Retowsky, J.C. v. Retowsky, K.S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JULIE C. RETOWSKY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KELLY S. RETOWSKY :
:
Appellant : No. 896 MDA 2020
Appeal from the Order Entered June 5, 2020
In the Court of Common Pleas of Adams County Civil Division at No(s):
2017-SU-0000043
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 19, 2021
Appellant, Kelly S. Retowsky (Husband), appeals from the order entered
in this equitable distribution dispute with Appellee, Julie C. Retowsky (Wife).
We affirm.
The trial court recounted the factual and procedural background as
follows:
[Wife] and [Husband] were married on July 15, 2002. Husband
filed a divorce complaint against Wife in York County,
Pennsylvania on or about October 17, 2016. Subsequently, on
January 17, 2017, Wife filed a Complaint [i]n Divorce, in the above
captioned matter, in Adams County, seeking a divorce, equitable
distribution and exclusive use and possession of the family home.
The parties later stipulated that January 17, 2017, constituted
their date of separation. Husband was served on January 18,
2017. On March 13, 2017, Honorable Christina M. Simpson
ordered that Adams County was the more appropriate venue for
the parties’ divorce action and stayed the proceedings in York
County. Husband filed a Response to Wife’s complaint on May 16,
2018, alleging his own basis for divorce, as well as a claim for
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counsel fees and expenses, alimony pendente lite [APL] and
alimony.
On May 31, 2018, Wife filed her affidavit of consent for divorce
under §3301(c) of the Divorce Code, 23 Pa.C.S.A. §3301(c). On
July 17, 2018, Wife filed an affidavit of consent for divorce under
§3301(d) and a Motion [f]or [t]he Appointment of Master. On
August 6, 2018, Wife filed a Petition [f]or Special Relief which
included a bifurcation request. On September 18, 2018, Husband
agreed, on the record, to bifurcation. He executed his affidavit of
consent under §3301(c) and the same was submitted for filing.
By Order dated the same date, Wife’s request for bifurcation was
granted. See 23 Pa.C.S.A. §3323(c.1). A Decree of Divorce was
issued on September 20, 2018, with the Court retaining
jurisdiction on all economic claims.
By a different Order dated September 20, 2018, Wife was directed
to pay Husband [APL] in the amount of $2,924.00 per month for
the period May 30 — August 9, 2018 ($6,905.44 total). That
obligation was suspended for the period August 10 — September
10, 2018.[1] Effective September 11, 2018, [APL] was directed in
the amount of $1,667.00 per month.
The Divorce Master was appointed on September 20, 2018, to
hear all outstanding economic claims. The Divorce Master’s
Hearing was held on September 9, 2019. The Master’s Report and
Recommendation was filed on January 21, 2020. The Master
devised a plan that awarded Husband 52% and Wife 48% of the
net marital estate. The plan was to be effectuated as follows:
1. Real estate on Hunterstown-Hampton Road with
a stipulated value of $35,000.00 is to be sold and the
proceeds divided 52%/48%.
2. Real estate on York Road with a stipulated value
of $120,000.00 is to be sold and the proceeds divided
52%/48%.
3. Wife is to reimburse Husband 50% ($3,051.50)
of the real estate taxes and utility bills paid by
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1 Wife was unemployed during that period.
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Husband ($6,103.00) on the Hunterstown-Hampton
and York Road properties.
4. The former marital residence at 2087 Biglerville
Road is subject to a pending partition action but when
that matter is resolved the marital portion is to be
divided 52%/48%.
5. Wife is to reimburse Husband 52%
($29,369.00) of various bank accounts ($56,479.00)
retained by Wife.
6. Wife is to retain her Chevrolet Corvette
($12,415.00) and Ford Explorer ($12,600.00) and
Husband is to retain the farm truck ($1,250.00).
7. Wife is to transfer 52% ($102,645.00) of her
retirement assets ($172,533.00) to Husband via a
Qualified Domestic Relations Order with the parties
sharing the cost of preparation and approval of that
order.
8. Wife is to pay Husband $20,000.00 for his
interest in Entwistle family properties in Maine.
9. Wife is to reimburse Husband $1,500.00 for two
televisions.
In addition, the Master recommended that Wife pay alimony to
Husband for a period of 12 months from the entry of the Final
Decree in Divorce in the same amount as what she is currently
paying in [APL]. The Master denied Husband’s request for counsel
fees. Finally, the Master recommended that Husband reimburse
Wife $750.00 for court costs she advanced.
Trial Court Opinion, 6/05/20, at 1-3 (footnotes omitted).
On February 11, 2020, both parties filed exceptions to the Master’s
report. The trial court directed the parties to file briefs, but did not schedule
oral argument. On June 5, 2020, without holding oral argument, the trial
court issued an order granting six of Wife’s exceptions but denying the
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remaining eight; it also granted three of Husband’s exceptions but denied the
remaining thirty-nine. It affirmed “[a]ll of the Master’s recommendations in
his Report which do not conflict with [this] Order.” Order of Court 6/5/20, at
1. In its revised equitable distribution plan, it increased Husband’s percentage
of the equitable distribution scheme from 52% to 55%. Trial Ct. Op., 6/5/20,
at Exhibit A. This timely appeal followed.2
Husband raises the following issues for our review:
A. Did the trial court err by failing to hold oral argument on
Husband’s exceptions?
B. Did the trial court err by terminating [APL] and failing to provide
[APL] through the appeal process and any remand until a final
order has been entered?
C. Did the trial court err by accepting the testimony of Wife as
credible?
D. Did the trial court err by finding that the property located at
362 Bendersville-Wenksville Road was not purchased with marital
funds and is not marital property?
E. Did the trial court err by failing to award counsel fees where
Wife failed to comply with the Order dated June 27, 2019 at
Docket No. 2018-S-1993 and Wife failed to comply with the order
dated April 13, 2017?
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2 Husband and the trial court have complied with Pennsylvania R.A.P. 1925(b).
However, Husband’s three-page 19-issue Rule 1925(b) concise statement is
not concise. See Pennsylvania R.A.P. 1925(b)(4); see also Kanter v.
Epstein, 866 A.2d 394, 401 (Pa. Super. 2004) (waiving prolix Rule 1925(b)
statement where court determined that “outrageous number of issues” was
deliberate attempt to circumvent purpose of Rule 1925). Instantly, we decline
to find waiver.
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F. Did the trial court err by failing to award Husband permanent
alimony?
G. Did the trial court err by assigning 2045 York Road and 25
Hunterstown-Hampton Road to [Husband] for the reasons
explained and finding that the Farm Truck is marital property?
Husband’s Brief at 8.
In his first issue, Husband argues the trial court erred in failing to hold
oral argument on the exceptions. Husband’s Brief at 19-21. The Pennsylvania
Rules of Civil Procedure provide: “If exceptions are filed. . . The court shall
hear argument on the exceptions and enter a final decree.” Pa.R.Civ.P.
1920.55-2(c). In its 1925(a) opinion, the trial court explained:
The lone issue not addressed previously concerns the
undersigned’s failure to hold oral argument on the exceptions filed
to the Master’s Report. The undersigned recognizes Pa.R.C.P.
1920.55-2(c) states that “[t]he court shall hear argument on the
exceptions. . .” On February 11, 2020, after both parties filed
exceptions to the divorce master’s report, the undersigned
entered orders directing the filing of briefs and noted that oral
argument would be scheduled by a separate order of court.
Shortly thereafter emergency restrictions related to court
proceedings and filings were put in place by the President Judge
of Adams County because of the pandemic. Briefs were accepted
later than originally directed. By email dated April 13, 2020, this
court advised counsel that because of the pandemic [it] was
considering moving to disposition without oral argument. At that
time, [it] raised four questions including whether counsel was
opposed to waiving argument, and if so, for them to state their
specific objection. Later that same day, [Wife’s] counsel replied
that he was not opposed to waiving oral argument but wanted to
confer with his client. He did not respond further. [Husband’s]
counsel’s April 16, 2020 response merely stated “I will proceed
by abiding by the appropriate directives.” Because there was
no express objection, this court determined to dispense with oral
arguments but, regrettably, failed to expressly so notify counsel
by subsequent communication. After the entry of the Order of
June 5, 2020, [Husband] did not request this court vacate its
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disposition in order for argument to be presented. Instead, this
appeal was filed. The undersigned has no reason to believe that
[Husband] has been prejudiced by the lack of oral argument in
light of the arguments set forth in his briefs filed in support of his
exceptions and in opposition to [Wife’s] exceptions.
Trial Court Opinion, 7/31/20, at 1-2 (bold emphasis added).
Husband does not dispute the trial court’s recitation, including the fact
that Husband responded to the trial court’s communication with an
affirmative, albeit vague, acquiescence. Husband’s Brief at 19-21. Husband
explains he did not ask the trial court to vacate the order and hold argument
because, “Husband lacked faith in a fair opportunity before Judge Kuhn”; we
find this statement to be specious, given that the June 5, 2020 Order
increased Husband’s share of the marital estate. Id. at 21. Finally, Husband
offers no support for his bald contention that he was prejudiced by the lack of
oral argument. See id. at 19-21. Husband’s first issue lacks merit.
In his second issue, Husband argues the trial court erred in terminating
APL. Husband’s Brief at 21-22. This claim is waived.
This Court has stated:
Alimony pendente lite (“APL”) is defined as “[a]n order for
temporary support granted to a spouse during the pendency of a
divorce or annulment proceeding.” 23 Pa.C.S.A. § 3103.
Pursuant to 23 Pa.C.S.A. § 3702, alimony pendente lite is
allowable to either spouse during the pendency of the action.
However, “[t]he award of APL is not dependent upon the status of
the parties but on the state of the litigation. This means, in theory,
that the APL terminates at the time of divorce which usually
concludes the litigation.” DeMasi v. DeMasi, 408 Pa.Super. 414,
597 A.2d 101, 104 (Pa. Super. 1991). In DeMasi, our Court held
that
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a divorce is not final for purposes of APL until appeals
have been exhausted and a final decree has been
entered. Thus, while APL typically ends at the award
of the divorce decree, which also should be the point
at which equitable distribution has been determined,
if an appeal is pending on matters of equitable
distribution, despite the entry of the decree, APL will
continue throughout the appeal process and any
remand until a final [o]rder has been entered.
Prol v. Prol, 840 A.2d 333, 335 (Pa. Super. 2003) (some internal quotations
and citations omitted).
Husband has not preserved this issue for appeal because he failed to
include it in his 1925(b) statement. See, e.g., Tucker v. R.M. Tours, 939
A.2d 343, 346 (Pa. Super. 2007) (explaining “[t]he fact [that] [a]ppellants
filed a timely [court-ordered] Pa.R.A.P. 1925(b) statement does not
automatically equate with issue preservation.”).
Pa.R.A.P. 1925(b) provides that a judge entering an order giving
rise to a notice of appeal “may enter an order directing the
appellant to file of record in the trial court and serve on the judge
a concise statement of the errors complained of on appeal [ ].”
Rule 1925 also states that “[i]ssues not included in the
Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.
1925(b)(4)(vii). In Commonwealth v. Lord, 553 Pa. 415, 719
A.2d 306 (1998), our Supreme Court held that “from this date
forward, in order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them to
file a Statement of Matters Complained of on Appeal pursuant to
Rule 1925. Any issues not raised in a 1925(b) statement will be
deemed waived.” Lord, 719 A.2d at 309. This Court has held
that “[o]ur Supreme Court intended the holding in Lord to operate
as a bright-line rule, such that ‘failure to comply with the minimal
requirements of Pa.R.A.P. 1925(b) will result in automatic
waiver of the issues raised.’” Greater Erie Indus. Dev. Corp.
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v. Presque Isle Downs, Inc., 2014 PA Super 50, 88 A.3d 222,
224 (Pa. Super. 2014) (en banc) (emphasis in original).
U.S. Bank, N.A. v. Hua, 193 A.3d 994, 996-97 (Pa. Super. 2018) (some
citations omitted); see also Greater Erie Indus. Dev. Corp., 88 A.3d at 224(stating that “it is no longer within this Court’s discretion to ignore the internal
deficiencies of Rule 1925(b) statements.”).
We have emphasized:
Rule 1925 is a crucial component of the appellate process because
it allows the trial court to identify and focus on those issues the
parties plan to raise on appeal. This Court has further explained
that a Concise Statement which is too vague to allow the court to
identify the issues raised on appeal is the functional equivalent to
no Concise Statement at all.
Tucker, 939 A.2d at 346 (citations and quotation marks omitted).
In his 1925(b) statement, Husband raised the same issue that he raised
in his exceptions, namely: “The [trial c]ourt erred by failing to reassess the
amount of [APL].” Statement of Matters Complained of on Appeal, 7/27/20,
at 1; see also Trial Ct. Op., 6/05/20, at 5. Husband never raised the issue
of the termination of APL in his 1925(b) statement, and has stated it for the
first time on appeal. See Pa.R.A.P. 1925(b)(4)(vii). This is precisely the type
of issue that must be articulated in a Rule 1925(b) statement, as it gives the
trial court an opportunity to explain its ruling. See Tucker, 939 A.2d at 346.
Accordingly, Husband’s second issue is waived.
In his third issue, Husband contends the trial court erred in crediting
Wife’s testimony. Husband’s Brief at 22-31.
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We review an equitable distribution order for an abuse of discretion.
Biese v. Biese, 979 A.2d 892, 895 (Pa. Super. 2009).
A trial court has broad discretion when fashioning an
award of equitable distribution. Our standard of
review when assessing the propriety of an order
effectuating the equitable distribution of marital
property is whether the trial court abused its
discretion by a misapplication of the law or failure to
follow proper legal procedure. We do not lightly find
an abuse of discretion, which requires a showing of
clear and convincing evidence. This Court will not find
an abuse of discretion unless the law has been
overridden or misapplied or the judgment exercised
was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the
evidence in the certified record. In determining the
propriety of an equitable distribution award, courts
must consider the distribution scheme as a whole. We
measure the circumstances of the case against the
objective of effectuating economic justice between the
parties and achieving a just determination of their
property rights.
Id. (internal citations and quotations omitted).
Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super. 2012).
Moreover, it is within the province of the trial court to weigh
the evidence and decide credibility and this Court will not
reverse those determinations so long as they are supported
by the evidence. Sternlicht v. Sternlicht, 2003 PA Super 95,
822 A.2d 732, 742 (Pa.Super.2003), aff'd, 583 Pa. 149, 876 A.2d
904 (Pa.2005). We are also aware that “a master’s report and
recommendation, although only advisory, is to be given the fullest
consideration, particularly on the question of credibility of
witnesses, because the master has the opportunity to observe and
assess the behavior and demeanor of the parties.” Moran v.
Moran, 2003 PA Super 455, 839 A.2d 1091, 1095
(Pa.Super.2003) (citing Simeone v. Simeone, 380 Pa.Super. 37,
551 A.2d 219, 225 (Pa.Super.1988), aff'd, 525 Pa. 392, 581 A.2d
162 (Pa.1990)).
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Childress v. Bogosian, 12 A.3d 448, 455–56 (Pa. Super. 2011) (bold
emphasis added).
Husband seeks to have us reweigh and reassess the evidence. See
Husband’s Brief at 22-31. That is not our function. Moreover, in a thorough
and detailed opinion, the trial court considered all the evidence expounded by
both Husband and Wife, and relied where appropriate on the credibility
determinations of the master. Where it did not do so, the court explained
why, and cited evidence to support its determination. We will not disturb the
credibility determinations of the trial court, and where its conclusions find
support in the record, we will not disturb them. Here, there is nothing in the
record to persuade us that the trial court erred.3 Id. Husband’s third issue is
meritless.
In his fourth issue, Husband argues the trial court erred in finding the
property at 161 Bendersville-Wenksville Road was not marital property
because it was not purchased with marital funds. Husband’s Brief at 31.
Husband’s argument consists of a single paragraph, which does not cite any
relevant legal authority. Husband admits his entire argument on this issue is
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3 Husband states, “[w]hile Husband is sure that in a court of law the testimony
of a registered nurse (Wife) and a member of the local Bar Association might
seem more credible [than] that of an uneducated day labor[er], it is improper
for the court to apply such prejudice to a litigant based on their education
class and presentation.” Husband’s Brief at 30-31. This is Husband’s second
impertinent and unsupported affront against the trial court. See also, id. at
21. Husband does not cite the record or state any reason for his claims of
judicial bias.
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dependent upon our reversing the trial court’s finding that Wife’s testimony
was credible. Id. As we have already declined to do so, Husband’s fourth
issue lacks merit.
In his fifth issue, Husband argues the trial court erred in failing to award
counsel fees due to Wife’s failure to comply with Orders dated April 13, 2017
and June 26, 2019. Husband’s Brief at 31-34.
We will reverse a determination of counsel fees and costs only for
an abuse of discretion. 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.
Brubaker v. Brubaker, 201 A.3d 180, 191 (Pa. Super. 2018) (citation
omitted), appeal denied, 216 A.3d 225 (Pa. 2019). The court may also award
counsel fees as a sanction for vexatious conduct during proceedings. Cook
v. Cook, 186 A.3d 1015, 1028 (Pa. Super 2018); see also 42 Pa.C.S.A. §
2503(7). A party who requests this sanction must prove the award is justified.
Kohl v. Kohl, 564 A.2d 222, 225 (Pa. Super. 1989). Moreover, the failure to
provide supporting documentation showing the amount of fees incurred and
services rendered is fatal to the claim. Anzalone v. Anzalone, 835 A.2d
773, 786 (Pa. Super. 2003).
With respect to the Order of June 26, 2019, Husband admits the order
was entered in a separate action, at a different docket number. Husband’s
Brief at 33. Thus, any claims regarding counsel fees in that case is not
properly before us and we may not consider it further.
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Husband’s argument with respect to the April 13, 2017 Order is
undeveloped. Husband does not provide any factual information regarding
the order, why he believes Wife’s conduct necessitated the imposition of a
sanction, and fatally, Husband failed to provide any documentation of fees and
services. See Anzalone, 835 A.2d at 786. It is not this court’s responsibility
to comb through the record seeking the factual underpinnings of Husband’s
claim. Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. Super.
1997) (“In a record containing thousands of pages, this court will not search
every page to substantiate a party’s incomplete argument”). Husband waived
this issue.
In his sixth issue, Husband argues the trial court erred in failing to award
him permanent alimony. Husband’s Brief at 34-37.
We have stated:
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 the 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,
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.
Conner v. Conner, 217 A.3d 301, 315-16 (Pa. Super. 2017) (citation
omitted). A list of factors a trial court should consider in awarding alimony is
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contained in Section 3701(b) of the Divorce Code. See 23 Pa.C.S.A. §
3701(b). “To determine whether alimony is necessary and to establish the
appropriate nature, amount, and duration of any alimony payments, the court
is required to consider all relevant factors, including the 17 factors that are
expressly mandated by statute.” Lawson v. Lawson, 940 A.2d 444, 447
(Pa. Super. 2007) (emphasis omitted). The factors in Section 3701(b) do not
create an exhaustive list. Ressler v. Ressler, 644 A.2d 753 (Pa. Super.
1994).
Here, our review reveals that the trial court did not abuse its discretion;
it considered relevant factors and the evidence from the master’s hearing in
fashioning an award of alimony. See Trial Ct. Op., 6/05/20, at 45-48.
Moreover, given the record before us, which demonstrates that Husband —
without explanation such as health issues — has been underemployed for
several years, the court could have acted within its discretion in finding that
Husband was not entitled to any alimony.4 See N.T. 9/09/19, at 104-05, 108-
12. At the master’s hearing, when asked about employment, Husband
testified that he worked, “[a]s little as I can.” Id. at 104.
In his seventh and final issue, Appellant contends the trial court erred
in assigning certain rental properties to him as part of equitable distribution,
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4Husband’s inaccurate and unsupported claims, which include further attacks
on the trial court, suggest that Husband is unwilling to obtain appropriate
employment, and would rather be supported by Wife. See Husband’s Brief at
45-48.
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and finding that a truck was marital property. Husband’s Brief at 37-39.
Husband complains, “the trial court order sought to punish Husband.” Id. at
38.
As discussed above, we review an equitable distribution award for an
abuse of discretion. Reber, 42 A.3d at 1134. Further, “a trial court has the
authority to divide the award as the equities presented in the particular case
may require.” Schenk v. Schenk, 880 A.2d 633, 639 (Pa. Super. 2005)
(citation omitted).
Instantly, the trial court detailed its rationale for awarding the rental
properties to Husband. Trial Ct. Op., 6/5/20, at 16-18 (noting, inter alia, that
parties did not get along well enough to manage the properties together, and
Husband was better positioned to maintain the properties). Husband does not
argue that the trial court committed an error of law; rather, his claim is simply
that he does not like the award. Husband’s Brief at 38-39. With respect to
the truck, the trial court noted it was originally awarded to Husband by the
master and Husband did not file an exception. Trial Ct. Op., 6/5/20, at 21.
Husband does not dispute this. Further, he raised the issue concerning the
truck for the first time in his Rule 1925(b) statement. See Commonwealth
v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first
time in Rule 1925(b) statement are waived). After thorough review, we find
no merit to Husband’s seventh issue.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/19/2021
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