J.M. v. M.M. ( 2020 )

J-A09006-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
M.M. : No. 834 WDA 2019
Appeal from the Order Entered June 28, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD-15-005302-001
BEFORE: SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 16, 2020
Appellant, J.M. (“Wife”), appeals pro se from the trial court’s equitable
distribution, child support, and alimony order dated January 31, 2019, as well
as other interlocutory orders made final by the entry of the divorce decree on
June 28, 2019.1, 2 After careful review, we affirm in part, vacate in part, and
remand for the limited purpose of recalculation of the child support order.
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* Retired Senior Judge assigned to the Superior Court.
1 With some exceptions, issues in divorce are reviewable after entry of the
divorce decree and the resolution of all economic issues. Fried v. Fried, 501
A.2d 211, 215–216 (Pa. 1985). We have corrected the caption to reflect that
the entry of the divorce decree is the final appealable order.
2 Wife has filed numerous appeals from interlocutory orders throughout this
litigation. The appeals filed at 1141 WDA 2017 and 1142 WDA 2017 were
quashed upon application by M.M. (“Husband”) on September 8, 2017. On
March 13, 2019, this Court quashed the appeal filed at 190 WDA 2019 sua
sponte.
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The trial court recounted the factual and procedural history as follows:
[Wife] and [Husband] married in 2004 and separated in
2015. They are the parents of three children. Husband filed a
Complaint in Divorce in January 2016, including a count related to
equitable distribution. Wife responded a few weeks later by filing
her own petition raising claims including [alimony pendente lite],
alimony, child support, and equitable distribution. The parties
engaged in protracted litigation of these issues before one of the
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Relevant to the instant appeal, Wife initially filed five separate notices
of appeal docketed at 834 WDA 2019 (May 31, 2019 order denying Wife’s
petition for contempt), 835 WDA 2019 (May 20, 2019 order denying
reconsideration of order authorizing Husband as sole agent to sell the marital
home), 1002 WDA 2019 (January 31, 2019 order on Wife’s exceptions to the
Master’s Report and Recommendation), 1003 WDA 2019 (order denying
reconsideration of Wife’s petition for relief of certain discovery matters), and
1004 WDA 2019 (July 12, 2017 order dismissing Wife’s exceptions to Master’s
Report and Recommendation related to child support and contempt). On July
24, 2019, this Court denied Wife’s request to consolidate the appeals and we
dismissed the appeals at 835 WDA 2019, 1002 WDA 2019, 1003 WDA 2019,
and 1004 WDA 2019 as duplicative and unnecessary. We further directed that
all properly preserved issues may be raised in the appeal at 834 WDA 2019.
Order, 7/24/19, at unnumbered 1.
Ironically, Wife failed to file an appeal from the entry of the divorce
decree, which is the appealable order in this matter. We will not, however,
quash the appeal because of this procedural misstep. The decree of divorce
was entered in this case on June 28, 2019. Within thirty days, on July 3,
2019, Wife re-filed notices of appeal from the trial court’s January 31, 2019
order on Wife’s exceptions, the July 21, 2017 order concerning discovery, and
the July 12, 2017 order dismissing exceptions to the Master’s report and
recommendation. Although a pre-divorce order of equitable distribution is an
interlocutory order, this Court may review the order once “it has been
rendered final by the entry of a decree in divorce.” Campbell v. Campbell,
516 A.2d 363, 366 (Pa. Super. 1986) (en banc); see also Busse v. Busse,
921 A.2d 1248, 1253 n.2 (Pa. Super. 2007) (same). “The Rules of Appellate
Procedure were adopted to insure the orderly and efficient administration of
justice at the appellate level. They were not intended, however, to be so
rigidly applied as to result in manifest injustice, particularly when there has
been substantial compliance and no prejudice.” Stout v. Universal
Underwriters Insurance Co., 421 A.2d 1047, 1049 (Pa. 1980).
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[c]ourt’s permanent masters, as well as before two judges of this
Division. The [c]ourt entered a divorce decree on June [28],
2019.
* * *
The matter was initially assigned to the Honorable Hugh McGough,
who addressed preliminary issues in March 2016. On March 9,
2016, in response to a motion presented by Wife, the [c]ourt
ordered Husband to make timely mortgage payments on the
marital home. On March 23, 2016, the [c]ourt entered a consent
order granting Husband exclusive possession of the marital home.
The [c]ourt then referred the matter to a Hearing Officer to
determine issues of child support and alimony pendente lite.
Following a full-day hearing on August 31, 2016, the [c]ourt
entered an order directing Husband to pay Wife alimony pendente
lite and child support in the amount of $1,743/month. Wife’s
exceptions to this order were dismissed on November 29, 2016.
By early 2017, the [c]ourt focused on a contempt hearing
regarding Husband’s child support and began to move forward on
equitable distribution. Following a March 27, 2017 hearing,
Hearing Officer Peggy Ferber issued Findings and
Recommendations regarding child support and contempt issues.
Wife filed 25 exceptions to the Hearing Officer’s Findings and
Recommendations, asserting multiple flaws. The [c]ourt
dismissed Wife’s exceptions on July 12, 2017.
On June 21, 2017 the [c]ourt appointed a master to conduct
the equitable distribution proceedings and issued an order
providing for discovery. On June 29, 2017 the [c]ourt denied
Wife’s Petition for Special Relief to compel discovery responses
and to examine Husband’s computers, and on July [24], 2017, the
[c]ourt denied Wife’s Petition for Reconsideration.
Judge McGough recused himself on September 8, 2017, and
the matter was reassigned to the undersigned Judge on
October 2, 2017. Wife immediately filed a Petition for Contempt
of Mortgage. On October 12, 2017, the [c]ourt issued an order
reiterating Husband’s obligation to make timely mortgage
payments. Wife then filed another Petition for Contempt of
Mortgage on October 26, 2017. As the equitable distribution
matter was already referred to a master, the [c]ourt directed the
parties to promptly schedule the master’s hearing to resolve the
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equitable distribution matters and to address the mortgage
contempt issue as well. After the master’s hearing was scheduled,
Wife filed two more Petitions for Contempt of Mortgage, both of
which the [c]ourt denied, as the [c]ourt had already scheduled a
contempt proceeding to address the issue.
On December 22, 2017, Wife presented a Request for
Modification of Support. The [c]ourt added that issue to the
matters to be addressed at the upcoming master’s hearing.
Master Peggy Ferber conducted the hearing on February 21, 2018
and filed her Master’s Report and Recommendation on March 19,
2018. An interim child support order was entered, setting
Husband’s support obligation at $765/month. On April 23, 2018,
Wife filed 44 exceptions to the Master’s Report and
Recommendation. The [c]ourt heard argument on the exceptions
on September 25, 2018[,] and entered an Order regarding Wife’s
exceptions on January [31], 2019. The [c]ourt dismissed most of
Wife’s exceptions but granted the exception regarding the
Master’s failure to address the mortgage contempt matter in her
report.
The [c]ourt accordingly held a hearing regarding the
mortgage contempt matter on April 25, 2019. By then, the parties
and the [c]ourt all were aware of the need to arrange for the sale
of the marital home. In response to both parties raising the issue
at the contempt hearing, the [c]ourt entered an Order granting
Husband the authority to sell the marital home. Wife requested
reconsideration of that Order, which the [c]ourt denied on May 17,
2019. On May 31, 2019, following review of the exhibits and
testimony, the [c]ourt denied Wife’s request to hold Husband in
contempt for failure to make timely mortgage payments.
A divorce decree was entered on June [28], 2019.
Trial Court Opinion, 11/6/19, at 1–5 (footnotes omitted).
Wife’s Pa.R.A.P. 1925(b) statement raised sixteen issues and fifty-eight
sub-issues some of which have not been briefed on appeal. In her sixty-five
page appellate brief to this Court, Wife lists nine questions, one of which has
ten sub-issues. Wife’s Brief at 2–3. Issue eight in Wife’s brief concerning
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Husband’s continued failure to pay for Edgewood Country Club (“ECC”) was
not included in her 1925(b) statement.3 This issue is waived. See T.M.W. v.
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3 The only reference to ECC in Wife’s Pa.R.A.P. 1925(b) statement is that the
court erred “[b]y ordering [Husband’s] arrears to ECC to $0.00 & limit his
month[ly] payments to June, July, and August, when monthly dues are 12
months a year[.]” Wife’s 1925(b) statement, 7/23/19, at ¶ 10(3).
If we did review the issue of Husband’s failure to pay the ECC dues, we
would not conclude that the trial court abused its discretion or committed an
error of law in its resolution of this claim. After considering testimony of
Husband’s reduced income, see Master’s Report and Recommendation,
3/19/18, at 3 n.3, and noting that “Wife has had an unrealistic attitude
towards the standard of living she must have for herself and the children,” see
id. at 3 n.4, the Master recommended:
Husband’s obligation for payment to the [ECC] fees shall be limited
to $135/mo. for the 3 months of June, July and August each year.
If that is not satisfactory to the Club or to Wife, membership in the
Club can be cancelled. Any arrears as of 3/16/18 shall be set to
zero.
Master’s Report and Recommendation, 3/19/18, at 5. In response to Wife’s
exception to the Master’s recommendation on the ECC dues, the trial court
directed that “a final PACSES order be entered to effectuate the Master’s
report.” Order, 1/31/19, at 2. The trial court also did not specifically address
the question of the ECC dues in its Pa.R.A.P. 1925(a) opinion, concluding
generally: “Overall, the [c]ourt finds that the Master properly applied the
guidelines based on the facts she found at the February 21, 2018 hearing.
Further, the Master correctly adjusted the child support award based on
adjustments for equal shared custody . . . .” Trial Court Opinion, 11/16/19,
at 26–27.
As discussed, infra, at 16–17, the child support guidelines provide that a
parent is financially responsible for extracurricular activities that are beneficial
to the child and “the expenses associated with these activities are consistent
with the family's standard of living and station in life.” Pa.R.C.P. 1910.16-
6(d); Silver v. Pinskey, 981 A.2d 284, 302 (Pa. Super. 2009) (en banc).
Herein, after the Master evaluated Husband’s reduced income and Wife’s
impractical life style expectations, she impliedly determined that if Husband
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N.J.W., 227 A.3d 940, 947 (Pa. Super. 2020) (“an appellant’s failure to
include an issue in his Pa.R.A.P. 1925(b) concise statement waives that issue
for purposes of appellate review.). Moreover, issues one and three are not
reviewable because they are premised on different legal theories than those
presented in the 1925(b) statement. See Commonwealth v. Rush, 959
A.2d 945, 949 (Pa. Super. 2008) (holding an appellant may not present a new
legal theory on appeal, even if the new and original theories both support the
same general issue preserved in the trial court). 4
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could not negotiate a reduced fee with ECC, a country club membership would
not be consistent with the family’s station in life. Thus, the Master properly
assessed the evidence concerning responsibility for the ECC dues in the
context of the support guidelines, and the trial court did not abuse its
discretion or commit an error of law in accepting the Master’s
recommendation.
4 In Wife’s first appellate issue, she avers that the trial court abused its
discretion and/or committed an error of law by failing to apply the clean hands
doctrine to Husband. Wife’s Brief at 10. While in her Pa.R.A.P. 1925(b)
statement, Wife faulted the trial court for not taking negative inference from
some of Husband’s behavior concerning the parties’ finances, she did not refer
to the clean hands doctrine. Wife’s 1925(b) statement, 7/23/19, at ¶¶ 3(2),
3(3). Accordingly, issue one is waived.
Even if we addressed the negative inference allegation, we would conclude
that Wife was challenging Husband’s credibility regarding the reduction in his
income. This issue is addressed, infra.
In issue three, Wife claims that the trial court abused its discretion and/or
committed an error of law when it made arrears and support awards
retroactive without a pending petition. Wife’s Brief at 11. In her Rule 1925(b)
statement, however, Wife claims that an error occurred when the trial court
reduced Husband’s child support obligation without a hearing. Wife’s 1925(b)
statement, 7/23/19, at ¶ 8(17). Therefore, issue three is waived.
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The trial court addressed Wife’s burdensome concise statement as
follows:
Wife fails to cite the record regarding any of her 63 issues and
includes many general, sweeping claims.
The Superior Court could justifiably dismiss Wife’s appeal,
based on deficiencies in her Concise Statement. An appellant’s
concise statement must properly specify the error or errors to be
addressed on appeal. The Superior Court has held that trial courts
are impeded in preparing an opinion in cases where the appellant
fails to adequately identify in a concise manner the issues sought
to be pursued on appeal. A concise statement that is “too vague
to allow the court to identify the issues raised on appeal is the
functional equivalent of no Concise Statement at all.” The
Superior Court has further stated that when the trial court has to
guess what issues an appellant is appealing, that does not allow
for meaningful review. Appellants who file “extravagant” concise
statements that raise an “outrageous” number of issues risk
dismissal.
Although the Superior Court could deem all Wife’s issues
waived and dismiss her appeal in its entirety, this [c]ourt believes
that many of Wife’s complaints arise from a few key
determinations. Consequently, it seems appropriate to the [c]ourt
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In any event, the issue has no merit. In her brief, Mother contends that the
subject of the March 27, 2017 hearing was Husband’s contempt and that the
support issue was improperly considered therein. However, both Wife’s and
Husband’s pretrial statements submitted prior to the hearing acknowledge the
parties’ agreement to consolidate the contempt and support issues for
purposes of the March 27, 2017 hearing. See Wife’s Pretrial Statement,
3/21/17, at 3 (“Pacses filed a Petition for Contempt on Wife’s behalf dated
November 23, 2016, December 13, 2016. The parties agreed to consolidate
it with these support proceedings.”); see also Husband’s Pretrial Statement,
3/21/17, at 1 (after the contempt hearing was continued until December 13,
2016, “[t]he parties agreed at this time to include the issues regarding the
payment of support, the Verizon Wireless bill, the Verizon FIOS bill, and
unreimbursed medical expenses.”). Wife cannot now claim error when she
agreed to the consolidation of the support and contempt matters.
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to identify this more limited group of issues to enable the Superior
Court to review them.
This [c]ourt suggests that the Superior Court focus its
review on the following matters:
A. The [c]ourt’s decision to treat all the parties’ debts
as marital debt, accept Husband’s agreement to take
responsibility for all the debt, and assign the parties’
one significant asset - the marital home - to Husband.
B. The [c]ourt’s decision to authorize Husband to act
as sole agent to sell the marital home and to award all
proceeds to Husband, to be used to pay the marital
debts.
C. The [c]ourt’s decision to deny Wife’s request for
alimony.
D. The [c]ourt’s decision to deny Wife’s request that
the Court hold Husband in contempt for failure to
make timely mortgage payments.
E. The [c]ourt’s decision regarding child support.
Trial Court Opinion, 11/6/19, at 8–10 (footnotes and citations omitted). We
conclude that the trial court accurately summarized Wife’s issues as outlined
in her Pa.R.A.P. 1925(b) statement and we will address those appellate
arguments that are responsive to the trial court’s resolution of those questions
and/or have been properly preserved. Thus, Wife’s viable issues, renumbered
for ease of disposition, are:
1. Did the [c]ourt abuse its discretion and/or commit an error
of law by not verifying [Husband’s] income, not perform a
genuine assessment available for support and failing to
assign an earning potential to [Husband]?
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2. Did the [c]ourt abuse its discretion and/or commit an error
of law by [recommending] unreimbursed medical expenses
be handled in equitable distribution proceedings?
3. Did the [c]ourt abuse its discretion and/or commit an error
of law by [recommending] a reduction [in] support because
[Wife] failed to enroll the children in CHIP medical coverage?
4. Did the [c]ourt abuse its discretion and/or commit an error
of law by failing to award counsel fees to [Wife]?
5. Did the trial court abuse its discretion and/or commit an
error of law by not awarding the cost of activities under
[R]ule Pa.R.C.P. 1910.16-6 to be proportionate to the
parties[’] income?
6. Did the [Trial] Court abuse its discretion and/or commit an
error of law when it failed to find [Husband] in contempt for
not paying the mortgage?
Wife’s Brief at 10–11.
Wife’s first issue asserts that the Master erred in her child support
recommendation because she miscalculated Husband’s income. Wife’s Brief
at 48. We observe at the outset that it is very difficult to understand the
specifics of Wife’s argument because her references to the record are not
identified by court, proceeding, or date. As best as we can discern, Wife is
challenging the Master’s support calculation that credited Husband’s testimony
and evidence of income and rejected that of Wife.5
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5 At the August 31, 2016 hearing on child support and alimony pendente lite,
Wife presented the testimony of Beth Mascetta, a certified public accountant.
Ms. Mascetta calculated Husband’s net disposable income for 2014 and 2015
at amounts significantly greater than Husband’s evidence of his 2016 income.
The Master addressed the income discrepancy, as follows:
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The trial court addressed the Master’s support calculation in its
discussion of the decision to deny Wife alimony:
[T]he Master determined that Husband’s income is $5,607 per
month. The Master arrived at this figure after hearing evidence
from both Husband and Wife. Husband owns and runs a company
that performs real estate appraisals. The company consists of
Husband and one other employee. Husband presented credible
evidence that his income has steadily declined over the past
several years.[6] The Master accepted Husband’s corporate tax
returns from 2015 and 2016 and personal tax return from 2016.
To calculate his 2017 income, Husband introduced his client
invoices from that year, as well as evidence of his business and
personal expenses. Husband also testified as to his projected
2018 income, which he based on figures from 2017, while
factoring in the loss of one of his company’s major clients. The
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[Master] has not ignored the testimony provided by Beth Mascetta
regarding Husband’s prior incomes for 2014 and 2015. In all of
2014 he had just one client. In the first half of 2015 he maintained
that one client. In May 2015 he was advised that this client was
diversifying their appraisal list and that he would now be part of a
rotating list. This severely impacted his income. Since mid 2015
he has sought and obtained additional customer/broker referrals
through other agencies and is building his business up again. He
has also increased his range for business by adding some new
purchase appraisal business to his refinancing appraisal business.
Attachment to Hearing Summary, 9/2/16, at unnumbered 5.
6 As noted by the Master:
There were many changes to Husband’s business in the two years
prior to separation which seriously diminished his net income,
such as the enactment of the Dodd-Frank Act and the loss of his
single biggest referral source, Southwest Financial. In 2016, he
joined Mueller Services to begin adding consulting work from
IKOR, a company that does estates, settlements and trust
management. Even with the new business opportunities, by
2016, his net income was reduced to $5,607/mo.
Master’s Report and Recommendation, 3/19/18, at 4 n.3
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Master found Husband’s testimony credible. The [c]ourt notes
that Husband’s supporting documentation was coherently
organized and presented.
Wife attempted to rebut Husband’s evidence and to
demonstrate that Husband has far greater financial resources than
he claimed. Wife introduced hundreds of pages of bank
statements for the years 2014-2017, from eight different bank
accounts to prove her claim. The Master directly asked Wife
several times to explain how her voluminous documentation
established her point and received no clear answer. The Master
accorded greater weight to Husband’s credible testimony and
clearer supporting documentation than to Wife’s confusing
presentation and calculated that Husband’s monthly income was
$5,607. This [c]ourt properly deferred to the Master’s credibility
determination and discerned no error in the Master’s weighing of
the evidence.
Trial Court Opinion, 11/6/19, at 19–20.
Our standard review of a child support order is as follows:
Appellate review of support matters is governed by an abuse of
discretion standard. When evaluating a support order, this Court
may only reverse the trial court’s determination where the order
cannot be sustained on any valid ground. An abuse of discretion
is [n]ot merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence of record. The
principal goal in child support matters is to serve the best interests
of the children through the provision of reasonable expenses.
J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015) (quoting R.K.J. v.
S.P.K., 77 A.3d 33, 37 (Pa. Super. 2013)). Moreover,
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.
We are also aware that 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. Morgante v. Morgante, 119 A.3d
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382, 386–87 (Pa. Super. 2015) (quoting Childress v. Bogosian,
12 A.3d 448, 455–56 (Pa. Super. 2011)) (internal citations and
quotation marks omitted).
Carney v. Carney, 167 A.3d 127, 131 (Pa. Super. 2017).
Wife’s disagreement with the Master’s acceptance of Husband’s income
evidence is clearly an assault on Husband’s credibility. A reviewing court does
not weigh the evidence or determine credibility, as these are functions of the
trial court. Doherty v. Doherty, 859 A.2d 811, 812 (Pa. Super. 2004). The
Master explained the basis for her findings, and we discern no abuse of
discretion or error by the trial court’s endorsement of the Master’s assessment
of the evidence. This issue lacks merit.7
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7 Wife does not develop her theory that the court should have assigned an
earning potential to Husband. In any event, we would have rejected this
argument. Pennsylvania Rule of Civil Procedure Rule 1910.16-2(d) provides,
in part:
Rule 1910.16-2. Support Guidelines. Calculation of Net Income
* * *
(d) Reduced or Fluctuating Income.
(4) Earning Capacity. If the trier of fact determines that a party
to a support action has willfully failed to obtain or maintain
appropriate employment, the trier of fact may impute to that party
an income equal to the party’s earning capacity. Age, education,
training, health, work experience, earnings history and child care
responsibilities are factors which shall be considered in
determining earning capacity. In order for an earning capacity to
be assessed, the trier of fact must state the reasons for the
assessment in writing or on the record. Generally, the trier of fact
should not impute an earning capacity that is greater than the
amount the party would earn from one full-time position.
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Wife next argues that it was unlawful for the court to refer consideration
of the support issue of unreimbursed medical expenses in conjunction with
the equitable distribution hearing. Wife’s Brief at 50. Wife cites no authority
for this position, nor does she provide a citation to the record wherein she
objected at the equitable distribution hearing to the scope of the hearing. This
issue, therefore, is waived. See Pa.R.A.P. 2119(a) (requiring that arguments
in briefs be followed by discussion and pertinent citation of authorities); J.J.
DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402, 410 (Pa. Super.
2012) (stating failure to provide record citation in support of argument
violates Pa.R.A.P. 2119(c) and constitutes waiver).
Wife’s third claim is that the court erred by recommending a reduction
in support because Wife failed to enroll the children in the Children’s Health
Insurance Program (“CHIP”). Wife’s Brief at 51. Our review of this issue is
hampered by Wife’s incoherent presentation and incomprehensible record
citation. It appears that the basis of Wife’s argument centers on the language
of support orders entered on September 2, 2016, and March 30, 2017. The
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Determination of what constitutes a reasonable work regimen
depends upon all relevant circumstances including the choice of
jobs available within a particular occupation, working hours,
working conditions and whether a party has exerted substantial
good faith efforts to find employment.
Pa.R.C.P. 1910.16-2(d)(4). Herein, the trier of fact determined that
Husband’s reduction in income was not willful, but rather, it was attributable
to changes in the law and the loss of a major client. Master’s Report and
Recommendation, 3/19/18, at 4 n.3
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September 2, 2016 order included the following language: “[Wife] is to return
to her medicare/supplemental insurance and the children are to be enrolled in
CHIP.” Order, 9/2/16, at 3. After Wife filed a petition for modification for
support, a support order was entered wherein the Master observed:
[Husband] to pay [Wife] $1,400.31 for [support] of Wife and 3
children. This is a reduction of $243.60/mo based on [Wife’s]
proportionate share of the 3 children’s [health insurance
premium] which are now paid by [Husband]. In the 9/2/16 order,
Wife was ordered to enroll the children in CHIP and to obtain
[insurance] for herself [through her Social Security disability
benefits.] She did not do so, so Husband obtained [insurance] for
himself and the kids. [Master] is granting Husband a credit of
$2,415.16 being Wife’s share of the insurance costs Husband was
forced to incur.
Order, 3/30/17, at 3. Wife’s objection to these orders is two-fold: 1) the
September 2, 2016 order did not order her to enroll the children in CHIP; 2)
her failure to enroll the children cannot form the basis for a support reduction.
We are constrained to agree with Wife that the September 2, 2016 order
was not specific as to which parent was responsible for enrolling the Children
in CHIP. However, we disagree with Wife’s position that the failure to enroll
the children was the reason for the support modification. Rather, the Master
reduced the support to account for Wife’s share of the medical insurance
Husband procured in lieu of the coverage that would have been provided under
CHIP. Wife does not contest the determination that she was responsible for a
proportionate share of the medical insurance. Wife’s third issue is meritless.
Wife next asserts that she was entitled to counsel fees. Wife’s Brief at
52. The Master denied an award of counsel fees for the following reasons:
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Based on the extremely litigious nature of this case, both
parties have incurred very high legal fees. Husband has provided
support for Wife and the children since April 11, 2016. Wife was
awarded preliminary counsel fees of $2500. In, addition, she took
a self-help $8,000 advance on the equitable distribution. Based
on these factors, the Master is recommending that each party pay
his or her own legal fees, costs and expenses.
Master’s Report and Recommendation, 3/19/18, at 6. Similarly, in its order
on Wife’s exceptions to the Master’s Report, the trial court determined that
each party shall be responsible for his/her own counsel fees. Order, 1/31/19,
at 2.
A trial court’s award of counsel fees is subject to an abuse of discretion
standard of review. Gates v. Gates, 933 A.2d 102, 109 (Pa. Super. 2007).
Furthermore,
The purpose of an award of counsel fees is to promote fair
administration of justice by enabling the dependent spouse to
maintain or defend the divorce action without being placed at a
financial disadvantage; the parties must be “on par” with one
another.
Counsel fees are awarded based on the facts of each case
after a review of all the relevant factors. These factors include the
payor’s ability to pay, the requesting party’s financial resources,
the value of the services rendered, and the property received in
equitable distribution. Counsel fees are only to be awarded upon
a showing of need. In essence, each party’s financial
considerations dictate whether such an award is appropriate.
Id.
On appeal, Wife does not contest the Master’s implicit finding that the
parties were on par financially with one another at the time of the Master’s
hearing and therefore, were responsible for their own counsel fees. Rather,
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Wife urges that she is entitled to counsel fees based upon her judgment that
Husband’s fraudulent behavior and noncompliance with court orders
occasioned the high cost of the litigation. Id. at 51–52. This assertion is
without record support and does not entitle Wife to an award of counsel fees.
Accordingly, there was no abuse of discretion in the trial court’s denial of
counsel fees.
Wife also contends that the trial court erred by not awarding the cost of
the children’s extracurricular activities to be proportionate to the parties’
income. Wife’s Brief at 53. The applicable standard of review with respect to
support awards is abuse of discretion. Spahr v. Spahr, 869 A.2d 548, 551
(Pa. Super. 2005).
Pennsylvania Rule of Civil Procedure 1910.16-6(d) acknowledges that
“[e]xpenditures for needs outside the scope of typical child-rearing expenses,
e.g., private school tuition, summer camps, have not been factored into the
Basic Child Support Schedule.” Pa.R.C.P. 1910.16-6(d). Thus, the guideline
provides:
(1) If a party incurs an expense for a need not factored into the
Basic Child Support Schedule and the trier-of-fact determines the
need and expense are reasonable, the trier-of-fact shall allocate
the expense. The trier-of-fact may order that the obligor’s
expense share is added to his or her basic support obligation, paid
directly to the service provider, or paid directly to the obligee.
Pa.R.C.P. 1910.16-6(d)(1). A parent can be required to pay for extracurricular
activities under Rule 1910.16–6(d) even if he or she does not believe they are
necessary, when the activities are beneficial to the child in question and “the
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expenses associated with these activities are consistent with the family's
standard of living and station in life.” Silver v. Pinskey, 981 A.2d 284, 302
(Pa. Super. 2009) (en banc) (citation omitted).
Although Wife frames this issue as a challenge to the trial court’s
apportionment of the costs of the children’s activities, she does not explain
why the order is disproportionate. Rather, Wife’s argument focuses on her
displeasure with the following proviso in the May 29, 2018 custody and
support order:
[Husband] may choose extracurricular activities for the Children.
[Husband] shall consider both the Children’s and [Wife’s]
suggestions for these activities. [Wife] shall communicate her
suggestions through OFW only. If [Wife] suggests an activity for
the Children that [Husband] supports but cannot afford,
[Husband] has the discretion to consent to the Children’s
participation subject to [Wife] being solely financially responsible
for the cost of the activity.
Order, 5/29/18, at unnumbered 3. Wife’s concern is that Husband will grasp
upon the affordability language to refuse payment of costs associated with the
children’s participation in various skiing activities. However, as Wife does not
allege that Husband has refused to pay for the skiing expenses, the question
of his refusal is not ripe for discussion. Moreover, in the event that Husband
denies the funds requested there is a mechanism in place to confront the
issue. In her September 2, 2016 order, the Master stated:
Any other extracurricular activities for any of the children shall be
mutually agreed upon before the child is enrolled. If the other
parent does not agree, there are two [options:] the Parent who
wants the child to participate can cover all of the expenses or can
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go to [c]ourt with a Motion to let the [c]ourt decide if the activity
is reasonable, necessary and affordable for this family.
Order, 9/2/16, at 3.8 Thus, in the future if Husband claims that he does not
have sufficient resources to finance the children’s skiing, Mother may petition
the court to determine if the need for the expenditure is reasonable and if
Husband is acting in good faith.
Wife’s remaining issue centers on the trial court’s refusal to hold
Husband in contempt for non-payment of the mortgage on the marital
residence. Wife’s Brief at 55. The trial court explained its reasoning, as
follows:
Not long after the parties separated, they agreed that
Husband would retain exclusive possession of the marital home.
The [c]ourt accordingly ordered Husband to bear responsibility for
the monthly mortgage payments, although the mortgage itself is
in Wife’s name. Neither party disputes that Husband has failed to
make monthly mortgage payments on time and in full. Neither
party disputes that Husband has fallen farther behind on the
mortgage payments over the months that he has continued to
reside in the home.
* * *
Based on the Master’s findings regarding Husband’s income
and expenses, as well as Husband’s credible testimony at the
contempt hearing, the [c]ourt concluded that he lacked the
present ability to make the delinquent mortgage payments.
Consequently, the [c]ourt denied Wife’s petition for contempt.
____________________________________________
8 We note that the language of this order imposes an unwelcome burden on
trial courts. “Many times in custody disputes, the parties ask the trial court
to decide minor issues. We recognize that the state cannot raise children and
that our courts are ill equipped to decide such issues.” S.W.D. v. S.A.R., 96
A.3d 396, 403 (Pa. Super. 2014). We do not “encourage over-intervention by
the court into disputes that should and can be decided by a child's guardians.”
Id.
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Wife’s challenge to the [c]ourt’s decision seems to the [c]ourt to
center on her disagreement with the [c]ourt’s findings regarding
Husband’s income.
As discussed above, the [c]ourt properly deferred to the
Master’s credibility assessments in accepting the Master’s
calculation of Husband’s income. The [c]ourt did not revisit that
finding, but heard Husband’s testimony regarding his current
financial circumstances. Husband credibly testified that he is
making monthly mortgage payments of $1,376 and that he had
been doing so for over a year. Husband would need to pay much
more to fully satisfy the mortgage delinquency, but the bank has
accepted the $1,376 monthly payment as sufficient to keep the
house out of foreclosure. Husband credibly explained that
additional payments, if available, in miscellaneous amounts of less
than $1,376 would serve no practical purpose and would likely not
reduce the accumulated mortgage debt. Husband then provided
updated information as to his monthly income and expenses by
comparing his current information with the budget presented at
the Master’s hearing. In 2018, Husband had approximately $135
left per month after paying fixed monthly obligations. By April
2019, Husband had approximately $400 left per month, from
which he still needed to pay for food, any clothing needs, and gas.
These figures were consistent with the figures accepted by the
Master, and the [c]ourt accepted them.
Wife devoted much of her testimony during the contempt
hearing to matters outside the limited scope of the hearing. Her
core argument appears to the [c]ourt to be the same as her
argument regarding the alimony and child support components of
the [c]ourt’s decision - that Husband has far greater financial
resources than he claims and that he successfully hides it from
the [c]ourt and from Wife. Wife again relied on her attempted
analysis of Husband’s bank statements to document his resources.
As discussed above, neither the Master nor this [c]ourt found the
evidence persuasive.
Based on the credible evidence, the [c]ourt concluded that
Husband lacks the present ability to pay more towards the
delinquent mortgage than he is currently paying. Established case
law provides that courts may not make contempt findings and
impose sanctions or other relief under these circumstances.
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Trial Court Opinion, 11/6/19, at 22–25 (footnotes omitted). Our standard of
review of the denial of a contempt petition is as follows:
This Court will reverse a trial court’s order denying a civil
contempt petition only upon a showing that the trial court
misapplied the law or exercised its discretion in a manner lacking
reason. In proceedings for civil contempt of court, the general
rule is that the burden of proof rests with the complaining party
to demonstrate that the defendant is in noncompliance with a
court order. 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 specific order or decree
which he is alleged to have disobeyed; (2) the act constituting the
contemnor’s violation was volitional; and (3) the contemnor acted
with wrongful intent.
MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012) (internal
citations omitted). Additionally,
a showing of non-compliance is not sufficient in itself to prove
contempt. Wetzel v. Suchanek, 373 Pa. Super. 458, 541 A.2d
761, 762 (1988). If the alleged contemnor is unable to perform
and has in good faith attempted to comply with the court Order,
contempt is not proven. Id. (emphasis in original). The alleged
contemnor has the burden of proving the affirmative defense that
he has the present inability to comply with the court Order.
In re Estate of DiSabato, 165 A.3d 987, 992 (Pa. Super. 2017).
Wife’s argument that Husband has the ability to pay the mortgage
rehashes her claim that the evidence of Husband’s income is not trustworthy.
We have already decided that the Master explained the basis for finding
Husband credible on this issue and that the trial court properly relied on the
Master’s determination.
Finally, we address the trial court’s comment that the matter must be
remanded for an adjustment to the support order. The trial court’s January
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31, 2019 order granting in part and denying in part Wife’s exceptions to the
March 19, 2018 Master’s Report and Recommendation, included the following
paragraph: “The [c]ourt will direct a final PACSES order be entered to
effectuate the [child support] recommendations in the Master’s Report.” See
Order 1/29/19, at unnumbered 1. In its Pa.R.A.P. 1925(a) opinion, however,
the trial court revisited this directive:
The [c]ourt carefully reviewed the figures used and the
application of the guidelines set forth in Pa.R.C.P. 1910.16. In
doing so, the [c]ourt noticed that the Master included weekly
wages of $80 as part of Wife’s income. Perhaps this arose from
the Master’s expectation that Wife could perform part time work
despite her disability. As discussed above, the [c]ourt did not rely
on this finding by the Master. Consequently, the child support
award needs to be recalculated. It will likely be adjusted upward
slightly. The Superior Court should remand this issue to the
[c]ourt for recalculation of the monthly child support award.
Trial Court Opinion, 11/6/19, at 26 (footnotes omitted). Based upon our
concurrence with the trial court’s assessment that the Master erred in
including Wife’s purported weekly wages in her support award, we vacate that
portion of the support award and remand for the limited purpose of
recalculation of support to reflect correction of this error.
Order of January 31, 2019, on Wife’s exceptions to the Master’s March
19, 2018 Report and Recommendation affirmed in part. Paragraph seven of
the order directing that “a final PACSES order be entered to effectuate the
[child support] recommendations in the Master’s Report” see Order 1/19/19,
at unnumbered 3, is vacated, and the matter is remanded for recalculation of
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Wife’s income and child support award. All other orders affirmed.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2020
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