Akbar, L. v. Vargas, S. ( 2014 )

J-S47039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LUQMAN AKBAR IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SHARON VARGAS
Appellee No. 420 EDA 2014
Appeal from the Order Entered December 23, 2013
In the Court of Common Pleas of Montgomery County
Civil Division at No.: 11-02828
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED AUGUST 13, 2014
contract. We affirm.
Husband and Wife married on May 28, 2004. On February 7, 2011,
Husband filed a complaint in divorce, in which he alleged the parties had
been separated since January 2008. On June 3, 2011, Husband filed a
petition to bifurcate. On October 4, 2011, the trial court granted that
petition. Subsequently, on October 27, 2011, the parties were divorced.
equitable distribution. Husband argued
distribution was based upon a marriage contract entered by the parties that
detailed the marital gift Husband made to Wife that was required by Islamic
J-S47039-14
religious law. Husband contended that Wife had violated the marriage
contract and, therefore, was not entitled to that gift. Therefore, Husband
asserted that Wife had no equitable distribution claim. At the hearing on
validity of the agreement. On April 23, 2012, the trial court dismissed
absolute. The trial court permitted the parties to proceed to equitable
distribution.
On March 21, 2013, Wife filed a motion to schedule an equitable
distribution hearing. On July 25, 2013, the trial court scheduled the hearing
and gave notice to
attorneys.1
On December 19, 2013, the trial court conducted the equitable
distribution hearing. Neither Husband nor his counsel appeared at the
hearing. On December 23, 2013, the court issued an order, finding the
marriage agreement binding and awarding Wife fifty percent of a property
____________________________________________
1
-counsel, Attorney Nusrat Rashid,
filed a petition to withdraw. The trial court issued a rule to show cause why
Attorney Rashid should not be permitted to withdraw. On June 4, 2013, the
trial court struck the petition from the rule to show cause hearing list
contains no order granting or denying the petition. Therefore, Attorney
Rashid was still the attorney of record for Husband when notice of the
equitable distribution hearing was given. However, on January 15, 2014,
Attor
-2-
J-S47039-14
on Cedarbrook Street in Philadelphia and fifty percent of an Orlando time
share.
Husband filed a notice of appeal on January 16, 2014. The trial court
directed Husband to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and Husband timely complied. The
trial court then filed its opinion.
Husband presents one issue for our review:
[Husband] is entitled to a new Equitable Distribution Hearing.
When applying the Pennsylvania Rules of Civil Procedure, the
trial court abused its discretion and/or misapplied the law in
reviewing the following questions:
(a) Whether the Court included all property owned by
both parties, marital and pre-marital assets[,] in its
distribution of property in accordance with 23
Pa.C.S.A. § 3502(a)(4), (7)?
Our standard of review of an equitable distribution order is well-
settled:
Our standard of review in assessing the propriety of a marital
property distribution is whether the trial court abused its
discretion by a misapplication of the law or failure to follow
proper legal procedure. An abuse of discretion is not found
lightly, but only upon a showing of clear and convincing
evidence.
Smith v. Smith, 904 A.2d 15, 18 (Pa. Super. 2006).
Husband argues the trial court did not consider property owned by
Wife in North Wales in its equitable distribution order. Husband concludes
-3-
J-S47039-14
that the trial court also erred by failing to inquire about additional marital
-12.
Husband did not appear at the equitable distribution hearing.2 The
trial court noted on the record that Husband had received notice, and court
staff attempted to reach Husband by telephone before starting the hearing.
Additionally, the court waited thirty minutes to start the hearing to see if
-4.
At the hearing, it was clear that Wife sought only the enforcement of the
marriage contract, which detailed that fifty percent of the Cedarbrook
property and the Orlando time share were to be gifted to Wife. Id. at 18.
The trial court asserted that it was enforcing the contract in its equitable
distribution order. Id. at 23.
There was no evidence produced at the hearing regarding anything
other than the Cedarbrook property and the time share. -trial
memorandum asserted that the only contested issue was the valuation of
those two assets. Husband did not file a pre-trial memorandum. The only
place in which additional property is mentioned is in a counter-claim filed by
Husband on April 4, 2012. The counter-claim does not name any specific
____________________________________________
2
Husband raised an issue regarding notice in his 1925(b) concise
statement. However, he has not listed the issue in his questions presented
or presented an argument in his brief and, therefore, has waived the issue.
See Pa.R.A.P. 2116(a), 2119(a).
-4-
J-S47039-14
property or values, but merely alleges that there is non-marital property
that has increased in value during the marriage.
Husband was not present at the hearing and has foregone any
argument by which his absence would be excused. See n.2, supra. While
there is a presumption that an increase in value of non-marital property is
part of the marital estate, see 23 Pa.C.S.A. § 3501(a.1), the trial court must
have evidence upon which it can make such a finding. If Husband believed
there were additional assets for the court to consider, Husband should have
provided the court with admissible evidence by which the court could have
determined whether the assets were part of the marital estate and, if so,
distributed them accordingly. Husband may not blame the trial court for
failing to inquire when no evidence was presented.3 Because the trial court
had no evidence regarding additional marital assets, it had no basis upon
which it could have concluded that there were such assets. Therefore, the
trial court did not err in failing to consider them.
Order affirmed.
____________________________________________
3
We recognize that we have held that, in support matters, the fact-
finder should inquire into the relevant factors to determine earning capacity
if a party or counsel does not provide all the relevant information. Haselrig
v. Haselrig, 840 A.2d 338, 341 (Pa. Super. 2003). However, Haselrig has
not been extended to equitable distribution, and Husband does not provide
any authority for that proposition.
-5-
J-S47039-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2014
-6-