Wong, Y. v. Li, B. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
YIP Y. WONG IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BOBBY KAI TUNG LI
Appellant No. 305 EDA 2015
Appeal from the Order January 6, 2015
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): No. D07018407
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 15, 2015
Appellant, Bobby Kai Tung Li (Husband), appeals from the January 6,
2015 order, denying his petition for additional attorney fees in connection
with the divorce and equitable distribution action initiated by Appellee, Yip Y.
Wong (Wife). After careful review, we affirm.
The trial court summarized the history of this case as follows.
By way of very brief summary, the marital
property accumulated during this marriage of
twenty-eight months duration consisted of nine
parcels of real estate purchased either by Wife or in
the name of a corporate entity, as well as an
increase in value of other property owned by Wife,
the total value of which was set by the Master in
Divorce at $2,524,627. Husband’s award, as
recommended by the Master, was $820,313 in
parcels of real estate, $17,000 for personalty and
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*
Former Justice specially assigned to the Superior Court.
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$88,363 for counsel fees and costs, for a total award
of $925,676. Wife[] failed to appear for the Master’s
hearing, as she had done for numerous prior
hearings.
Wife filed a request for a trial de novo. By
order dated December 12, 2012, the de novo
proceeding was limited to oral argument concerning
the allocation of the marital property, and not to any
other matters heard and reviewed by the Master as
set forth in his comprehensive report, because of
Wife’s failure to [sic] for the Master’s hearing, as well
as for numerous other hearings, and her failure to
cooperate in any manner with discovery orders.
Following oral argument, the same award was
entered by [the trial] court as had been entered by
the Master.
Immediately after entry of the Decree and
Order, Husband filed a Motion for Reconsideration
when it came to light that the value of some parcels
of real estate were significantly lower than originally
appraised because of liens and/or judgments
previously unknown, which Motion was granted.
After additional hearings, another Decree and Order
were entered on August 13, 2013, setting Husband’s
share of marital property at $712,100, inclusive of
$107,677 in counsel fees. The decreased share of
marital property resulted from the decreased value
of the real estate.
Wife filed an appeal on August 15, 2013, which
was dismissed by the Superior Court on April 17,
2014.[1]
On August 29, 2013, Husband filed a Petition
for Special Relief requesting a stay of a Sheriff’s Sale
scheduled for the marital property located at 301-
303 Spring Garden Street in Philadelphia
(hereinafter, “301 property”), which was the parcel
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1
Wife’s appeal, at Wong v. Li, 2331 EDA 2013 (Pa. Super. 2013), was
dismissed for submission of a non-conforming brief.
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of marital real estate with the highest equity value.
The court granted a stay of said sale because
disposition of the property by way of a sheriff’s sale
could have dissipated the most valuable marital
asset which needed to be preserved primarily
because the underlying order was on appeal.
The 301 property had been the focus of a
considerable segment of the litigation because both
the deed and the mortgage were executed by Wife
on behalf of Humer LLC, the owner and mortgagee of
record, via a Power of Attorney given to Wife by Yuk
Yat Corporation, which wholly owned Humer LLC. All
shares of Yuk Yat Corporation were ostensibly
transferred by Wife to her two minor sons on April
16, 2004, when the children were fifteen and six
years old, respectively, just three months before the
parties married. Thus, a $1.5 million mortgage and
deed for a parcel of real estate were given to a shell
corporation wholly owned by another shell
corporation owned by two minor children, ages
sixteen and seven. [The trial] court imputed
ownership of the 301 property to Wife after
concluding that the corporate ownership was a
device used by Wife to insulate the property from
inclusion as a marital asset. While the Sheriff’s
[S]ale was pending, Humer LLC petitioned to
intervene as well as for reconsideration of the Decree
and Order. Reconsideration was denied when the
witness failed to appear for the hearing and the
request for a continuation was denied.
From the day the order was entered staying
the Sheriff’s Sale in August, 2013, until July 2, 2014,
numerous hearings were held, during which time
[the trial] court attempted to ascertain and preserve
whatever equity there was in the 301 property, even
after the appeal was dismissed. [The trial] court
appointed attorney David Grunfeld, a well-known
and respected family law practitioner, as trustee for
the purpose of soliciting private offers for purchase
of the property to preserve maximum equity, the
beneficiary of which was primarily Husband, because
his recorded judgment lien assured him of payment
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after satisfaction of mortgage and tax liens, and only
the remainder would revert back to the corporation.
After several purchase offers fell through
because the prospective buyers failed to meet the
requirements set by the trustee, or they failed to
make the necessary down payment, including offers
from purchasers solicited by both Husband and Wife,
the stay of the Sheriff’s Sale was lifted, then stayed
again on July 1, 2014, at the recommendation of the
trustee. On July 2, 2014, Humer LLC, the owner of
record of the 301 property, filed for Bankruptcy.
On November 20, 2014, Husband filed an
Emergency Petition for Special Relief seeking
additional Counsel Fees.
On January 14, 2015, the 301 property was
sold by the Chapter 7 Bankruptcy Trustee for Humer
LLC for $2,775,000. Husband received full
satisfaction of the Equitable Distribution award in the
amount of $772,984.441, with $763,723.79
reverting back to the corporation, per the Settlement
Distribution Sheet provided to this court by Trustee
Grunfeld….
Trial Court Opinion, 3/17/15, at 1-4.
A rule to show cause hearing was set for January 6, 2015, to address
Husband’s petition for counsel fees. At the hearing, the trial court took no
testimony, but after discussion with counsel the trial court denied Husband’s
petition “for reasons said [sic] forth on the record.” Trial Court Order,
1/6/15, at 1. Husband filed a timely notice of appeal on January 23, 2015.2
On appeal, Husband raises the following issues for our review.
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2
Husband and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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[1.] Whether the trial court erred by refusing to
abide by its own decree?
[2.] Whether the trial court erred by ruling on
Husband’s petition prior to taking any evidence?
Husband’s Brief at 9.3
Our review of a trial court’s decision relative to an award of attorney
fees under the Domestic Relations Code is demarcated by the following
tenets.
Our standard of review of the award of counsel
fees pursuant to the Domestic Relations Code is for
an abuse of discretion. An abuse of discretion is not
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. Review of the
grant of counsel fees is limited … and we will reverse
only upon a showing of plain error.
Habjan v. Habjan, 73 A.3d 630, 642 (Pa. Super. 2013) (internal quotation
marks, brackets, and citations omitted).
We first address Husband’s contention that the trial court erred by
disregarding an earlier order purportedly authorizing Husband to receive the
attorney fees sought. See Husband’s Brief at 29.
In its Decree and Order of August 13, 2013, the Trial
Judge ruled that Husband “shall have the right to
seek recovery of future counsel fees which might be
incurred for enforcement purposes.” The Order was
final and stands as the law of the case.
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3
We have reversed the order of Husband’s questions presented on appeal to
better accommodate our discussion of his issues.
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… The judge disregarded the well-established
doctrine of collateral estoppel by disregarding her
own findings of fact. She disregarded the principle
of res judicata by ignoring her own judicial rulings.
Finally, she ignored the principle of the law of the
case, by re-visiting her own prior decisions.
Id.
To place this argument in context, we must explore the character and
basis for the prior award of attorney fees. The August 13, 2013 order in the
underlying divorce action included an award to Husband for attorney fees
based on the Master’s recommendation, and additional attorney fees “in
connection with the discovery that properties awarded to Husband were
encumbered ….” Trial Court’s Findings of Fact and Conclusions of Law,
8/13/13, at 6.
The Master’s report in turn based its recommendation for an award of
attorney fees to Husband on two statutory grounds. First, the Master noted
that the relative post-separation income of the parties, the equitable
distribution awards, and the illiquidity of the chief assets justified “some
award of counsel fees” under 23 Pa.C.S.A. § 3702.4 Master’s Report,
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4
The statute provides in pertinent part as follows.
§ 3702. Alimony pendente lite, counsel fees
and expenses
In proper cases, upon petition, the court may allow a
spouse … reasonable counsel fees and expenses.
(Footnote Continued Next Page)
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6/19/12, at 28. Second, the Master found that “[t]he magnitude of [Wife’s]
contemptuous conduct is no less than breathtaking.” Id. at 27. Accordingly
the Master concluded “a separate basis for awarding counsel fees is 42
Pa.C.S.A. § 2503(7).”5 Id. at 28.
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(Footnote Continued)
Reasonable counsel fees and expenses may be
allowed pendente lite….
23 Pa.C.S.A. § 3702. “The purpose of a counsel fee award is to enable the
more dependent party to litigate the action without being placed at a
financial disadvantage.” Gill v. Gill, 677 A.2d 1214, 1218-1219 (Pa. Super.
1996) (citation omitted). This requires consideration of “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.” Busse v.
Busse, 921 A.2d 1248, 1258 (Pa. Super. 2007) (citation omitted), appeal
denied, 934 A.2d 1275 (Pa. 2007).
5
The Statute provides in pertinent part as follows.
§ 2503. Right of participants to receive counsel
fees
The following participants shall be entitled to a
reasonable counsel fee as part of the taxable costs of
the matter:
…
(7) Any participant who is awarded counsel fees as a
sanction against another participant for dilatory,
obdurate or vexatious conduct during the pendency
of a matter.
…
42 Pa.C.S.A. § 2503(7).
The trial court has great latitude and discretion with
respect to an award of attorneys’ fees pursuant to a
(Footnote Continued Next Page)
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With this context in mind, we turn to the applicable language of the
trial court’s August 13, 2013 order.
DECREE AND ORDER
And now, this [13]th day of August, 2013, it is
hereby ordered and decreed that Plaintiff, Yip Yan
Wong (hereinafter Wife), and Defendant, Bobby Kai
Tung Li (hereinafter Husband), are divorced from the
bonds of matrimony.
In disposition of the economic claims herein, it
is further ordered as follows:
1. Husband is awarded the sum of
$712,100 in marital assets. Said award may be
reduced to judgment as a lien against any real
property whose ownership has been imputed to wife
including, but not limited to the following properties
in Philadelphia, Pennsylvania: … 301-303 Spring
Garden Street, ….
…
4. By virtue of the awards set forth in the
prior paragraphs above, husband shall have no
further claim against wife on account of counsel fees
and costs incurred or awarded prior to this date,
subject to the condition that he shall have the right
to seek recovery of future counsel fees which might
be incurred for enforcement purposes.
…
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(Footnote Continued)
statute. … If there is support in the record for the
trial court’s findings of fact that the conduct of the
party was obdurate, vexatious or in bad faith, [an
appellate Court] will not disturb the trial court’s
decision.
In re Padezanin, 937 A.2d 475, 483-484 (Pa. Super. 2007).
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6. All economic claims of record not
specifically addressed herein are dismissed.
Trial Court Order, 8/13/13, at 1-2 (emphasis added).
Viewed in context, it is clear that the award of attorney fees to
Husband based on 23 Pa.C.S.A. § 3702 and 42 Pa.C.S.A. § 2503(7) was
final. Nevertheless, the order recognized Husband’s right to request
additional fees, if warranted to secure enforcement of the decree. This
aspect of the order merely recognized, albeit without citation, the statutory
provision for such an award in connection with efforts to seek compliance
with an equitable distribution decree. See 23 Pa.C.S.A. § 3502(e)(7)
(establishing among the powers of the trial court in a divorce case, when “at
any time, a party has failed to comply with an order of equitable
distribution…, after hearing, the court may, in addition to any other remedy
available under this part, in order to effect compliance with its order: … (7)
award counsel fees and costs”).
From this background, we conclude Husband’s characterization of the
trial court’s August 13, 2013 order, as law of the case or res judicata,
entitling him to further attorney fees, is mistaken. The order simply states
Husband’s statutory right to seek attorney fees if subsequent events should
warrant them based on potential non-compliance by Wife with the terms of
the decree. See Habjan, supra at 643 (holding a trial court has authority
under 23 Pa.C.S.A. § 3502(e)(7) to award attorney fees to a spouse as a
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consequence of noncompliance by the other spouse). Such a grant of
attorney fees under Section 3502(e)(7) may be awarded only after a hearing
and showing of noncompliance. 23 Pa.C.S.A. § 3502(e)(7). The trial court’s
August 13, 2013 order did not guaranty any further attorney fee award or in
any way limit the proper exercise of its discretion upon Husband’s
application for the same. Accordingly, we conclude Husband’s claim that the
trial court erred by failing “to abide by its own decree” is meritless.
We next turn to Husband’s claim that the trial court erred in failing to
conduct an evidentiary hearing. “The right of a litigant to in-court
presentation of evidence is essential to due process; in almost every setting
where important decisions turn on questions of fact, due process requires an
opportunity to confront and cross-examine adverse witnesses.” Husband’s
Brief at 22, quoting Tecce v. Hally, 106 A.3d 728, 731 (Pa. Super. 2014).
Thus, Husband contends “[a]bsent an evidentiary record, the Trial Court’s
denial of Husband’s fee petition clearly was arbitrary and capricious.” Id.
We conclude Husband has waived this issue.6
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6
We note that the certified record does not contain a transcript of the
January 6, 2015 hearing, even though it is included in the reproduced record
supplied by Husband. “Our law is unequivocal that the responsibility rests
upon the appellant to ensure that the record certified on appeal is
complete in the sense that it contains all of the materials necessary for the
reviewing court to perform its duty.” Commonwealth v. Preston, 904
A.2d 1, 7 (Pa. Super. 2006) (en banc) (citation omitted, emphasis added),
appeal denied, 916 A.2d 632 (Pa. 2007). The transcript is not included in
the prothonotary’s list of record documents supplied to the parties. See
Pa.R.A.P. 1911, 1931(d). Husband has made no effort to assure inclusion of
(Footnote Continued Next Page)
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Husband’s reliance on Tecce is a double-edged sword in this regard.
This Court in Tecce indeed emphasized that where credibility determinations
and factual findings are necessary to a trial court’s decision of a matter, due
process concerns require a “hearing, not a conversation.”7 Tecce, supra at
731. However, the Tecce Court noted that the issue must be raised in the
first instance before the trial court and “[w]e are not free to ignore this
complete absence of objection. It is axiomatic that, to preserve an objection
for appeal, the objection must be raised before the trial court. Parties may
waive rights, even due process rights and other rights of constitutional
magnitude.” Id. at 732 (citations and footnote omitted). “If and when a
trial judge begins to proceed without a record, it is incumbent on counsel
respectfully to demand such record.” Id. at 732 n.5.
Instantly, neither Husband nor Wife lodged an objection to the
procedure employed by the trial court at the January 6, 2015 hearing.
Accordingly, we conclude Husband has waived his allegation of error based
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(Footnote Continued)
the omitted transcript. See id. at 1926(b). “When the appellant … fails to
conform to the requirements of Rule 1911, any claims that cannot be
resolved in the absence of the necessary transcript or transcripts must be
deemed waived for the purpose of appellate review.” Preston, supra.
Thus, the absence of the critical transcript in this case provides an additional
basis for us to find waiver of Husband’s issues on appeal.
7
As discussed by the trial court, where a petition presents no disputed facts
upon which a decision may rely, a hearing will not be required to adjudicate
the requested relief. Trial Court Opinion, 3/17/15, at 6, citing Tecce, supra
at 735 (Donohue concurring). Because of our disposition based on waiver,
we need not reach the question of whether a hearing would have been
required for the instant determination.
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on the trial court’s denial of his petition for counsel fees without receiving
any testimony. See Id.
In sum, we conclude the trial court did not act in contravention of its
August 13, 2013 order, relative to the grant of attorney fees to Husband, by
denying Husband’s petition for additional attorney fees incurred in his efforts
to realize his equitable distribution award from the sale of marital real estate
awarded to Wife. See Habjan, supra; 23 Pa.C.S.A. § 3502(e)(7)
Additionally, we conclude Husband waived his objection to the trial court’s
failure to hear witnesses prior to making a determination on his petition for
additional attorney fees. See Tecce, supra. Accordingly, we affirm the
trial court’s January 6, 2015 order denying Husband’s petition for additional
counsel fees.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
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