Pullett, D. v. Pullett, C. ( 2018 )


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  • J. S53034/17
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    DORIS PULLETT                           :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    v.                   :
    :
    CHARLES PULLETT,                        :          No. 3260 EDA 2016
    :
    Appellant       :
    Appeal from the Order Entered September 19, 2016,
    in the Court of Common Pleas of Philadelphia County
    Family Court Division at No. June Term, 2006, No. 8419
    BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MARCH 08, 2018
    Charles Pullett (“Husband”) appeals the order of the Court of Common
    Pleas of Philadelphia County that decreed that he and Doris Pullett (“Wife”)
    were divorced and ordered him to pay Wife $48,405.38, which represented
    Wife’s share of equitable distribution; to pay Wife’s present counsel
    $10,481.25 for counsel fees, costs, and expenses; to pay alimony to Wife in
    the amount of $1,000 per month for four years or until the death of either
    party, or upon the remarriage or cohabitation of Wife; and to obtain a life
    insurance policy designating Wife as beneficiary for a period terminating with
    the fulfillment of his alimony obligations. After careful review, we affirm in
    part, vacate in part, and remand in part.
    The trial court recounted the following facts and procedural history:
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    [T]he parties were married on December 30, 1989.
    They had three children, two of whom are currently in
    their 30’s and one of whom is in his 20’s. Husband
    alone contributed financially to the family, working
    continuously as a truck driver for various solid waste
    hauling entities. For the first half of 2006, Husband’s
    gross pay was $37,548.13. Wife remained at home,
    raising the children and running the household.
    During the marriage, Husband had two retirement
    accounts: 1) a 401(k); and 2) an IRA annuity. In
    2007, Husband received funds from a union
    settlement, the majority of which the parties agree to
    be marital property. In addition, the parties had a
    checking account and a savings account. All financial
    correspondence was sent to Husband’s mother’s home
    and not to the marital residence; Wife was not privy
    to the ongoing financial status of the accounts. The
    parties never owned the marital residence, but rented
    the entire time they lived together as a family. Nor
    did they own any other real property.
    Husband testified that the standard of living
    during the marriage consisted of the family living
    together and his taking care of them. The family went
    on a vacation while Husband worked. There never
    was more than $5000 in savings. Wife testified that
    Husband “paid the bills” and that she and the children
    went on one family vacation.
    Husband testified the parties continued to live
    together as long as they did as a married couple
    because he felt that he had obligations to Wife. Wife
    testified that during the marriage Husband went out
    “a lot” and that he was “seeing someone else.” Wife
    also testified the [sic] Husband was verbally abusive
    and at times was physically abusive.
    After separation, Wife obtained employment as
    a care assistant at a senior living facility, where she
    remained so employed until she was laid off in
    February 2016. At the time of termination, Wife
    earned approximately $30,577 per year.           Wife’s
    maximum        entitlement       to     unemployment
    compensation benefits for the period Feb. 14, 2016
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    through February 11, 2017 is $8,259. Wife had
    received post-separation support from Husband of
    $1,420 per month (Wife and one child) and currently
    receives $1050 per month (Wife only). Wife has a
    post-separation 401(k) account, whose value she
    approximated to be $1000, in which she was not fully
    vested at the time of the trial.
    The documentary and testimonial evidence
    established the following values for the four primary
    marital assets: 1) Husband’s 401(k) account valued
    at $23,105.63 as of 7/1/07, the closest date to the
    time of separation supplied by Husband, 2) Husband’s
    IRA account valued at $45,000 as of 3/31/06, 3) union
    settlement of $11,410 (pre-tax), and 4) Wells Fargo
    checking account balance of approximately $3,000.
    The salient procedural events in the course of
    this litigation, as gleaned from the docket report, are
    as follows:
    June 7, 2006 – Complaint in divorce filed
    by Wife.
    July 14, 2006 – Answer and counterclaim
    filed by Husband.
    ....
    June 12, 2012 – Order approving grounds
    for divorce.
    ....
    June 15, 2015 – Master’s report filed.
    ....
    July 6, 2015 – Husband’s praecipe for trial
    de novo.
    ....
    Sept. 19, 2016 – Trial de novo conducted
    and Order filed.
    Oct. 18, 2016 – Husband’s notice of
    appeal and Rule 1925(b) statement filed.
    In his concise statement of errors complained of
    on appeal, filed pursuant to Pa.R.A.P. 1925(b),
    Husband raises 17 discrete issues.[1]
    1   Husband raises only four of those issues in his brief before this court.
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    Trial court opinion, 1/10/17 at 1-4 (footnote and citations to the record
    omitted). The trial court issued a divorce decree in the first paragraph of the
    September 19, 2016 order.       The trial court entered an amended divorce
    decree on November 9, 2017.2
    Appellant raises the following issues for this court’s review:
    1.    Whether the trial court erred as a matter of law
    or abused its discretion in not applying deferred
    distribution of the retirement benefits through a
    qualified domestic relations order (QDRO)[3] --
    pursuant to 3501(c)(1) of the Divorce Code --
    or alternatively, to calculate the IRS penalty and
    taxes Husband would have to pay for premature
    withdrawal of retirement benefits[?]
    2.    Whether the trial court erred as a matter of law
    or abused its discretion in not giving Husband
    credit for paying alimony pendente lite
    [(“APL”)] for over 10 years, but instead ordered
    him to continue paying alimony for another
    four (4) years, which constitutes 14 years total
    of support to Wife for a 16-year marriage,
    2This court initially quashed Husband’s appeal on October 25, 2017. Husband
    moved for reconsideration. On December 7, 2017, this court granted panel
    reconsideration.
    3           A QDRO is an order “which creates or recognizes the
    rights of an alternate payee to receive all or a portion
    of the benefits payable to a participant under the plan.
    To be ‘qualified,’ the order must contain certain
    required information and may not alter the amount or
    form of plan benefits.” Berrington v. Berrington,
    
    534 Pa. 393
    , 
    633 A.2d 589
    , 591 n. 3 (1993) (citation
    omitted). The actual qualifying of the domestic
    relations order is done by the employer’s pension
    administrator.
    Smith v. Smith, 
    938 A.2d 246
    , 248 n.3 (Pa. 2007).
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    despite the fact that Wife had been gainfully
    employed full time for almost ten years
    subsequent to the parties’ separation[?]
    3.    Whether the trial court erred in ordering
    Husband to pay alimony on a fixed basis,
    regardless of any potential future changes in
    income, earning capacity, health condition, or
    disability -- in direct violation of 23 Pa.C.S.[A.]
    § 3701(e)[?]
    4.    Whether the trial court erred as a matter of law
    or abused its discretion in ordering Husband to
    pay Wife $10,481.25 for counsel fees, even
    though it was undisputed that Wife had worked
    for over nine years after the parties’ separation
    and received support from Husband in the
    amount of $1,050 monthly under the statutory
    formula for APL (40% of the difference in the
    parties’ respective net incomes), which
    equalized the incomes between the parties and
    placed the parties in equal financial positions[?]
    Appellant’s brief at 2-3.
    Initially, Husband contends that the trial court erred as a matter of law
    when it failed to apply deferred distribution of appellant’s retirement benefits
    through a QDRO pursuant to Section 3501(c)(1) of the Divorce Code,
    23 Pa.C.S.A. § 3501(c)(1) or alternatively, to calculate the Internal Revenue
    Service penalty and taxes for premature withdrawal of retirement benefits.
    [O]ur standard for reviewing awards of equitable
    distribution is well settled. The trial court has broad
    discretion in fashioning such awards, and we will
    overturn an award only for an abuse of that discretion.
    Isralsky v. Isralsky, 
    824 A.2d 1178
     (Pa.Super.
    2003). To assess whether the trial court abused its
    discretion, we must determine whether the trial court
    misapplied the law or failed to follow proper legal
    procedure.       
    Id.
          Further, we measure the
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    circumstances of the case against the objective of
    effectuating economic justice between the parties and
    achieving a just determination of their property rights.
    
    Id.
    Hayward v. Hayward, 
    868 A.2d 554
    , 557-558 (Pa.Super. 2005).
    Husband argues that the trial court awarded Wife 60% of the total
    retirement benefits of $68,106, which equaled $40,864, to be transferred to
    Wife. Husband asserts that this amount should have been distributed through
    a QDRO from his retirement account into Wife’s retirement account. Husband
    asserts that he cannot withdraw $40,864 without paying the IRS penalty and
    income tax of a 20% mandatory withholding tax and a 10% early withdrawal
    penalty.   In order to pay Wife in cash, Husband states that he could only
    receive $28,605 after paying the penalty and tax to the Internal Revenue
    Service.
    The trial court established that the value of Husband’s 401(k) account
    on July 1, 2007, which was the closest date to the time of separation supplied
    by Husband, was $23,105.63.        (See trial court opinion, 1/10/17 at 5.)
    However, as the trial court points out, Husband testified that he had already
    withdrawn all the funds from the 401(k) account.         (Notes of testimony,
    9/19/16 at 89-91.) As there was no 401(k) account from which to draw funds,
    the transfer could not have been effectuated via a QDRO.
    As to Husband’s IRA account which was valued at $45,000 as of
    March 31, 2006, the trial court asserted that Husband waived this issue
    because he neither asked for a QDRO at trial nor provided the figures upon
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    which a penalty for early withdrawal could be calculated.       A review of the
    record confirms that Husband did not raise this issue before the trial court.
    Consequently, it is waived. Issues not timely raised before the trial court are
    waived on appeal.    Pa.R.A.P. 302(a); Tecce v. Hally, 
    106 A.3d 728
    , 732
    (Pa.Super. 2014), appeal denied, 
    125 A.3d 778
     (Pa. 2015).
    Husband next contends that the trial court abused its discretion when it
    failed to give Husband credit for paying APL for more than 10 years, but
    instead ordered him to continue paying alimony4 for another four years, which
    constituted 14 years of total support to Wife for a 16-year marriage, despite
    the fact that Wife had been gainfully employed post-separation.
    Our standard of review regarding
    questions pertaining to the award of
    alimony is whether the trial court abused
    its discretion.     We previously have
    explained that “[t]he purpose of alimony
    is not to reward one party and to punish
    the other, but rather to ensure that the
    reasonable needs of the person who is
    unable to support himself or herself
    through appropriate employment, are
    met.” Alimony “is based upon reasonable
    needs in accordance with the lifestyle and
    standard of living established by the
    parties during the marriage, as well as the
    payor’s ability to pay.”        Moreover,
    “[a]limony following a divorce is a
    secondary remedy and is available only
    where     economic    justice   and     the
    reasonable needs of the parties cannot be
    4 Alimony is paid, if at all, after the parties are divorced. 23 Pa.C.S.A.
    § 3701(a). APL is paid during the pendency of the divorce so that both parties
    have equal ability to pursue the divorce proceeding. See 23 Pa.C.S.A. § 3702;
    Litmans v. Litmans, 
    673 A.2d 382
     (Pa.Super. 1996).
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    achieved by way of an equitable
    distribution award and development of an
    appropriate employable skill.”
    Moran v. Moran, 
    839 A.2d 1091
    , 1096-97 (Pa.Super.
    2003) (citations omitted) (emphasis in original).
    In determining whether alimony is
    necessary, and in determining the nature,
    amount, duration and manner of payment
    of alimony, the court must consider
    numerous factors including the parties’
    earnings and earning capacities, income
    sources, mental and physical conditions,
    contributions to the earning power of the
    other, educations, standard of living
    during the marriage, the contribution of a
    spouse as homemaker and the duration of
    the marriage.
    Anderson v. Anderson, 
    822 A.2d 824
    , 830-31
    (Pa.Super. 2003) (citations omitted). See also
    23 Pa.C.S.A. § 3701.
    Teodorski v. Teodorski, 
    857 A.2d 194
    , 200 (Pa.Super. 2004).
    Husband argues that it is grossly unfair that he must continue to support
    Wife after Wife prolonged the divorce process for the clear purpose of
    collecting alimony pendente lite.     Husband asserts that nothing prevents
    Wife from working as a truck driver and earning the same amount as he does.
    He asserts that the only difference is that he is willing to work overtime at an
    undesirable job and she is not. He also argues that Wife has a post-marital
    401(k) plan.
    The trial court addressed this issue:
    This Court has considered all of these factors in
    determining that four more years of alimony at the
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    rate of $1000 a month is an appropriate award to
    Wife. The Court considers the following factors to be
    of particular significance in this matter: 1) the relative
    earnings and earning capacities of the parties
    (Husband’s $66,000[5] annual salary; Wife’s
    maximum $8,632 unemployment compensation
    benefits for period 2/14/16—2/11/17); 2) the ages
    and the physical, mental and emotional conditions of
    the parties; 3) the sources of income of both parties,
    including, but not limited to, medical, retirement,
    insurance or other benefits; 4) the duration of the
    marriage; 5) the standard of living of the parties
    established during the marriage; 6) the relative
    education of the parties and the time necessary to
    acquire sufficient education or training to enable the
    party    seeking      alimony     to  find   appropriate
    employment; 7) the relative assets and liabilities of
    the parties; 8) the contribution of Wife as
    homemaker; 9) the relative needs of the parties;
    10) the marital misconduct of Husband during the
    marriage; 11) [w]hether the party seeking alimony
    lacks sufficient property, including, but not limited to,
    property distributed under Chapter 35 (relating to
    property rights), to provide for the party’s reasonable
    needs; and (12) Wife’s capability to support herself
    through appropriate employment.
    Additionally, Husband is not obligated to pay for
    Wife’s medical insurance and Wife, presumably, will
    be required to obtain a policy of her own. The Court
    gave great weight to the disparity of the earnings of
    the parties. Husband currently earns approximately
    $66,000 a year, while the Wife receives APL [] of
    $1050 per month and $332 a week in unemployment
    compensation benefits (maximum benefit of $8,632
    for the period 2/14/16—2/11/17).
    Trial court opinion, 1/10/17 at 11-13.
    5 The trial court mentioned an income amount of $37,548.13 in its factual
    summary. This number represents Husband’s income for the first half of 2006.
    Wife filed a divorce complaint in June 2006.
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    First, with respect to the award of alimony, it is clear the trial court
    reviewed the relevant statutory factors for alimony.              See 23 Pa.C.S.A.
    § 3701(b). Second, although Husband referred to Wife’s post-marital 401(k),
    Wife testified that the account was valued at approximately $1,000. (Notes
    of testimony, 9/19/16 at 227.) In and of itself, this amount would not be
    sufficient to cause the trial court’s award to constitute an abuse of discretion.
    Third, although Husband asserts that Wife prolonged the duration of the
    litigation,   the   trial   court   explicitly   found,   “[c]ontrary   to   Husband’s
    representation, Wife has not ‘protracted and prolonged’ this divorce
    proceeding, as evidenced by the docket entries.” (Trial court opinion, 1/10/17
    at 10.) Fourth, while Husband focuses on the APL he paid during the pendency
    of the divorce, the purposes of APL and alimony are different. APL is paid
    during the course of divorce proceedings so that both parties have equal ability
    to pursue the divorce proceeding.            See 23 Pa.C.S.A. § 3702.         “Alimony
    following a divorce is a secondary remedy and is available only where
    economic justice and the reasonable needs of the parties cannot be achieved
    by way of an equitable distribution award and development of an appropriate
    employable skill.” Moran, 
    839 A.2d at 1097
    , quoting Twilla v. Twilla, 
    664 A.2d 1020
    , 1022 (Pa.Super. 1995) (emphasis in original). Given the different
    purposes for APL and alimony, the fact that Husband paid APL during the
    course of the divorce proceedings does not preclude the award of alimony
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    following a divorce. This court does not find that the trial court abused its
    discretion when it fashioned its award of alimony.
    Husband next contends that the trial court erred when it ordered him to
    pay alimony non-modifiable in amount or duration and only terminable upon
    the death of either party or Wife’s remarriage or cohabitation in direct violation
    of Section 3701(e) of the Divorce Code, 23 Pa.C.S.A. § 3701(e).
    Section 3701(e) provides:
    (e)   Modification and termination.--An order
    entered pursuant to this section is subject to
    further order of the court upon changed
    circumstances of either party of a substantial
    and continuing nature whereupon the order may
    be modified, suspended, terminated or
    reinstituted or a new order made. Any further
    order shall apply only to payments accruing
    subsequent to the petition for the requested
    relief.   Remarriage of the party receiving
    alimony shall terminate the award of alimony.
    23 Pa.C.S.A. § 3701.
    The order to which Husband refers states in pertinent part the following:
    3.    Husband shall pay alimony to Wife in the
    amount of $1,000 per month for a period of
    4 years (48 months) effective the date of this
    decree and order. Said alimony shall terminate
    upon the expiration of the aforesaid 4 year
    period, upon the death of either party, or upon
    the remarriage or cohabitation of Wife,
    whichever first occurs. Otherwise, said alimony
    shall be non-modifiable in amount and duration.
    A separate domestic relations order is being
    entered contemporaneously herewith.
    Order, 9/19/16 at 1-2, ¶ 3 (capitalization and bolding omitted).
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    In its opinion, the trial court stated, “[t]his issue is without merit as
    nothing in the Court’s order precludes Husband from seeking modification,
    suspension, termination, or reinstitution of the order should either party
    experience changed circumstances of a substantial and continuing nature.”
    (Trial court opinion, 1/10/17 at 14.)
    Husband correctly asserts that under the plain language of the statute,
    changed circumstances of a substantial and continuing nature by either party
    may lead to a modification, suspension, termination, reinstitution, or a new
    order. However, under the order fashioned by the trial court, the possible
    modification is limited to a termination of alimony upon the death of either
    party or the remarriage or cohabitation of Wife. Further, although the order
    states   that   a   separate   domestic   relations   order   would   be   entered
    contemporaneously, the docket entries and record of this case do not indicate
    that such an order was entered. To add to the confusion, the trial court states
    in its opinion that nothing in the order prevents Husband from seeking
    modification if either party experiences changed circumstances of a
    substantial and continuing nature. The order clearly does not state that.
    The trial court erred or abused its discretion when it issued an order that
    was not in conformity with Section 3701 of the Divorce Code.           This court
    vacates paragraph 3 of the September 19, 2016 order and remands to the
    trial court for the insertion of language concerning modification of the alimony
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    award that conforms with Section 3701 of the Divorce Code and the trial
    court’s opinion.
    Husband next contends that the trial court abused its discretion when it
    ordered Husband to pay Wife $10,481.25 for counsel fees, even though it was
    undisputed that Wife had worked for almost ten years post-separation and
    received support from Husband under the statutory formula for APL which
    equalized the incomes between the parties and placed the parties in equal
    financial positions.
    Our standard of review of the award of
    counsel fees pursuant to the Domestic
    Relations Code is for an abuse of
    discretion. See Bowser v. Blom, 
    569 Pa. 609
    , 
    807 A.2d 830
    , 834 (Pa. 2002). 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.” 
    Id.
    (citations omitted).      “[R]eview of the
    grant of counsel fees is limited . . . and we
    will reverse only upon a showing of plain
    error.” Isralsky v. Isralsky, 
    824 A.2d 1178
    , 1192 (Pa.Super. 2003) (citation
    omitted).
    Kraisinger v. Kraisinger,          
    34 A.3d 168
    ,    175
    (Pa.Super. 2011).
    Habjan v. Habjan, 
    73 A.3d 630
    , 642 (Pa.Super. 2013).
    Husband argues that because he paid APL since the time of separation
    and Wife worked outside the home post-separation, their incomes were
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    comparable. He also asserts that she protracted the litigation in order to reap
    additional APL. As stated above, the trial court did not accept this contention
    that Wife unnecessarily extended the litigation. Husband asserts that forcing
    him to pay Wife’s counsel fees after ten years of paying APL and after Wife
    took steps to prevent the divorce from being finalized is a gross injustice, an
    abuse of discretion, and a misapplication of the law.
    The trial court explained its decision with respect to attorney fees:
    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.
    This Court considered Husband’s ability to pay
    ($66,000 annual salary), Wife’s current financial
    resources      ($8,259      maximum      unemployment
    compensation benefits for period 2/14/16—2/11/17),
    the value of the services rendered by Wife’s counsel,
    and the property received in equitable distribution in
    exercising its discretion in awarding Wife counsel fees.
    As previously noted, Husband has the ability to pay
    Wife’s counsel fees, while Wife is currently
    unemployed. Contrary to Husband’s representation,
    Wife has not “protracted and prolonged” this divorce
    proceeding, as evidenced by the docket entries.
    Husband has made no showing that the hourly rate
    ($350) charged by Wife’s counsel was outside the
    range of experienced divorce attorneys practicing in
    the Philadelphia area. This issue is without merit.
    Trial court opinion, 1/10/17 at 10 (citations omitted).
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    A review of the record supports the trial court’s conclusion that Husband
    earns substantially more than Wife earns and that Husband has the ability to
    pay Wife’s counsel fees.     Further, it is not for us to determine if the rate
    charged by Wife’s counsel was exorbitant.      Additionally, although Husband
    asserts that he paid APL for ten years, Wife testified that Husband came back
    to court to have the amount reduced, and at the time, Wife could not afford
    to pay counsel to challenge the action. (Notes of testimony, 9/19/16 at 208.)
    Husband’s counsel stipulated that spousal support was suspended in 2007.
    (Id. at 147.) In 2012, such support was reinstated. (Id. at 151.) The trial
    court considered the relevant factors when it awarded attorney fees. The trial
    court did not abuse its discretion when it did so.
    Order affirmed in part, vacated in part, and remanded in part.
    Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/8/18
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