Cortes, C. v. Cortes, A. ( 2017 )

J-A07007-17
J-A07008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CARMEN L. CORTES IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ANTHONY CORTES
Appellee No. 1413 WDA 2016
Appeal from the Order August 22, 2016
In the Court of Common Pleas of Allegheny County
Family Court at No(s): 97-002377-008
CARMEN L. CORTES IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ANTHONY CORTES
Appellant No. 611 WDA 2016
Appeal from the Order April 18, 2016
In the Court of Common Pleas of Allegheny County
Family Court at No(s): 97-002377-008
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 23, 2017
Anthony Cortes (“Husband”) appeals from the order entered on April
18, 2016 which awarded Carmen L. Cortes (“Wife”) attorney’s fees. Wife
* Retired Senior Judge assigned to the Superior Court
J-A07007-17
J-A07008-17
appeals from the order entered on August 22, 2016 which awarded her
retroactive child support. We affirm both orders.
A prior panel of this Court detailed the factual background and
procedural history of this case as follows:
[Husband and Wife] married in 1980. Four children were born of
the marriage, all of whom are emancipated. The couple
separated in 1997, just after moving from Allegheny County.
Wife moved to Texas with her four small children after
separation, filing for support in Allegheny County before leaving.
Wife was assessed a zero earning capacity and Husband was
assigned an earning capacity of $1[,]900.00 per month based on
his previous income. An unallocated support award was entered
in August of 1997 for $1,138.00 monthly, in favor of [W]ife and
children.
Husband filed for divorce in Texas, Wife’s domicile, and the
parties were divorced on January 4, 2000. The Texas divorce
decree reads, in pertinent part: “The court finds that it has
jurisdiction of this case except for issues regarding child and
spousal support of which the Court[] of Common Pleas of
Allegheny County, Pennsylvania has continuing and exclusive
jurisdiction.” Texas does not have alimony.
Husband was hired by the Milton Hershey School in August of
1998, mere months after the entry of the initial award and
earned $19,355.70 for the period of August 1998 through
December [] 1998. He never informed the [trial c]ourt or Wife
of this substantial change in income. His income increased
steadily after entry of the award but, again, he never notified the
[trial c]ourt or Wife. By 2000, his income from the school was
$59,790.76, by 2002, his income was $71,722.96 annually and
by 2010, his income was over $100,000.00. He still never
informed the [trial] court, and, therefore, the amount of support
remained the same. The children became emancipated one by
one, but neither party moved for modification or review of the
award. Then, in March of 2012, when the youngest of the four
children was approaching emancipation, Husband filed to
terminate support.
-2-
J-A07007-17
J-A07008-17
On July 10, 2012, Wife, still represented by her original counsel,
registered the Texas divorce decree in Allegheny County. On
July 12, 2012, she filed a petition raising claims for alimony and
[attorney’s] fees as well as filing for modification of the support
order, retroactive to 1999. Husband’s petition to modify
(terminate) support and Wife’s petition raising claims, as well as
Husband’s [m]otion to [s]trike Wife’s petition raising claims were
consolidated. [On March, 19, 2014, the trial court granted Wife
retroactive child support in the amount of $54,000.00,
terminated Husband’s future child support obligation, denied
Wife’s request for alimony, and denied Wife’s request for
attorney’s fees.]
Cortes v. Cortes, 133 A.3d 63, 2015 WL 6667555, *1–2 (Pa. Super. 2015)
(unpublished memorandum) (internal alterations, footnotes, and ellipsis
omitted).
Wife appealed, challenging, inter alia, the denial of her request for
attorney’s fees. Although the panel affirmed the majority of the trial court’s
rulings, it reversed the denial of Wife’s request for attorney’s fees and
remanded “for recalculation of Husband’s support obligation taking into
account the tax consequences of the federal dependency exemptions taken
by Husband for the children for years 1999[-] 2012, and for the
determination of an attorney[’s] fee award in favor of Wife on her claim for
retroactive child support.” Id. at *8.
Upon remand, Wife requested an upward deviation from the revised
retroactive child support calculation. The trial court denied that request and
awarded Wife retroactive child support taking into account the tax
consequences of the federal dependency exemptions taken by Husband for
the children for years 1999-2012. Wife appeals from this order. The trial
-3-
J-A07007-17
J-A07008-17
court also awarded Wife attorney’s fees incurred in litigating her claim for
retroactive child support, including sums expended during the prior appeal.
Husband appeals from this order.1
Wife raises one issue for our review:
Did the trial court err in refusing to consider any deviations from
the guidelines in calculating [Husband’s] retroactive support
obligation?
Wife’s Brief at 4.
Husband raises three issues for our review:
1. Whether the trial court erred and abused its discretion in
allowing [Wife] to make a claim for additional attorney’s fees
incurred on appeal where one of the issues on appeal was the
denial of an award of attorney[’]s fees, thus allowing [Wife]
to claim attorney[’]s fees incurred in seeking attorney[’]s fees
on appeal[?]
2. Whether the trial court erred and abused its discretion in
allowing [Wife] to add additional claims and evidence for
attorney[’]s fees on remand beyond that originally presented
and made part of the record in the underlying petition for
retroactive child support which was the subject of the appeal
and remand[?]
3. Whether the trial court erred and abused its discretion in
awarding attorney[’]s fees on remand without making
findings as to what portion of the claimed attorney[’]s fees
were due to [Wife’s] claim for retroactive child support
originally presented and made part of the record in the
underlying petition for retroactive child support[?]
Husband’s Brief at 6 (complete capitalization omitted).
1
Husband, Wife, and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
-4-
J-A07007-17
J-A07008-17
Wife’s lone issue challenges the trial court’s interpretation of this
Court’s remand order. Specifically, Wife claims that the trial court erred in
refusing to consider, on remand, grounds for deviating from the support
guidelines in calculating Husband’s retroactive child support obligation. As
this Court has the inherent authority to interpret its own orders, see
Commonwealth v. Shaffer, 712 A.2d 749, 751 (Pa. 1998), we review the
trial court’s interpretation of our remand order de novo and our scope of
review is plenary. When interpreting a “remand order, it is necessary to
examine the context of the order.” Commonwealth v. Williams, 877 A.2d
471, 476 (Pa. Super. 2005), appeal denied, 895 A.2d 1261 (Pa. 2006).
After review, we conclude that deviation from the support guidelines was
beyond the scope of our remand order.
In this case, both the plain language of the remand order and its
context indicate that the prior panel of this Court remanded to the trial court
for the limited purposes of determining Wife’s fee award and recalculating
the retroactive child support taking into account the tax consequences of the
federal dependency exemptions taken by Husband for the children for years
1999-2012. Relevant to Wife’s issue on appeal, the remand order used the
word “calculate,” which implies no discretion. See Cortes, 2015 WL
6667555 at *8. Moreover, the remand order did not state that the trial
court was to undertake a complete review of its retroactive child support
-5-
J-A07007-17
J-A07008-17
award. Instead, the remand order only included instructions with respect to
one specific item. See id.
The context of the prior panel’s decision also supports our conclusion
that the remand order was limited in scope. Specifically, this Court
addressed each of Wife’s challenges to the trial court’s retroactive child
support order and determined that the trial court did not err in those rulings
(except with respect to the dependency exemptions). If this Court intended
for the trial court to conduct a full review of the retroactive child support
order, the prior panel would have addressed the dependency exemption
issue, vacated the trial court’s award, and declined to address Wife’s
remaining arguments because the slate would have been wiped clean by the
vacatur of the retroactive child support award. Therefore, both the plain
language of the remand order and the context of the prior panel’s decision
indicate that the trial court properly denied Wife a second chance to secure
an award of retroactive child support in an amount greater than that
calculated by the guidelines. As such, we affirm the trial court’s August 22,
2016 order.
Similar to Wife’s lone appellate issue, Husband’s three appellate issues
address the scope of this Court’s remand order. Specifically, Husband
argues that this Court’s remand order did not permit Wife to recover
attorney’s fees incurred in litigating the retroactive support claim within the
context of Wife’s earlier appeal in this case. Therefore, Husband argues that
-6-
J-A07007-17
J-A07008-17
the trial court erred by permitting Wife to present updated evidence and by
failing to differentiate between attorney’s fees expended at the trial and
appellate levels. As noted above, this Court has the inherent authority to
interpret our own orders. See Shaffer, 712 A.2d at 751. Therefore, we
review the trial court’s interpretation of our remand order de novo and our
scope of review is plenary.
We agree with Husband that both the plain language and context of
the prior panel’s remand order indicates that the prior panel did not award
Wife attorney’s fees pursuant to Pennsylvania Rule of Appellate Procedure
2744. Nonetheless, we conclude that the trial court had the authority to
award Wife attorney’s fees incurred during the first appeal pursuant to 23
Pa.C.S.A. § 4351.
In Krebs v. Krebs, 944 A.2d 768 (Pa. Super. 2008), this Court
implicitly held that a trial court may award attorney’s fees incurred during an
appeal pursuant to section 4351 even if this Court declines to award
attorney’s fees pursuant to Rule 2744. In Krebs, the mother requested that
this Court award her attorney’s fees pursuant to Rule 2744 and/or section
4351. This Court denied the mother’s request, “without prejudice to her
right to seek similar relief from the trial court on remand.” Id. at 778. This
Court reasoned that it was “inclined to allow the trial court to consider the
issue of [attorney’s] fees on remand, an issue more appropriately referred to
that court in the first instance.” Id. Thus, in Krebs this Court held that the
-7-
J-A07007-17
J-A07008-17
trial court had the authority under section 4351 to award the mother
attorney’s fees she incurred during the appeal notwithstanding this Court’s
refusal to award attorney’s fees under Rule 2744.2 In this case, the prior
panel did not award attorney’s fees under Rule 2744; however, that did not
deprive the trial court of the authority to award such attorney’s fees under
section 4351.
Husband also argues that “fees on fees” is not permitted under
Pennsylvania law. It is well-settled, however, that fees on fees is permitted
in this Commonwealth. See Sampaolo v. Cheltenham Twp. Zoning
Hearing Bd., 629 A.2d 229, 231 (Pa. Cmwlth. 1993), citing Appeal of
Ciaffoni, 584 A.2d 410, 414–415 (Pa. Cmwlth. 1990).3 Thus, the trial
2
Husband attempts to distinguish Krebs by arguing that the trial court in
this case did not find that he had fraudulently concealed his income. See
Husband’s Brief at 12. This argument is without merit. Both the trial court
and this Court found Husband fraudulently concealed his income. See
Cortes, 2015 WL 6667555 at *1, quoting Trial Court Opinion, 7/18/2014, at
1–2.
3
The citation to Ciaffoni in Husband’s brief cuts off the quote mid-sentence
which makes it appear that the Commonwealth Court came to the opposite
conclusion. See Husband’s Brief at 10. As the Commonwealth Court
recently stated:
we remind counsel of Rule 3.3 of the Rules of Professional
Conduct; while counsel certainly has a duty to pursue a
favorable litigation strategy and make good faith arguments for
an extension, modification[,] or reversal of existing law, the line
between zealous advocacy and failure to adhere to counsel’s
duty of candor towards the tribunal is neither fine nor grey.
Office of the Dist. Attorney of Philadelphia v. Bagwell, 2017 WL
629458, *16 n.21 (Pa. Cmwlth. Feb. 16, 2017) (citations omitted).
-8-
J-A07007-17
J-A07008-17
court’s fees on fees award in this case was consistent with Pennsylvania law.
As we conclude that the trial court had the authority under section 4351 to
award attorney’s fees incurred by Wife during her first appeal to this Court,
the trial court ipso facto had the authority to permit Wife to supplement the
record upon remand and did not need to specify which fees were awarded
for proceedings before the trial court and which fees were awarded for
proceedings before this Court. Accordingly, Husband is not entitled to relief
on his three claims of error and we affirm the April 18, 2016 order awarding
Wife $30,670.00 in attorney’s fees.4
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
4
We emphasize that Husband only challenges the trial court’s authority to
award such attorney’s fees. He does not argue in the alternative that, even
if the trial court possessed such authority, it abused its discretion in
awarding this amount of attorney’s fees. Thus, we do not reach the issue of
whether the trial court abused its discretion in awarding attorney’s fees in
the amount of $30,670.00.
-9-