Terpin, S. v. Knaak, G. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHEILA TERPIN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GEOFFREY KNAAK : No. 13 EDA 2020
Appeal from the Order Entered August 31, 2018
In the Court of Common Pleas of Delaware County Civil Division at
No(s): No. 2015-01676,
PACSES No. 985115468
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 06, 2020
Appellant Sheila Terpin (“Wife”) appeals from the order entered by the
Court of Common Pleas of Delaware County that awarded alimony pendente
lite (APL) to Wife during the pendency of her divorce proceedings with Appellee
Geoffrey Knaak (“Husband”).1 After careful review, we affirm.
Husband and Wife married on June 30, 2006, and after ten years of
marriage, the parties separated in 2016. The couple does not have any
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* Former Justice specially assigned to the Superior Court.
1 The support order entered on August 31, 2018 became a final appealable
order when the divorce decree was entered at Docket No. 2016-006259. As
discussed infra, Wife also filed six additional notices of appeal to challenge the
divorce decree and related rulings entered by the Honorable Linda Cartisano
on the same trial court docket. We have resolved those appeals in a separate
memorandum at docket numbers 10-12 EDA 2020, 14 EDA 2020, and 25-26
EDA 2020.
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children. On August 13, 2015, Wife filed an initial complaint for spousal
support that was vacated by agreement of the parties.
On March 26, 2016, Wife filed a Petition to Re-Open Support. On July
14, 2016, a hearing was held before a support master. On the same date,
the master entered an order awarding Wife $3,000/month in spousal support,
requiring Husband to continue providing Wife health insurance through his
work, and deeming Husband responsible for 85% of Wife’s unreimbursed
medical expenses that exceed $250.00 per year. On July 20, 2016, Husband
filed a Complaint in Divorce.
On January 31, 2018, Wife filed a petition for modification of support.
On March 26, 2018, the support master held a hearing and subsequently
denied Wife’s petition. On April 4, 2018, Wife filed a demand for a hearing de
novo and a petition for recover unreimbursed medical expenses.
On June 26, 2018, the Honorable William C. Mackrides held a hearing
de novo to evaluate Wife’s petitions. Wife testified that she was 55½ years
old and had not worked for the past ten years. Notes of Testimony (N.T.),
6/26/18, at 24-25. Wife indicated that her last job was when the parties lived
in Canada and she volunteered in an unpaid position in “a human resources
capacity.” N.T. at 25. Wife indicated that, after the parties moved to
Philadelphia in 2006, she looked for employment by joining Careerlink and a
networking group. N.T. at 26-27. Wife obtained an Associate’s Degree from
Widener University and maintained a 4.0 GPA. N.T. at 27-28, 53. Wife
admitted that she has “20-plus years corporate experience,” argued that she
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had “tons of proof” of her job search, but conceded she did not have any such
evidence at the hearing. N.T. at 52-53.
Wife asserted that she had multiple medical conditions that prevented
her from obtaining employment, which included a concussion, broken finger,
sprained ankle, and heart trouble as shown by an abnormal EKG. Wife also
indicated that she was seeing a psychologist for emotional trauma caused by
the stress of the divorce. N.T. at 34-42. However, Wife did not introduce any
medical records to document these ailments or to support her claim that she
was disabled and thus, unable to work. Wife has never filed for Social Security
Disability. N.T. at 48.
Wife also testified that she has not conducted a serious job search
because of her injuries and the divorce. N.T. at 42. Moreover, Wife indicated
that certain life circumstances prevented her from finding employment,
including the death of her pet cat. Wife testified that her “beloved cat got
cancer and ended up dying. This is important because you can’t start a job.”
N.T. at 30-31.
In an order entered August 31, 2018, the trial judge, the Honorable
William C. Mackrides, determined Wife was entitled to alimony pendente lite
(APL) during the pendency of the divorce.2 The trial court calculated
Husband’s monthly net income to be $9,121.58, imputed income to Wife in
the amount of $1,507.83 per month, and determined Wife was entitled to
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2 The trial court also required Husband to pay Wife an additional sum of
$1,530.00 in unreimbursed medical expenses.
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$3,045.50 each month in APL. The trial court found it necessary to impute an
income to Wife as she “willfully failed to find or maintain a job to support
herself; her efforts were not at a level that is satisfactory to this Court.” Trial
Court Order, 8/29/18, at 8 (emphasis in original). The trial court found Wife
credibly admitted that she has not attempted to secure employment in
Pennsylvania as she intends to move when the parties’ divorce is final. The
trial court noted that Wife failed to introduce any documents to support a job
search since 2016 or any evidence to support her claim of various physical
ailments that prevented her from securing employment. Id.
On September 18, 2018, Wife filed a motion for reconsideration, which
the trial court denied on September 24, 2018. The support order did not
become appealable until the parties’ divorce decree was entered on November
26, 2019 on Docket No. 2016-06259. See Portugal v. Portugal, 798 A.2d
246, 255 (Pa.Super. 2002) (emphasizing that this Court does not “have
jurisdiction to entertain an appeal from an order of spousal support until a
divorce is final”); Thomas v. Thomas, 760 A.2d 397, 398 (Pa.Super. 2000)
(stating that “a spousal support order entered during the pendency of a
divorce action is not appealable until all claims connected with the divorce
action are resolved”). Wife filed this timely appeal on December 19, 2019.
Wife raises the following issues for our review on appeal:
1. Did the Court err by imputing income on Wife despite her
disability and injuries?
2. Did the Court err by calculating Husband’s monthly income
incorrectly?
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3. Did the court err by denying [Wife] reconsideration? The
previous statement noted that [Wife’s] former attorney,
Barbara Flum Stein, failed to submit Wife’s medical
documentation to the court. Furthermore, [Wife’s] former
attorney, Barbara Flum Stein, had proof of Wife’s previous job
search efforts and participation in the job re-entry program,
New Choices. Had [Wife’s] former attorney presented this
proof, it would have supported the fact that [Wife’s] income
should not have been imputed when calculating alimony. Wife
was a student, volunteer, homemaker and caregiver during
the marriage, and, as a result of her contributions to the
marriage, Husband was relieved and able [to] triple his salary.
At the time of the marriage, Husband was only making
$65,000/year. Husband makes $200,000+ as of the end of
the 2019 fiscal year. This information was confirmed by a
subpoena sent to his employer, Aria Systems. Wife is still
disabled and needs to participate ongoing in more post-
concussion therapy and other therapies for pain management.
Wife sacrificed her former career for Husband’s career
aspirations and relocated with him twice, however, he and his
employer did not assist Wife with her job search in any
capacity, even though spouses are typically offered job
assistance when relocated. Husband and Wife relocated twice
in order for Husband to continue his career endeavors.
Husband first relocated Wife out of the country to Quebec,
despite the fact that Wife didn’t speak any French. Husband
then relocated Wife a second time to Pennsylvania at the
height of the Recession, where she had no job network or
personal network to tap into. Wife cannot be expected to
support herself (a) while disabled and (b) after being removed
from the workforce for such a substantial period.
4. Did the court err by not holding Husband in contempt, even
though (a) Husband had not disclosed his increased
salary/bonus/stock option grant for approximately 1.5 years,
and (b) Husband’s spousal support/alimony pendente lite
Order said that he was supposed to submit a change of
circumstances to the court within 7 days?
5. Did the court err by not putting Husband on the stand to
question his actions of filing a Petition to Modify for a reduction
or to eliminate the spousal support/alimony pendent lite when
Wife was unable to work?
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6. Did the court err by denying Wife the opportunity to present
Physician Verification forms?
7. Did the court err when Judge Mackrides made a factual error
on his order when he incorrectly stated that Wife had 20 years’
experience working in human resources in his Order when
Wife did not work in human resources for 20 years? That error
is extremely misleading to the court and implies that Wife is
employable when she currently is not.
8. The Court erred by not considering Wife’s severe injuries and
imputing income on Wife?
Wife’s 1925(b) Statement, 1/21/20, at 1-3.
Our standard of review is as follows:
[w]e review APL awards under an abuse of discretion
standard. Haentjens v. Haentjens, 860 A.2d 1056, 1062
(Pa.Super. 2004). APL is “an order for temporary support
granted to a spouse during the pendency of a divorce or
annulment proceeding.” 23 Pa.C.S.A. § 3103. APL “is
designed to help the dependent spouse maintain the
standard of living enjoyed while living with the independent
spouse.” Litmans v. Litmans, 449 Pa.Super. 209, 673
A.2d 382, 389 (1996). Also, and perhaps more importantly,
“APL is based on the need of one party to have equal
financial resources to pursue a divorce proceeding when, in
theory, the other party has major assets which are the
financial sinews of domestic warfare.” Id. at 388. APL is thus
not dependent on the status of the party as being a spouse
or being remarried but is based, rather, on the state of the
litigation. DeMasi v. DeMasi, 408 Pa.Super. 414, 597 A.2d
101, 104–105 (1991). Alimony, in contrast, is terminated
upon remarriage or cohabitation. Id. at 104–105; see also
23 Pa.C.S.A. § 3706. Since, however, the purpose of APL is
to provide the dependent spouse equal standing during the
course of the divorce proceeding, it does not come with the
“sanction” of Section 3706. DeMasi, at 104–105. “APL
focuses on the ability of the individual who receives the APL
during the course of the litigation to defend her/himself, and
the only issue is whether the amount is reasonable for the
purpose, which turns on the economic resources available
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to the spouse.” Haentjens, at 1062; see also DeMasi, at
105.
Childress [v. Bogosian], 12 A.3d [448, 463 (Pa.Super. 2011)]
(quoting Schenk v. Schenk, 880 A.2d 633, 644–45 (Pa.Super.
2005)).
Carney v. Carney, 167 A.3d 127, 134–35 (Pa.Super. 2017) (footnote
omitted).
Before we reach the merits of Appellant’s arguments, we acknowledge
that Wife’s reproduced record and appellate brief do not comply with our rules
of appellate procedure. Husband asks this Court to quash Wife’s appeal as
her reproduced record does not satisfy the requirements in Pa.R.A.P. 2154 for
several reasons. First, Wife failed to file a Designation of the Contents of the
Reproduced Record as required by Rule 2154, which denied Husband the
opportunity to submit a counter-designation. Second, Wife failed to present
a complete reproduced record as she did not include the pertinent hearing
transcript. Third, Wife includes evidence not of record in her reproduced
record, including a document that the trial court held was inadmissible.
However, although Husband argued in his appellate brief that Wife’s
appeal should be quashed for failure to comply with Rule 2154, we note that
Husband did not file a separate application for relief pursuant to this Pa.R.A.P.
123(a) and Pa.R.A.P. 1972. See Pa.R.A.P. 123(a) (stating procedure for a
party to move for dismissal is by filing an application for relief); Pa.R.A.P.
1972 (providing that motions to dismiss or quash appeals are subject to Rule
123). This Court has held that we will not consider whether an appellant
violated Pa.R.A.P. 2154 where the appellee failed to file a separate motion
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seeking the quashing of the appeal for a Rule 2154 violation. Gold v. Rosen,
135 A.3d 1039, 1041 (Pa.Super. 2016) (citing Commonwealth v.
Sohnleitner, 884 A.2d 307, 312–13 (Pa.Super. 2005)). As such, we decline
to quash the appeal on this basis.3
Wife’s brief also contains several violations of our rules of appellate
procedure. While Wife listed eight claims for our review in her statement of
questions presented, she only includes one single analysis section to challenge
the trial court’s calculation of APL. Our rules of appellate procedure require
an appellant to divide her appellate brief into sections addressing each of the
issues she lists in her statement of questions involved. Pa.R.A.P. 2116(a);
2119(a).
In addition, Wife failed to preserve some of her issues before the lower
court. In Issue #3, Wife blames the trial court for her previous counsel’s
failure to present documentation of her medical claims and her job search
efforts. In Issue #5, Wife asserts that the trial court should have put Husband
on the witness stand to testify. Wife did not present these claims to the trial
court and did not request that Husband be made to testify at the hearing.
Pa.R.A.P. 302 provides that “[i]ssues not raised in the lower court are waived
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3 We assure the parties that we will not consider the extraneous information
that Wife included in her reproduced record. It is well-established that: “an
appellate court is limited to considering only the materials in the certified
record. Additionally, it is black letter law in this jurisdiction that an appellate
court cannot consider anything which is not part of the record in the case.”
In re S.M., 176 A.3d 927, 934 (Pa.Super. 2017) (citations and brackets
omitted).
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and cannot be raised for the first time on appeal.” Pa.R.A.P. 302. As such,
these issues are waived.
Moreover, Wife neglected to develop several of her issues with relevant
authority and pertinent analysis to allow this Court to review her claims on
appeal. In Issue #2, Wife argues that the trial court incorrectly calculated
Husband’s income, but provides no argument to specify how Husband’s
income should have been calculated. In Issue #3, Wife does not offer any
authority to support her suggestion that the trial court should be held
responsible for her prior counsel’s failure to provide evidence to support her
claims that she had participated in a job search and was prevented from
working due to various medical ailments. In Issue #4, Wife does not challenge
the trial court’s conclusion that a finding of contempt was unnecessary as
Husband’s failure to report income resulted in a de minimis change in
Husband’s support obligations. In Issue #6, Wife does not develop any
argument to support her claim that the trial court erred in finding Wife’s
Physician Verification form to be inadmissible when Wife did not seek to offer
expert testimony to authenticate this document.
Due to Wife’s failure to offer meaningful development of these issues,
we will deem these arguments waived. “It is well-established that the failure
to develop an argument with citation to, and analysis of, pertinent authority
results in waiver of that issue on appeal.” C.H.L. v. W.D.L, 214 A.3d 1272,
1276 (Pa.Super. 2019) (citing Pa.R.A.P. 2119(b); Eichman v. McKeon, 824
A.2d 305, 319 (Pa. Super. 2003)).
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The only arguments that Wife has adequately preserved for our review
on appeal are interrelated. In Issues 1 and 8, Wife claims the trial court erred
in assessing Wife an imputed income and in refusing to accept her claim that
she was disabled and unable to work. In Issue 7, Wife argues that the trial
court erred in mischaracterizing her past work experience in calculating her
imputed income.
In reviewing similar claims, this Court has held that:
“[a] person's earning capacity is defined not as an amount
which the person could theoretically earn, but as that amount
which the person could realistically earn under the circumstances,
considering his or her age, health, mental and physical condition
and training.” Gephart v. Gephart, 764 A.2d 613, 615 (Pa.
Super. 2000). Past earnings alone are not sufficient to support a
determination of earning capacity without corroborating evidence
that the party still has the capacity to earn that amount. See D.H.
v. R.H., 900 A.2d 922 (Pa. Super. 2006) (holding trial court erred
in determining earning capacity based solely upon party's most
recent tax return). Moreover, Pennsylvania Rule of Civil Procedure
1910.16-2(d)(4), addressing earning capacity, provides:
If the trier of fact determines that a party to a support
action has willfully failed to obtain or maintain appropriate
employment, the trier of fact may impute to that party an
income equal to the party's earning capacity. Age,
education, training, health, work experience, earnings
history and child care responsibilities are factors which shall
be considered in determining earning capacity. In order for
an earning capacity to be assessed, the trier of fact must
state the reasons for the assessment in writing or on the
record. Generally, the trier of fact should not impute an
earning capacity that is greater than the amount the party
would earn from one full-time position. Determination of
what constitutes a reasonable work regimen depends upon
all relevant circumstances including the choice of jobs
available within a particular occupation, working hours,
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working conditions and whether a party has exerted
substantial good faith efforts to find employment.
Pa.R.C.P. 1910.16-2(d)(4)[.]
Conner v. Conner, 217 A.3d 301, 314–15 (Pa.Super. 2019) (emphasis
omitted).
In this case, the trial court considered the factors necessary to impute
an earning capacity to Wife. At the support hearing, Wife indicated that she
was 55 1/2 years old and had earned an Associate’s Degree from Widener
University, where she had maintained a 4.0 GPA. N.T. at 27-28, 53. Wife
claimed it was Husband’s fault that she did not find employment for twelve
years after moving to Pennsylvania in 2006 as Husband and his employer did
not offer assistance in her job search or access to Husband’s professional
network. Although Wife argued that she had “tons of proof” of her own efforts
in searching for a job, she conceded she did not have any such evidence at
the hearing and asserted that she should not be forced to look for a job in
Pennsylvania as she intended to move once the divorce was finalized. Id.With respect to Wife’s claim that the trial court mischaracterized her
work history, Wife herself testified on two occasions that she has “20-plus
years corporate experience.” N.T. at 52-53. Even though the trial court
admitted that it erred in finding that Wife “was employed in corporate human
resources for more than twenty (20) years,” we agree with the trial court’s
assessment that this discrepancy was inconsequential and did not affect its
decision with respect to Wife’s employability. Trial Court Opinion (T.C.O.),
2/24/20, at 8 (emphasis added).
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Moreover, there is no support in the record for Wife’s allegation that she
was unable to find and retain employment due to multiple injuries. Wife
concedes that her former counsel failed to submit relevant evidence at the
support hearing, including medical documentation of Wife’s ailments and proof
of Wife’s previous job search efforts.
Based on the record in this case, we find no error in the trial court’s
decision to assess an imputed income to Wife, based on its findings that Wife
willfully failed to obtain appropriate employment and did not provide support
for her claim that she was disabled and unable to work. Accordingly, we
conclude that the trial court properly exercised its discretion in entering the
relevant support order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/20
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