Mackie, T. v. Mackie, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS MACKIE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DIANE MACKIE : No. 714 WDA 2017
Appeal from the Order April 26, 2017
In the Court of Common Pleas of Washington County Civil Division at
No(s): No. 2013-6350
THOMAS MACKIE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DIANE MACKIE :
:
Appellant : No. 772 WDA 2017
Appeal from the Order Entered April 26, 2017
In the Court of Common Pleas of Washington County Civil Division at
No(s): No. 2013-6350
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED MAY 01, 2018
These cross appeals filed by Diane Mackie (Wife) and Thomas Mackie
(Husband) challenge the trial court’s equitable distribution order entered on
April 26, 2017. Upon review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. Husband filed for divorce on October 13, 2013 and Wife filed a
petition for claims on October 30, 2013. Over the course of the next two
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years, the parties engaged in protracted and acrimonious litigation including,
inter alia, filing a combined 23 petitions for special relief and eight petitions
for contempt, and engaging in three discovery conferences.1 On October 16,
2015, Husband filed a motion for the appointment of a Master, which the
trial court granted. The Master held two equitable distribution hearings on
March 31, 2016 and April 28, 2016. On June 24, 2016, the Master filed a
54-page recommendation and report.
Husband filed a single exception to the Master’s Report on July 1,
2016, and an accompanying brief on July 15, 2016. Wife filed seven
exceptions to the Master’s report on July 14, 2016. Wife also filed a motion
to quash, alleging Husband’s exception consisted of a single sentence,
general exception in violation of Pa.R.C.P. 1920.55-2. The trial court
granted Wife’s motion to quash Husband’s exception on August 23, 2016.
On November 15, 2016, the trial court held oral argument on Wife’s
exceptions. At argument, Wife withdrew her sixth and seventh exceptions to
the Master’s report.
On April 26, 2017, by order and accompanying opinion, the trial court
slightly modified the equitable distribution award to Wife. It valued
Husband’s business interests in a limited liability company, G-Force
____________________________________________
1 On June 5, 2015, because the parties were repeatedly disruptive while
presenting motions, the trial court ordered the parties to file future motions
directly with the trial court.
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Leadership, LLC, as of the date of the parties’ separation, granting 60% of
the proceeds from the sale of the company to Wife in a cash payment within
180 days.2 The trial court adopted the Master’s report in all other respects.
These cross-appeals resulted.3
On appeal, Husband presents the following issues for our review:
1. Whether the lower court abused its discretion in quashing
[Husband’s] exceptions to the Master’s report and
recommendation[?]
2. Whether the lower court abused its discretion in failing to
account for significant loss in valuation of the parties’ marital
real estate assets for the purposes of equitable distribution[?]
Husband’s Brief at 7 (superfluous capitalization, suggested answers and
footnote omitted).
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2 On appeal, neither party challenges the trial court’s valuation of Husband’s
business interests in G-Force Leadership, LLC.
3 Husband filed a notice of appeal on May 11, 2017, prior to the entry of the
divorce decree entered on May 19, 2017. “Because the appeal was taken
from an order of equitable distribution before a decree in divorce had been
entered, the appeal was interlocutory.” Isralsky v. Isralsky, 824 A.2d
1178, 1184 (Pa. Super. 2003) (citation omitted). However, the subsequent
filing of the divorce decree perfected Husband’s appeal. Id. On May 11,
2017, the trial court ordered Husband to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Husband complied
timely on May 24, 2017. Wife filed a notice of appeal on May 24, 2017. The
trial court ordered Wife to file a concise statement under Pa.R.A.P. 1925(b)
on May 25, 2017. Wife complied timely on June 5, 2017. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 25, 2017, which
largely incorporated the trial court’s earlier opinion issued on April 26, 2017.
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In Husband’s first issue presented, he argues that the trial court
abused its discretion by quashing his exceptions to the Master’s report “due
to lack of precision[.]” Id. at 20. In the alternative, Husband claims that
when Wife filed her exceptions on July 14, 2016, Pa.R.C.P. 1920.55-2(c)
afforded him 20 days to file exceptions in response and, therefore, his July
15, 2016 brief in support of exceptions should have been deemed timely and
considered by the trial court. Id. at 20-22. Furthermore, while
acknowledging his “failure to raise this particular issue in his [s]tatement of
[e]rrors [c]omplained of on [a]ppeal[,]” Husband also claims that the trial
court addressed the quashal in its Rule 1925(a) opinion, and in its prior
memoranda and orders, and, therefore, should not have found his issue
regarding the valuation of the parties’ marital real estate assets waived. Id.
at 24-25. Accordingly, Husband contends this Court can conduct a
meaningful review of the issue on appeal. Id.
Upon review of the certified record, we conclude that Husband has
failed to preserve any issues for our review. The first basis for finding
waiver of Husband’s claims is his failure to file timely exceptions comporting
with the rules of procedure. In filing exceptions to a Master’s report,
Pa.R.C.P. 1920.55-2(b) provides, in pertinent part:
(b) Within twenty days of the date of receipt or the date of
mailing of the master's report and recommendation, whichever
occurs first, any party may file exceptions to the report or any
part thereof, to rulings on objections to evidence, to statements
or findings of fact, to conclusions of law, or to any other matters
occurring during the hearing. Each exception shall set forth a
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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.
(c) If exceptions are filed, any other party may
file exceptions within twenty days of the date of service of the
original exceptions. The court shall hear argument on
the exceptions and enter a final decree.
Pa.R.C.P. 1920.55-2(b) and (c) (emphasis added). “[F]ailure to file timely
exceptions [] result[s] in a waiver of [appellate] claims of error in our
[C]ourt.” Sipowicz v. Sipowicz, 517 A.2d 960, 963 (Pa. Super. 1986).
In this case, within 20 days of the Master’s report, Husband filed the
following exception:
1. The Master’s [r]eport and [r]ecommendation contains
numerous errors to support [Husband’s] filing of [e]xceptions.
2. Detailed information will be provided in the brief, which will
be delivered ahead of the scheduled hearing.
Husband’s Exceptions, 7/1/2016, (unpaginated) at 1.
The trial court concluded that Husband’s exceptions “failed in all
respects to comply with [Rule 1920.55-2] requirements.” Trial Court Order,
9/23/2016, (unpaginated) at 1. More specifically, the trial court
determined that Husband’s exceptions lacked precision. Id. We agree.
Husband made a general and vague reference to “numerous errors” without
setting forth precise and separate objections as Rule 1920.55-2 commands.
Moreover, while Husband claims that he reserved the right to raise specific
exceptions in his later filed brief, the rule specifies that if Husband wished to
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clarify and raise specific exceptions after the expiration of the 20-day period,
he was required to seek leave of court. Husband filed his brief in support of
exceptions outside of the 20-day window to file exceptions and he did not
seek leave of court. Finally, we reject Husband’s suggestion that his brief in
support of exceptions essentially qualified as a timely statement of
exceptions filed 20 days after Wife’s exceptions. Husband’s brief failed to
comply with Rule1920.55-2(b)’s provision that each specific exception be
presented “without discussion.” Obviously, Husband’s brief presented
argument on each of his allegations of error. For these reasons, Husband
waived his claims for our review.
As a second basis for finding waiver, while Husband currently argues
that the trial court improperly quashed his exception, he did not raise this
issue in his concise statement under Rule 1925(b). Our Supreme Court has
“held that any issues not raised in a court-ordered Rule 1925(b) statement
will be deemed waived on appeal.” Commonwealth v. Burton, 973 A.2d
428, 438 (Pa. Super. 2009), citing Commonwealth v. Lord, 553 Pa. 415,
719 A.2d 306 (1998).
Finally, while Husband currently claims that the trial court “abused its
discretion in failing to account for the significant loss in valuation of the
parties’ marital assets for the purposes of equitable distribution[,]” 4 he has
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4 See Husband’s Brief at 25.
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failed to cite any legal authority to support this claim in his appellate brief
and this issue is waived for this additional reason. See S.M.C. v. W.P.C.,
44 A.3d 1181, 1189 (Pa. Super. 2012), citing Pa.R.A.P. 2119(a). As there
are no cognizable issues for our review, we affirm the trial court’s equitable
distribution order as it pertains to Husband.
Next, we turn to Wife’s appeal, wherein she presents the following
issues, pro se, for our review:
1. Did the trial court commit an error when it failed to remand
the issue of [] Husband’s American Airlines retirement
account to the Master for further evaluation of the plan by
[Husband’s] expert [Michael] Pisula [(“Pisula”)] when [] Wife
presented Pisula with evidence that Pisula’s opinions were
based on incorrect documents and false information, as
shown by the un-doctored financial documents (previously
produced by [] Husband) which proved additional years of
income which were fraudulently redacted from the materials
and documents provided to [] Pisula by [] Husband?
2. Did the trial court commit an error when it failed to grant []
Wife any share of [] Husband’s American Airline stock when
the Master based his decision on incomplete documentation
(and to which said incomplete documentation [] Wife not only
objected to, but also presented evidence contradicting
evidence of [] Husband and showing his expert that some
documents relied upon by the expert had been tampered with
to falsely indicate [H]usband had not been working or earning
certain incomes when he had been earning certain incomes)?
3. Did the trial court commit an error of law when the court
failed to grant [] Wife any credit for marital bills paid during
the pendency of the parties’ divorce (all of which were
documented and submitted into evidence at the time of the
underlying hearing)?
4. Did the trial court commit an error of law when it failed to
grant [] Wife an additional award of attorney fees?
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5. Did the trial court commit an error of law when it determined
that [Husband] had waived his appeal and his appellate
issues?
6. Did the trial court commit an error of law when it did not
award or somehow credit [] Husband for “lost value”?
Wife’s Brief at 8-9 (superfluous capitalization and suggested answers
omitted).
Wife’s first three issues challenge the valuation of several assets Wife
characterizes as marital; hence, we will examine them together as
inter-related claims. First, Wife argues that Husband’s expert, Pisula, used
false and/or inaccurate information when establishing the value of Husband’s
American Airlines pension. Id. at 14-25. She claims that Pisula used a
document showing a zero pension salary for Husband from 2008 through
2014, despite Wife’s claim that she received documentation during discovery
that indicated that Husband received a significant salary during those years
that he hid from Wife. Id. at 14. Wife argues that Pisula acknowledged that
his calculations were based upon information that was available to him and if
there were additional information, it should be obtained. Id. at 20-21. In
turn, Wife contends that “[t]he Master knew the facts could not be said to
support any finding on the value of the pension because the facts were, on
the very face of the record, significantly incomplete (and likely wrong).” Id.
at 22. She further asserts that she “was not required to re-calculate []
Pisula’s incorrect and unfounded valuations.” Id. at 23. Instead, she opines
that “[t]he Master was obliged to instruct [] Husband to provide his expert
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with true and correct information regarding his pension salary for 2008-
2013.” Id. Relying on the same documentation and testimony of Pisula as
previously set forth, Wife argues Husband acquired American Airline stock
during the marriage and liquated it six months prior to separation. Wife,
therefore, asserts that the Master erred in failing to include these assets in
determining equitable distribution. Id. at 25-30. Wife also contends that
the Master erred in failing to give her credit for payments she made toward
the marital debt. Id. at 34-36. She argues that the Master erred in
determining that neither party should receive credit for expenditures on
maintenance of marital property because both parties engaged in dilatory
and occlusive behavior. Id. at 34-36.
We apply the following standard in reviewing an equitable distribution
order:
A trial court has broad discretion when fashioning an award of
equitable distribution. Our standard of review when assessing
the propriety of an order effectuating the equitable distribution
of marital property is whether the trial court abused its
discretion by a misapplication of the law or failure to follow
proper legal procedure. We do not lightly find an abuse of
discretion, which requires a showing of clear and convincing
evidence. This Court will not find an abuse of discretion unless
the law has been overridden or misapplied or the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the evidence in
the certified record. 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.
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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 382, 386–387 (Pa. Super. 2015)
(internal citations and quotations omitted).
In valuing assets for equitable distribution:
The Divorce Code does not specify a particular method of valuing
assets. The trial court must exercise discretion and rely on the
estimates, inventories, records of purchase prices, and
appraisals submitted by both parties. Smith v. Smith, 653
A.2d 1259, 1265 (Pa. Super. 1995), appeal denied, 663 A.2d
693 (Pa. 1995).
In determining the value of marital property, the court is free to
accept all, part or none of the evidence as to the true and
correct value of the property. Litmans v. Litmans, 673 A.2d
382, 395 (Pa. Super. 1996), citing Aletto v. Aletto, 537 A.2d
1383 (Pa. Super. 1988). “Where the evidence offered by one
party is uncontradicted, the court may adopt this value even
though the resulting valuation would have been different if more
accurate and complete evidence had been presented.” Id.,
quoting Holland v. Holland, 588 A.2d 58, 60 (Pa. Super.
1991), appeal denied, 596 A.2d 158 (Pa. 1991); accord Smith
v. Smith, 653 A.2d 1259, 1267 (Pa. Super. 1995), appeal
denied, 663 A.2d 693 (Pa. 1995) (stating if one party disagrees
with the other party's valuation, it is [her] burden to provide the
court with an alternative valuation). A trial court does not abuse
its discretion in adopting the only valuation submitted by the
parties. Litmans, supra at 395.
Smith v. Smith, 904 A.2d 15, 21–22 (Pa. Super. 2006).
In this case, Wife did not produce expert testimony regarding
valuation. Moreover, the trial court noted that both parties “displayed a
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marked inability to present evidence in a manner that assists the fact-finder”
and “engaged in bad faith litigation tactics for obfuscating the factual
record.” Trial Court Opinion, 4/26/2017, at 6. The Master noted that he
specifically requested summary financial information from Wife in a
particular format, but she blatantly disregarded those instructions. Id. at 9.
The trial court further recognized that “[Wife] has claimed without pause
throughout the parties’ litigation that [Husband] has hidden or
misrepresented assets[,]” but that Wife availed herself of multiple rounds of
discovery and had an opportunity to present evidence on her behalf, but did
not. Id. Instead, Wife cross-examined Husband’s expert regarding
valuation. With regard to Husband’s pension, Husband’s expert testified that
all of the documentation “reflected a pension after [Husband] had returned
to work for American Airlines post-separation, and after the money at issue
had been settled into an IRA account.” Id. at 20. The trial court stated
that “[u]ltimately, [the Master] accepted the only [pension] valuation in
evidence that he received” from Husband’s expert. Id. at 21. Regarding
stock, the trial court concluded that Husband presented evidence that he
was awarded stock as part of an arbitration decision in a pilot labor dispute
for his pre-marital employment and that he did not receive the stock until
after the parties’ separation. Id. at 22-23. Finally, the trial court
concluded that the Master did not err in denying Wife’s claim for credit for
alleged payments of marital debt because “both parties contributed to the
dissipation of the marital estate, either through neglect of marital assets or
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by the transfer of marital money into outside accounts.” Id. at 27.
Moreover, the Master recognized that Wife was held in contempt for failing
to pay the martial residence mortgage and failed to make payments after
being found in contempt. Id. Thus, the Master found Wife lacked credibility
in advancing her request for a credit on the marital debt. Id. at 28.
Upon review, we agree with the trial court’s assessment regarding
Husband’s pension, American Airline stock, and Wife’s request for credit for
paying marital debt. Each party has the burden to prove valuation.
Husband presented evidence through an expert. Wife did not. Instead, Wife
cross-examined Husband’s expert. While Husband’s expert stated that his
evaluation would be different if he used Wife’s proffered documentation, the
expert was not required to revalue his opinions based on information
suggested by Wife and the trial court could not order him to do so as Wife
suggests. If Wife contested the valuations, it was her burden to provide
evidence to support her assertions, but she did not. Thus, as it stands,
Husband’s evidence was largely uncontradicted. Wife presented no evidence
to dispute the findings that Husband’s award of American Airline stock arose
from pre-marital employment and was not received until after the parties
separated. Moreover, the Master did not find Wife’s testimony regarding her
claim for credit against the martial debt credible and we may not usurp that
determination. Based upon our standard of review and the evidence
presented, we discern no abuse of discretion or error of law in denying
Wife’s exceptions to the Master’s recommendations regarding Husband’s
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pension and American Airline stock and Wife’s request for marital debt
credit. Hence, there is no merit to Wife’s first three appellate issues.
In her fourth issue presented, Wife claims that the Master erred in
calculating her award for attorney’s fees. She claims that the trial court
ordered Husband to advance her $16,000.00, on July 19, 2014, “to pay
attorney fees, then owing and due” and “also so she could secure new
counsel.” Wife’s Brief at 31. Thereafter, initial counsel for Wife withdrew.
Subsequently, Wife averred that she incurred an additional $18,595.40 in
attorney’s fees with new counsel and the Master agreed. However, Wife
contends that “the Master wrongly re-credited [] Husband with $16,000[.00]
for the monies used years before to pay fees of another attorney” and, thus,
granted her “only $2,595.40.” Id. at 32-33. She contends that she “needs
the full $18,595.40 now to pay her [current] legal fees[,]” arguing that
leaving her with an award of $2,595.40 “is both wrong and inherently
unfair.” Id. at 33.
Our standard of review is clear:
We will reverse a determination of counsel fees and costs only
for an abuse of discretion. 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,
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the value of the services rendered, and the property received
in equitable distribution.
Counsel fees are awarded only upon a showing of need. Further,
in determining whether the court has abused its discretion, we
do not usurp the court's duty as fact finder.
Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. 2004) (internal
citations and quotations omitted).
In this case, Wife retained an attorney who represented her in the
parties’ custody and child support dispute, in filing an unfounded PFA against
Husband, and the commencement of the divorce litigation.5 In two separate
petitions, Wife’s initial attorney requested adjusted attorney’s fees totaling
nearly $100,000.00. The trial court denied the requested fees as excessive,
noting that “[t]he itemized billing presented to the [c]ourt was not
specifically limited to matters pertaining only to the divorce action” and “did
not consistently [allocate the fees between] divorce, custody, support, or
[PFA.]” Trial Court Memorandum and Order, 7/18/2014, (unpaginated) at
1-2. The trial court stated that Wife’s documentation of counsel fees lacked
specificity as required. The trial court also determined that Wife’s former
attorney charged twice the hourly fee than the prevailing market rates in
Washington County. Id. at 4-5. As such, the trial court denied the
requested award for attorney’s fees, but opined:
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5 The trial court subsequently granted prior counsel’s request to withdraw,
averring Wife failed to pay her outstanding legal fees and it was a hardship
for her firm to continue representation without compensation. See Order,
8/21/2014, at 1.
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However, in light of the disparity in incomes between the parties,
the [c]ourt does find that a necessity exists which justifies the
award of a more modest amount of counsel fees. Further,
because the [c]ourt is in the position of making adjustments at
the time of final disposition for any interim fees it may award,
and the [c]ourt should protect the less affluent spouse and place
him or her in a position to secure competent representation, an
order of interim fees credited against a future award of
equitable distribution is appropriate in this matter. [Wife]
may have difficulty in securing necessary representation if this
[c]ourt does not grant her some amount of interim counsel fees.
* * *
[Accordingly,] the [c]ourt hereby orders and decrees that an
award of interim counsel fees and expenses of $16,000.00 is
reasonable and necessary. Such award shall be considered
as an advance on equitable distribution.
Id. at 5-6 (emphasis added).
Here, both the Master and the trial court determined that attorney’s
fees, totaling $18,595.40, accrued after Wife’s former counsel withdrew.
Moreover, both the Master and the trial court agreed that such fees were
reasonable and due based upon Wife’s need and Husband’s ability to pay.
The Master “then credited to [Husband] $16,000.00, the amount the court
awarded [Wife] on July 18, 2014, as an advance on counsel fees, costs, and
expenses [and] awarded [Wife] $2,595.40 in net attorney’s fees, costs, and
expenses.” Trial Court Opinion, 4/26/2017, at 24-25. The Master did not
review or revisit former counsel’s bill for services, looking only prospectively
from the July 18, 2014 order awarding Wife an advance of $16,000.00. Id.
at 25. Upon review, we discern no abuse of discretion. While Wife
characterizes the $16,000.00 award as a payment of fees for prior counsel,
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the record belies her assertion. In July 2014, the trial court specifically
stated it denied Wife’s request for fees from former counsel. The
$16,000.00 award was earmarked as an interim advance to secure new
counsel, but would be credited against future awards of equitable
distribution. The Master and trial court computed Wife’s $2,595.40 award
for attorney’s fees precisely in line with the prior order. Hence, we discern
no error or abuse of discretion. As such, Wife’s contention regarding her
attorney’s fees lacks merit.
Because we have already determined that dismissal of Husband’s
appeal is warranted, Wife’s fifth and sixth appellate issues pertaining to
Husband’s appeal are moot.
Finally, we address Wife’s motion to quash Husband’s appeal filed with
this Court on September 26, 2017. Wife seeks to quash Husband’s appeal
citing waiver. Our Supreme Court has directed that:
An appeal is “quashed” when the court lacks jurisdiction over the
appeal in the first instance. When the appellant has failed to
preserve issues for appeal, the issues are waived, and the lower
court's order is more properly “affirmed.”
In re K.L.S., 934 A.2d 1244, 1246 (Pa. 2007). Having already found that
Husband waived all issues, we deny Wife’s motion to quash as moot.
Order affirmed. Wife’s motion to quash denied as moot.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2018
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