McCleary, L. v. McCleary, R.

J-S39031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LAURA J. MCCLEARY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ROGER L. MCCLEARY
No. 1457 WDA 2016
Appeal from the Order Entered September 27, 2016
In the Court of Common Pleas of Clarion County
Civil Division at No(s): 549 C.D. 2012
BEFORE: BENDER, P.J.E., BOWES, AND STRASSBURGER,* JJ.
DISSENTING STATEMENT BY BOWES, J.: FILED SEPTEMBER 27, 2017
While I agree with the majority’s conclusion that the trial court erred in
mentioning Laura J. McCleary’s act of domestic violence against Roger L.
McCleary (“Husband”) in explaining its decision to deny her request for
counsel fees, I believe that the error was harmless. Hence, I would affirm
the order denying relief.
As the majority accurately explains, in Teodorski v. Teodorski, 857
A.3d 194, 201 (Pa.Super. 2004), this Court reiterated the ensconced
framework for trial courts to consider requests for counsel fees concomitant
with equitable distribution. Stated plainly, counsel fees are awarded based
primarily on a party’s showing of need in light of his or her resources,
including the property gained during equitable distribution, the payor’s
* Retired Senior Judge assigned to the Superior Court.
J-S39031-17
ability to pay, and the value of the legal services rendered. Id. at 201.
Instantly, the trial court’s determination included all of the relevant
components but added an extraneous reference to Wife’s misconduct. While
the trial court’s reflection upon Wife’s behavior is undeniably improper under
Teodorski, supra, from my perspective, Wife failed to establish that the
error was harmful. See Harman ex rel. Harman v. Borah, 756 A.2d
1116, 1122 (Pa. 2000) (not all trial errors constitute reversible error; rather,
complaining party must demonstrate that error was harmful).
Essentially, I disagree with the majority’s characterization of the trial
court’s explanation of its decision to deny counsel fees. While the majority
concludes that the trial court “bas[ed] its fee determination in part upon an
impermissible factor,” I believe that the trial court’s analysis is more
nuanced. Majority memorandum at 10. The trial court explained its
rationale as follows:
“Counsel fees are awarded only upon a showing of need.”
Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. Ct.
2004) (quotation omitted). [Wife’s] argument in support of this
exception consists primarily of an assertion that [Husband’s]
superior financial position entitles her to the payment of
attorney’s fees. The Master reasonably found that [Wife] did
not present a showing of need, which is the relevant inquiry
as to counsel fees, rather than solely [Husband’s] ability to pay.
Moreover, the Court’s review of the record and Master's report
supports the Master's conclusion that [Husband] should not have
to pay [Wife] counsel fees, which significantly exceed his own,
due to his already existing obligation to pay his own attorney's
fees and all of the Master's costs, as well as [Wife’s] wrongdoing
in perpetrating an act of domestic violence upon Defendant.
Therefore, this exception will be denied.
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J-S39031-17
Trial Court Opinion and Order, 8/31/16, at 3 (emphasis added).
From my perspective of the foregoing excerpt, it is obvious that the
trial court’s decision did not turn upon Wife’s alleged misconduct. Rather,
the trial court specifically addressed all of the appropriate factors discussed
in Teodorski, and concluded that “[t]he Master reasonably found that
[Wife] did not present a showing of need, which is the relevant inquiry as
to counsel fees[.]” Id. (emphasis added). Only then, after making the
relevant inquiry, noting Husband’s obligation to satisfy the Master’s costs,
and recognizing the substantial difference between the amount of the
parties’ respective legal fees, did the court add the errant reference to Wife’s
“wrongdoing” in its summation of the factors. Id. While Wife certainly
established that the reference was improper, she failed to prove the
attendant harm. Indeed, she neglected to assert any argument t that the
court’s misstep was, in fact, prejudicial. Thus, for all of the foregoing
reasons, I believe that the trial court’s superfluous statement regarding
Wife’s prior transgression was harmless.
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