J-A27020-17
2018 PA Super 117
RONALD COOK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
DEBORAH COOK :
:
Appellant No. 454 WDA 2017
Appeal from the Order January 27, 2017
In the Court of Common Pleas of Allegheny County Family Court at No(s):
FD 13-006245-017
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
OPINION BY SHOGAN, J.: FILED MAY 04, 2018
Appellant, Deborah Cook (“Wife”), appeals from the order setting forth
the equitable distribution of marital assets in this divorce action with
Appellee, Ronald Cook (“Husband”). In addition, Husband has filed a motion
to dismiss particular issues raised by Wife in her Pa.R.A.P. 1925(b)
statement that she has failed to set forth in her appellate brief. We affirm in
part, reverse in part, and remand with instructions. Husband’s motion to
dismiss Wife’s abandoned issues is granted.
We summarize the procedural history of this case as follows. Husband
and Wife married in 1986. They have one adult child. Husband filed a
divorce complaint in February of 2013. Wife filed an answer and counter-
claim in June of 2013. The parties entered into a consent order in August of
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2013, with Husband agreeing to pay Wife alimony pendente lite in the
amount of $2,300.00 per month.
A master’s hearing on equitable distribution was held in June of 2016.
The master issued a report on August 3, 2016. Wife filed timely exceptions,
and Husband filed cross-exceptions. The trial court ruled on the exceptions
on January 27, 2017, and granted and denied each party’s exceptions in
part. The trial court determined the marital estate to be valued at
$638,567.00. Wife was awarded 55% of the marital estate ($351,212.00).
Husband received 45% ($287,355.00). In addition, each party was
responsible for a relatively small amount of debt (Wife $8,000 and Husband
$6,400). Husband’s attempts to terminate alimony pendente lite have been
denied by the trial court.
The parties’ divorce decree was dated March 6, 2017, and filed on
March 7, 2017. On March 21, 2017, Wife filed this timely notice of appeal.
Both Wife and the trial court have complied with Pa.R.A.P. 1925.
Wife presents the following issues for our review:
I. Whether the lower court committed an error of law and abuse
of discretion by denying Wife alimony.
II. Whether the lower court committed an error of law and abuse
of discretion by denying Wife’s Petition to Modify Alimony
pendente lite.
III. Whether the lower court committed an error of law and
abuse of discretion by awarding only 50% of the proceeds from
the sale of the marital residence, and 55% of the remainder of
the marital estate to Wife.
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IV. Whether the lower court erred as a matter of law and abused
its discretion by denying Wife her claim for counsel fees, despite
the disparity in incomes.
V. Whether the Court erred in awarding Husband counsel fees.
Wife’s Brief at 5.1
Initially, we observe that in the context of an equitable distribution of
marital property, a trial court has the authority to divide the award as the
equities presented in the particular case may require. Mercatell v.
Mercatell, 854 A.2d 609, 611 (Pa. Super. 2004). “Our scope of review in
equitable distribution matters is limited. Awards of alimony, counsel fees,
and property distribution are within the sound discretion of the trial court
and will not be disturbed absent an error of law or abuse of discretion.”
Smith v. Smith, 749 A.2d 921, 924 (Pa. Super. 2000).
Wife first argues that the trial court erred in addressing her request for
alimony, claiming the factors set forth in 23 Pa.C.S. § 3701(b) weigh in
favor of long-term alimony. Wife’s Brief at 10-14. Specifically, she contends
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1 We observe that Wife has included in her Pa.R.A.P. 1925(b) statement
additional issues of trial court error that she has not presented in her
appellate brief. Wife’s Brief at 2. Husband has filed a motion to dismiss
issues on appeal that have not been presented in Wife’s brief. Motion to
Dismiss, 10/20/17. We conclude that those claims not included in Wife’s
appellate brief have been abandoned because Wife has not included those
issues in her statement of questions involved, Wife’s Brief at 5, nor has she
developed any argument relating to those issues in the argument section of
her brief as required by Pa.R.A.P. 2119(a). Wife’s Brief at 10-28. See
Green v. Green, 69 A.3d 282, 286 n.3 (Pa. Super. 2013) (finding issues
waived for failure to develop claims in argument section of appellate brief).
Accordingly, we grant Husband’s Motion to Dismiss those issues.
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that her income, earning capacity, education, age, medical issues,
contributions as homemaker, current needs, the modest size of her share of
the marital estate, and the length of the marriage favor her receipt of
alimony.
We begin by noting the following:
Following divorce, alimony provides a secondary remedy
and is available only where economic justice and the reasonable
needs of the parties cannot be achieved by way of an equitable
distribution. Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa.
Super. 2004) (citation omitted). An award of alimony should be
made to either party only if the trial court finds that it is
necessary to provide the receiving spouse with sufficient income
to obtain the necessities of life. Stamerro v. Stamerro, 889
A.2d 1251, 1259 (Pa. Super. 2005). “The purpose of alimony is
not to reward one party and punish the other, but rather to
ensure that the reasonable needs of the person who is unable to
support herself through appropriate employment are met.”
Miller v. Miller, 744 A.2d 778, 788 (Pa. Super. 1999) (citation
omitted).
“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.”
Teodorski, [supra] at 200 (citation omitted). An award of
alimony may be reversed where there is an apparent abuse of
discretion or there is insufficient evidence to support the award.
Jayne v. Jayne, [] 663 A.2d 169[, 174] ([Pa. Super.] 1995).
Kent v. Kent, 16 A.3d 1158, 1161 (Pa. Super. 2011) (quoting Balicki v.
Balicki, 4 A.3d 654, 659 (Pa. Super. 2010)). In determining “whether
alimony is necessary and to establish the appropriate nature, amount, and
duration of any alimony payments, the court is required to consider all
relevant factors, including the 17 factors that are expressly mandated by
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statute.”2 Lawson v. Lawson, 940 A.2d 444, 447 (Pa. Super. 2007)
(emphasis in original).
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2 Section 3701 of the Divorce Code, 23 Pa.C.S. §§ 3101-3904, sets forth
the relevant factors for determining alimony as follows:
§ 3701. Alimony
(a) General rule.--Where a divorce decree has been
entered, the court may allow alimony, as it deems reasonable, to
either party only if it finds that alimony is necessary.
(b) Factors relevant.--In determining whether alimony is
necessary and in determining the nature, amount, duration and
manner of payment of alimony, the court shall consider all
relevant factors, including:
(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.
(Footnote Continued Next Page)
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(Footnote Continued) _______________________
(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 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(a)-(b).
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In addressing this claim, the trial court offered the following pertinent
discussion:
The Master denied Wife’s request for alimony; th[e trial
c]ourt affirmed. The purpose of an alimony award “is not to
reward one party or punish the other, but rather, as held by our
Supreme Court, to provide the receiving spouse with sufficient
income to obtain the necessities of life.” Lawson v. Lawson,
940 A.2d 444, 447 (Pa. Super. Ct. 2007) (internal citations
omitted). In other words, “to ensure that the reasonable needs
of the person who is [unable] to support himself or herself
through appropriate employment are met.” Id. (internal
citations omitted). To that end, “alimony is considered a
secondary remedy, available only where economic justice and
the reasonable needs of the parties cannot be achieved by way
of an equitable distribution award and development of an
appropriate employable skill.” Id. (internal citations omitted).
If a party who is receiving alimony is able to meet his or her
reasonable needs through employment, “the court is to fashion
an alimony order to be in effect only until such employment has
been obtained or the party has developed an appropriate
employable skill.” Mazzei v. Mazzei, 480 A.2d 1111, 1116 (Pa.
Super. Ct. 1984). . . .
Husband is a college educated sports writer and journalist
who is employed by the Post-Gazette and CBS with earnings
over $160,000 per year. Hearing transcript, p.73-84; Husband’s
2015 1040. Wife is a high school graduate who works as an
income maintenance caseworker for the Commonwealth of
Pennsylvania with earnings of over $44,500. Hearing transcript,
p. 138-139; Wife’s 2015 1040. At the time of the hearing, Wife
was 61 years old and Husband was 59 years old.1 Hearing
transcript, p. 133 & 9. Both parties have established retirement
accounts with Husband’s accounts having a larger balance.
Neither party testified to receiving or expecting to receive an
inheritance. The parties were married for 26 years. Hearing
transcript, p. 4-5. The parties have one emancipated child.
Hearing transcript, p. 5. In regards to the parties’ standard of
living during the marriage, Husband testified, “It was nice. We
went on a nice vacation every year. We didn’t go to the French
Alps, but we would go to Florida once a year. We would eat out
a lot. It was okay. It was nice. I wouldn’t say extravagant.
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But it was fine.” Hearing transcript, p. 14. Both parties have
obtained appropriate employment.
1 The Hearing Officer referenced the parties’ ages
incorrectly in the “History” portion of his Report.
Wife was reported as 59 years old while Husband’s
age was reported as 61. Throughout the Equitable
Distribution portion of the Report, however, the
Master correctly referenced the number of years
both parties have until retirement including that Wife
will reach retirement first.
The Master denied alimony to Wife on numerous grounds
including the property Wife retained and the retirement assets
Wife is to receive. Th[e trial c]ourt rejects the Master’s
determination that the retirement assets justify a denial of
alimony. Instead, th[e trial c]ourt finds that Wife has already
obtained appropriate employment that is sufficient to meet her
needs, thereby rendering alimony unnecessary.
Additionally, the Master found Wife’s budget to be
incredible. “A master’s report and recommendation, although
only advisory, is to be given the fullest consideration, particularly
on the question of credibility of witnesses, because the master
has the opportunity to observe and assess the behavior and
demeanor of the parties.” Childress v. Bogosian, 12 A.3d 448,
455-456 (Pa. Super. Ct. 2011). Further, with regards to witness
credibility, “It is within the province of the trial court to weigh
the evidence and decide credibility and th[e appellate c]ourt will
not reverse those determinations so long as they are supported
by the evidence.” Id. The record supports the Master’s
credibility determination on this issue. Wife’s monthly budget
exceeded her monthly income plus the APL she has been
receiving since July 2013. Wife received $4,450 net per month
through her salary and APL. Wife’s monthly expenditures total
$6,317.26. This includes a mortgage of $1,388 per month, $635
per month in clothing expenses, $200 per month in donations,
$900 per month in attorneys’ fees, and $450 per month on
vacations.
Trial Court Opinion, 5/12/17, at 3-5 (emphasis in original).
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Upon review of the record, we are constrained to conclude that the
trial court did not abuse its discretion in refusing to award alimony to Wife.
Wife appended a budget to her pretrial statement that neither the Master
nor the trial court found to be credible. Wife’s Pretrial Statement, 5/27/16,
at 9. The trial court properly noted that the budget presented by Wife was
not credible because it exceeded Wife’s combined net monthly income
received from her salary and the alimony pendente lite from Husband. The
trial court was acting within its discretion in crediting the testimony of
Husband regarding the parties’ standard of living, particularly Husband’s
statement that “It was okay. It was nice. I wouldn’t say extravagant. But
it was fine.” N.T., 6/6/16, at 14. The trial court also properly analyzed
Wife’s reasonable needs and determined that Wife has already obtained
appropriate employment that is sufficient to meet her needs, thereby
rendering alimony unnecessary.” Trial Court Opinion, 5/12/17, at 5. We
conclude that the trial court’s findings are supported by the record. Hence,
we agree with the trial court’s determination in this regard and conclude that
Wife’s contrary claim lacks merit.
Wife next argues that the trial court erred with regard to its
determination pertaining to the award of alimony pendente lite. Wife’s Brief
at 15-18. Wife claims that, in calculating the amount of alimony pendente
lite, the trial court erred in projecting incomes for 2016, which were based
upon pay stubs from the early months of 2016. Id. at 15. Wife asserts that
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the trial court should have used the parties’ actual incomes from 2015. Id.
In addition, Wife contends that the trial court, in preparing its calculation,
failed to account for the mortgage deviation under Pa.R.C.P. 1910.16-6(e)
and Wife’s unreimbursed medical expenses under Pa.R.C.P. 1910.16-6(c).
Id. at 17-18.
The Divorce Code provides, “In proper cases, upon petition, the court
may allow a spouse reasonable alimony pendente lite, spousal support and
reasonable counsel fees and expenses.” 23 Pa.C.S. § 3702. By way of
background:
[Alimony pendente lite] is an order for temporary support
granted to a spouse during the pendency of a divorce or
annulment proceeding. [Alimony pendente lite] is designed to
help the dependent spouse maintain the standard of living
enjoyed while living with the independent spouse. Also, and
perhaps more importantly, [alimony pendente lite] is based on
the need of one party to have equal financial resources to pursue
a divorce proceeding when, in theory, the other party has major
assets which are the financial sinews of domestic warfare.
[Alimony pendente lite] is thus not dependent on the status of
the party as being a spouse or being remarried but is based,
rather, on the state of the litigation. . . . [T]he purpose of
[alimony pendente lite] is to provide the dependent spouse equal
standing during the course of the divorce proceeding. . . .
[Alimony pendente lite] focuses on the ability of the individual
who receives the [alimony pendente lite] during the course of
the litigation to defend her/himself, and the only issue is
whether the amount is reasonable for the purpose, which turns
on the economic resources available to the spouse.
Schenk v. Schenk, 880 A.2d 633, 644-645 (Pa. Super. 2005).
The amount awarded as alimony pendente lite is within the sound
discretion of the trial court and, absent an abuse of discretion, will not be
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disturbed on appeal. Litmans v. Litmans, 673 A.2d 382, 388 (Pa. Super.
1996). An award of alimony pendente lite “may be modified or vacated by a
change in circumstances. The award is always within the control of the
court. It is the burden of the party seeking to modify an order of support to
show by competent evidence that a change of circumstances justifies a
modification.” Id. (citations omitted). “If an order of [alimony pendente
lite] is bolstered by competent evidence, the order will not be reversed
absent an abuse of discretion by the trial court.” Strauss v. Strauss, 27
A.3d 233, 236 (Pa. Super. 2011).
Pursuant to Pa.R.C.P. 1910.16-2, “the amount of support to be
awarded is based upon the parties’ monthly net income.” The same rule
directs that, to arrive at monthly net income, the court shall deduct specific
items from monthly gross income. Pa.R.C.P. 1910.16-2(c). In addition, the
rule instructs that “[m]onthly gross income is ordinarily based upon at
least a six-month average of all of a party’s income.” Pa.R.C.P. 1910.16-
2(a) (emphasis added).
In addressing this claim, the trial court offered the following
discussion:
Wife filed a Petition to Modify Support on August 26, 2015,
that was heard by the Master during the equitable distribution
hearing. The Master denied Wife’s Petition stating that it was
not warranted. Wife filed Exceptions to this issue arguing that
the Master erred in calculating Husband’s income. Wife relied
upon Husband’s 2015 tax return showing a wage/salary of
$169,852.
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Pa.R.C.P. 1910.19(c), governing support modifications,
provides:
(c) Pursuant to a petition for modification, the trier
of fact may modify or terminate the existing support
order in any appropriate manner based upon the
evidence presented without regard to which party
filed the petition for modification. If the trier of fact
finds that there has been a material and substantial
change in circumstances, the order may be increased
or decreased depending upon the respective incomes
of the parties, consistent with the support guidelines
and existing law, and each party’s custodial time
with the child at the time the modification petition is
heard.
Pa.R.C.P. 1910.19(c) (emphasis added).
The Master utilized the parties’ most recent paystubs to
calculate their projected net incomes for 2016. Husband’s
paystubs reflect projected 2016 earnings of $160,148.04,
resulting in a net [monthly] income of $8,721.47. Wife’s
paystubs reflect projected 2016 earnings of $46,371, resulting in
a net [monthly] income of $2,967.54. The difference in the
parties’ incomes is $5,753.93; and when multiplied by 40%, is
$2,301.57. Husband had been paying Wife $2,300 in alimony
pendente lite. There is a difference of $1.57 per month. [The
trial c]ourt denied Wife’s exception finding that there had not
been a material and substantial change in circumstances.
Trial Court Opinion, 5/12/17, at 6.
The master’s report presented the following, more detailed,
explanation of the calculations:
On August 26, 2015, Wife petitioned to modify the alimony
pendente lite alleging a material change in circumstances had
occurred since the entrance of the original order. Wife alleged
that Husband’s income had increased.
Husband submitted his paystubs from his employers.
According to the paystub from [Husband’s first employer],
(Husband’s exhibit A) Husband’s year-to-date gross income as of
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May 26, 2016 was $25,465.89. This amount also included
bonuses. When this amount is extrapolated to the end of the
year, his salary would be $60,192.82. According to the paystub
from [husband’s second employer], (Husband’s exhibit B)
Husband’s year to date gross income as of May 28, 2016 was
$42,289.19. When this amount is extrapolated to the end of the
year, his salary would be $99,995.96. Therefore, Husband’s
annual gross income from both employers is $160,148.78.
Placing Husband as married filing separately for federal income
tax purposes, and taking into consideration his annual union
dues of $230, Husband’s net monthly income is $8,721.47.
Wife submitted her paystubs from her employer.
According to the paystub submitted by Wife, (Exhibit 26) her
year-to-date gross income as of April 29, 2016, was $16,051.50.
When this amount is extrapolated to the end of the year, her
salary would be $46,371. Placing Wife as married filing
separately for federal income tax purpose, her net monthly
income is $2,967.54.
The difference between the parties’ net monthly incomes
of $5,753.93, multiplied by 40%, is $2,301.57. As Husband has
been paying $2,300 per month to Wife, it appears that a
modification of the existing Alimony Pendente Lite is not
warranted and her petition is dismissed.
Master’s Report, 8/3/16, at 10-11.
Upon review of the certified record, it is obvious that the master and
the trial court relied upon five months of pay stubs in calculating Husband’s
projected gross income for 2016. The trial court and master relied upon four
months of pay stubs in calculating Wife’s projected income for 2016. This
method is in contradiction with Pa.R.C.P. 1910.16-2(a), which instructs that
“[m]onthly gross income is ordinarily based upon at least a six-month
average of all of a party’s income.” Therefore, we are constrained to
conclude that the trial court abused its discretion in failing to employ the
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method of calculation set forth in Rule 1910.16-2(a). Hence, we reverse the
portion of the trial court’s order that denied Wife’s exception number five,
which alleged an error by the master in calculating the parties’ incomes
pursuant to her request for modification of alimony pendente lite.
Furthermore, we remand the matter to the trial court for a proper calculation
of the parties’ incomes as directed under Rule 1910.16-2.
Wife further claims that, in calculating the award of alimony pendente
lite, the trial court erred in failing to account for the mortgage deviation and
Wife’s unreimbursed medical expenses. However, this allegation is waived
for purposes of appeal.
Generally, pursuant to Pa.R.A.P. 302(a), “issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.” See
Twilla v. Twilla, 664 A.2d 1020, 1027 (Pa. Super. 1995) (holding issues
waived in equitable distribution matter where the wife failed to raise the
issues before the lower court in exceptions to master’s report). Likewise,
Pa.R.C.P. 1920.55-2(b) addresses exceptions to master’s reports and
provides that “[e]ach exception shall set forth a separate objection precisely
and without discussion. Matters not covered by exceptions are deemed
waived unless, prior to entry of the final decree, leave is granted to file
exceptions raising those matters.” See Nagle v. Nagle, 799 A.2d 812, 821
(Pa. Super. 2002) (concluding that issue was waived because it was not
included in exceptions to the master’s report); Schuback v. Schuback, 603
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A.2d 194, 197 (Pa. Super. 1992) (finding issue to be waived and refusing to
consider it for the first time on appeal because the husband failed to present
the claim in his exceptions to the master’s report).
Our review of the record reflects that Wife failed to present specifically
the issue of the mortgage deviation and unreimbursed medical expenses to
the trial court. The only exception raised by Wife pertaining to modification
of alimony pendente lite provides as follows:
5. The Master erred as a matter of law and/or abused his
discretion when he denied Wife’s request for modification of the
alimony pendent lite order; specifically, the Master erred and/or
abused his discretion, by failing to accurately calculate the
income of the parties and by failing to tax-impact the income of
the parties relative to the payment of alimony pendent lite.
Wife’s Exceptions, 8/22/16, at 2.
Accordingly, Wife has failed to preserve this particular claim of error in
the calculation of the award of alimony pendente lite for appellate review.
Consequently, this argument has been waived.
Wife next argues that the trial court improperly distributed the marital
estate. Wife’s Brief at 19-21. Wife notes that the trial court awarded her
fifty-five percent of the marital estate and fifty percent of the proceeds of
the marital residence. Id. at 19-20. Wife contends that, because she
stopped working when her daughter was born, she lost the ability to add
value to her retirement savings. Id. at 20. Wife further claims that the
factors that weigh in favor of her receiving a larger share of the marital
estate include the length of the marriage, Wife’s age being sixty-two, her
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contributions to the household, and her current and future income versus
Husband’s income. Id. Wife is seeking a sixty percent share of both the
marital estate and proceeds from the sale of the marital residence. Id. at
21.
The following principles guide our review:
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. An abuse of discretion is not found
lightly, but only upon a showing of clear and convincing
evidence.
Smith v. Smith, 904 A.2d 15, 18 (Pa. Super. 2006) (quoting McCoy v.
McCoy, 888 A.2d 906, 908 (Pa. Super. 2005)). As we previously observed,
in the context of an equitable distribution of marital property, a trial court
has the authority to divide the award as the equities presented in the
particular case may require. Mercatell, 854 A.2d at 611. “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 Morgante v.
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3 The relevant factors in an equitable distribution determination are:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(Footnote Continued Next Page)
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Morgante, 119 A.3d 382, 387 (Pa. Super. 2015) (quoting Biese v. Biese,
979 A.2d 892, 895 (Pa. Super. 2009)). “[A] master’s report and
(Footnote Continued) _______________________
(3) The age, health, station, amount and sources of income,
vocational skills, employability, estate, liabilities and needs of
each of the parties.
(4) The contribution by one party to the education, training or
increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of
capital assets and income.
(6) The sources of income of both parties, including, but not
limited to, medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the
acquisition, preservation, depreciation or appreciation of the
marital property, including the contribution of a party as
homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the
marriage.
(10) The economic circumstances of each party at the time the
division of property is to become effective.
(10.1) The Federal, State and local tax ramifications associated
with each asset to be divided, distributed or assigned, which
ramifications need not be immediate and certain.
(10.2) The expense of sale, transfer or liquidation associated
with a particular asset, which expense need not be immediate
and certain.
(11) Whether the party will be serving as the custodian of any
dependent minor children.
23 Pa.C.S. § 3502(a).
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recommendation, although only advisory, is to be given the fullest
consideration, particularly on the question of credibility of witnesses,
because the master has the opportunity to observe and assess the behavior
and demeanor of the parties.” Moran v. Moran, 839 A.2d 1091, 1095 (Pa.
Super. 2003).
The trial court addressed the distribution of the marital estate as
follows:
The parties were married for 26 years. Hearing transcript,
p. 4-5. Both parties are employed and nearing retirement age.
Wife is slightly closer to retirement and earning a lesser income.
Based on Husband’s career and age, he has a greater
opportunity for future acquisition of capital assets and income.
Both parties receive benefits through their respective
employment. The marital estate is comprised mainly of
retirement accounts with little tangible property going to the
parties other than vehicles. In regards to the parties’ standard
of living during the marriage, Husband testified, “It was nice.
We went on a nice vacation every year. We didn’t go to the
French Alps, but, we would go to Florida once a year. We would
eat out a lot. It was okay. It was nice. I wouldn’t say
extravagant. But it was fine.” Hearing transcript, p. 14. The
parties’ only child is emancipated.
Based on these factors, a 55%/45% distribution in favor of
Wife, excluding the marital residence, is equitable. This
distribution provides slightly more to Wife given her lesser
income and lesser opportunity for acquisition of future assets.
Trial Court Opinion, 5/12/17, at 12-13. Upon our thorough review of the
record, we agree with the trial court and conclude that the trial court did not
abuse its discretion in distributing the marital property.
In her fourth issue, Wife argues that the trial court erred in denying
her claim for counsel fees. Wife’s Brief at 22-24. Wife contends that
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Husband’s income provides him with the ability to pay all or a substantial
portion of Wife’s counsel fees. Wife posits that she needs the award of
counsel fees in order to pursue her divorce and not to be at a financial
disadvantage.
Before we address this issue, we must consider whether the claim
presented by Wife has been preserved for appellate review. Wife alleges
that she raised the issue of her request for counsel fees in her exception
number six to the Master’s Report. Wife’s Brief at 22.
As we previously discussed, pursuant to Pa.R.A.P. 302(a), “issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.” Further, Pa.R.C.P. 1920.55-2(b) explains that “[e]ach exception
[to a master’s report] shall set forth a separate objection precisely and
without discussion. Matters not covered by exceptions are deemed waived
unless, prior to entry of the final decree, leave is granted to file exceptions
raising those matters.”
Our review of the record reflects that Wife has failed to present
precisely this issue challenging the denial of her claim for counsel fees to the
trial court. The trial court made the following relevant observation:
The Master’s Report and Recommendation denied Wife’s
claim for counsel fees while awarding Husband’s claim for
counsel fees in the amount of $2,500 to [be] paid by Wife. On
Exceptions, Wife raised the following issues pertaining to counsel
fees:
#6 The Master erred as a matter of law and/or
abused his discretion when he decided that Wife
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should pay $2,500 in counsel fees to Husband;
specifically, the Master erred by awarding fees
to Husband on the basis that Wife should have
been satisfied with informal discovery, while
disregarding Husband’s failure to either informally or
formally provide the model year of his vehicle to
Wife, by disregarding Husband’s failure to provide
the balance in his bank account at separation to
Wife, by disregarding Husband’s failure to provide
Marriott points information to Wife; and by
disregarding the expenses, fees, and costs which
Husband caused Wife to incur due to Husband’s
refusal to provide any documents except by way of
authorizations; additionally, the Master erred by
awarding fees on the finding that Wife did not
provide her address to Husband even though
Husband was dropping their daughter at Wife’s
address.
#7 The Master erred and abused his discretion by
awarding [f]ees to Husband based upon Wife’s
request to transfer venue to Butler County, when
Husband gave a false Allegheny County address
under oath in his verified divorce complaint, both
parties were living together in Butler County at the
time when the divorce complaint was filed, and both
parties still live in Butler County.
Wife failed to take exceptions to her denied request for
counsel fees. Wife’s Brief in Support of Exceptions is scant of
any reference to her request for counsel fees. . . . Therefore,
this issue has been waived.
Trial Court Opinion, 5/12/17, at 8 (bold emphasis added, italic emphases in
original). Upon review of the record, we conclude that the language Wife
used in her exceptions was an argument to support her assertion that
counsel fees should not have been awarded to Husband. The language was
not an actual request that Wife be awarded counsel fees, as required under
Pa.R.C.P. 1920.55-2(b). Moreover, Wife’s Brief in Support of Exceptions
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filed with the trial court did not address the lack of counsel fees being
awarded to Wife. Wife’s Brief in Support of Exceptions, 10/31/16 (Docket
#45). Hence, we are constrained to agree with the trial court that Wife has
failed to preserve this issue for appellate review. Accordingly, we conclude
that the issue has been waived.
Wife last argues that the trial court erred in awarding counsel fees to
Husband. Wife’s Brief at 25-28. Wife claims the trial court abused its
discretion in awarding Husband $2,500 in counsel fees, alleging that there
was no basis in the record for such a sanction. She asserts that Husband did
not properly request such sanctions because his request for counsel fees was
raised under section 3702 of the Divorce Code, which permits counsel fees
to a dependent spouse in order to place the parties on equal financial
footing. Id.
We observe that Section 3702 of the Divorce Code provides that “the
court may allow a spouse . . . reasonable counsel fees and expenses.” 23
Pa.C.S. § 3702. “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.” McCoy, 888 A.2d at 909
(quoting Teodorski, 857 A.2d at 201). “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
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resources, the value of the services rendered, and the property received in
equitable distribution.” Id. (quoting Teodorski, 857 A.2d at 201).
Moreover, we observe that counsel fees were imposed in favor of
Husband pursuant to 42 Pa.C.S. § 2503, which provides, in relevant part, as
follows:
§ 2503. Right of participants to receive counsel fees
The following participants shall be entitled to a reasonable
counsel fee as part of the taxable costs of the matter:
* * *
(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.
42 Pa.C.S. § 2503(7). In addition, we have stated:
Section 2503(7) is a statutory provision enabling a participant to
receive reasonable counsel fees when another participant
engages in dilatory, obdurate or vexatious conduct during the
pendency of a matter. In re Estate of Liscio, 432 Pa. Super.
440, 638 A.2d 1019 (1994). . . . Moreover, “it is well-settled
that this Court will not reverse the trial court on its decision to
award counsel fees absent an abuse of discretion.” O’Connell
v. O’Connell, 409 Pa. Super. 25, 597 A.2d 643, 647 (1991)
(citation omitted).
Bonds v. Bonds, 689 A.2d 275, 279–280 (Pa. Super. 1997). See Kulp v.
Hrivnak, 765 A.2d 796, 800 (Pa. Super. 2000) (trial court award of
attorneys’ fees affirmed where lower court found the appellants’ conduct
dilatory, obdurate, and vexatious). Cf. Busse v. Busse, 921 A.2d 1248,
1258 (Pa. Super. 2007) (no abuse of discretion for award of counsel fees
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where the husband prolonged the already extensive litigation, he was not
forthcoming with information the wife requested, and the wife incurred
counsel fees as a result of the husband’s conduct).
The trial court addressed Wife’s challenge to the award of counsel fees
to Husband as follows:
Part of the Master’s Report and Recommendation included
a $2,500 counsel fee award for Husband to be paid by Wife. The
Master found, “Husband’s request for counsel fees stems from
his contention that Wife has caused him unnecessary counsel
fees throughout the litigation. Husband’s contention is not
without merit.” The Master went on to list the ways in which
Wife caused Husband to incur unnecessary counsel fees. Wife
filed multiple Exceptions related to the counsel fees Husband
requested and the grounds upon which they were awarded.
Wife first argued that the Master erred as a matter of law
when he decided that Wife should pay $2,500 in counsel fees to
Husband by sua sponte awarding counsel fees without an
underlying motion for sanctions or a showing of need. Under 42
Pa.C.S.A. §2503, the following party may be awarded counsel
fees, “(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.” Husband’s
Petition Raising Claims filed February 10, 2016, included a claim
for counsel fees. Specifically, Husband’s Petition stated:
COUNT III — COUNSEL FEES, COSTS AND
EXPENSES
3. [Husband] has employed the Law Firm of
VOELKER & COLTON, LLC and has been put to
considerable expense in the preparation of this case
because of [Wife’s] conduct, in the employment of
counsel for work which should not have been
otherwise necessary, appraisers and/or valuators
and the payment of legal fees, costs and expenses
related to this case.
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4. Plaintiff believes [Wife] should pay the above-
mentioned legal feels, costs and expenses related to
this action.
Given Husband’s request for counsel fees, the Master did not
award counsel fees sua sponte.
Wife also argued that the Master erred as a matter of law
by awarding counsel fees based on the finding that Wife
surreptitiously moved from the marital residence and that Wife
had been uncooperative with the sale of the property. The
Master based the counsel fee award on the finding that:
Husband’s counsel has had to write numerous letters
to Wife’s counsel concerning Wife’s failure to pay
expenses associated with the [marital] residence,
including the real estate taxes, this coming after
Wife’s counsel initially acknowledged Wife’s
obligation to pay these expenses. Wife’s actions
surrounding the marital residence have also caused
Husband unnecessary counsel fees, such as her
failing to inform Husband she vacated the marital
residence and decided to no longer pay the mortgage
associated with it. Wife’s continuous wavering with
respect to selling the residence has also caused
Husband’s attorney to do additional work and
Husband incurring additional fees.
The parties separated July 1, 2013. Hearing transcript, p.
5. Husband testified that aside from the first few months
following separation, he paid support to Wife, who then paid the
mortgage on the marital residence. Hearing transcript, p. 35.
Husband testified that this arrangement continued for nearly two
and-a-half years. Hearing transcript, p. 36. Husband made no
mortgage payments, utility payments, real estate tax payments
or homeowners insurance payments during this time. Id. Then,
Husband stated that in early 2016, he began receiving phone
calls that mortgage payments were not being made, utility bills
were being sent to Husband unpaid with penalties, and taxes for
2014, 2015 and 2016 were owed, totaling over $11,000.
Hearing transcript, p. 36-37. Husband assumed payments for
the expenses fearing foreclosure. Hearing transcript, p. 45.
Wife testified that she stopped paying the mortgage because she
“ran out of money.” Hearing transcript, p. 173. Wife left the
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marital residence, “Because I wanted out of the house. I never
wanted that house any way. My husband picked that house.”
Hearing transcript, p. 173.
In regards to the sale of the residence, Husband testified
that there was an offer of $212,500 that he accepted, but Wife
declined. Hearing transcript, p. 48. This was the only offer
submitted to the parties. Hearing transcript, p. 48. Wife
responded that she turned down the offer because, “I think its
worth a lot more.” Hearing transcript, p. 204. Husband testified
that he initially agreed to Wife’s request to have the home
auctioned. Hearing transcript, p. 49. Husband signed the
appropriate paperwork for the auction to occur, but “Wife backed
out.” Hearing transcript, p. 49. Wife then testified that she
backed out of the auction process because she did not realize
she had to pay a 10% commission. Hearing transcript, p. 205.
Wife acknowledged that six weeks passed before Husband was
informed that the auction process had been permanently halted.
Hearing transcript, p. 205.
“A master’s report and recommendation, although only
advisory, is to be given the fullest consideration, particularly on
the question of credibility of witnesses, because the master has
the opportunity to observe and assess the behavior and
demeanor of the parties.” Childress v. Bogosian, 12 A.3d 448,
455-456 (Pa. Super. Ct. 2011). With regards to witness
credibility, “It is within the province of the trial court to weigh
the evidence and decide credibility and this Court will not reverse
those determinations so long as they are supported by the
evidence.” Id. The Master had the opportunity to assess the
witness’s credibility and make a recommendation based thereon.
The record supports the Master’s findings and Recommendation
regarding an award for Husband’s counsel fees based on Wife’s
conduct surrounding the marital residence.
Trial Court Opinion, 5/12/17, at 9-11.
Upon review of the certified record, we agree with the trial court that
Husband, in his petition raising claims, properly requested counsel fees
pursuant to 42 Pa.C.S. § 2503(7). Husband’s Petition Raising Claims,
2/10/16, at unnumbered 1-2. Accordingly, we discern no abuse of discretion
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by the trial court in awarding the counsel fees to Husband, which were
incurred due to Wife’s conduct pertaining to the marital residence.
Order affirmed in part and reversed in part. Case remanded for
further calculations of income for purposes of modification of alimony
pendente lite. Husband’s motion to dismiss Wife’s abandoned issues is
granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2018
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