Ijaz, R. v. Akram, T. ( 2023 )

J-A15031-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
RAMSHA IJAZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TAIMUR AKRAM :
:
Appellant : No. 1207 WDA 2022
Appeal from the Order Entered September 15, 2022
In the Court of Common Pleas of Mercer County Domestic Relations at
No(s): 74-DR-2020
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: AUGUST 8, 2023
Taimur Akram (Husband) appeals from the order entered in the Court
of Common Pleas of Mercer County (trial court) awarding Ramsha Ijaz (Wife)
five months of alimony pendente lite (APL) bringing the total APL that she
received to ten months. We affirm.
I.
Husband and Wife were married in Mercer County on October 22, 2018,
and separated on August 25, 2019, when Wife returned to Pakistan, her native
country, for a visit and her then-Husband refused to pay for a return ticket.
The marriage resulted in no children. With the help of an aunt and uncle, Wife
returned to the United States where she resides in Texas with the aunt and
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* Retired Senior Judge assigned to the Superior Court.
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uncle and where she obtained employment as a retail clerk. Husband is a
medical doctor employed at UPMC. As part of the divorce decree of May 19,
2022, Husband was required to pay Wife $49,541.03, which represented 30
percent of the stipulated marital estate of $176,018.76 after expenses.
Husband was also directed to pay $16,000 in attorney’s fees to Wife’s counsel.
Wife filed an initial request for APL in January 2020. The trial court
initially awarded Wife APL of $3,856.91 per month over a period of five
months, totaling $19,284.55. It determined that a five-month period for APL
was appropriate considering the ten-month duration of the marriage. Wife
later filed a petition to reinstate APL, but the trial court denied the request for
further APL on December 9, 2020.
On December 22, 2021, following the issuance of the master’s report
and recommendations in the divorce matter and while exceptions were
pending, Wife filed a second petition to reinstate APL. In her petition, Wife
contended that additional APL was warranted because Husband was opposing
her receipt of any portion of the marital estate; his insistence that they had
engaged in a “sham marriage” resulting in the master’s recommended award
of $16,000 in attorney’s fees in her favor; the fact that she was required to
travel to Pennsylvania on three separate occasions to participate in hearings;
and Husband’s filing of 23 exceptions to the master’s report. At this point,
the matter was reassigned from Judge Robert G. Yeatts to President Judge
Daniel P. Wallace following the former’s retirement.
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Following a hearing, on April 6, 2022, the trial court found that Wife was
entitled to an additional five months of APL retroactive to November 17, 2021.
In the opinion accompanying that order, the trial court found that APL should
be reinstated because the December 9, 2020 decision was premised not only
on the short duration of the marriage, but also on the fact that it was
anticipated at that time that the parties’ economic issues would be resolved
at a final January 2021 hearing, and that the earlier determination left the
door open for additional APL to be ordered at a later date. Because the
economic issues were not all decided as envisioned in early 2021 but instead
remained pending and in active litigation more than a year later, the trial court
concluded that an additional five months of APL was “appropriate”
“[c]onsidering the duration of the marriage and the date of the anticipated
hearing [on Husband’s exceptions to the divorce master’s report] on April 8,
2022.” Trial Court Opinion, 4/6/22, at 3 (unnumbered) (citing Trial Court
Opinion, 12/9/20, at 1-3 (unnumbered)). Id. at 3. The court added that Wife
would not receive any additional APL beyond ten months “absent
extraordinary circumstances.” Id. A May 10, 2022 order established the APL
at $4,187.55 per month for a total of $21,018.06, pursuant to calculations by
the domestic relations section of the trial court.
Husband and Wife each then filed a demand for a de novo hearing before
the trial court. Husband challenged the necessity and reasonableness of the
APL award as well as the calculated amount, while Wife challenged the fact
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that the May 10, 2022 order only required Husband to pay $200 per month to
satisfy his obligations. Following a hearing, on September 7, 2022, the trial
court ordered that Husband’s obligations remained unchanged from the May
10, 2022 order.1 The trial court found that the amount of APL calculated
according to the support guidelines was reasonable, and that its review of the
deviation factors set forth in Rule 1910.16-5(b) did not show grounds to rebut
the presumption of correctness. Specifically, as to the deviation factors, the
court found that Husband’s assets as a medical doctor far outweigh Wife’s,
and he has no substantial liabilities because he lives with his parents (factor
(b)(5)), and that Husband has an upper middle-class standard of living, while
Wife’s standard was lower middle-class (factor (b)(7)).
With respect to factor (b)(8) related to the duration of the marriage, the
court referred to the analysis in its April 6, 2022 memorandum opinion. With
respect to “other relevant and appropriate factors” as set forth in (b)(9), the
trial court discussed Husband’s argument that Wife did not need the APL and
found that a party’s need is not strictly a requirement and instead that the
question is only whether the amount is reasonable for the purpose of
equalizing the economic resources of the spouses. The court, thus, rejected
Husband’s argument that the amount of APL far exceeds the amount
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1 A September15, 2022 order amended the September 7, 2022 order to
require Husband to pay the arrearage at a monthly rate of $4,187.55 rather
than $200 per month.
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necessary for Wife to pursue the divorce proceedings on equal footing as only
reasonableness is required, and the reasonableness was bolstered by the short
duration of the additional APL award. Id. at 5-6.
Husband presents the following issues before this Court:
1. Did the trial court err in not giving factor 1910.16-5(b)(8),
concerning the length of the marriage, proper weight?
2. Did the trial court err in failing to reduce the APL award under
1910.16[-]5(b)(9), concerning other relevant factors, when the
award was unnecessary and unreasonable?
Husband’s Brief at 4 (unnecessary capitalization and suggested answers
omitted).
II.
The Divorce Code provides that, “[i]n proper cases, upon petition, the
court may allow a spouse reasonable” APL, which is defined as “[a]n order for
temporary support granted to a spouse during the pendency of a divorce or
annulment proceeding.” 23 Pa.C.S. §§ 3103, 3702(a).
APL 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. . . . APL focuses on the ability of the individual
who receives the APL 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.
Ileiwat v. Labadi, 233 A.3d 853,860(2020) (quoting Schenk v. Schenk,
880 A.2d 633, 644-45 (Pa. Super. 2005)); see also Cook v. Cook, 186 A.3d
1015, 1023 (Pa. Super. 2018). When ruling on the claim for APL, the trial
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court shall consider the following factors: “the ability of the other party to
pay; the separate estate and income of the petitioning party; and the
character, situation, and surroundings of the parties.” Ileiwat, 233 A.3d at
860 (quoting Childress v. Bogosian, 12 A.3d 448, 463 (Pa. Super. 2011)).
The court shall also consider “the marriage’s duration, i.e., the date of
marriage to the date of final separation,” when determining the duration of
the APL award. Pa.R.Civ.P. 1910.16-1(c)(2).
If the court finds that APL is due, “there is a rebuttable presumption that
the guideline-calculated support amount is the correct support amount.”
Pa.R.Civ.P. 1910.16-1(d); see also Ileiwat, 233 A.3d at 860. “The
presumption is rebutted if the trier-of-fact concludes in a written finding or
states on the record that the guideline support amount is unjust or
inappropriate.” Pa.R.Civ.P. 1910.16-1(d)(1). In determining whether to
deviate from the guideline, “[t]he trier-of-fact shall consider the child’s and
parties’ special needs and obligations and apply the [Rule 1910.16-5(b)]
deviation factors, as appropriate.” Pa.R.Civ.P. 1910.16-1(d)(2). The Rule
1910.16-5(b) factors include:
(1) unusual needs and unusual fixed obligations;
(2) a party’s other support obligations;
(3) other household income;
(4) the child’s age;
(5) the parties’ relative assets and liabilities;
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(6) medical expenses not covered by insurance;
(7) the parties’ and the child’s standard of living;
(8) . . . the duration of the marriage from the date of marriage to
the date of final separation; and
(9) other relevant and appropriate factors, including the child’s
best interest.
Pa.R.Civ.P. 1910.16-5(b).
III.
A.
Husband contends that the trial court abused its discretion by awarding
five more months of APL by not giving proper weight to the duration of the
marriage in deviating from the support guidelines calculation of the amount
of APL calculated under Rule 1910.16-5(b)(8). See Pa.R.Civ.P. 1910.16-
5(b)(8) (requiring that the court consider “the duration of the marriage from
the date of marriage to the date of final separation” when assessing whether
to deviate from the guideline). He contends that the trial court should not
have used the duration to cap the possible APL award but, instead, should
have used it as a factor in reducing the amount of APL.
Moreover, he argues that the commentary to Pa.R.Civ.P. 1910.16-
1(c)(2) requires consideration of the marriage’s duration when determining
the length of the APL award because one of the primary purposes of this
provision is to allow the party paying APL the “opportunity for credit for these
payments at the time of equitable distribution.” Pa.R.Civ.P. 1910.16-1,
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Explanatory Comment—2010. Because the equitable distribution was not
finalized until the May 19, 2022 divorce decree, Husband argues that “there
was absolutely no opportunity to obtain credit due to the timing of the final
APL decision.” Husband’s Brief at 15.
Husband’s argument that the trial court erred by not considering the
duration of the marriage as a factor to deviate from the amount of APL as
opposed to the duration of the APL award is waived because it was not
included in his Pa.R.A.P. 1925 concise statement. See Concise Statement,
10/31/22; Order, 10/12/22 (directing Husband to file concise statement and
that any issues not raised therein shall be deemed waived). Husband does
not reference Rule 1910.16-5(b)(8) in his concise statement, nor does he
argue that the APL amount should have been reduced based upon the short
duration of the marriage. Moreover, Husband did not raise the potential
reduction of the APL award based upon the duration of the marriage in his
May 19, 2022 demand for a de novo hearing concerning the May 10, 2022
order that set the APL amount or at the August 4, 2022 hearing. See Demand
for Hearing, 5/19/22, at 1-2 (unnumbered); N.T., 8/4/22, at 1-16. While this
latter fact may not be dispositive as the trial court was required to consider
the Rule 1910.16-5(b) deviation factors as appropriate, see Pa.R.Civ.P.
1910.16-1(d)(2), the trial court did, in fact, address each of the factors in its
September 7, 2022 opinion.
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As to Husband’s contention that the trial court abused its discretion by
not giving proper weight in awarding five additional months of APL for the
duration of the marriage, which is not waived, his argument here appears to
be limited to the issue of his apparent lack of an opportunity to claim a credit
at equitable distribution lacks merit. First, it should be noted that the trial
court, as required by Rule of Civil Procedure 1910.16-1(c)(2), did consider the
duration of the marriage when determining the length of the additional months
of APL. Second, the commentary on the rule that discusses a potential credit
for APL paid at the time of equitable distribution appears to envision that such
credit is available “when the obligor is required to pay support over a
substantially longer period of time than the parties were married”; such is not
the case here and, therefore, it is not clear that he would be able to claim a
credit.2 Finally, his claim is factually inaccurate as he did have an opportunity
to claim a credit prior to equitable distribution: the amount of APL was fixed
in a May 10, 2022 order, while the divorce decree finalizing the equitable
distribution was filed on May 19, 2022.
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2 See Pa.R.Civ.P. 1910.16-1, Explanatory Comment—2010 (“Subdivision (c)
has been amended to require the court to consider the duration of the
marriage in determining the duration of a spousal support or alimony
pendente lite award. . . The primary purpose of this provision is to prevent
the unfairness that arises in a short-term marriage when the obligor is
required to pay support over a substantially longer period of time than the
parties were married and there is little or no opportunity for credit for these
payments at the time of equitable distribution.”).
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B.
Husband next argues that the additional five months of APL was
unreasonable and unnecessary considering the prior APL award and the award
of attorney’s fees. Husband notes that Wife had already received 30 percent
of the marital estate, or $49,541.03, and that the award of attorney’s fees
($16,000), the first APL award ($19,284.55), and the second APL award at
issue here ($21,018.06), collectively result in Wife’s receipt of over $105,000,
which is equivalent to an award of 60 percent of the marital estate.
He contends that the second APL award far exceeds the reasonable
needs of Wife because she has already received $35,284.55 in APL and
attorney’s fees before the latest award of APL. He claims that amount was
sufficient to pay her monthly legal fee of $1,250 set forth in her monthly
budget submitted in the divorce matter, as well as her remaining expenses
over a 12-month period, with money left over. He also submits that the
second APL award cannot be justified as support, as she has minimal expenses
because she lives with her aunt and uncle.
While Husband is correct that “APL is based on the need of one party to
have equal financial resources to pursue a divorce proceeding,” Ileiwat, 233
A.3d at 860 (citation omitted), the test in assessing the amount of APL is
whether it is “reasonable for the purpose.” Id. (quoting Schenk, 880 A.2d at
644); see also Cook, 186 A.3d at 1023. In other words, there is no
requirement that the court make a dollar-for-dollar comparison of the shortfall
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in the beneficiary of the APL to ascertain exactly how much money is needed
to be on equal footing with the payer of the APL. If an exact calculation of
need were required, then the rules would not set forth a rebuttable
presumption that the guideline amount of support is appropriate. Pa.R.Civ.P.
1910.16-1(d); Ileiwat, 233 A.3d at 860. This presumption may be rebutted
if the trial court determines, after consideration of the relevant factors and
other special needs or obligations, that the award would be unjust or
inappropriate, Pa.R.Civ.P. 1910.16-1(d)(1)-(2); this analysis does not require
a line-by-line analysis of the beneficiary’s budget to determine whether the
APL is absolutely necessary.
Here, the trial court engaged in the required analysis and determined
that the additional amount of APL was not unjust or inappropriate. This
analysis has support in the record and Husband has not demonstrated that
the court’s conclusion was beyond the bounds of its discretion. Husband’s
arguments that the amount of APL paid to Wife are inappropriate conflate APL
with the equitable distribution and attorney’s fee award, all of which relate to
different issues. Even if the total APL award ($40,302.61) was averaged out
over the entire litigation history (28 months), it would be a monthly amount
of $1,439.37, which, when added to her net income, would only slightly
exceed her monthly expenses. Furthermore, if the APL were averaged over
the current appeal, then the monthly support would be only $1,119.51. See
Childress v. Bogosian, 12 A.3d 448, 463 (Pa. Super. 2011) (noting that APL
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is based upon the state of the litigation); DeMasi v. DeMasi, 597 A.2d 101,
104 (Pa. Super. 1991) (same and stating that divorce is not final until decree
is entered and appeals from the decree are finally resolved). In any event,
the APL award was not simply based upon Wife being able to pay her lawyer,
but also to allow her the resources to engage in the “domestic warfare” of a
divorce. Ileiwat, 233 A.3d at 860 (citation omitted). Similarly, the equitable
distribution award was a division of the parties’ marital property and has
minimal relevance to the APL analysis.
Furthermore, the second award of APL, which was retroactive to
November 2021, concluded by the time of the divorce decree. The ten months
of total APL was far shorter than the divorce case that lasted over two years
and was characterized by protracted, combative litigation, including three
separate hearing dates each of which required Wife’s travel, numerous
exceptions to the master’s report, and Husband’s obstinate refusal to admit
that his marriage to Wife was legitimate or to initially allow her any amount
of equitable distribution from the marital estate.3
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3 Husband also contends that the APL award was motivated by the bias
towards Husband exhibited by President Judge Daniel P. Wallace, who
presided over the proceedings related to Wife’s second petition to reinstate
APL. See, e.g., Husband’s Brief at 24 (“the transcript from this August []4,
2022, hearing shows a very clear and present bias against Husband”).
Husband argues that his “wealth was considered far too prominently” by Judge
Wallace who described Husband as being analogous to a “rock star” with a
large income. Id. at 21-22 (quoting transcript). Husband also raises Judge
Wallace’s apparent criticism of his right to appeal, his refusal to settle and his
(Footnote Continued Next Page)
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Accordingly, for the foregoing reasons, we find that the trial court did
not abuse its discretion in awarding an additional five months of APL.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8 /8/2023
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decision not to seek a prenuptial agreement after a prior divorce. (This appeal
involves Husband’s third marriage.) Id. at 22-26. This argument of bias by
President Judge Wallace is waived as it is in no way encompassed within his
Pa.R.A.P. 1925 concise statement, which does not raise any issue related to
bias.
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