retains
counsel to assist in enforcing the terms thereof, the
parties hereby agree that the breaching party will
pay all attorneys’ fees incurred by the other party in
enforcing the [PNA], provided that the enforcing
party is successful in establishing that a breach has
occurred.

Id. at 30, § H, ¶ 3.

Husband first contends that the trial court erred in finding that

Husband breached the PNA because “[i]t is illogical to find that Husband was

not guilty of contempt but that he had breached the [PNA].” (Husband’s

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brief at 21.) Following this legally incorrect pronouncement, Husband then

baldly asserts that Wife “did not prove a breach” because she “did not prove

that there were ‘resultant damages.’” (Id.)

To sustain a finding of civil contempt, the complainant must prove by a

preponderance of the evidence that (1) the contemnor had notice of the

order that she alleges the contemnor disobeyed; (2) the act constituting the

alleged violation was volitional; and (3) the contemnor acted with wrongful

intent. MacDougall, 49 A.3d at 892 (citation omitted). To establish a

breach of contract, the party claiming breach “must establish ‘(1) the

existence of a contract, including its essential terms, (2) a breach of a duty

imposed by the contract and (3) resultant damages.’” Ruthrauff, Inc. v.

Ravin, Inc., 914 A.2d 880, 888 (Pa.Super. 2006) (citation omitted).

Therefore, Husband’s assertion that “[i]t is illogical to find that Husband was

not guilty of contempt but that he had breached the [PNA]” is not legally

sound because civil contempt and breach of contract do not share the same

elements of proof.

In Husband’s first issue, Husband neither disputes the existence of the

PNA nor argues that he did not breach a duty or duties imposed by the PNA.

Husband merely asserts that Wife did not prove resultant damages.

Consequently, Husband’s first issue in his cross-appeal does nothing more

than set the stage for Husband’s arguments that the trial court erred in

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awarding attorney’s fees to Wife and that it erred in its calculation of

reimbursable allowable expenses to Wife.

In his brief, Husband discusses his second, third, and fourth

cross-appeal issues together because, according to Husband, they are

“interrelated” and will, therefore, “be argued as a whole.” (Husband’s brief

at 21.) In these issues, Husband contends that Wife should not have been

awarded attorney’s fees because he did not engage in “dilatory, obdurate or

vexacious [sic] conduct.” (Husband’s brief at 23.)

At the outset, we note that four hearings were held in this matter,

totaling over 400 transcribed pages. Husband, however, seizes upon

seven sentences, strategically extracted from a span of eight pages of the

June 2, 2016 hearing transcript in order to seemingly demonstrate that he

has clean hands in an effort to convince this court that he should not be

required to pay the reasonable attorney’s fees that the trial court assessed.

(Husband’s brief at 21 & 23.) We further note that in his brief, Husband

cites to Werner v. Werner, 149 A.3d 338 (Pa.Super. 2016), for the

proposition that an award of attorney’s fees is only appropriate when the

party ordered to pay the fees engaged in dilatory, obdurate, or vexatious

conduct. (Husband’s brief at 21-22.) That case, however, did not concern a

marital agreement that contained a provision for counsel fees and is,

therefore, not on point. The only other case cited by Husband is Haser v.

Haser, 2016 Pa.Super.Unpub.LEXIS 164 (Pa.Super. 2016), which is an

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unpublished memorandum of this court that has no precedential value. See

Superior Court I.O.P. 65.37(A) (providing that, with limited exceptions not

applicable here, “[a]n unpublished memorandum shall not be relied upon or

cited by a [c]ourt or a party in any other action or proceeding”).

Notwithstanding the fact that this memorandum has no precedential value,

we note that it is not on point. There, a consent order contained a provision

for counsel fees, but because both parties were in default of that consent

order, the trial court found, and a panel of this court affirmed, that neither

were entitled to counsel fees. The trial court also refused to award counsel

fees under 42 Pa.C.S.A. § 2503(7) which permits an award of counsel fees

as a sanction for dilatory, obdurate, or vexatious conduct, because it found,

and this court affirmed, that neither party engaged in that conduct.

Here, the parties PNA provides that:

[i]n the event that either party breaches any
provision of [the PNA] and the other party retains
counsel to assist in enforcing the terms thereof, the
parties hereby agree that the breaching party will
pay all attorneys’ fees incurred by the other party in
enforcing the [PNA], provided that the enforcing
party is successful in establishing that a breach has
occurred.

Id. at 30, § H, ¶ 3.

The trial court found that Husband breached the PNA, Wife retained

counsel to assist in enforcing the PNA, and Wife was successful in

establishing the breach. Nothing in the PNA required the trial court to find

that Husband, as the breaching party, engaged in dilatory, obdurate, or

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J. A20040/17 & J. A20041/17

vexatious conduct as a condition precedent to awarding Wife counsel fees.

Therefore, Husband’s second, third, and fourth cross-appeal claims fail.

With respect to the award of attorney’s fees, Wife contends that

because the trial court found that Husband breached the PNA, the terms of

the PNA required the trial court to award her all of the attorney’s fees that

she incurred in connection with enforcement of the PNA. Contrary to Wife’s

claim, in McMullen, which is a case strikingly similar to the one before us,

our supreme court held that “parties may contract to provide for the

breaching party to pay the attorney fees of the prevailing party in a breach

of contract case, but the trial court may consider whether the fees claimed

to have been incurred are reasonable, and to reduce the fees claimed if

appropriate.” McMullen, 985 A.2d at 777. In so holding, our supreme

court recognized that if a trial court were forbidden from inquiring into

reasonableness, “there would be no safety valve and courts would be

required to award attorney fees even when such fees are clearly excessive.”

Id. at 776.

Here, the trial court, “after a review of the facts of this case, the

Affidavit of Counsel Fees and the 38 pages of counsel fees incurred,” “found

the fees to be unreasonable and excessive.” (Trial court opinion, 1/19/17 at

4.) In Wife’s first two issues, she only challenges the trial court’s power to

assess the reasonableness of the attorney’s fees. Stated differently, in those

issues, Wife does not claim that the award of attorney’s fees was

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J. A20040/17 & J. A20041/17

unreasonable; rather, she claims that the trial court had no power to

determine reasonableness. Contrary to Wife’s claim, McMullen empowered

the trial court to assess reasonableness. Accordingly, Wife’s first two issues

lack merit.

McMullen also resolves Wife’s fifth issue in which she contends that

the trial court abused its discretion and misapplied the law “when it

contradicted public policy by failing to uphold in its entirety, the mutually

agreed upon counsel fee enforcement provision of the [PNA].” (Wife’s brief

at 4.) Again, pursuant to McMullen, the trial court properly exercised its

discretion in assessing the reasonableness of the attorney’s fees and, after

finding the fees unreasonable, in reducing those fees.

In her third and fourth issues, Wife claims that the trial court abused

its discretion and misapplied the law by “fail[ing] to follow proper legal

procedure when it rendered the reduced award without issuing findings on

the record or written opinion, as to the basis of the reasonableness of the

fee award” and failing to consider “the scope and amount of work

performed[,]” “the complexity and subject matter of the litigations[,]” and

the “favorable results obtained.” (Wife’s brief at 3-4.)

Similarly, Husband’s final four issues in his cross-appeal challenge the

trial court’s calculation of the children’s expenses that Husband was ordered

to reimburse Wife. Husband maintains that the trial court abused its

discretion and/or committed an error of law because it did not set forth its

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J. A20040/17 & J. A20041/17

calculations and, according to Husband, the testimony did not support the

expense reimbursement amount at which it arrived. (Husband’s brief at 22-

25.)

With respect to attorney’s fees, the trial court “review[ed] the facts of

this case, the Affidavit of Counsel Fees and the 38 pages of counsel fees

incurred.” (Trial court opinion, 1/19/11 at 4.) The trial court further found

that both parties failed to comply with the PNA. (Trial court opinion,

1/19/11 at 7.) Additionally, the trial court stated that:

[a] review of the extensive record in this case shows
that, while we did find that [Husband] owed some
money to [Wife], she herself did not have clean
hands. [Wife] argued that [Husband] was in default
of the agreement to pay for all of their oldest
daughter’s college, knowing she had signed an
addendum to the PNA obligating her to pay these
college expenses equally with [Husband]. We also
found that [Wife] overcharged [Husband] for some
of the children’s activity expenses. [Husband]
argued that he did not give his approval for some of
the expenses/activities for which he was charged.
The PNA, as amended by the parties, clearly required
agreement of the parties for such activities that cost
more than $1,000 per year, which agreement
[Husband] [Wife][3] did not seek prior to incurring
such an expense. [Husband] also asserted that
[Wife] did not give him credit for some of the monies
he had already paid. For years, [Wife] had agreed to
informal adjustments and delayed methods of
payment, before filing this petition. The outstanding
claims in this case involved an accounting issue
which the parties agreed could be calculated by the

3 The original text of this sentence reads, “The PNA, as amended by the
parties, clearly required agreement of the parties for such activities that cost
more than $1,000 per year, which agreement of Appellee Appellant did not
seek prior to incurring such an expense.” (Trial court opinion, 1/19/17 at 5.)

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J. A20040/17 & J. A20041/17

undersigned, a trained auditor,[Footnote 5] in lieu of
hiring an accountant. Under all of these
circumstances, we properly found that the attorney’s
fees, which exceeded $20,000.00, were
unreasonable for this type of contract work and what
it entailed to compel enforcement.

[Footnote 5] The court limited the time
frame from 2013 through 2015 for the
calculations it made. The parties mailed
documentation to the undersigned to
address outstanding balances and
credits, which we have attached hereto
to illustrate our calculations, discussed
infra.

[With respect to] allowable expenses, . . . we note
that there was no exhibit for the court to cite for its
basis because [Wife] “submitted” her documentation
by e-mail and did not file it in the official court file.
For the sake of clarity, we attach said
correspondence to this opinion. Despite our ruling
that we would only go back as far as 2014, [Wife]
included years 2013 through 2016. We did not
consider amounts [Wife] claimed remained unpaid
for 2011 and 2012 because of the way she agreed to
handle these matters with [Husband] during those
years. [Wife] did acknowledge a credit due
[Husband] from 2013 so we included the unpaid
expenses for 2013 in our review, but we did not
include 2016. We crossed off expenses that we
determined should have been paid out of the child
support [Wife] was already receiving from [Husband]
and we crossed off expenses that we did not
consider as valid reimbursements. We totaled up the
reimbursable expenses owed to [Wife] for the four
years, from 2013 to 2015, which came to
$15,685.22, and subtracted the payments made by
[Husband], finding a credit of $10,500.00, to
determine that [Husband] still owed [Wife]
$5,185.22. It was because there was an outstanding
balance that we determined that the PNA was
breached, but there was no finding of contempt.

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J. A20040/17 & J. A20041/17

Trial court opinion, 1/19/17 at 5-7 (footnote 6 omitted).4

The trial court’s opinion set forth the factors that it found relevant and

on what basis it awarded counsel fees and reimbursable expenses.

Therefore, Wife’s and Husband’s claims that the trial court failed to set forth

its reasoning for its calculations lack merit.

Finally, with respect to Husband’s claim that the testimony did not

support the reimbursable expense award, we note that in order to bolster

this claim, Husband again strategically extracts colloquy from various pages

of the June 2, 2016 transcript to seemingly convince this court that the trial

court erred in its calculation. Again, there were four hearings in this matter

that produced in excess of 400 pages of transcribed colloquy and testimony.

The trial court, as the finder of fact, is entitled to weigh the evidence and

assess its credibility. Baehr v. Baehr, 889 A.2d 1240, 1243 (Pa.Super.

2005) (citation omitted). After reviewing the record, we find no abuse of

discretion.

4 We note that the trial court reiterated its calculations in its February 8,
2017 opinion that it filed with respect to Husband’s cross-appeal of the
November 22, 2017 order.

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J. A20040/17 & J. A20041/17

For the reasons set forth above, we affirm the November 22, 2016

order.

October 25, 2016 order affirmed. November 22, 2016 order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/24/2018

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