J-A18038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEPHANIE WEYMER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DAVID WEYMER : No. 87 WDA 2019
Appeal from the Order Entered December 19, 2018
in the Court of Common Pleas of Lawrence County
Civil Division at No(s): 87 of 2016, D.R.
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 30, 2019
Stephanie Weymer (“Wife”) appeals from the Order establishing the
spousal support obligation owed to Wife by her ex-husband, David Weymer
(“Husband”). We affirm.
Husband and Wife were married in April 2012. The parties did not have
children together. On February 9, 2016, Husband filed a Complaint in
Divorce.1 Shortly thereafter, Wife filed an action for spousal support against
Husband. After a hearing, the trial court entered an Order on August 8, 2016
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1 The divorce action and the matter of equitable distribution were later
bifurcated.
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(the “Support Order”), requiring Husband to pay Wife $1,466.24 per month in
spousal support, plus $100 towards arrears.2
Following a procedural history not pertinent to this appeal, on March 15,
2017, the parties filed a “Consent Motion to Suspend Support Collection” (“the
Consent Motion”). By an Order entered on the same date, the trial court
granted the Consent Motion,3 and collection of spousal support was stayed
from that point forward. The trial court later entered a Divorce Decree on
March 21, 2018.
On January 24, 2018, Wife filed a “Motion to Reinstate Domestic
Relations Order and Collections.” Therein, she requested that the trial court
reinstate Husband’s spousal support obligation, and asserted that Husband
owed her “approximately $30,000 in spousal support/alimony pending
litigation” (which we also refer to as “APL”). Motion to Reinstate, 1/24/18, at
¶ 10.
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2In response, Husband filed a Motion to modify his spousal support obligation,
and a Motion (“the Entitlement Motion”) wherein he challenged Wife’s
entitlement to spousal support due to Husband’s alleged disability.
3 In a subsequent Order, the trial court explained the Consent Motion as
follows: “The agreement between the parties was entered into with the
understanding that the [Divorce] Master’s Report would resolve the issue of
spousal support/alimony[,] and that [the] divorce would be granted shortly
thereafter, thus rendering the [E]ntitlement [Motion] moot.” Order, 5/23/18,
at 2.
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By an Order entered on May 23, 2018 (the “May 23 Order”), the trial
court determined that Wife had waived her right to claim spousal support
arrearages, effective March 15, 2017 (i.e., the date of the Consent Motion).
See Order, 5/23/18, at 2-3 (stating that “when the [S]upport [O]rder in this
matter was suspended on March 15, 2017, the effect of the [O]rder was
eliminated until the suspension was lifted. Because the effect of the [S]upport
[O]rder was eliminated, arrearages have not accrued while the [S]upport
[O]rder is suspended.”).4 The trial court also stated, in the May 23 Order,
that Wife could file a claim for APL, “[i]f [she] is able to provide demonstrable
evidence of her inability to retain counsel in the pending equitable distribution
hearings[.]” Id. at 3. Notably, however, Wife never filed a claim for APL, nor
did she challenge the May 23 Order.
In December 2018, the trial court conducted a hearing on the amount
of spousal support arrearages that Husband owed Wife. Following this
hearing, the court entered an Order on December 19, 2018 (the “Dec. 19
Order”). Therein, the court (1) determined the respective monthly incomes
for the parties between August 26, 2016, and March 15, 2017 (i.e., the time
from which Husband filed for modification of his spousal support obligation, to
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4 Additionally, the trial court terminated Wife’s entitlement to spousal support
effective March 21, 2018, i.e., the date of entry of the Divorce Decree. See
Horn v. Horn, 564 A.2d 995, 996 (Pa. Super. 1989) (stating that “[t]he duty
to provide spousal support is derived from marital obligations….” (citations
omitted)).
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the date of the Consent Motion); and (2) ordered that Husband’s monthly
spousal support obligation, from August 26, 2016, to December 31, 2016, was
$1,507.26, and that his support obligation, from January, 1, 2017, to March
15, 2017, was $970.86 per month.
Wife filed a timely Notice of Appeal from the Dec. 19 Order. In response,
by an Order entered on February 4, 2019, the trial court directed Wife to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.5 On
February 20, 2019, Wife timely filed a Concise Statement. Notably, Wife
raised only one issue therein: “Whether the [c]ourt erred in determining [that
Wife] knowingly, intelligently and voluntarily waived her right to alimony
pending litigation, wherein the parties agreed to stay collections only pending
a master’s determination on the issue of alimony?” Concise Statement,
2/20/19.
The trial court then issued a Rule 1925(a) Opinion, wherein it advanced
the following substantive analysis in rejecting Wife’s issue:
Upon review of the entire record in this matter, the [c]ourt has
never made a determination that [Wife] has knowingly,
intelligently and voluntarily waived her right to [APL]. In the [May
23] Order …, the [c]ourt specifically stated that[,] “[i]f [Wife] is
able to prove demonstrable evidence of her inability to retain
counsel in the pending equitable distribution hearings, this [c]ourt
will entertain a motion to determine if [APL] is appropriate.” A
motion requesting a hearing to determine the appropriateness of
[APL] was never filed.
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5This Order, which was sent to the parties, instructed Wife that any issue that
she did not raise in her concise statement would be deemed waived.
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Trial Court Opinion, 3/5/19, at 2 (quoting Order, 5/23/18, at 3).6
In her brief on appeal, Wife presents the following issues for our review:
1. Whether [Wife’s] … [Rule 1925(b) Concise] [S]tatement …
sufficient[ly] described the pertinent issue for the [trial court]
judge?
2. Whether the May 23 Order … was a final[,] appealable Order of
Court?
3. Whether the [trial] [c]ourt erred in determining [that Wife]
knowingly, intelligently, [and] voluntarily waived her spousal
support for the period of March 17, 2017[,] to when the
Divorce Decree was entered on March 18, 2018[,] pursuant to
the [c]ourt’s May 23 [] Order, where the parties agreed to stay
collections only pending a Master’s hearing on the issue of
alimony and enter into a consented[-]to divorce[;] however[,]
[Wife] raised the issue of marital fault with the [M]aster and
on [E]xceptions to the [c]ourt?
Brief for Appellant at 6 (emphasis added; issues renumbered).
Preliminarily, we must determine whether Wife has preserved her issues
for our review. See, e.g., Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa.
Super. 2007) (emphasizing that “[t]he fact [that] [a]ppellants filed a timely
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6 Wife asserts in her brief that, on March 15, 2019, her counsel filed a Petition
for leave to file an amended Rule 1925(b) concise statement, but the trial
court denied this purported Petition because Wife filed it approximately nine
months after the time for filing a concise statement had expired. Brief for
Appellant at 12. However, neither of these purported documents are
contained within the certified record; thus, we may not consider them. See
Keystone Tech. Grp., Inc. v. Kerr Grp., Inc., 824 A.2d 1223, 1228 n.6 (Pa.
Super. 2003) (stating that “[i]t is axiomatic that an appellate court is limited
to considering only those facts which have been duly certified in the record on
appeal and, for purposes of appellate review, what is not of record does
not exist.”).
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Pa.R.A.P. 1925(b) statement does not automatically equate with issue
preservation.”). This Court has summarized the law regarding preservation
of issues in a Rule 1925(b) concise statement as follows:
Pa.R.A.P. 1925(b) provides that a judge entering an order giving
rise to a notice of appeal “may enter an order directing the
appellant to file of record in the trial court and serve on the judge
a concise statement of the errors complained of on appeal
(‘Statement’).” Rule 1925 also states that “[i]ssues not included
in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.
1925(b)(4)(vii). In Commonwealth v. Lord, 553 Pa. 415, 719
A.2d 306 (1998), our Supreme Court held that “from this date
forward, in order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them to
file a statement of matters complained of on appeal pursuant to
Rule 1925. Any issues not raised in a 1925(b) statement will be
deemed waived.” Lord, 719 A.2d at 309 [(some capitalization
omitted)]. This Court has held that “[o]ur Supreme Court
intended the holding in Lord to operate as a bright-line rule, such
that ‘failure to comply with the minimal requirements of Pa.R.A.P.
1925(b) will result in automatic waiver of the issues
raised.’” Greater Erie Indus. Dev. Corp. v. Presque Isle
Downs, Inc., 2014 PA Super 50, 88 A.3d 222, 224 (Pa. Super.
2014) (en banc) (emphasis in original).
U.S. Bank, N.A. v. Hua, 193 A.3d 994, 996-97 (Pa. Super. 2018) (some
citations omitted); see also Greater Erie Indus. Dev. Corp., 88 A.3d at 224
(stating that “it is no longer within this Court’s discretion to ignore the internal
deficiencies of Rule 1925(b) statements.”).
Moreover, this Court has explained that
[t]he purpose of Pa.R.A.P. 1925(b) is to aid appellate review by
providing a trial court the opportunity to focus its opinion upon
only those issues that the appellant plans to raise on appeal, and
guarantees predictable consequences for failure to comply with
the rule. Additionally[,] the simplicity of Pa.R.A.P. 1925(b)’s
requirements impose only a minor burden on the appellant, who
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also may proactively seek from the trial court an extension of time
to file[,] or the ability to amend a statement if needed.
Tucker, 939 A.2d at 347-48 (citation, brackets and ellipses omitted).
In the instant appeal, Wife’s court-ordered Concise Statement
challenged only the trial court’s purported ruling that Wife had knowingly
waived her right to claim APL, not spousal support. Indeed, the trial court, in
the single paragraph of substantive analysis it advanced in the Rule 1925(a)
Opinion, determined that the court, in fact, had never determined that Wife
had waived her right to claim APL; and the court never mentioned or
addressed the matter of spousal support. See Korman Commer. Props. v.
Furniture.com, LLC, 81 A.3d 97, 102 (Pa. Super. 2013) (determining that
appellant had waived its issue on appeal, where the trial court did not address
same in its Pa.R.A.P. 1925(a) opinion, and appellant failed to preserve same
in its Rule 1925(b) concise statement); see also U.S. Bank, N.A., supra.
Accordingly, because Wife did not raise a challenge concerning spousal
support in her Concise Statement, we are compelled to rule that she has failed
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to preserve her challenge to same on appeal. See U.S. Bank, supra.7
Finally, we are unpersuaded by Wife’s assertion that “spousal support is
a subsidiary issue included within an alimony pending litigation.” Brief for
Appellant at 20 (relying upon Pa.R.A.P. 1925(b)(4)(v) (providing that “[e]ach
error identified in the [concise] [s]tatement will be deemed to include every
subsidiary issue contained therein which was raised in the trial court[.]”)). It
is well established that spousal support and APL are distinct concepts. See
Horn, 564 A.2d at 996 (collecting cases explaining the differences between
APL and spousal support, and the respective duties of the obligor spouse. This
Court held that the only issue properly before the trial court was the issue of
spousal support, and because the trial court’s opinion addressed only the issue
of APL, rather than spousal support, the appeal had to be dismissed and the
case remanded for a hearing and findings on the issue of spousal support).
Based on the foregoing, we affirm the trial court’s Dec. 19 Order.
Order affirmed.
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7 Additionally, we have reviewed Wife’s Argument in connection with her
primary issue on appeal, i.e., regarding waiver of her entitlement to collect
spousal support during the above-mentioned periods. Even if we were
empowered to rule on this Argument, it appears that it entitles Wife to no
relief, where she is essentially retroactively attacking the May 23 Order, which
she did not challenge before the trial court prior to filing her Concise
Statement. See Irwin Union Nat’l Bank & Tr. Co. v. Famous, 4 A.3d 1099,
1104 (Pa. Super. 2010) (stating that “issues not raised below cannot be
advanced for the first time in a 1925(b) statement or on appeal.” (citing
Pa.R.A.P. 302(a)).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2019
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