Selwood, J. v. Selwood, M. ( 2016 )

J-A13042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JULIE S. SELWOOD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL J. SELWOOD, :
:
Appellant : No. 1140 WDA 2015
Appeal from the Order dated June 11, 2014
in the Court of Common Pleas of Allegheny County
Family Court, No(s): FD 10-007983-008
JULIE S. SELWOOD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL J. SELWOOD, :
:
Appellant : No. 1141 WDA 2015
Appeal from the Order dated July 21, 2014
in the Court of Common Pleas of Allegheny County
Family Court, No(s): FD 10-007983-008
BEFORE: OLSON, STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 24, 2016
Michael J. Selwood (“Father”) appeals from Orders entered on June 11,
2014, and July 21, 2014, in equitable distribution and support proceedings
related to his divorce from Julie S. Selwood (“Mother”). We affirm the trial
court’s June 11, 2014 Order (at appeal No. 1140 WDA 2015), and quash
Father’s appeal of the trial court’s July 21, 2014 Order (at appeal No. 1141
WDA 2015).
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The relevant factual history underlying this appeal has been set forth
in numerous Opinions issued by this Court in relation to Father’s prior
appeals of Orders entered in the parties’ divorce and custody proceedings.1
See Selwood v. Selwood, 105 A.3d 806 (Pa. Super. 2014) (unpublished
memorandum at 1-3, equitable distribution and support proceedings); see
also J.S.S. v. M.J.S., 97 A.3d 801 (Pa. Super. 2014) (unpublished
memorandum at 1-4, custody proceedings); J.S.S. v. M.J.S., 118 A.3d 450(Pa. Super. 2015) (unpublished memorandum at 5-11, custody
proceedings).
On May 31, 2013, Father filed a Motion to modify child support and
alimony pendente lite. On October 7 and 8, 2013, Special Master Patricia
Miller (“Master Miller”) conducted hearings on Father’s support modification
Motion and certain other claims that were reserved from the equitable
distribution trial or consolidated with the support modification proceedings.
On November 15, 2013, Master Miller entered her Report and
Recommendation (“Report and Recommendation”). On December 3, 2013,
Master Miller filed an Amended Explanation to the Report and
Recommendation. On that same date, the trial court entered an Order
adopting Master Miller’s Report and Recommendation, as amended. Father
filed Exceptions to the Report and Recommendation. On December 6, 2013,
Master Miller filed a Second Amended Explanation to the Report and
1
The parties have three children, two of whom are still minors: T.S. and A.S.
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Recommendation. On December 20, 2013, Mother filed Exceptions to the
Report and Recommendation.
On June 11, 2014, the trial court entered an Order wherein it (1)
determined that Father had acted in contempt, and ordered Father to pay
$16,006.13 in counsel fees to Mother for the contempt (in addition to
$10,000 in counsel fees awarded to Mother by Master Miller based on
Mother’s economic disadvantage); (2) remanded the matter to Master Miller
for a hearing on the limited issue of the obligations of the parties for the
taxes incurred on frozen marital non-pension assets; (3) dismissed all other
Exceptions and Cross-Exceptions filed by the parties; and (4) made the
Report and Recommendation entered on November 15, 2013, as amended
on December 3, 2013, a final order of court. Father filed a Motion for
Reconsideration of the June 11, 2014 Order, which the trial court denied on
July 21, 2014.2 Further proceedings were thereafter conducted in the
matter, including proceedings on remand from one of Father’s prior appeals,
and a Petition for modification of support filed by Father. See Trial Court
Opinion, 11/2/15, at 2. On June 25, 2015, the trial court entered a final
Order disposing of all claims arising out of the parties’ equitable distribution
and support proceedings.
2
Father also requested certification of the June 11, 2014 Order as a final
order, pursuant to Pa.R.A.P. 341, and amendment of the Order to include
interlocutory review language, pursuant to 42 Pa.C.S.A. § 702(b). The trial
court denied these requests. See Trial Court Order, 7/21/14, at 1
(unnumbered).
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On July 23, 2015, Father filed a timely Notice of Appeal of the June 11,
2014 Order, at No. 1140 WDA 2015. On that same date, Father filed a
separate timely Notice of Appeal of the July 21, 2014 Order, at No. 1140
WDA 2015.3
On August 18, 2015, Father filed a court-ordered Pa.R.A.P. 1925(b)
Statement of Matters Complained of on Appeal at No. 1140 WDA 2015,
which inexplicably raised a claim of error relating to the parties’ custody
proceedings, rather than any equitable distribution or support matter
addressed in the trial court’s June 11, 2014 Order:
The trial court erred in refusing to grant reconsideration and
schedule a subsequent day for adjudication of [F]ather’s name
change [P]etition where the trial court, in so doing, failed to
“ensure that as full and complete a record as possible is created
when a decision as important as the welfare of a child is at
issue,” thereby not fulfilling “the duty of the trial court to make
the fullest possible inquiry in custody actions.” Moore v.
Moore, 634 A.2d 163, 167 (Pa. 1993).
Statement of Matters Complained of on Appeal (No. 1140 WDA 2015),
8/18/15, at 2 (unnumbered). Nevertheless, on September 30, 2015, Father
filed an Amended Pa.R.A.P. 1925(b) Statement of Matters Complained of on
Appeal, wherein he raised the following assignment of error: “The trial court
erred in awarding Mother $16,006.13 in counsel fees, and by overturning
3
It is unclear as to why Father filed two separate appeals, as “[a] party
needs to file only a single notice of appeal to secure review of prior non-final
orders that are made final by the entry of a final order.” Pa.R.A.P. 341, cmt
(citation omitted). Nevertheless, on August 12, 2015, this Court, sua
sponte, consolidated the two appeals for briefing and argument purposes
only. See Pa.R.A.P. 513.
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the Master’s finding that Father had acted in good faith regarding the
children’s medical and extra-curricular expenses.” Amended Statement of
Matters Complained of on Appeal, 9/30/15, at 5 (unnumbered).4
Also on August 18, 2015, Father filed a separate court-ordered
Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal at No.
1141 WDA 2015, raising the following assignments of error in relation to the
trial court’s July 21, 2014 Order:
1. The [t]rial [c]ourt erred in dismissing Father’s [E]xception
that [Master Miller] erred in calculating the income tax
reimbursement owed by Father to Mother pursuant to the
10/4//2010 consent support [O]rder and 5/20/2013
[D]ecree;
2. The [t]rial [c]ourt erred in dismissing Father’s [E]xception
that [Master Miller] erred in calculating Father’s obligation to
reimburse the children’s medical and extra[-]curricular
activities expenses;
3. The [t]rial [c]ourt erred in dismissing Father’s [E]xception
that, in calculating support arrears, [Master Miller] erred in
failing to fully credit Father for his payments toward family
memberships and life insurance premiums, as he was
contractually bound to do so under the 10/4/2010 consent
support [O]rder and 8/9/10 [O]rder;
4. The [t]rial [c]ourt erred in dismissing Father’s [E]xception
that [Master Miller] erred by failing to name Father as the
custodian of the children’s 529 college savings accounts for
[T.S.] and [A.S.];
5. The [t]rial [c]ourt erred in dismissing Father’s [E]xception
that [Master Miller] erred by awarding $10,000 [in] legal
4
Although Father did not specifically indicate which appeal his amended
statement pertained to, the trial court was of the opinion that it was filed in
connection with the appeal at No. 1140 WDA 2015. See Trial Court Opinion,
11/2/15, at 2.
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fees to Mother, and by awarding Mother and [sic] additional
$16,006.13 over and above [Master Miller’s] recommended
award, based on an erroneous determination that Father did
not act in good faith regarding payment for his share of the
children’s medical and extra-curricular expenses;
6. The [t]rial [c]ourt erred in dismissing Father’s [E]xception
that [Master Miller] erred by failing to award Father
reimbursement of his legal and expert fees related to
Mother’s failure to abide by the 10/4/10 consent [O]rder[,]
requiring allocation of tax attributes[,] and causing Father to
undergo an IRS audit that ultimately resulted in no changes
to his return.
Statement of Matters Complained of on Appeal (No. 1141 WDA 2015),
8/18/15, at 2-3 (unnumbered).
Initially, we must address whether Father’s appeals are properly
before us. Where a court expressly denies a motion for reconsideration, an
appeal cannot be taken from the order denying the motion for
reconsideration. See Provident Nat’l Bank v. Rooklin, 378 A.2d 893, 897
(Pa. Super. 1977) (holding that “Pennsylvania case law is absolutely clear
that the refusal of a trial court to reconsider, rehear, or permit reargument
of a final decree is not reviewable on appeal.”). Rather, the appeal generally
lies from the underlying order denying relief. See generally Cheathem v.
Temple Univ. Hosp., 743 A.2d 518, 521 (Pa. Super. 1999) (explaining that
an order denying a motion for reconsideration is not reviewable on appeal).
Because the trial court’s July 21, 2014 Order denying Father’s Motion for
Reconsideration is non-reviewable on appeal, we cannot address the issues
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raised by Father in his appeal of that Order. We therefore quash the appeal
at No. 1141 WDA 2015.
In reference to Father’s appeal of the trial court’s June 11, 2014 Order,
at No. 1140 WDA 2015, Father’s Amended Statement of Matters Complained
of on Appeal raised the following issue: “The trial court erred in awarding
Mother $16,006.13 in counsel fees, and by overturning the Master’s finding
that Father had acted in good faith regarding the children’s medical and
extra-curricular expenses.” Amended Statement of Matters Complained of
on Appeal, 9/30/15, at 5 (unnumbered). As this issue was set forth in
Father’s Statement of Issues on Appeal, see Pa.R.A.P. 2116(a), we will
proceed to address it. See Father’s Brief at 11 (at issue number 5).5
Father points to Master Miller’s finding that Father acted in good faith
and her denial of Mother’s request for counsel fees based on Father’s
contempt, and contends that, in light of these rulings, Master Miller erred by
awarding $10,000 in legal fees to Mother. Id. at 29. Father asserts that
Mother’s “actions in unilaterally filing her 2010 income tax return and
deflecting Father’s good faith requests for information brought on much of
5
The remaining issues set forth in Father’s Statement of Issues on Appeal
pertain to the issues he raised in his appeal of the trial court’s July 21, 2014
Order denying his Motion for Reconsideration. See Father’s Brief at 11 (at
issue numbers 1-4, 6); see also Statement of Matters Complained of on
Appeal (No. 1141 WDA 2015), 8/18/15, at 2-3 (unnumbered). Because
Father’s appeal at No. 1141 WDA 2015 has been quashed, we need not
address these issues. However, even if we were to address these issues, we
would have concluded that they lack merit for the reasons set forth by the
trial court in its Opinion. See Trial Court Opinion, 11/2/15, at 4-8, 9.
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the counsel fees for which she claimed.” Id. at 29. Father claims that it
was unreasonable for Mother to spend $13,857.50 in legal fees to recover
$13,176.71 in reimbursements. Id. Father points to the admission of
Mother’s counsel that “all of the charges for ‘economic’ matters were
included in the same counsel fee bill and not at all segregated[,]” and argues
that “it is very likely that much of the $13,857.50 claimed actually overlaps
with other putative charges not directly related to the modification petition
alone, which formed only a small part of the October 7 and 8, 2013
proceedings.” Id. at 30. Father further contends that “[s]ustaining the
below award of counsel fees to Mother will only serve to perpetuate the
endless cycle of litigation[,]” noting that he has “had to defend 37 trips to
[m]otions [c]ourt, 20 days of trial, hearings and depositions, [] spent
countless tens of thousands of dollars on discovery matters[,] has survived
six state, local and federal tax audits, [has] been completely wiped out of
liquid assets and cannot afford further litigiousness by Mother.” Id.6
This issue was not raised in Father’s Amended Statement of Matters
Complained of on Appeal at No. 1140 WDA 2015. In that Statement, Father
6
We find Father’s arguments regarding Mother’s “litigiousness” to be
disingenuous, given that these appeals constitute Father’s fifth and sixth
appeals in his equitable distribution and custody proceedings with Mother.
See Trial Court Opinion, 11/2/15, at 2; see also id. at 9 (wherein the trial
court noted Father’s “litigation strategy” to “contemptuously refuse[] to
reimburse Mother the actual and legitimate expenses she incurred on their
children’s behalf[,] and that this refusal resulted in the continuing protracted
litigation and Mother’s [counsel] fees.”).
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challenged only the trial court’s award of $16,006.13 in counsel fees to
Mother, based on the trial court’s determination that Father had acted in
contempt. Amended Statement of Matters Complained of on Appeal,
9/30/15, at 5 (unnumbered). Notably, Father’s argument on appeal pertains
solely to Master Miller’s separate award to Mother of $10,000 in counsel fees
based on Master Miller’s determination that Father’s net income of $35,399
per month was substantially greater than Mother’s earning capacity of
$3,401 per month, and, consequently, that Mother was at an economic
disadvantage. See Report and Recommendation, 11/15/13, at 6, 7.
Because Father did not preserve this issue for our review by raising it in his
Amended Statement of Matters Complained of on Appeal, it is waived.7 See
Pa.R.A.P. 1925(b)(4)(vii) (providing that issues not raised in a concise
statement of errors complained of on appeal are waived); see also Korman
Commercial Prop., Inc. v. Furniture.com, LLC, 81 A.3d 97, 102-03
(finding waiver where an issue was not included in the concise statement of
errors complained of on appeal).
Order entered on June 11, 2014 (at No. 1140 WDA 2015) is affirmed;
Father’s appeal of the July 21, 2014 Order (at No. 1141 WDA 2015) is
quashed.
7
As noted above, Father’s initial Statement of Matters Complained of on
Appeal at No. 1140 WDA 2015 inexplicably raised a claim of error relating to
the parties’ custody proceedings, and did not raise any claim of error related
to the equitable distribution or support matters addressed in the June 11,
2014 Order at issue in this appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
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