Whiteside-Wascavage, S. v. Wascavage, E. ( 2015 )


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  • J-S02024-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    SUSAN DIANE WHITESIDE-WASCAVAGE,               IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    EDWARD J. WASCAVAGE, III,
    Appellant                    No. 339 EDA 2014
    Appeal from the Order Entered December 17, 2013
    In the Court of Common Pleas of Delaware County
    Domestic Relations at No(s): 10-003345
    BEFORE: MUNDY, OLSON and WECHT, JJ.
    MEMORANDUM BY OLSON, J.:                             FILED APRIL 13, 2015
    Edward J. Wascavage, III (“Husband”) appeals from the order entered
    on December 17, 2013. We quash in part and affirm as modified.
    The relevant factual background and procedural history of this case is
    as follows. In 2002, Husband married Susan Whiteside-Wascavage (“Wife”).
    In January 2005, D.W. (“Child”), the only child of Husband and Wife, was
    born. In March 2010, Husband and Wife separated.
    On March 24, 2010, Wife filed a complaint in divorce, which also
    sought alimony and child support.      On February 28, 2011, Wife filed a
    petition seeking alimony pendente lite (“APL”). On August 2, 2011, the trial
    court appointed Denis K. Bieler (“Bieler”) to conduct a forensic accounting to
    determine the incomes of Husband and Wife. The parties were ordered to
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    equally share the cost of this forensic accounting, which was capped at a
    combined total of $5,000.00.
    Originally, the parties were granted joint physical custody of Child. On
    March 7, 2013, the trial court1 granted Wife primary physical custody of
    Child during the school year. The parties received joint physical custody of
    Child during the summer. During the course of the litigation, the trial court
    authorized Bieler to exceed the original $5,000.00 cap on his fees; however,
    the trial court did not set a new cap.      A three-day trial regarding child
    support and APL was held in May and June of 2013.             The trial court
    thereafter ordered post-trial briefing.   On August 19, 2013, the trial court
    entered an order providing for child support and APL. That order required
    Husband to pay 80% of Bieler’s $25,000.00 fee instead of the previously
    ordered 50%. The trial court also awarded Wife attorney’s fees. On August
    29, 2013, Husband moved for reconsideration. On September 13, 2013, the
    trial court granted Husband’s motion for reconsideration. On December 17,
    2013, the trial court reinstated and clarified its August 19, 2013 child
    support and APL order. This timely appeal followed.2
    1
    The Court of Common Pleas of Delaware County does not utilize a “one
    family, one judge” rule. The trial judge that handled the child custody
    matter was different than the trial judge who handled the divorce
    proceeding.
    2
    On January 29, 2014, the trial court ordered Husband to file a concise
    statement of errors complained of on appeal (“concise statement”). See
    Pa.R.A.P. 1925(b).   On February 18, 2014, Husband filed his concise
    (Footnote Continued Next Page)
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    Husband presents nine issues for our review:
    1. Has the [trial] court evidenced partiality, bias[,] or ill-will
    against Husband such that its determinations must be set aside
    as an abuse of discretion?
    2. Did the [trial] court abuse its discretion in establishing the
    income and earning capacit[ies] attributable to the respective
    parties and in setting the [APL]/support obligations?
    3. Did the [trial] court abuse its discretion in not reducing
    Husband’s support obligation for substantial shared custody
    pursuant to Pa.R.C.P.1910.16-4(c)?
    4. Did the [trial] court err in setting the support obligation for a
    time period before May 12, 2010 under the terms of the support
    guidelines applicable to situations on or after that date?
    5. Did the [trial] court abuse its discretion in disparately
    allocating responsibility for the costs of the forensic accounting
    expert upon Husband?
    6. Did the [trial] court abuse its discretion in awarding counsel
    fees against Husband?
    7. Did the [trial] court abuse its discretion in refusing to allow
    new counsel an opportunity to supplement the record either with
    evidence or even an offer of proof?
    8. Did the court err in awarding Wife [APL]?
    9. Did the [trial] court err in awarding Wife attorney’s fees?
    Husband’s Brief at 17-18.
    _______________________
    (Footnote Continued)
    statement. On March 28, 2014, the trial court issued its Rule 1925(a)
    opinion. All issues raised on appeal were included in Husband’s concise
    statement.
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    In his first issue, Husband argues that the trial court was biased.3 This
    argument is waived.     “It is axiomatic that, to preserve an objection for
    appeal, the objection must be raised before the trial court.” Tecce v. Hally,
    
    106 A.3d 728
    , 732 (Pa. Super. 2014), citing Pa.R.A.P. 302(a) (other citation
    omitted); see Campbell v. Dep't of Transp., Bureau of Driver
    Licensing, 
    86 A.3d 344
    , 349 (Pa. Cmwlth. 2014), quoting In re Lokuta, 
    11 A.3d 427
    , 437 (Pa. 2011), (“a party seeking recusal or disqualification must
    raise that issue at the earliest opportunity or be barred from obtaining
    appellate review of the question.”).   Husband’s arguments relating to bias
    are based upon actions taken by the trial court in open court over six
    months prior to the entry of the order challenged on appeal. 4 Husband did
    not seek recusal or disqualification in the trial court. Accordingly, Husband’s
    first issue on appeal is waived.
    In his second issue on appeal, Husband contends that the trial court
    erred in determining the parties’ incomes/earning capacities.         He also
    3
    Husband makes related bias arguments throughout his brief. We address
    all of those issues while disposing of Husband’s first issue on appeal.
    4
    This distinguishes this case from those in which the trial court evidences
    bias or ill-will for the first time in the order being appealed from. In those
    cases, we may set aside the determination as an abuse of discretion without
    requiring the appellant to have previously raised the issue in the trial court.
    Cf. HYK Const. Co. v. Smithfield Tp., 
    8 A.3d 1009
    , 1021 (Pa. Cmwlth.
    2010), appeal denied, 
    21 A.3d 1195
     (Pa. 2011) (citations omitted) (“Any
    claims of unfairness or bias should be raised first before the hearing tribunal
    . . . and then ultimately on appeal, otherwise such claims may be deemed
    waived.).
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    contends that the trial court erred in setting the child support and APL
    obligations. “When evaluating a support order, this Court may only reverse
    the trial court’s determination where the order cannot be sustained on any
    valid ground.   We will not interfere with the broad discretion afforded the
    trial court absent an abuse of [] discretion or insufficient evidence to sustain
    the support order.” W.A.M. v. S.P.C., 
    95 A.3d 349
    , 352 (Pa. Super. 2014).
    Husband’s main argument against the trial court’s income/earnings
    capacity calculations is that Bieler, the forensic auditor, impermissibly used a
    financial status audit to determine Husband’s income. Generally, a financial
    status audit looks at an individual’s expenditures in an attempt to ascertain
    the individual’s income.   See Cynthia Blum, The Flat Tax: A Panacea for
    Privacy Concerns?, 
    54 Am. U. L. Rev. 1241
    , 1249 n.24 (2005). This auditing
    technique was used frequently by the Internal Revenue Service in the mid-
    1990’s to identify taxpayers who were underreporting their income. See 
    id.
    This audit procedure was controversial and, therefore, Congress eventually
    limited the use of financial status audits to cases in which the IRS has a
    reasonable belief that there is underreported income.          See 
    26 U.S.C. § 7602
    (e).
    A trial court possesses wide discretion in determining the parties’
    incomes and/or earning capacities. See Bulgarelli v. Bulgarelli, 
    934 A.2d 107
    , 115 (Pa. Super. 2007). In this case, the trial court chose to use the
    most accurate method available to it – a forensic accounting. Bieler testified
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    that Husband refused to turn over the necessary documentation for him to
    precisely calculate   Husband’s income.       E.g., N.T.,   5/31/13, at 55.
    Husband’s refusal to fully comply with the court-ordered forensic accounting
    left Bieler with few options to arrive at an accurate income figure for
    Husband. Bieler chose to use the same technique employed by the Internal
    Revenue Service in such situations – a financial status audit. Bieler used the
    information available to arrive at his income estimations.     The trial court
    relied on Bieler’s figures when arriving at its income figures.      Husband
    contends that the trial court’s reliance on this financial status audit is not
    supported by any prior court decision in Pennsylvania.      Husband does not
    cite to any cases, however, in which a litigant willfully refused to cooperate
    with a court-ordered forensic accounting meant to determine his income.
    We therefore conclude that the trial court’s reliance on the financial status
    audit was not an abuse of discretion given Husband’s failure to cooperate
    with Bieler.
    Husband next argues that even if the trial court were permitted to use
    a financial status audit to determine his income, it was required to do the
    same with respect to Wife.    Husband does not cite any authority for the
    proposition that a trial court is required to use the same methodology to
    calculate both parties’ incomes and/or earnings capacities. In this case, the
    forensic auditor had a sound reason for conducting a financial status audit of
    Husband but not of Wife. In particular, the trial court found that Husband
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    conducted a cash only business and was unable to produce the necessary
    receipts. Findings of Fact and Conclusions of Law, 8/19/13, at 2. On the
    other hand, there was no evidence that Wife was engaged in a cash only
    business.   This fact alone justified the trial court’s reliance on a financial
    status audit. Cf. DeMasi v. DeMasi, 
    530 A.2d 871
    , 878 (Pa. Super. 1987),
    appeal denied, 
    539 A.2d 811
     (Pa. 1988) (internal quotation marks and
    citation omitted) (“where supporting spouse is self-employed, net income, as
    it appears on income tax forms, is not infallible measure of real wealth”).
    Furthermore, Husband had approximately eight times the monthly income of
    Wife. Therefore, a financial status audit was more appropriate for Husband.
    Accordingly, we conclude that the trial court did not abuse its discretion in
    relying upon Bieler’s financial status audit of Husband while declining to
    employ that accounting methodology with respect to Wife.
    Husband argues that the trial court erred by not crediting him for
    expenditures related to health insurance premiums Husband paid for Wife
    and Child. This argument is without merit. The order appealed from states,
    “[s]ince Husband does pay out of pocket expenses related to the health care
    coverage, Husband is entitled to a credit for the provision of health
    insurance.” Findings of Fact and Conclusions of Law, 8/19/13, at 7. To the
    extent that Husband argues the amount of the credit was improperly
    calculated, that argument is waived as he fails to cite to any portion of the
    record or make any argument regarding the amount of the credit to which
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    he was entitled. See Pa.R.A.P. 2119(a); Commonwealth v. Orie Melvin,
    
    103 A.3d 1
    , 39 (Pa. Super. 2014) (citation omitted) (“waiver results when
    appellant fails to properly develop issue on appeal”).
    To the extent that Husband challenges the trial court’s award of APL,
    we lack jurisdiction to consider that issue. See Green v. Green, 
    783 A.2d 788
    , 791 n.1 (Pa. Super. 2001) (APL claims are interlocutory); Malanchuk
    v. Sivchuk, 
    106 A.3d 789
    , 792 (Pa. Super. 2014) (en banc) (citation
    omitted) (“Generally, only appeals from final orders are eligible for appellate
    review.”). Thus, we quash the portions of this appeal which challenge the
    trial court’s award of APL.
    In his third issue, Husband contends that the trial court erred by not
    reducing his child support obligation for the time period during which the
    parties enjoyed 50/50 physical custody of Child.            The child support
    guidelines provide that, “[w]hen the children spend 40% or more of their
    time during the year with the obligor, a rebuttable presumption arises that
    the obligor is entitled to a reduction in the basic support obligation to reflect
    this time.” Pa.R.C.P. 1910.16-4(c)(1). The trial court found that, although
    the child custody order provided for 50/50 shared physical custody, Husband
    had physical custody of Child less than 40% of the time. Husband argues
    that there is no support in the record for this factual finding. We disagree.
    Husband’s sole citation to the record in his brief is to his own
    testimony. Husband testified that he had custody of Child 50% of the time.
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    See N.T., 6/13/13, at 384. The trial court found this testimony not to be
    credible.   See Findings of Fact and Conclusions of Law, 8/19/13, at 3
    (emphasis in original) (The trial court “did not credit the testimony of
    Husband.”).      “We    will   not   disturb   the   trial   court’s     credibility
    determinations[.]” In re M.T., 
    101 A.3d 1163
    , 1177 (Pa. Super. 2014) (en
    banc). The trial court had significant evidence that Husband had custody of
    Child less than 40% of the time. For example, the trial court handling the
    child custody matter found that “[Husband’s] employment necessitates
    travel throughout the United States to various car shows.              [Husband’s]
    travel often requires changes in the custody schedule and the forfeiture of
    portions of [Husband’s] custodial time with Child.”            Findings of Fact
    and Conclusions of Law, 3/10/13, at 6 (paragraph numbers omitted;
    emphasis added).5 Furthermore, Wife testified that she often took custody
    of Child while Husband was at car shows. E.g., N.T., 6/13/13, at 20. From
    this evidence, the trial court reasonably concluded that Father did not have
    custody of child for at least 40% of the time when he was entitled to 50/50
    shared physical custody.       Therefore, the trial court did not abuse its
    discretion by declining to adjust Father’s child support obligation pursuant to
    Pennsylvania Rule of Civil Procedure 1910.16-4(c)(1).
    5
    Husband entered this document into evidence at the trial held in the child
    support matter. See Husband’s Exhibit 24.
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    In his fourth issue on appeal, Husband contends that the trial court
    erred by using the wrong set of support guidelines when calculating the
    support owed from March 24, 2010 through May 11, 2010. Whether the trial
    court used the correct support guidelines is a pure question of law.
    Therefore, our standard of review is de novo and our scope of review is
    plenary.   See Commonwealth v. Thompson, 
    106 A.3d 742
    , 763 (Pa.
    Super. 2014) (citation omitted). The trial court used the support guidelines
    that went into effect on May 12, 2010 for the time period from March 24,
    2010 through May 11, 2010. The trial court acknowledged this error in its
    Rule 1925(a) opinion.    This error amounted to Husband overpaying his
    support obligation by a total of $48.60. We therefore modify the trial court’s
    order to reflect that the total amount of child support due from March 24,
    2010 through May 11, 2010 was $872.00/month instead of $903.00/month.
    See United Police Soc’y of Mt. Lebanon v. Mt. Lebanon Comm’n, 
    104 A.3d 1251
    , 1265 (Pa. 2014) (“An appellate court may [] modify . . . any
    order brought before it[.]”), quoting 42 Pa.C.S.A. § 706.
    In his fifth issue on appeal, Husband argues that the trial court erred
    by requiring him to pay 80% of Bieler’s fee.        As noted in our factual
    recitation, when the trial court appointed Bieler, it ordered the parties to
    split the fee equally. That order also limited the amount of Bieler’s fee to
    $5,000.00.    As noted above, during the course of his forensic accounting
    Bieler encountered uncooperative parties.    Bieler therefore requested, and
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    received, permission from the trial court to expend more than the $5,000.00
    originally approved.   At the conclusion of his service to the court, Bieler
    submitted an invoice for approximately $50,000.00 – nearly ten times the
    original amount authorized.     The trial court determined that fee was
    excessive and ordered that Bieler be paid a total of $25,000.00. It further
    ordered that Husband pay $20,000.00 and Wife pay $5,000.00. We review
    a trial court’s allocation of expert fees for an abuse of discretion.    See
    Pavex, Inc. v. York Fed. Sav. & Loan Ass’n, 
    716 A.2d 640
    , 647 (Pa.
    Super. 1998).
    We discern no abuse of discretion in the trial court’s allocation of
    Bieler’s fee.   As shown in the support calculations, Husband’s monthly
    income is approximately eight times as much as Wife’s income. Therefore,
    an allocation of 80/20 has Wife paying for a higher percentage of the fee
    than her share of the parties’ combined income. Furthermore, the trial court
    found that Bieler’s increased fee was mostly due to Husband’s refusal to
    provide the requested documentation. See Trial Court Opinion, 3/28/14, at
    15. This finding is supported by the record. E.g., N.T., 5/31/13, at 53. As
    Husband was most culpable for the increase in Bieler’s fee, it was reasonable
    for the trial court to allocate seven-eighths of the increased cost (the same
    proportion as the parties’ incomes).    Accordingly, the trial court did not
    abuse its discretion by ordering Husband to pay 80% of Bieler’s fee.
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    In his sixth issue on appeal, Husband argues that the trial court
    abused its discretion by awarding wife $5,000.00 in attorney’s fees. A trial
    court may award attorney’s fees to an individual that is awarded child
    support. See 23 Pa.C.S.A. § 4351(a). “In child support matters reviewing
    an award of attorney’s fees, our standard of appellate review is for an abuse
    of discretion.”   Krebs v. Krebs, 
    975 A.2d 1178
    , 1180 (Pa. Super. 2009)
    (citation omitted).
    In this case, the trial court awarded attorney’s fees to Wife because of
    Husband’s conduct in concealing portions of his income from Wife, Bieler,
    and the trial court.    The trial court noted that Wife and her counsel
    repeatedly attempted to request documents from Husband to no avail. See
    Trial Court Opinion, 3/28/14, at 23-24. The trial court further found that its
    interim fee award of $3,000.00 was insufficient and, therefore, a further fee
    award at the conclusion of the child support proceedings was necessary.
    See id. at 24-25.
    As our Supreme Court has stated, “unreasonable or obstreperous
    conduct on the part of the obligor in a child support action would warrant an
    award of counsel fees to the obligee.” Bowser v. Blom, 
    807 A.2d 830
    , 836
    (Pa. 2002). In Bowser, our Supreme Court noted that there is a significant
    difference between an obligor parent who mounts a “fair and reasonable
    defense in a child support action” and unreasonable or obstreperous
    conduct. 
    Id.
     In Krebs, this Court held that the obligee spouse was entitled
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    to an attorney’s fee award three times higher than the amount originally
    awarded by the trial court. This Court reached that determination because
    Krebs was not “a case where [the obligor] merely defended the action in
    good faith; rather [Krebs was] a case where [the obligor] fraudulently
    concealed increases to his income . . . in order to avoid paying additional
    child support.” Krebs, 
    975 A.2d at 1181
    .
    As we noted when discussing the trial court’s ability to order a forensic
    accounting and its allocation of Bieler’s fees, Husband’s conduct in this case
    was both unreasonable and obstreperous. Husband began this conduct early
    in the child support proceedings by refusing to comply with document
    requests filed by Wife and continued this conduct even after the trial court
    ordered him to cooperate with Bieler. Furthermore, based upon the relative
    incomes of Husband and Wife, it would have been difficult for Wife to
    continue this child support action but for an award of counsel fees.
    Accordingly, we conclude that the trial court did not abuse its discretion in
    awarding Wife $5,000.00 in attorney’s fees, an amount we agree is
    reasonable for compensating Wife for Husband’s conduct.
    In his seventh issue, Husband argues that the trial court abused its
    discretion by declining to permit him to offer additional evidence at the
    hearing on his motion to reconsider.    We review a trial court’s denial of a
    motion to reopen the record for an abuse of discretion. See Bingaman v.
    Bingaman, 
    980 A.2d 155
    , 157 (Pa. Super. 2009) (citation omitted). In his
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    supplemental motion for reconsideration, Husband requested that he be
    permitted to reopen the record for a sole reason – he had obtained new
    counsel. As noted by the lengthy pre-trial proceedings, three-day trial, and
    post-trial briefing, significant resources had been expended by the trial court
    and all parties to this litigation.   There is no indication in the record that
    Husband’s proposed new evidence was unavailable for trial. Therefore, the
    trial court reasonably concluded that granting the motion to reopen would
    unfairly prejudice Wife by forcing her to expend more resources because of
    Husband’s change of counsel.          Furthermore, allowing the record to be
    reopened solely because Husband obtained new counsel would encourage
    losing parties to obtain new counsel on a motion to reconsider because they
    would then get the proverbial “second bite at the apple.”         We refuse to
    encourage such a practice. Accordingly, we conclude that the trial court did
    not abuse its discretion in denying Husband’s motion to reopen the record.
    In his eighth issue on appeal, Husband argues that the trial court erred
    in awarding Wife APL. As noted above, we lack jurisdiction over this claim
    and quash this appeal as it relates to Husband’s APL claims.
    Husband’s ninth issue on appeal is the same as his sixth issue on
    appeal. In sum, we quash Husband’s appeal as it relates to the trial court’s
    APL determination. We affirm the child support order as modified (reducing
    Husband’s overall child support obligation for 2010 by $48.60).
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    Appeal quashed in part.   Order affirmed as modified.   Jurisdiction
    relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/13/2015
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