Sales, C. v. Sales, S.

J-A27027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTINE V. SALES, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STEPHEN R. SALES, SR., :
:
Appellant : No. 197 WDA 2014
Appeal from the Order Entered January 2, 2014
In the Court of Common Pleas of Allegheny County,
Civil Division, at No. FD-10-08504-016.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 06, 2014
Appellant, Stephen R. Sales, Sr. (“Husband”), appeals from the final
Order of the trial court which divorced Husband and Appellee, Christine V.
Sales (“Wife”), from the bonds of matrimony. We affirm.
Initially, we note that Husband’s brief is not compliant with the briefing
requirements set forth in the Pennsylvania Rules of Appellate Procedure.
Issues are waived when they are not addressed in conformance with the
rules. Moses Taylor Hospital v. White, 799 A.2d 802, 804 (Pa. Super.
2002) (citing Korn v. Epstein and DeSimone Reporting Group, 727 A.2d
1130, 1135 (Pa .Super. 1999)); Hrinkevich v. Hrinkevich, 676 A.2d 237,
241 (1996). As provided in Pa.R.A.P. 2101, appellate briefs “shall conform
in all material respects with the requirements of these rules,” and failure to
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do so may result in the brief being quashed or dismissed. Id. We recognize
that Husband is proceeding pro se. While this Court is willing to liberally
construe materials filed by a pro se litigant, Husband is not entitled to any
particular advantage because he lacks legal training. Commonwealth v.
Maris, 629 A.2d 1014, 1017 n.1 (Pa. Super. 1993). Accordingly, a pro se
litigant must comply with the procedural rules set forth in the Pennsylvania
Rules of Court. Id.
In the instant case, the defects in Husband’s brief are substantial;
Husband’s brief is rambling and often inexplicable. See Pa.R.A.P. 2119. It
is difficult to evaluate whether Husband’s attempt at the statement of
questions presented comports with his rambling Pa.R.A.P. 1925(b)
statement. The thirty-page brief, without consideration of the pages from
unidentified transcripts, motions, and court orders he has inserted, has two
pages of argument consisting of mere compilations of actions he “wants”
regarding a particular issue. There is no identified argument, no explanation
of an issue, and no citation to applicable law or reference to the record in
his “argument.” See Husband’s Brief at 27–28.
While we are inclined to quash this appeal due to the numerous
defects in Husband’s brief, we have concluded that we are able to sufficiently
discern some of the claims Husband seeks to raise. See Commonwealth
v. Lyons, 833 A.2d 245 (Pa. Super. 2003) (holding that while pro se brief
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was defective, this Court would address issues that could reasonably be
discerned).
The trial court summarized the lengthy procedural history of this case
in its Pa.R.A.P. 1925(a) opinion. We will not reproduce that sixteen-page
history here, but note the following. The underlying suit began on
September 24, 2010, when Wife filed a complaint in divorce against
Husband. The parties have two children: Stephen, who has been
emancipated throughout the case, and Jessica, who is sixteen years old.
Both parties initially sought custody of Jessica, who was then twelve years
old. The parties ultimately shared custody of Jessica on an alternating
weekly basis. It appears that Husband has filed numerous frivolous motions
and pleadings that have all been denied, thereby causing Wife to incur
significant costs to defend. Indeed, Wife contends that Husband’s “conduct
became so egregious that on June 23, 2011 (in motion’s court) [the trial
judge] awarded Wife counsel fees in the amount of $500, specifically noting
it was the first time he had awarded counsel fees since being on the Family
Division bench.” Wife’s Brief at 5. The trial court indicated that Husband
was pro se from September 24, 2010, until November 16, 2010. He was
represented by counsel from November 16, 2010, until counsel withdrew on
June 23, 2011. Husband was again pro se until new counsel entered his
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appearance on October 10, 2012. That counsel withdrew on February 6,
2013.
The trial court opinion lists, in chronological order, the various motions
the parties brought and their dispositions. Husband praeciped for a
conciliation on equitable distribution, alimony, and counsel fees on June 11,
2012. Wife sought special relief on July 18, 2012, alleging that Husband
made “unauthorized charges on Wife’s credit card and . . . withdrawals from
Wife’s bank accounts.” Trial Court Opinion, 3/31/14, at 10. The trial court
sanctioned Husband $500 for his actions. Following a failed conciliation on
July 18, 2012, the trial court granted a one-day hearing before a Master that
was eventually held on February 12, 2013.
Following the February 12, 2013 hearing, the Master issued a report
and recommendation on March 19, 2013. In her report, the Master noted
that Wife’s yearly income was $141,762 in 2012, and Husband’s income was
$62,327 in 2012. Pursuant to a July 20, 2012 order, Wife paid Husband
$1,779 in spousal and child support. Husband resided in the marital
residence. The Master recommended a 60%-40% distribution of the marital
estate in Husband’s favor.1 The Master also recommended that Husband
pay Wife $2,000 toward Wife’s counsel fees, stating, “It is clear that
discovery difficulties and frivolous motions by husband have unnecessarily
1
Husband did not make a claim for alimony.
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increased wife’s counsel fees . . . .” Master’s Report, 3/19/13, at 8.
Husband filed exceptions on April 5, 2013.
Husband did not file a brief in support of his exceptions. On June 26,
2013, the trial court ordered Husband to file his brief within thirty days.
Eventually, oral argument was heard on October 1, 2013. On October 3,
2013, the trial court granted the exceptions in part, holding that Husband’s
PNC savings account containing $25.00 was non-marital property, and the
court removed it from the marital estate. The trial court also held that
Wife’s PNC ISP account had a balance at date of separation of $133,918, not
$127,622, and that Husband paid $10,828 toward marital debt, not $3,360.
The trial court directed that Wife was to forgo $5,414 of the marital estate to
compensate Husband for his payment of this debt, and it dismissed the
remaining exceptions. The trial court determined that “Wife was to make an
equalization payment of $5,401 to Husband, which included a deduction of
$2,000 for the counsel fees owed from Husband to Wife.” Trial Court
Opinion, 3/19/13, at 14. Following more maneuverings, a divorce decree
was issued on December 31, 2013, which was docketed on January 2, 2014.
Husband filed a notice of appeal on January 30, 2014.2 The trial court
directed the filing of a concise statement on February 4, 2014, and Husband
filed his purported statement on February 24, 2014.
2
Husband filed a variety of prior notices of appeal that were quashed as
interlocutory.
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Husband raises the following issues in his statement of the questions
involved:
Was the February 6, 2013 order an abuse of discretion[?] Wife’s
attorney intentionally states the wrong date of the hearing, in
notice to [H]usband. Wife submits the requested documents at
trial as her exhibits. Husband never submitted any documents
to [W]ife after February 6, 2013.
Does Judge Walko abuse his authority by suspending
[H]usband[’]s APL, without a petition and twenty day’s notice as
required by statue[?] Judge Walko is not allowed to give [W]ife
or [W]ife’s attorney legal advice; he essentially is acting as
[W]ife’s legal counsel.
Does the Court abuse their discretion by using [W]ife’s student
loan as a marital debt, which was paid off with marital funds
(Exception 7). And saying [H]usband[’]s student loans are a
voluntary debt, and discounting [H]usband[’]s loans. Both
student loans were used to pay adult son’s tuition at Duquesne
for the school year 2010-11.
Does the Court abuse its authority by notifying [W]ife’s attorney
of a time change of a motion and not notify [H]usband[?]
Husband believes since [W]ife didn’t show up for the hearing he
should’ve received a default judgment and [W]ife’s motion
should be vacated.
If [W]ife’s motion of October 22, 2013 is not vacated, does the
Court abuse its discretion by requiring [H]usband to supply
[W]ife’s attorney with mortgage information in violation of
privacy laws[?] Whether [H]usband gives [W]ife’s attorney
mortgage information or not, [W]ife and/or [W]ife[’s] attorney
wouldn’t be able to obtain any information from the mortgage
lender in any event.
Does court abuse its discretion by requiring [H]usband to
refinance home before the minor child turns 18[?]
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Does court abuse its discretion, by changing the time of [W]ife's
motion hearing on July 18, 2012 from 2:00 pm to 9:30 am
without advising [H]usband, but advising [W]ife's attorney[?]
Order of Court July 18, 2012 does court abuse its discretion by
allowing [W]ife and [W]ife’s attorney to present false testimony
and require [H]usband to pay attorney fees[?]
Order of Court June 23, 2011, does [c]ourt abuse its discretion
by allowing [W]ife’s attorney to present false testimony and
require [H]usband to pay attorney fees[?]
False testimony, false swearing, changing of times of court
hearing without notice to [H]usband, and disposing of
[H]usband[’]s motions prior to a hearing. Husband believes
these issues have unfairly burdened him and thinks collectively
these issues warrant a new trial.
Husband’s Brief at 2–3.
In reviewing equitable distribution orders, our standard of review is
limited. We have stated:
It is well established that absent an abuse of discretion on the
part of the trial court, we will not reverse an award of equitable
distribution. In addition, when reviewing the record of the
proceedings, we are guided by the fact that trial courts have
broad equitable powers to effectuate economic justice and we
will find an abuse of discretion only if the trial court misapplied
the laws or failed to follow proper legal procedures. Further, the
finder of fact is free to believe all, part, or none of the evidence
and the Superior Court will not disturb the credibility
determinations of the court below.
In addition,
We do not evaluate the propriety of the distribution order upon
our agreement with the court’s actions nor do we find a basis for
reversal in the court’s application of a single factor. Rather, we
look at the distribution as a whole, in light of the court’s overall
application of the 23 Pa.C.S.A. § 3502(a) factors for
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consideration in awarding equitable distribution. If we fail to find
an abuse of discretion, the order must stand.
Lee v. Lee, 978 A.2d 380, 383–384 (Pa. Super. 2009) (citing Trembach v.
Trembach, 615 A.2d 33, 36 (1992), and Anzalone v. Anzalone, 835 A.2d
773, 780 (Pa. Super. 2003)).
As to Husband’s issues regarding payment of counsel fees, we note the
trial court imposed fees pursuant to 42 Pa.C.S. § 2503,3 which provides 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.
We have stated:
Section 2503(7) is a statutory provision enabling a participant to
receive reasonable counsel fees when another participant
engages in dilatory, obdurate or vexatious conduct during the
pendency of a matter. In re Estate of Liscio, 432 Pa.Super.
440, 638 A.2d 1019 (1994). . . . Moreover, “it is well-settled that
this Court will not reverse the trial court on its decision to award
counsel fees absent an abuse of discretion.” O’Connell v.
O’Connell, 409 Pa.Super. 25, 597 A.2d 643, 647 (1991)
(citation omitted).
3
The trial court mistakenly identified the section number as 2503 (8) rather
than (7), but it quoted the correct language.
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Bonds v. Bonds, 689 A.2d 275, 279–280 (Pa. Super. 1997). See Kulp v.
Hrivnak, 765 A.2d 796, 800 (Pa. Super. 2000) (trial court award of
attorneys’ fees affirmed where lower court found the appellants’ conduct
dilatory, obdurate, and vexatious). Cf. Busse v. Busse, 921 A.2d 1248,
1258 (Pa. Super. 2007) (no abuse of discretion for award of counsel fees
where the husband prolonged the already extensive litigation, he was not
forthcoming with information the wife requested, and the wife incurred
counsel fees as a result of the husband’s conduct).
Finally, regarding Husband’s issues involving the award of alimony
pendent lite, we have stated:
We 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). . . . “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 to the spouse.” Haentjens, at
1062; see also DeMasi, at 105.
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Childress v. Bogosian, 12 A.3d 448, 463 (Pa. Super. 2011).
In reference to the issues that can be gleaned from Husband’s brief,
we have completely reviewed the record, including the notes of testimony
from the February 12, 2013 hearing, and considered the arguments of the
parties in light of the applicable law. We conclude that the issues that are
preserved for review and adequately explained in Husband’s brief are aptly
addressed in the trial court’s thorough opinion filed on March 31, 2014. We
affirm on the basis of the trial court’s opinion and direct the parties to attach
it in the event of further review.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2014
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