Pullett, D. v. Pullett, C.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
DORIS PULLETT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHARLES PULLETT, : No. 3260 EDA 2016
:
Appellant :
Appeal from the Order Entered September 19, 2016,
in the Court of Common Pleas of Philadelphia County
Family Court Division at No. June Term, 2006, No. 8419
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 08, 2018
Charles Pullett (“Husband”) appeals the order of the Court of Common
Pleas of Philadelphia County that decreed that he and Doris Pullett (“Wife”)
were divorced and ordered him to pay Wife $48,405.38, which represented
Wife’s share of equitable distribution; to pay Wife’s present counsel
$10,481.25 for counsel fees, costs, and expenses; to pay alimony to Wife in
the amount of $1,000 per month for four years or until the death of either
party, or upon the remarriage or cohabitation of Wife; and to obtain a life
insurance policy designating Wife as beneficiary for a period terminating with
the fulfillment of his alimony obligations. After careful review, we affirm in
part, vacate in part, and remand in part.
The trial court recounted the following facts and procedural history:
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[T]he parties were married on December 30, 1989.
They had three children, two of whom are currently in
their 30’s and one of whom is in his 20’s. Husband
alone contributed financially to the family, working
continuously as a truck driver for various solid waste
hauling entities. For the first half of 2006, Husband’s
gross pay was $37,548.13. Wife remained at home,
raising the children and running the household.
During the marriage, Husband had two retirement
accounts: 1) a 401(k); and 2) an IRA annuity. In
2007, Husband received funds from a union
settlement, the majority of which the parties agree to
be marital property. In addition, the parties had a
checking account and a savings account. All financial
correspondence was sent to Husband’s mother’s home
and not to the marital residence; Wife was not privy
to the ongoing financial status of the accounts. The
parties never owned the marital residence, but rented
the entire time they lived together as a family. Nor
did they own any other real property.
Husband testified that the standard of living
during the marriage consisted of the family living
together and his taking care of them. The family went
on a vacation while Husband worked. There never
was more than $5000 in savings. Wife testified that
Husband “paid the bills” and that she and the children
went on one family vacation.
Husband testified the parties continued to live
together as long as they did as a married couple
because he felt that he had obligations to Wife. Wife
testified that during the marriage Husband went out
“a lot” and that he was “seeing someone else.” Wife
also testified the [sic] Husband was verbally abusive
and at times was physically abusive.
After separation, Wife obtained employment as
a care assistant at a senior living facility, where she
remained so employed until she was laid off in
February 2016. At the time of termination, Wife
earned approximately $30,577 per year. Wife’s
maximum entitlement to unemployment
compensation benefits for the period Feb. 14, 2016
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through February 11, 2017 is $8,259. Wife had
received post-separation support from Husband of
$1,420 per month (Wife and one child) and currently
receives $1050 per month (Wife only). Wife has a
post-separation 401(k) account, whose value she
approximated to be $1000, in which she was not fully
vested at the time of the trial.
The documentary and testimonial evidence
established the following values for the four primary
marital assets: 1) Husband’s 401(k) account valued
at $23,105.63 as of 7/1/07, the closest date to the
time of separation supplied by Husband, 2) Husband’s
IRA account valued at $45,000 as of 3/31/06, 3) union
settlement of $11,410 (pre-tax), and 4) Wells Fargo
checking account balance of approximately $3,000.
The salient procedural events in the course of
this litigation, as gleaned from the docket report, are
as follows:
June 7, 2006 – Complaint in divorce filed
by Wife.
July 14, 2006 – Answer and counterclaim
filed by Husband.
....
June 12, 2012 – Order approving grounds
for divorce.
....
June 15, 2015 – Master’s report filed.
....
July 6, 2015 – Husband’s praecipe for trial
de novo.
....
Sept. 19, 2016 – Trial de novo conducted
and Order filed.
Oct. 18, 2016 – Husband’s notice of
appeal and Rule 1925(b) statement filed.
In his concise statement of errors complained of
on appeal, filed pursuant to Pa.R.A.P. 1925(b),
Husband raises 17 discrete issues.[1]
1 Husband raises only four of those issues in his brief before this court.
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Trial court opinion, 1/10/17 at 1-4 (footnote and citations to the record
omitted). The trial court issued a divorce decree in the first paragraph of the
September 19, 2016 order. The trial court entered an amended divorce
decree on November 9, 2017.2
Appellant raises the following issues for this court’s review:
1. Whether the trial court erred as a matter of law
or abused its discretion in not applying deferred
distribution of the retirement benefits through a
qualified domestic relations order (QDRO)[3] --
pursuant to 3501(c)(1) of the Divorce Code --
or alternatively, to calculate the IRS penalty and
taxes Husband would have to pay for premature
withdrawal of retirement benefits[?]
2. Whether the trial court erred as a matter of law
or abused its discretion in not giving Husband
credit for paying alimony pendente lite
[(“APL”)] for over 10 years, but instead ordered
him to continue paying alimony for another
four (4) years, which constitutes 14 years total
of support to Wife for a 16-year marriage,
2This court initially quashed Husband’s appeal on October 25, 2017. Husband
moved for reconsideration. On December 7, 2017, this court granted panel
reconsideration.
3 A QDRO is an order “which creates or recognizes the
rights of an alternate payee to receive all or a portion
of the benefits payable to a participant under the plan.
To be ‘qualified,’ the order must contain certain
required information and may not alter the amount or
form of plan benefits.” Berrington v. Berrington,
534 Pa. 393, 633 A.2d 589, 591 n. 3 (1993) (citation
omitted). The actual qualifying of the domestic
relations order is done by the employer’s pension
administrator.
Smith v. Smith, 938 A.2d 246, 248 n.3 (Pa. 2007).
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despite the fact that Wife had been gainfully
employed full time for almost ten years
subsequent to the parties’ separation[?]
3. Whether the trial court erred in ordering
Husband to pay alimony on a fixed basis,
regardless of any potential future changes in
income, earning capacity, health condition, or
disability -- in direct violation of 23 Pa.C.S.[A.]
§ 3701(e)[?]
4. Whether the trial court erred as a matter of law
or abused its discretion in ordering Husband to
pay Wife $10,481.25 for counsel fees, even
though it was undisputed that Wife had worked
for over nine years after the parties’ separation
and received support from Husband in the
amount of $1,050 monthly under the statutory
formula for APL (40% of the difference in the
parties’ respective net incomes), which
equalized the incomes between the parties and
placed the parties in equal financial positions[?]
Appellant’s brief at 2-3.
Initially, Husband contends that the trial court erred as a matter of law
when it failed to apply deferred distribution of appellant’s retirement benefits
through a QDRO pursuant to Section 3501(c)(1) of the Divorce Code,
23 Pa.C.S.A. § 3501(c)(1) or alternatively, to calculate the Internal Revenue
Service penalty and taxes for premature withdrawal of retirement benefits.
[O]ur standard for reviewing awards of equitable
distribution is well settled. The trial court has broad
discretion in fashioning such awards, and we will
overturn an award only for an abuse of that discretion.
Isralsky v. Isralsky, 824 A.2d 1178 (Pa.Super.
2003). To assess whether the trial court abused its
discretion, we must determine whether the trial court
misapplied the law or failed to follow proper legal
procedure. Id. Further, we measure the
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circumstances of the case against the objective of
effectuating economic justice between the parties and
achieving a just determination of their property rights.
Id.Hayward v. Hayward, 868 A.2d 554, 557-558 (Pa.Super. 2005).
Husband argues that the trial court awarded Wife 60% of the total
retirement benefits of $68,106, which equaled $40,864, to be transferred to
Wife. Husband asserts that this amount should have been distributed through
a QDRO from his retirement account into Wife’s retirement account. Husband
asserts that he cannot withdraw $40,864 without paying the IRS penalty and
income tax of a 20% mandatory withholding tax and a 10% early withdrawal
penalty. In order to pay Wife in cash, Husband states that he could only
receive $28,605 after paying the penalty and tax to the Internal Revenue
Service.
The trial court established that the value of Husband’s 401(k) account
on July 1, 2007, which was the closest date to the time of separation supplied
by Husband, was $23,105.63. (See trial court opinion, 1/10/17 at 5.)
However, as the trial court points out, Husband testified that he had already
withdrawn all the funds from the 401(k) account. (Notes of testimony,
9/19/16 at 89-91.) As there was no 401(k) account from which to draw funds,
the transfer could not have been effectuated via a QDRO.
As to Husband’s IRA account which was valued at $45,000 as of
March 31, 2006, the trial court asserted that Husband waived this issue
because he neither asked for a QDRO at trial nor provided the figures upon
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which a penalty for early withdrawal could be calculated. A review of the
record confirms that Husband did not raise this issue before the trial court.
Consequently, it is waived. Issues not timely raised before the trial court are
waived on appeal. Pa.R.A.P. 302(a); Tecce v. Hally, 106 A.3d 728, 732
(Pa.Super. 2014), appeal denied, 125 A.3d 778 (Pa. 2015).
Husband next contends that the trial court abused its discretion when it
failed to give Husband credit for paying APL for more than 10 years, but
instead ordered him to continue paying alimony4 for another four years, which
constituted 14 years of total support to Wife for a 16-year marriage, despite
the fact that Wife had been gainfully employed post-separation.
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 “[t]he 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,
“[a]limony following a divorce is a
secondary remedy and is available only
where economic justice and the
reasonable needs of the parties cannot be
4 Alimony is paid, if at all, after the parties are divorced. 23 Pa.C.S.A.
§ 3701(a). APL is paid during the pendency of the divorce so that both parties
have equal ability to pursue the divorce proceeding. See 23 Pa.C.S.A. § 3702;
Litmans v. Litmans, 673 A.2d 382 (Pa.Super. 1996).
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achieved by way of an equitable
distribution award and development of an
appropriate employable skill.”
Moran v. Moran, 839 A.2d 1091, 1096-97 (Pa.Super.
2003) (citations omitted) (emphasis in original).
In determining whether alimony is
necessary, and in determining the nature,
amount, duration and manner of payment
of alimony, the court must consider
numerous factors including the parties’
earnings and earning capacities, income
sources, mental and physical conditions,
contributions to the earning power of the
other, educations, standard of living
during the marriage, the contribution of a
spouse as homemaker and the duration of
the marriage.
Anderson v. Anderson, 822 A.2d 824, 830-31
(Pa.Super. 2003) (citations omitted). See also
23 Pa.C.S.A. § 3701.
Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa.Super. 2004).
Husband argues that it is grossly unfair that he must continue to support
Wife after Wife prolonged the divorce process for the clear purpose of
collecting alimony pendente lite. Husband asserts that nothing prevents
Wife from working as a truck driver and earning the same amount as he does.
He asserts that the only difference is that he is willing to work overtime at an
undesirable job and she is not. He also argues that Wife has a post-marital
401(k) plan.
The trial court addressed this issue:
This Court has considered all of these factors in
determining that four more years of alimony at the
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rate of $1000 a month is an appropriate award to
Wife. The Court considers the following factors to be
of particular significance in this matter: 1) the relative
earnings and earning capacities of the parties
(Husband’s $66,000[5] annual salary; Wife’s
maximum $8,632 unemployment compensation
benefits for period 2/14/16—2/11/17); 2) the ages
and the physical, mental and emotional conditions of
the parties; 3) the sources of income of both parties,
including, but not limited to, medical, retirement,
insurance or other benefits; 4) the duration of the
marriage; 5) the standard of living of the parties
established during the marriage; 6) the relative
education of the parties and the time necessary to
acquire sufficient education or training to enable the
party seeking alimony to find appropriate
employment; 7) the relative assets and liabilities of
the parties; 8) the contribution of Wife as
homemaker; 9) the relative needs of the parties;
10) the marital misconduct of Husband during the
marriage; 11) [w]hether the party seeking alimony
lacks sufficient property, including, but not limited to,
property distributed under Chapter 35 (relating to
property rights), to provide for the party’s reasonable
needs; and (12) Wife’s capability to support herself
through appropriate employment.
Additionally, Husband is not obligated to pay for
Wife’s medical insurance and Wife, presumably, will
be required to obtain a policy of her own. The Court
gave great weight to the disparity of the earnings of
the parties. Husband currently earns approximately
$66,000 a year, while the Wife receives APL [] of
$1050 per month and $332 a week in unemployment
compensation benefits (maximum benefit of $8,632
for the period 2/14/16—2/11/17).
Trial court opinion, 1/10/17 at 11-13.
5 The trial court mentioned an income amount of $37,548.13 in its factual
summary. This number represents Husband’s income for the first half of 2006.
Wife filed a divorce complaint in June 2006.
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First, with respect to the award of alimony, it is clear the trial court
reviewed the relevant statutory factors for alimony. See 23 Pa.C.S.A.
§ 3701(b). Second, although Husband referred to Wife’s post-marital 401(k),
Wife testified that the account was valued at approximately $1,000. (Notes
of testimony, 9/19/16 at 227.) In and of itself, this amount would not be
sufficient to cause the trial court’s award to constitute an abuse of discretion.
Third, although Husband asserts that Wife prolonged the duration of the
litigation, the trial court explicitly found, “[c]ontrary to Husband’s
representation, Wife has not ‘protracted and prolonged’ this divorce
proceeding, as evidenced by the docket entries.” (Trial court opinion, 1/10/17
at 10.) Fourth, while Husband focuses on the APL he paid during the pendency
of the divorce, the purposes of APL and alimony are different. APL is paid
during the course of divorce proceedings so that both parties have equal ability
to pursue the divorce proceeding. See 23 Pa.C.S.A. § 3702. “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.” Moran, 839 A.2d at 1097, quoting Twilla v. Twilla, 664
A.2d 1020, 1022 (Pa.Super. 1995) (emphasis in original). Given the different
purposes for APL and alimony, the fact that Husband paid APL during the
course of the divorce proceedings does not preclude the award of alimony
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following a divorce. This court does not find that the trial court abused its
discretion when it fashioned its award of alimony.
Husband next contends that the trial court erred when it ordered him to
pay alimony non-modifiable in amount or duration and only terminable upon
the death of either party or Wife’s remarriage or cohabitation in direct violation
of Section 3701(e) of the Divorce Code, 23 Pa.C.S.A. § 3701(e).
Section 3701(e) provides:
(e) Modification and termination.--An order
entered pursuant to this section is subject to
further order of the court upon changed
circumstances of either party of a substantial
and continuing nature whereupon the order may
be modified, suspended, terminated or
reinstituted or a new order made. Any further
order shall apply only to payments accruing
subsequent to the petition for the requested
relief. Remarriage of the party receiving
alimony shall terminate the award of alimony.
23 Pa.C.S.A. § 3701.
The order to which Husband refers states in pertinent part the following:
3. Husband shall pay alimony to Wife in the
amount of $1,000 per month for a period of
4 years (48 months) effective the date of this
decree and order. Said alimony shall terminate
upon the expiration of the aforesaid 4 year
period, upon the death of either party, or upon
the remarriage or cohabitation of Wife,
whichever first occurs. Otherwise, said alimony
shall be non-modifiable in amount and duration.
A separate domestic relations order is being
entered contemporaneously herewith.
Order, 9/19/16 at 1-2, ¶ 3 (capitalization and bolding omitted).
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In its opinion, the trial court stated, “[t]his issue is without merit as
nothing in the Court’s order precludes Husband from seeking modification,
suspension, termination, or reinstitution of the order should either party
experience changed circumstances of a substantial and continuing nature.”
(Trial court opinion, 1/10/17 at 14.)
Husband correctly asserts that under the plain language of the statute,
changed circumstances of a substantial and continuing nature by either party
may lead to a modification, suspension, termination, reinstitution, or a new
order. However, under the order fashioned by the trial court, the possible
modification is limited to a termination of alimony upon the death of either
party or the remarriage or cohabitation of Wife. Further, although the order
states that a separate domestic relations order would be entered
contemporaneously, the docket entries and record of this case do not indicate
that such an order was entered. To add to the confusion, the trial court states
in its opinion that nothing in the order prevents Husband from seeking
modification if either party experiences changed circumstances of a
substantial and continuing nature. The order clearly does not state that.
The trial court erred or abused its discretion when it issued an order that
was not in conformity with Section 3701 of the Divorce Code. This court
vacates paragraph 3 of the September 19, 2016 order and remands to the
trial court for the insertion of language concerning modification of the alimony
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award that conforms with Section 3701 of the Divorce Code and the trial
court’s opinion.
Husband next contends that the trial court abused its discretion when it
ordered Husband to pay Wife $10,481.25 for counsel fees, even though it was
undisputed that Wife had worked for almost ten years post-separation and
received support from Husband under the statutory formula for APL which
equalized the incomes between the parties and placed the parties in equal
financial positions.
Our standard of review of the award of
counsel fees pursuant to the Domestic
Relations Code is for an abuse of
discretion. See Bowser v. Blom, 569 Pa.
609, 807 A.2d 830, 834 (Pa. 2002). An
abuse of discretion is “[n]ot merely an
error of judgment, but if in reaching a
conclusion[,] the law is overridden or
misapplied, or the judgment exercised is
manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will, as
shown by the evidence of record.” Id.(citations omitted). “[R]eview of the
grant of counsel fees is limited . . . and we
will reverse only upon a showing of plain
error.” Isralsky v. Isralsky, 824 A.2d
1178, 1192 (Pa.Super. 2003) (citation
omitted).
Kraisinger v. Kraisinger, 34 A.3d 168, 175
(Pa.Super. 2011).
Habjan v. Habjan, 73 A.3d 630, 642 (Pa.Super. 2013).
Husband argues that because he paid APL since the time of separation
and Wife worked outside the home post-separation, their incomes were
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comparable. He also asserts that she protracted the litigation in order to reap
additional APL. As stated above, the trial court did not accept this contention
that Wife unnecessarily extended the litigation. Husband asserts that forcing
him to pay Wife’s counsel fees after ten years of paying APL and after Wife
took steps to prevent the divorce from being finalized is a gross injustice, an
abuse of discretion, and a misapplication of the law.
The trial court explained its decision with respect to attorney fees:
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. Counsel fees are awarded based on the facts
of each case after a review of all the relevant factors.
These factors include the payor’s ability to pay, the
requesting party’s financial resources, the value of the
services rendered, and the property received in
equitable distribution.
This Court considered Husband’s ability to pay
($66,000 annual salary), Wife’s current financial
resources ($8,259 maximum unemployment
compensation benefits for period 2/14/16—2/11/17),
the value of the services rendered by Wife’s counsel,
and the property received in equitable distribution in
exercising its discretion in awarding Wife counsel fees.
As previously noted, Husband has the ability to pay
Wife’s counsel fees, while Wife is currently
unemployed. Contrary to Husband’s representation,
Wife has not “protracted and prolonged” this divorce
proceeding, as evidenced by the docket entries.
Husband has made no showing that the hourly rate
($350) charged by Wife’s counsel was outside the
range of experienced divorce attorneys practicing in
the Philadelphia area. This issue is without merit.
Trial court opinion, 1/10/17 at 10 (citations omitted).
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A review of the record supports the trial court’s conclusion that Husband
earns substantially more than Wife earns and that Husband has the ability to
pay Wife’s counsel fees. Further, it is not for us to determine if the rate
charged by Wife’s counsel was exorbitant. Additionally, although Husband
asserts that he paid APL for ten years, Wife testified that Husband came back
to court to have the amount reduced, and at the time, Wife could not afford
to pay counsel to challenge the action. (Notes of testimony, 9/19/16 at 208.)
Husband’s counsel stipulated that spousal support was suspended in 2007.
(Id. at 147.) In 2012, such support was reinstated. (Id. at 151.) The trial
court considered the relevant factors when it awarded attorney fees. The trial
court did not abuse its discretion when it did so.
Order affirmed in part, vacated in part, and remanded in part.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/18
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