Goldblatt, B. v. Young, J.

J-A33025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRUCE J. GOLDBLATT IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JANE D. YOUNG
Appellant No. 692 WDA 2016
Appeal from the Decree Entered April 19, 2016
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2010-3177
BRUCE J. GOLDBLATT IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JANE D. YOUNG
Appellee No. 741 WDA 2016
Appeal from the Decree Entered April 19, 2016
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2010-3177
BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED JULY 31, 2017
Bruce J. Goldblatt (“Husband”) and Jane D. Young (“Wife”), each
appeal from a decree of divorce. The parties raise numerous issues
regarding the court’s disposition of their economic claims. We affirm the
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*
Retired Senior Judge assigned to the Superior Court.
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decree granting the parties’ divorce; affirm in part, reverse in part, and
vacate in part the trial court’s April 14, 2016 order determining equitable
distribution as set forth below; and remand for further proceedings.
The parties were together in marriage for 3½ years, but their divorce
proceedings have lasted more than twice that long. Their legal saga began
when the parties married in 2006 and executed a prenuptial agreement that
is at the heart of much of their dispute. The trial court provided the
following description of the proceedings below:
The parties, Bruce Goldblatt (“[H]usband,” age 62 at the time
of trial), and Jane Young (“[W]ife,” age 58 at the time of trial),
married on October 24, 2006. For each, this was their second
marriage and no children were born therefrom. They separated
on April 2, 2010 when [H]usband left the marital residence.
Husband filed a divorce complaint on April 28, 2010 in the
Washington County Court of Common Pleas. The complaint
contained just one count, which was for a divorce from [W]ife.
On May 14, 2010, [W]ife filed an answer and counterclaim,
which included requests for alimony pendente lite (“A.P.L.”),[1]
alimony, equitable distribution of marital property, enforcement
of a prenuptial agreement,[2] and injunctive relief. The Court
held a four-day trial on the issues starting on February 23, 2016.
There has been protracted litigation regarding these divorce
claims as well as claims ancillary to the divorce. Throughout the
proceedings, there have been voluminous petitions for contempt
of court orders and for the enforcement of discovery requests.
Most of these contempt and enforcement proceedings were the
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1
Alimony pendente lite is “temporary support granted to a spouse during
the pendency of a divorce or annulment proceeding.” 23 Pa.C.S. § 3103.
2
The parties signed an “Amended Prenuptial Agreement” on December 15,
2006, almost two months after their marriage, and it is that amended
agreement that is at issue in this case.
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result of [H]usband’s behavior or failure to comply with the
payment of support or discovery requests. Accordingly, [W]ife
incurred attorney fees to enforce the Court’s orders and her
claims were stalled as a result of [H]usband’s contemptuous
behavior. Specifically, ten court orders were issued against
[H]usband for failing to comply with discovery matters. As a
result, [W]ife had been awarded $30,981.89 in counsel fees
through February 23, 2016 due to [H]usband’s failure to comply
with discovery requests or to pay support as ordered.[3]
Trial Ct. Op., 4/14/16, at 1-2 (some footnotes and citations omitted).
On May 19, 2010,4 Wife filed a petition to enforce a portion of
Paragraph 3(c) of the prenuptial agreement, which reads:
Following the marriage, both parties shall contribute their
entire net income to a joint account or accounts, to be utilized
for household and living expenses of the parties during the term
of the marriage, and as the source of payment for mortgage
payments, property taxes and all other expenses of the marital
residence. The parties acknowledge that their contributions to
this account or accounts shall not be equal.
R.R. at 1059a.5 This paragraph — and, in particular, its two facially
inconsistent clauses, “Following the marriage” and “during the term of the
marriage” — has been a major source of the protracted controversy between
the parties. Another provision of the agreement, Paragraph 4, deals with
Wife’s right to support and maintenance after the parties’ divorce or
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3
As discussed below, the orders sanctioning Husband were based on an
interpretation of his obligations under the Prenuptial Agreement that was
overturned later in the litigation. The latter decision reversed the order
forming the basis for those sanctions.
4
The dates referenced in this decision are the docketing dates.
5
We cite to the reproduced record for the parties’ convenience.
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separation, and the relation of Paragraph 4 to Paragraph 3(c) has been a
component of the dispute. Much of the disagreement below resulted from
an early interpretation of paragraph 3(c) by Judge DiSalle that placed
substantial financial burdens on Husband and that was later rescinded when
another judge, Judge Gilman, took over the case.
The court, in an interim order by Judge DiSalle, granted Wife’s petition
to enforce Paragraph 3(c) on the same day that Wife filed it, May 19, 2010.
Interpreting the agreement, Judge DiSalle ordered that, even though the
parties had separated, Husband had to deposit his entire paycheck — 100%
of his income — into the parties’ joint checking account for use by Wife to
pay all household and joint living expenses pending a hearing scheduled for
September 24, 2010. Order, 5/19/10.
On August 17, 2010, Wife filed a petition to enforce compliance with
the court’s May 19, 2010 order. The court again granted Wife’s petition that
same day and ordered Husband to, among other things, comply with the
May 19, 2010 order, retroactive to May 19th. On September 24, 2010,
Judge DiSalle held a hearing on Wife’s original May 19, 2010 enforcement
petition, but did not immediately issue an order. At the hearing, both
Husband and Wife testified; Husband’s counsel opined that Paragraph 3 of
the prenuptial agreement was ambiguous, and Wife’s counsel disagreed.
On October 8, 2010, Wife filed a third petition to enforce, which
claimed Husband failed to comply with the court’s May 19 and August 17,
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2010 orders. The court again granted the petition that same day, and
ordered Husband to make all payments owed to Wife within three business
days.
On October 21, 2010, Judge DiSalle issued an order granting Wife’s
original May 19, 2010 petition to enforce. He held that Husband was
obligated under Paragraph 3(c) to, among other things, deposit his entire
paycheck into the parties’ joint account and “not make any withdrawals or
transaction[s] from the account absent an agreement by the parties.”
Order, 10/21/10.
We state the subsequent procedural history as set forth by the trial
court:
Two weeks later on November 1, 2010, [H]usband filed a
Chapter 13 bankruptcy petition, which [W]ife did not join.
The U.S. Bankruptcy Court dismissed [H]usband’s petition
because it had no merit. Husband, thereafter, filed a second
Chapter 13 bankruptcy petition on December 15, 2010 that
[W]ife did not join. The proceeding was converted to a Chapter
11 proceeding. Again, the U.S. Bankruptcy Court dismissed the
petition because it had no merit. All divorce proceedings were
halted for four months due to the automatic stays in place
pending dismissal of husband’s bankruptcy cases. Husband
explained that filing the bankruptcies was at “the advice of
counsel,” but did not elaborate. This [c]ourt believes the
bankruptcy petitions were filed, in part, to relieve [H]usband’s
financial obligation that Judge DiSalle had imposed upon him.
Another reason for the delay in the divorce proceedings
concerned a residence located on Dyers Stone Drive in
Nottingham Township, Washington County. When the parties
married, [H]usband sold his home and moved into [W]ife’s
premarital residence located on Arrowhead Lane, Eighty Four,
Pennsylvania. According to the prenuptial agreement, however,
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[W]ife was to sell her Arrowhead Lane residence and use those
proceeds to purchase a marital residence for the parties. The
new home was to be titled in her name only, and any
appreciation in value was to remain [W]ife’s separate property.[6]
Wife contracted with Custom Homes following the marriage to
construct the new home on Dyers Stone Drive. During the
construction process, the parties noticed that the walls were
cracking and that drywall nails were popping from the drywall.[7]
These problems led to . . . two lawsuits. [The first of these
resulted from a decision by Husband and Wife to fire Custom
Homes, resulting in an action by the builder for breach of
contract. Custom Homes won an arbitration judgment of
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6
The property was purchased with a $623,200 mortgage. Joint Ex. 1 at ¶
19 (parties’ joint stipulations). One of the disputed issues in this appeal is
whether the parties should share responsibility for that mortgage debt even
though the home is Wife’s property.
7
The court further explained:
As [W]ife testified, the home was about two-thirds complete
when the builder was fired. The parties stipulated that the cost
to stabilize the subsidence and to make the necessary repairs to
the home would be between $425,000 and $475,000. Further,
the cost to then complete the house would be between $300,000
and $350,000. Based upon same, the total estimated cost of
complete remediation is between $725,000 and $825,000.
Therefore, this “leaves Dyers Stone with a fair market value ‘as
is’ of between [negative] $100,000 and [negative] $200,000, [”]
without considering the expenditure of $104,904.55 in counsel
fees thus far.[]
Trial Ct. Op., 4/14/16, at 3 n.6. The parties stipulated that if the home “was
a completed structure ready for habitation, [it would have] a fair market
value of $625,000.” Joint Ex. 1 at ¶ 21. But because the cost to repair and
complete the home would cost between $725,000 and $825,000, the marital
home has, at best, a negative value of $100,000. The parties also stipulated
that the value of the unimproved lot was $45,000, the estimated cost to
demolish the half-constructed home would be $75,000, and thus a post-
demolish lot would have a fair market value of negative $30,000. Id. at
¶ 23.
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$64,032.21 against Husband and Wife, jointly and severally.8]
Believing that [the other lawsuit], the Codesys lawsuit, should be
litigated before the divorce trial, [W]ife filed requests to continue
the scheduling of the trial four separate times. Eventually, this
[c]ourt would not grant any further continuances. In addition,
[W]ife caused some delay in the divorce proceedings for failing
to comply with [H]usband’s discovery request. The [c]ourt
sanctioned [W]ife three times.
On May 1, 2010, [W]ife filed a complaint against Codesys in
Allegheny County with respect to the Dyers Stone Drive
property. Codesys was the company hired to perform
“inspections on the Property during the course of the project.”
Wife alleged that Codesys “failed to review the Property and
permitted construction to move forward despite a defective
foundation.” See Jane Young v. Codesys, GD-12-5436
(Complaint, ¶¶ 20, 21). After many continuances, the Court of
Common Pleas has set the trial for the first week of September
2016. Wife has also sued her counsel who represented her in
the case that she defended against Custom Homes. See Jane
Young v. John Lippl, GD-12-19194.
Trial Ct. Op., 4/14/16, at 1-4 (some footnotes and citations omitted).
Meanwhile, Wife continued to file a flurry of motions seeking relief for
Husband’s failure to comply with the court’s prior orders instructing him to
deposit his entire paycheck into the parties’ joint account:
• On April 28, 2011, Wife filed a petition to prevent Husband from
withdrawing money from his retirement account.9 The court granted Wife’s
petition and, on May 25, 2011, entered an order that Husband could
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8
Husband and Wife disputed whose decision it was to fire Custom Homes.
Husband claims Wife controlled the litigation strategy in the case.
9
The retirement account was Husband’s only asset subject to marital
distribution.
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withdraw up to $50,000 from his retirement account over three months,
which would then be transferred to Wife; the order stated that the account
would be frozen after Husband withdrew $50,000. Order, 5/25/11.
• On May 26, 2011, the court held Husband in contempt for failing
to pay amounts required under the court’s prior orders. Among other
things, the court ordered Husband to pay 50% of his paycheck or
unemployment compensation10 directly to Wife. Order, 5/26/11.
• On June 22, 2011, the court granted Wife’s petition for counsel
fees. The court’s order (which included the court’s handwritten
interlineations) stated: “Plaintiff, Bruce J. Goldblatt[’s] obligation to pay the
sum of $50,000.00 and other sums as counsel fees for the vexatious
behavior and otherwise shall be considered by the Divorce Master.” Order,
6/22/11.
• On July 14, 2011, on Wife’s motion for reconsideration of the
May 26, 2011 order instructing Husband to pay 50% (rather than 100%) of
his wages or unemployment income to Wife,11 the court ordered Husband to
provide an accounting of his income and expenses since May 1, 2010. The
order also stated that Wife’s claim for legal fees associated with enforcing
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10
Husband was notified in April of 2011, that he would be laid off from his
job on June 30, 2011.
11
Husband did not challenge the timeliness of Wife’s motion for
reconsideration.
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Husband’s obligation under the prenuptial agreement “shall be preserved for
equitable distribution.” Order, 7/14/11.
• On July 21, 2011, on another of Wife’s petitions for contempt,
the court again ordered Husband to, among other things, pay Wife 50% of
his net pay.
Eventually, on August 3, 2012, Judge DiSalle granted Wife’s petition
for special relief and ordered Husband to, among other items, reimburse
Wife for the household and living expenses she incurred following the
parties’ separation. The order also stated that all future “issues regarding
compliance with this and prior Orders of Court and compliance with
discovery matters shall be heard by” Judge Gilman, who was the presiding
family court judge at that time. Order, 8/3/12.
On October 25, 2012, in response to a petition filed by Wife on August
16, 2012, the court found Husband in contempt and instructed that Husband
could purge the contempt by, among other items, paying 50% of his net
paycheck and any unemployment compensation to Wife. Order, 10/25/12.
Later (the record is unclear regarding the date), the parties’ counsel
appeared in court and advised Judge Gilman that Husband failed to comply
with that October 25, 2012 order. On December 10, 2012, the court found
Husband in contempt of its August 3 and October 25, 2012 orders, but
declined to imprison him. On December 28, 2012, Wife filed a petition for
reconsideration of the court’s decision to not incarcerate Husband, which the
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court granted that same day. The court ordered Husband to report to
county jail on January 7, 2013, and stated that Husband would be
incarcerated until such time as he complied with the court’s orders and
purged his contempt, but in no event would he be held in jail for more than
one month.
On January 4, 2013, Husband filed an omnibus motion for
reconsideration that raised multiple issues. In pertinent part, Husband
asked the court to reconsider its December 28, 2012 order instructing him to
report to jail. The motion raised a litany of arguments, including that the
court’s underlying orders (which, as discussed, formed the bases for the
court’s December 28, 2012 order instructing Husband to report to jail)
lacked any basis in the Rules of Civil Procedure governing an award of
support. Husband also requested the court to (1) certify for appeal the
court’s August 3, 2012 reimbursement order, which was interlocutory; (2)
stay the proceedings; and (3) impose house arrest or work release in lieu of
incarceration. In a supporting brief, Husband explained his contention that
all of the orders compelling him to pay either 100% or 50% of his paycheck
pursuant to Paragraph 3(c) of the parties’ prenuptial agreement flowed from
Judge DiSalle’s flawed interpretation of that provision, and he asked Judge
Gilman to depart from that interpretation:
Judge DiSalle apparently decided that [Husband] had to
continue to deposit his income into a joint account pursuant to
paragraph 3 of the prenuptial agreement, but there is no such
determination of record. This can only be inferred because
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Judge DiSalle repeatedly ordered [Husband] to deposit 100% of
income into a joint account. It is not clear why since the
Agreement qualified the deposit with the phrase “during the
term of the marriage.” It is not clear whether Judge DiSalle
considered Paragraph 4 of the Prenuptial Agreement which
states what is to happen upon separation. It states [Wife] is
entitled to support. There are procedures and guidelines for
obtaining support, yet [Wife] wholly ignored them and
proceeded to seek enforcement in motions court. [Wife] was
successful, so successful to the extent that she obtained orders
first freezing [Husband’s] separate non-marital asset 401k, then
directing domestic support obligation reimbursement
disbursements to [Wife] from the 401k for expenses related to
her own separate non-marital assets. . . . [Wife] continues to
press for enforcement in motions court to the extent that she
now has [Husband] on the brink of incarceration. The prior
holding(s) would thus serve to create manifest injustice on
[Husband], not only in loss of his non-marital asset but he will
be jailed. This is exactly the type of case where the exception to
the coordinate jurisdiction rule applies. . . .
[Wife] makes much of the fact that [Husband] had previously
withdrawn money from his 401k. He was Ordered to pay 100%
of his income into a joint account. [Husband] is left with
nothing. Where was he supposed to get money? [Wife] would
not agree to withdrawals. The support guidelines would not
leave him in such a position.
Husband’s Brief in Support of Omnibus Mot., 1/14/13, at 8-9 (unpaginated).
After considering Wife’s responsive brief, Judge Gilman granted
Husband’s omnibus motion on February 1, 2013. The court vacated all prior
orders commanding Husband to pay 50% or 100% of his income to Wife as
support. Order, 2/1/13. The parties stipulated that per those orders,
Husband had paid $84,056.38 to Wife. Joint Ex. 1 at ¶ 14. 12 The court
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12
As discussed below, Wife did not reimburse Husband for these amounts.
Rather, that sum was credited as Wife’s alimony pendente lite.
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reasoned that Judge DiSalle’s prior interpretation that Paragraph 3(c)
applied after the parties separated was incorrect. Trial Ct. Op., 2/1/13, at
4.13
Over the next three years, each party changed counsel several
times.14 The parties filed numerous motions on countless issues. One such
motion was Wife’s October 3, 2014 motion for sanctions, claiming Husband
failed to respond to her request for documents. In an order issued that day,
the court, among many other things, noted Husband’s “blatant disregard” of
two of the court’s prior orders instructing Husband to respond to Wife’s
discovery requests. The trial court ordered that Husband “shall pay counsel
fees to [Wife’s] attorney. Said amount to be determined at the master
hearing regarding equitable distribution.” Order, 10/3/14.
In addition to deferring the issue of counsel fees, the court also
similarly deferred the issue of alimony pendente lite. In a September 28,
2013 order, the court canceled a hearing regarding alimony pendente lite
and stated, “Said issue shall be consolidated with those claims heard by the
divorce master if the parties are unable to settle.” Order, 9/28/13.
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13
On February 20, 2013, Wife filed a petition to clarify the court’s
February 1, 2013 order and to certify the order for interlocutory appeal. The
court denied Wife’s petition that day.
14
Wife’s present counsel entered an appearance just a month before trial.
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Eventually, in October 2015, the court ordered Husband to pay $50 per
month as provisional alimony pendente lite. Joint Ex. 1 at ¶ 16.
Finally, almost six years after Husband filed for divorce, the court held
a four-day trial in February 2016. On April 14, 2016, the court issued an
order resolving the issues raised at trial, including the deferred issues of
counsel fees and alimony pendente lite. Trial Ct. Op., 4/14/16, at 18. We
discuss each of the trial court’s disputed holdings from that decision in detail
below. For now, we note that the court ordered Husband to pay alimony
pendente lite of $110,187, which represents Husband’s obligation from
May 14, 2010 (the date the parties separated) through the end of March
2016. Id. at 11. The court also ordered Husband to pay his proportionate
share of Wife’s medical insurance premiums and Wife’s unreimbursed
medical expenses, which totaled $23,300. Husband thus owed Wife support
in a total amount of $133,487. Id. at 12. As noted above, however,
Husband had previously paid $84,056.38 to Wife per Judge DiSalle’s prior
orders. Husband also paid an additional $12,676.12 in provisional alimony
pendente lite in 2013 to 2016. Joint Ex. 1 at ¶ 17.15 Thus, after deducting
Husband’s prior payments, the court concluded Husband owed a net amount
of $36,754.50 to Wife for support. Trial Ct. Op., 4/14/16, at 12.
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15
Husband paid this sum to the Domestic Relations Office, instead of paying
Wife directly, and that Office, in turn, transferred the funds to Wife.
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In addition, the court held that Husband owed Wife an additional
$32,201.59. The court calculated that figure from (1) the division of the
marital portion of Husband’s 401(k) retirement account,16 which was the
only marital asset subject to distribution, Trial Ct. Op., 4/14/16, at 7, (2) the
amount Husband should reimburse Wife for paying the premiums on
Husband’s life insurance policy, and (3) counsel fees awarded to Wife,
though in an amount less than Wife requested. The court therefore
concluded that Husband owed Wife a grand total of $68,956.09 ($36,754.50
of support, plus $32,201.59 of the marital estate and counsel fees).
On April 19, 2016, the court entered its final decree of divorce. On
May 12, 2016, Wife appealed from the April 1314, 2016 order; on May 20,
2016, Husband timely cross-appealed from the April 14, 2016 order.17 We
treat the parties’ appeals as being from the April 19, 2016 final decree of
divorce. Cf. Rich v. Acrivos, 815 A.2d 1106, 1107 n.1 (Pa. Super. 2003)
(holding that premature appeal from order declaring marriage irretrievably
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16
The parties stipulated that $355,337.74 was the value of Husband’s
retirement account one day prior to the parties’ separation. Joint Ex. 1 at ¶
28. The court used that value to ascertain the portion subject to marital
distribution. The value of that retirement account as of June 30, 2015 was
$232,585.79. Joint Ex. 1 at ¶ 29. Husband’s only other significant financial
asset was the approximately $50,000 he received from selling his pre-
marital residence shortly after the date of the parties’ marriage. Trial Ct.
Op., 4/14/16 at 8 n.13.
17
This Court later consolidated both appeals. Order, 6/13/16.
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broken was perfected when court entered divorce decree).18 The court did
not order the parties to comply with Pa.R.A.P. 1925(b).19
Wife’s Appeal
Wife raises the following issues:
[1] The trial court, presided over by Judge Gilman sitting in
coordinate jurisdiction, erred in finding that an exception to the
coordinate jurisdiction rule was warranted, and thus its reversal
of Judge DiSalle’s preceding Orders and findings was improper.
[2] Assuming, arguendo, that the trial court under Judge
Gilman was not already bound by Judge DiSalle’s prior
determinations as to the mortgage and Custom Homes
judgment, it nevertheless erred in interpreting the Prenup to
characterize these joint debts as Wife’s separate, non-marital
obligations.
[3] The trial court abused its discretion in denying Wife’s
request for an award of equitable reimbursement.
[4] The trial court abused its discretion in limiting wife’s
award of additional attorney’s fees to $3,000, and in finding that
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18
Wife later filed a motion for special relief to amend the certified record.
We grant that motion.
19
Subsequently, Wife filed an emergency application for an injunction with
this Court, requesting that this Court freeze Husband’s financial accounts to
prevent any dissipation. Wife’s Emergency Appl. for Inj., 12/23/16. This
Court ordered a temporary freeze that day, pending receipt of Husband’s
response. Husband filed a response on December 28, 2016, claiming,
among other things, that he has paid all court-ordered counsel fees and
complied with the court’s equitable distribution order. Husband’s Answer to
Wife’s Emergency Appl. for Inj., 12/28/16, at ¶¶ 18-19. On December 28,
2016, this Court vacated its December 23, 2016 order, denied Wife’s
emergency application for relief, lifted any freeze, and granted the trial court
permission to resolve any “matters that [did] not involve the pending issues”
in these appeals. Order, 12/28/16.
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Wife’s counsel fees are “grossly out of proportion to the relative
value and complexity of the case.”
Wife’s Brief at 33, 41, 48, 55.
As we stated in Laudig v. Laudig, 624 A.2d 651, 653 (Pa. Super.
1993), with respect to appeals regarding the financial terms of divorce
decrees:
Our standard of review on appeal is a narrow one. We need
determine only whether the trial court committed an error of law
or an abuse of discretion. We do not usurp the trial court’s fact-
finding function.
We must decide, “Was there an error in the law’s application, or is this
appeal mere financial frustration?” Colonna v. Colonna, 791 A.2d 353,
355 (Pa. Super. 2001) (citation omitted), appeal denied, 803 A.2d 732 (Pa.
2002).
The Coordinate Jurisdiction Rule and
Interpretation of Paragraph 3(c) of the Prenuptial Agreement
As set forth above, one of the primary sources of dispute in this
litigation is the proper interpretation of Paragraph 3(c) of the Prenuptial
Agreement. Paragraph 3 dealt with a broad range of topics. Much of it dealt
with gifts and rights of inheritance. Paragraph 3(c) dealt with the parties’
creation of marital assets during an ambiguous period following their
wedding:
c. It is hereby acknowledged that as of the date of this
Agreement, [Wife] is the owner of her personal residence located
at . . . Arrowhead Lane, Eight[y] Four, PA. . . . The parties
acknowledge that following the contemplated marriage,
[Wife] will sell her personal residence and utilize a portion of the
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proceeds therefrom to acquire a new marital residence for the
parties. . . .
Following the marriage, both parties shall contribute their
entire net income to a joint account or accounts, to be utilized
for household and living expenses of the parties during the
term of the marriage, and as the source of payment for
mortgage payments, property taxes and all other expenses of
the marital residence. The parties acknowledge that their
contributions to this account or accounts shall not be equal.
In the event that the marriage ends as a result of divorce,
[Husband] agrees to vacate the property, waiving any and all
right, title and interest in and to all equity, and all appreciation
in the value of the marital residence during the course of the
marriage. . . .
R.R. at 1058a-59a (emphases added).
The prenuptial agreement did not define the term “marriage” as it was
used in the Agreement, but Paragraph 11 stated, “In the construction of this
Agreement, the parties hereto intend and agree that the separate provisions
of this Agreement shall be construed as a whole and, where possible,
consistent with each other.” R.R. at 1069a. In this connection, the
construction of Paragraph 3(c) also implicated Paragraph 4, which provided:
Each of the parties hereby agrees that in the event the marital
relationship contemplated hereunder, once contracted, shall
thereafter no longer be maintained, whether under the
provisions of a separation agreement, by reason of separation,
divorce, or otherwise, no claim for spousal support,
maintenance, alimony, . . . or alimony pendente lite and/or
counsel fees may be made by [Husband], but such claims shall
be available to [Wife] as if this Agreement did not exist, and no
claims for costs and expenses shall be made by either against
the other or against the estate of the other . . . .
R.R. at 1061a-62a.
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Judge DiSalle interpreted Paragraph 3(c) as obligating Husband to
continue depositing his paycheck (and later, a portion of his unemployment
compensation) into the parties’ joint bank account for so long as the parties
remained formally married — even after the parties had separated. Judge
Gilman, on the other hand, concluded that Paragraph 3(c) obligated
payments by Husband only until the marriage was no longer maintained,
and he viewed the provisions in Paragraph 4 for support and alimony
pendente lite as governing payments to Wife after the parties’ separation.
Judge Gilman therefore determined that Judge DiSalle’s interpretation of
Paragraph 3(c) was erroneous and reversed all prior orders compelling
Husband to deposit his paycheck or unemployment compensation proceeds
after the parties separated.
Typically, under the doctrine of coordinate jurisdiction, one trial judge
cannot overturn an order issued by another trial judge. We recently
discussed the “coordinate jurisdiction” rule as follows:
Within [the law of the case] doctrine lies the directive that
judges sitting on the same court in the same case should not
overrule each other’s decisions, otherwise known as the
“coordinate jurisdiction rule.”
The purposes behind the law of the case doctrine and the
coordinate jurisdiction rule are (1) to protect the settled
expectations of the parties; (2) to insure uniformity of decisions;
(3) to maintain consistency during the course of a single case;
(4) to effectuate the proper and streamlined administration of
justice; and (5) to bring litigation to an end. Only in exceptional
circumstances, such as an intervening change in the controlling
law, a substantial change in the facts or evidence giving rise to
the dispute in the matter, or where the prior holding was clearly
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erroneous and would create a manifest injustice if followed, may
the doctrine be disregarded.
Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 282 (Pa.
Super. 2016) (citations and some quotation marks omitted). The last
exception, relating to a clearly erroneous prior holding that would create
manifest injustice if followed, is at issue here. Our Supreme Court has
discussed the limited purpose of that exception:
To accede to a coordinate judge’s order that is clearly erroneous
would be not only to permit an inequity to work on the party
subject to the order, but would allow an action to proceed in the
face of almost certain reversal on appellate review. Moreover,
the requirement that the prior holding also create a manifest
injustice serves as a significant curb on the exception so that it
would apply to only those situations in which adhering to the
prior holding would be, in essence, plainly intolerable.
Zane v. Friends Hosp., 836 A.2d 25, 29-30 (Pa. 2003).
Husband contends that Judge DiSalle’s interpretation of Paragraph 3(c)
was clearly erroneous and that it subjected him to a manifest injustice,
thereby making it proper for Judge Gilman to depart from the erroneous
interpretation. Wife, on the other hand, contends that Judge Gilman
violated the coordinate jurisdiction rule by improperly reversing Judge
DiSalle’s prior rulings. She asserts that Judge Gilman failed to establish that
Judge DiSalle’s original order was both “clearly erroneous” and “would create
a manifest injustice if followed.”
Our standard of review of an order implicating the coordinate
jurisdiction rule is de novo, and our scope of review is plenary. Zane, 836
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A.2d at 30 n.8. In considering this question, we recognize that, although
presented in the context of conflicting rulings by different trial judges and
the limits of the coordinate jurisdiction doctrine, the ultimate question that
must be resolved here is the proper interpretation of Paragraph 3(c). Even if
Judge Gilman had adhered to Judge DiSalle’s interpretation of that
paragraph, that interpretation could not stand on appeal if we ultimately
were to conclude that the two judges’ agreed-upon interpretation was
wrong. Therefore, although we remain mindful of the coordinate jurisdiction
implications here, we focus initially on discerning the correct meaning of the
parties’ agreement.
In this connection, we observe:
The determination of marital property rights through prenuptial,
post-nuptial and settlement agreements has long been
permitted, and even encouraged. [T]he Supreme Court
recognized that prenuptial agreements are contracts, and as
such, are governed by contract law. Similarly, contract
principles apply to antenuptial and post-nuptial agreements. It
has been held that absent fraud, misrepresentation, or duress,
spouses should be bound by the terms of their agreements.
Laudig, 624 A.2d at 653 (citations omitted); accord Sabad v. Fessenden,
825 A.2d 682, 686 (Pa. Super.), appeal denied, 836 A.2d 122 (Pa. 2003).
Husband contends that Paragraph 3(c) is ambiguous.
Whether a contract contains ambiguous terms is a question of
law. To determine whether there is an ambiguity, it is proper for
a court to hear evidence from both parties and then decide
whether there are objective indications that the terms of the
contract are subject to differing meanings. A contract is
ambiguous if it is reasonably susceptible of different
constructions and capable of being understood in more than one
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sense. The fact that the parties do not agree upon a proper
interpretation does not necessarily render a contract ambiguous.
Nicholas v. Hofmann, 158 A.3d 675, 693 (Pa. Super. 2017) (citations
omitted). “[I]t is axiomatic that contractual clauses must be construed,
whenever possible, in a manner that effectuates all of the clauses being
considered.” Lenau v. Co-eXprise, Inc., 102 A.3d 423, 430 (Pa. Super.
2014) (citation omitted), appeal denied, 113 A.3d 280 (Pa. 2015).
In support of her interpretation of the contested agreement language,
Wife points out that the second paragraph in Paragraph 3(c) uses the phrase
“during the term of the marriage.” She maintains that this phrase means
that Husband’s payment obligation was to “persist as long as the marriage
does.” Wife’s Brief at 36. Wife reasons that the parties addressed any
potential separation in Paragraph 4 of the prenuptial agreement. Therefore,
in Wife’s view, Paragraph 3(c) did not contemplate the parties’ separation.
Had the parties intended Paragraph 3(c) to address separation, the disputed
clause would have obligated Husband “to contribute his net income to the
joint account, ‘during the term of the marriage or until such time as the
parties separate.’” Id. at 36-37. Because Paragraph 3(c) obligated
Husband to continue to pay after separation and until the parties’ divorce,
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Wife argues that Judge Gilman’s reasoning rendered the phrase “during the
term of the marriage” “out of existence.” Id. at 37.20
In arriving at a contrary interpretation of the Agreement, the trial
court reasoned as follows:
On a macro-level review of the agreement, there is a flow
about it which is defined by the status progression of the parties’
relationship from before, during, and after marriage. The first
paragraphs describe separate property brought to the marriage
and the issue of disclosure. Moving to the language in question
of paragraph 3(c), it is directly in the middle of the before
marriage and after marriage segments. This delineation is self-
evident because the language of the paragraph immediately
thereafter states, “In the event that the marriage ends as a
result of divorce....”
This macro-perspective is only given greater credence when
viewing the agreement on a micro-level. The phrase “following
the marriage” does not mean after the marriage ends. In
paragraph 3(c), the same paragraph with the contested
language, there is a second use of “following the marriage.”
Specifically, the agreement reads, “Following the contemplated
marriage [Wife] will sell [her then-current residence] and utilize
a portion of the proceeds to acquire a new marital residence for
the parties.” This language could never be interpreted to affect
the period after the marriage. If it were read in the same context
as alleged by [Wife], then it would require [Wife] to sell her
current residence and invest the proceeds in a new joint
residence after separation. This interpretation defies logic.
____________________________________________
20
Wife also contends Judge Gilman made his ruling without the transcripts
of hearings resolving Wife’s petitions to enforce the court’s May 19, 2010
order, and should have deferred to Judge DiSalle’s interpretation because it
was based on the hearings. We find this contention without merit. Judge
Gilman properly relied primarily on the agreement’s language. And, in any
event, our review of the record shows that no party testified with any
precision about the term at issue. Wife points to no extrinsic evidence from
the hearings that carries controlling weight on this question.
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The language in later paragraphs, specifically paragraph 4 of
the agreement, also use clear, precise terms like divorce and/or
separation to designate the termination of the marriage. For
example, the agreement states, “[I]n the event the marital
relationship contemplated hereunder, once contracted, shall
thereafter no longer be maintain[ed], whether under the
provisions of a separate agreement, by reason of separation,
divorce....” More importantly, this language and paragraph
describes the parties’ rights to support once they separate. . . .
If the intent was for [Husband] to continue to deposit 100% of
his wages into the joint account after the two parties separated,
the contract drafters would have used these terms.
Furthermore, the language “following the marriage” means
following the act of becoming married as shown by legal
definitions of marriage.
Trial Ct. Op., 2/1/13, at 4-5 (footnote omitted).
We agree with Judge Gilman’s reasoning that the disputed language
required Husband to deposit his net income after the parties’ marriage
ceremony but not after the parties separated or divorced. Paragraph 3(c)
discusses income contributions “following the parties’ marriage”21 to pay “for
household and living expenses of the parties during the term of the
marriage,” but it does not explain what “term of the marriage” means in the
context of a marital breakup that begins with a separation. While it certainly
is true that a marriage ends upon entry of a formal decree under the Divorce
Code, 23 Pa.C.S. § 3323, Paragraph 4 addresses what happens when “the
marital relationship contemplated hereunder, once contracted, shall
____________________________________________
21
As Judge Gilman held, the word “marriage” in this phrase refers to the act
by which the parties entered into their civil contract of marriage. See
generally Marriage Law, 23 Pa.C.S. § 1102.
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thereafter no longer be maintained, whether under the provisions of a
separation agreement, by reason of separation, divorce, or otherwise.” The
Agreement thus did not view a divorce decree as the only way in which the
marriage contract would cease to be effective.
Importantly, Paragraph 4 specifically provided that Wife could pursue a
support claim if the parties separated. R.R. at 1061a-62a. Wife’s
interpretation would entitle her to Paragraph 3(c) income at the same time
as she could receive post-separation support under Paragraph 4, giving her
a right to double-recovery that is not implied by any reading of the parties’
agreement. We therefore conclude that Judge Gilman’s construction of the
Agreement is the more reasonable one that both effectuates and is in
harmony with the entire prenuptial agreement. See Nicholas, 158 A.3d at
693; Lenau, 102 A.3d at 430. Accordingly, Judge Gilman did not err in
holding that Judge DiSalle’s interpretation was clearly erroneous.
Judge Gilman also did not err in concluding that he could depart from
Judge DiSalle’s interpretation because it caused a substantial injustice. See
Zane, 836 A.2d at 29-30. Judge DiSalle’s order obligated Husband to
deposit 100% (and later, 50%) of his net income into the parties’ joint bank
account to pay for expenses at the same time as he was to pay Wife spousal
support or alimony pendente lite. Such a requirement imposed an obvious
hardship and was unjust. Wife argues that there was no manifest injustice
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to Husband, particularly in light of Husband’s “prolonged non-compliance.”
Wife’s Brief at 38. We disagree, and we defer to Judge Gilman on this issue.
We therefore conclude that Wife’s first issue merits no relief.
The Dyers Stone Mortgage
Wife’s second issue concerns the $623,200 mortgage debt on the
Dyers Stone property. The trial court held that she is responsible for that
debt. Wife contends that Husband shares that responsibility.
This issue implicates a different section of the prenuptial agreement,
Paragraph 6, which states:
Except as otherwise expressly provided herein, neither party,
nor his or her property, shall be held liable for or subject to the
debts of or the claims against the other party, whether such
debts or claims be acquired prior to or during the marriage of
the parties.
R.R. at 1066a. However, a full understanding of Paragraph 6 requires
consideration of the first portion of Paragraph 3(c), which provides:
c. It is hereby acknowledged that as of the date of this
Agreement, [Wife] is the owner of her personal residence located
at . . . , Eight[y] Four, PA. . . . Both [Husband] and [Wife]
acknowledge that this residence is the non-marital property of
[Wife], and in this regard, [Husband] specifically acknowledges
that he waives any and all right, title and interest he may have
by virtue of his marriage to [Wife] in her personal residence, or
the proceeds therefrom, however invested or titled. The parties
acknowledge that following the contemplated marriage, [Wife]
will sell her personal residence and utilize a portion of the
proceeds therefrom to acquire a new marital residence for the
parties. The amount of the proceeds that [Wife] will invest in
the new marital residence along with all equity and appreciation
in the new marital residence shall remain [Wife’s] non-marital
property. The new marital residence shall be titled in [Wife’s]
name, but shall be subject to the terms and conditions set forth
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in this Agreement. The parties shall cooperate to obtain
mortgage financing for the new marital residence, and
[Husband] will co-sign mortgage documents, if required. If
required by the lending institution, the property shall be titled in
joint names, as tenants by the entireties, but shall remain
subject to the terms and conditions set forth in this Agreement.
R.R. at 1058a-59a. Pursuant to this provision, Husband co-signed the Dyers
Stone mortgage documents and the property was titled in the parties’ joint
names.
In April of 2008, two years before the parties separated, Husband
signed a Waiver of Spousal Interest releasing any right, title, or interest
Husband had in the Dyers Stone property. It reads:
[Husband], now and forever, release[s] any right, title or
interest I may have in the [Dyers Stone property (“Real
Estate”)] that is to be jointly titled in my name and my Wife’s
name. The titling of the Real Estate, in joint names, is so that
[Wife] is able to obtain financing; and is not meant to convert or
transmute the Real Estate into marital property. This Waiver on
my part is made consistent with Paragraph 3, sub-section C of
the Prenuptial Agreement that my Wife and I executed on
December 19, 2006. I respectfully request that any Court of
competent jurisdiction enforce this Waiver against me consistent
with the cited terms and provisions of said Prenuptial
Agreement.
Absent a written Agreement to the contrary, the Real
Estate shall be my Wife’s sole and separate property, regardless
of how titled, and shall be free from any claim by me as a
consequence of our marriage.
Husband’s Ex. 8, R.R. at 1162a.
Wife agrees that the prenuptial agreement is silent on whether
Husband is jointly responsible for the $623,200 mortgage on the Dyers
Stone residence. Wife’s Brief at 43; Trial Ct. Op., 4/14/16, at 5 & n.10.
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Wife contends, however, that the trial court misconstrued Paragraph 6 by
holding that because the Dyers Stone property is Wife’s separate property,
Wife is solely responsible for the mortgage. She reasons that the parties
could have included explicit language in the agreement that any joint
mortgage would be Wife’s sole obligation. Id. at 44. Because the parties
did not do so, Wife concludes that the mortgage should be considered a joint
marital debt. Id. In support of this contention, Wife references what she
characterizes as Husband’s “active” involvement with the design and
construction of the home, as well as the subsequent litigation about that
design and construction. Id. In sum, although the Dyers Stone residence is
Wife’s non-marital property, Wife wants the mortgage on the property to be
considered marital debt and thus part of the marital estate.
Husband counters that this Court’s decision in Colonna, 793 A.2d 353,
controls. In Husband’s view, the Court in Colonna addressed similar facts
involving a prenuptial agreement that was silent on the apportionment of
marital debt. Husband’s Reply Brief at 10-11. Colonna, according to
Husband, held that, notwithstanding that the bank required each party to
join each other’s mortgage on the non-marital property, the debt followed
the property. Id. at 11. Thus, Husband posits that although he co-signed
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the Dyers Stone mortgage,22 the mortgage remains Wife’s non-marital debt
because the Dyers Stone residence is Wife’s non-marital property.
Wife, in her sur-reply, contends Colonna is factually distinguishable
and highlights that, in contrast to Colonna, in which only one spouse held
title to the property, Husband and Wife have joint title, which underlies the
joint mortgage. Wife’s Sur-Reply Brief at 4. Wife also asserts that although
Husband waived any interest in the lot, he waived no such interest in the
home itself. Id. at 5.23
The trial court construed Paragraph 6 and held the Dyers Stone
mortgage was Wife’s separate, non-marital property. Trial Ct. Op., 4/14/16,
at 6. In the court’s view, to conclude that the Dyers Stone mortgage was
marital debt would render Paragraph 6, which states that one spouse and his
or her property may not be held liable for the debts of the other spouse,
superfluous. Id. The trial court reasoned that Husband co-signed the
mortgage note only because Wife could not obtain the mortgage on her own.
Id.
In Colonna, the parties executed a post-nuptial agreement that
limited each party’s interest in the other’s pre-marital property and any
“property acquired in individual names during the marriage.” Colonna, 791
____________________________________________
22
Husband agrees “that he has a contractual liability with the bank” for the
mortgage. Trial Ct. Op., 4/14/16, at 5.
23
Wife cites no authority in support of this assertion.
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A.2d at 354. The agreement did not apportion debt or mention a mortgage,
other than stating:
[E]ither party could encumber their own property, and the other
agreed to join in a mortgage if required by the lender. Restated,
each party agreed to cooperate in the other’s encumbering of
their own property. Looking at this plan, we see the
requirement to join a mortgage as a marital accommodation to
facilitate getting a loan; such a mortgage may be an obligation
the bank can enforce, but it is not an agreement to undertake an
obligation to the other party for half the debt.
Id. at 358. The Court reasoned that the intent of this clause was to have
“the debt follow[] the property, regardless of the names on the mortgage.
This explains the requirement each join the other’s mortgage, and the
absence of provisions assigning it separate from the property encumbered.”
Id.
For the property that was jointly titled, this Court held that the trial
court correctly gave each party half of the net value of the property, that is,
the full value of the property minus the full value of the mortgage, divided in
half. Colonna, 791 A.2d at 358. The trial court, however, also held that for
property titled solely in the wife’s name, the wife would receive the full value
of the property, and the husband was ordered to pay half of the outstanding
mortgage. Id. In other words, the value of the wife’s solely-titled property
was not “netted out” for the full value of the outstanding mortgage. Id.This Court found that approach by the trial court was error and held that
because the wife held sole title to the property, she should receive all of the
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net value, i.e., the full value of the property minus the full value of the
parties’ joint mortgage:
Debt is not “titled”, as the [trial] court suggested. The presence
of both names [on the mortgage] reflects each party’s obligation
to the lender of 100% of the debt (not 50% each as the court
suggests), but it does not reflect any agreement between
Husband and Wife to pay for mortgages on each other’s [solely
titled] property.
Id.Instantly, we agree with the trial court that Colonna controls and the
Dyers Stone residence is Wife’s non-marital property, notwithstanding that
the property is jointly titled. We reach this conclusion for several reasons.
First, the prenuptial agreement explicitly stated that the marital residence,
Dyers Stone, was Wife’s non-marital property. R.R. at 1058a-59a. Second,
all equity and appreciation in the new marital residence were Wife’s non-
marital property. Id. Third, Husband waived all right, title, and interest he
had in the Dyers Stone residence notwithstanding that the property was
jointly titled. R.R. at 1062a. The only reason Husband’s name was on the
property was so that Wife could obtain financing. Id. Finally, the waiver
signed by Husband reiterated that Dyers Stone was Wife’s sole property,
regardless of how it was titled, and Husband had no claim to it. Id.As in Colonna, the instant prenuptial agreement is silent regarding a
joint mortgage. Wife’s Brief at 43; Colonna, 791 A.2d at 358. We
acknowledge that in Colonna we held that the trial court properly split the
net value of the jointly-titled property in half, but the jointly-titled property
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in Colonna was not subject to a prenuptial agreement that made it the
property of only one party for purposes of equitable distribution. Here, on
the other hand, Dyers Stone is Wife’s non-marital property under the
prenuptial agreement and Husband’s waiver, notwithstanding the joint title.
Like the Court in Colonna, we hold that “[s]ince Wife has sole ownership of
[Dyers Stone], she should receive all of the net value of [Dyers Stone] after
subtraction of the mortgage debt.” Id. at 358.24 Absent any clause
requiring Husband to pay half the mortgage to Wife if the parties’ marriage
ended, the debt follows the property. Id. Wife’s insistence that Husband
played a significant role in the design and construction of the marital home
has no bearing on this issue. Accordingly, Wife’s second issue entitles her to
no relief.
The Custom Homes Judgment
The construction of the Dyers Stone home resulted in several lawsuits,
including an arbitration that culminated in a $64,032.21 judgment entered
against Husband and Wife, jointly and severally, in December of 2010, after
the parties’ separation. Order, 9/7/11, R.R. at 780a. The trial court held
____________________________________________
24
The parties stipulated that Dyers Stone has a “fair market value ‘as is’ of
between negative $100,000 and negative $200,000.” Joint Ex. 1 at ¶ 22
(unpaginated); accord Trial Ct. Op., 4/14/16, at 3 n.6 (citing Joint Ex. 1).
But if Dyers Stone had a positive market value, accepting Wife’s argument
would, as in Colonna, grant Wife the full value of Dyers Stone minus one-
half of the outstanding mortgage. Such a result would be contrary to the
parties’ agreement.
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that the arbitration judgment was Wife’s non-marital debt. In justifying that
holding, the trial court adopted the same reasoning it applied when holding
that the Dyers Stone mortgage was Wife’s non-marital property — that is,
that the judgment was not a marital debt subject to distribution. Trial Ct.
Op., 4/14/16, at 6-7.
Wife correctly points out that the trial court’s rationale failed to
acknowledge that both parties signed the agreement to construct the Dyers
Stone residence — the agreement that formed the basis of Custom Homes’
breach of contract suit. N.T. Hr’g, 2/23/16, at 46, R.R. at 82a. Wife opines
that, rather than construing the prenuptial agreement, the court,
notwithstanding the agreement’s silence on the issue, improperly “drafted” a
clause making that judgment her non-marital debt. Wife’s Brief at 46-47.
Instead, Wife wants the judgment categorized as a marital debt shared by
Husband after the marital estate is divided.
Generally, “[b]etween divorcing parties, debts which accrue to them
jointly prior to separation are marital debts.” Litmans v. Litmans, 673
A.2d 382, 391 (Pa. Super. 1996) (citation omitted). In Litmans, this Court
resolved whether funds borrowed pre-separation from the husband’s pension
fund and used to finance their children’s education should be a marital debt.
Id. We affirmed on the basis of the trial court’s finding that the husband
credibly testified that the funds were borrowed prior to their separation;
thus, the debt was marital. Id.- 32 -
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In Duff v. Duff, 507 A.2d 371 (Pa. 1986), the parties sold stock prior
to the parties’ separation; after the parties separated, the IRS assessed
additional income tax based on an incorrect tax treatment of the pre-
separation stock sale. Id. at 372. The question before our Supreme Court
was whether the post-separation tax assessment was a marital debt. Id.
The Court held the debt was marital because the tax liability was directly
traceable to the sale of stock that occurred prior to the parties’ separation.
Id. at 373. Furthermore, “[t]he proceeds were not diverted by either party
to his or her exclusive use.” Id.
Here, the Custom Homes litigation began in 2009, after the parties
married in 2006 and prior to their separation in April of 2010. The court
entered judgment against Husband and Wife in November of 2010, after the
parties’ separation. Similar to the tax liability in Duff, the judgment is
directly traceable to a pre-separation lawsuit. See Duff, 507 A.2d at 373;
see also Litmans, 673 A.2d at 391. We therefore hold that the judgment
is a joint debt and that the trial court erred when it equated the judgment
with the Dyers Stone mortgage, which followed that property because of
Wife’s sole ownership of the property. The fact that Custom Homes’ suit
stemmed from a dispute regarding construction of Wife’s Dyers Stone house
did not turn Custom Homes’ judgment into a debt that attached only to that
property; it was a personal debt on which both parties were jointly and
severally liable.
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Our holding is bolstered by the rationale advanced by the Supreme
Court in Focht v. Focht, 32 A.3d 668 (Pa. 2011). The then-married couple
in Focht filed a personal injury lawsuit in 2000, and the case was settled on
November 23, 2004. 32 A.3d at 669. Meanwhile, in August of 2001, the
parties separated, the wife filed for a divorce in February of 2004, and the
parties were divorced in January of 2009. Id. After defining “accrue” and
discussing cases construing the term, our Supreme Court held that “an
award or settlement arising from a cause of action or claim that accrued
during the marriage of the parties, before final separation, is marital
property subject to equitable distribution.” Id. at 673. The Court stated:
[B]ecause [the parties’] cause of action accrued during the
marriage, before the parties’ final separation, proceeds from the
settlement of the suit are marital property. The marital property
exception set forth in subsection 3501(a)(8) does not apply, and
it is irrelevant that the parties had finally separated by the time
the suit settled and the settlement award was liquidated.
Id. at 674.25
In this case, if the parties had filed counterclaims in the Custom
Homes litigation and prevailed, the resulting award or settlement would be
marital property because the cause of action accrued prior to the parties’
separation. See Focht, 32 A.3d at 673. It follows that any debt or adverse
____________________________________________
25
Section 3501(a)(8) states that marital property does not include “Any
payment received as a result of an award or settlement for any cause of
action or claim which accrued prior to the marriage or after the date of final
separation regardless of when the payment was received.” 23 Pa.C.S. §
3501(a)(8).
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judgment associated with the pre-separation lawsuit would be marital debt.
Id. We therefore conclude that the trial court erred, and the $64,032.21
judgment is a marital debt attributable to both parties. See Colonna, 791
A.2d at 355.
We therefore reverse the portion of the trial court’s decision that
attributed the judgment solely to Wife.
Equitable Reimbursement
Wife contends that the trial court abused its discretion by denying her
request for equitable reimbursement. We review an order resolving a
request for equitable reimbursement for an abuse of discretion. Bold v.
Bold, 574 A.2d 552, 556-57 (Pa. 1990).
In her appellate brief, Wife extensively discusses the doctrine of
equitable reimbursement, which is “a method of compensating a spouse for
his or her contribution to the marriage where the marital assets are
insufficient to do so.” Wife’s Brief at 48 (quoting Wang v. Feng, 888 A.2d
882, 888 (Pa. Super. 2005)). Wife asserts that she has been paying for the
Dyers Stone mortgage during the divorce litigation. She notes that she bore
the costs of defending the Custom Homes lawsuit, as well as contesting
Husband’s bankruptcy filings. Those expenses, Wife maintains, should have
been considered by the court in light of the impact of the prenuptial
agreement. Wife’s Brief at 53. In Wife’s view, the prenuptial agreement
did not preserve her pre-marital assets, but exhausted them: her premarital
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home was used as collateral to secure the Dyers Stone mortgage, a property
with a negative fair market value. Id. Given that the marital portion of
Husband’s 401(k) account is insufficient to make Wife whole, Wife insists
that the trial court should have awarded her equitable reimbursement. Id.
at 53-54. Wife also challenges the trial court’s reasoning for denying
equitable reimbursement and asserts that the trial court erred in failing to
analyze the factors set forth at 23 Pa.C.S. § 3502(a) in denying equitable
reimbursement.
Husband counters that equitable reimbursement does not apply to this
case. In Husband’s view, equitable reimbursement is permitted when a
spouse has “contributed to the ‘increased earning capacity’ or education of
the other spouse, and cannot be reasonably compensated for such
contribution from the marital estate.” Husband’s Reply Brief at 14. Husband
argues that none of the facts justifying equitable reimbursement exist in this
case. Id. at 14. He points out that Wife did not work during the marriage;
he was the sole “breadwinner during the entire marriage” and “did not
obtain further education during the marriage that would increase his
education or earning power.” Id. Further, Husband notes, the only marital
asset to be divided is the marital portion of his 401(k) retirement account.
Given that the parties were married for only three-and-one-half years and
that the Dyers Stone property, mortgage, and Custom Homes judgment
were all Wife’s debts, Husband argues that there is no marital debt. Id. at
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15. He claims that equitable reimbursement cannot be used to pay a party’s
non-marital debt. Id.
In the alternative, Husband argues that if this Court concludes that the
property, mortgage, or judgment should be labeled a marital debt, then Wife
is still not entitled to equitable reimbursement. Husband’s Reply Brief at 14-
15. Husband reasons that Wife “has not paid on the debts she is claiming to
be burdened by,” and has “chosen to unilaterally pursue the endless years of
litigation instead of repairing the home.” Id. at 15-16. Thus, there is no
basis for awarding equitable reimbursement to Wife, as Husband is fully
obliged to pay the outstanding marital debt. Id. at 16.
The trial court declined to award equitable reimbursement because the
parties executed a prenuptial agreement resolving the division of the marital
and non-marital assets. Trial Ct. Op., 4/14/16, at 16. Further, “there was
no evidence that wife contributed to husband’s education or increased
earning power during the marriage. Finally, . . . the mortgage debt on the
Dyers Stone . . . property and the $64,032.21 judgment related thereto are
solely wife’s debts; husband will not be repaying wife on a marital debt.”
Id.
We set forth the following background on equitable reimbursement:
In addition to division of the marital estate, the courts of this
Commonwealth have created the doctrine of equitable
reimbursement as a method of compensating a spouse for his or
her contribution to the marriage where the marital assets are
insufficient to do so. As this Court further summarized . . .
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In Bold v. Bold, 524 Pa. 487, 574 A.2d 552 (1990), our
Supreme Court found the doctrine of equitable
reimbursement properly was applied where wife supported
husband financially, annually contributing more than three
times the amount husband contributed, for the first five
years of the marriage while husband completed his post-
graduate degree. Husband’s attainment of that degree
resulted in a substantial increase in his earning capacity.
Less than two years after husband graduated with a
degree in chiropractics, he asked wife to move out. The
Court held that separate and apart from the equitable
distribution of marital property, consistent with fairness,
the supporting spouse in a case such as this should be
awarded equitable reimbursement.... In Bold, there was
insufficient marital property to compensate wife for her
financial contributions to the marriage.
. . . See also Zullo v. Zullo, 531 Pa. 377, 380, 613 A.2d 544,
545 (1992); Wagoner v. Wagoner, 538 Pa. 265, 271, 648
A.2d 299, 302 (1994) (summarizing, “at dissolution each
marriage [i.e., those at issue in Bold and Zullo] possessed
insufficient assets to repay the wife’s sacrifice which had added
so significantly to the husband’s future financial status. Thus, in
addition to equitable distribution, the wife in each case, for her
efforts, was awarded payments, termed equitable
reimbursement, in order to equalize the result.”); Twilla v.
Twilla, 445 Pa. Super. 86, 664 A.2d 1020 (1995) (applying
equitable reimbursement principle to compensate wife for lost
equity in marital home due to husband’s failure to maintain
mortgage payments where there was insufficient marital
property from which to fashion sufficient equitable distribution
award); Joanne Ross Wilder, Pennsylvania Family Law Prac. &
Proc. (West 2005), § 22–13 (2002) (noting “equitable
reimbursement may also be available [in the context of
professional degrees, licenses and practices] where alimony is
not appropriate but where fairness dictates an award of some
sort.”). Thus, it is clear that equitable reimbursement is nothing
more than a method of compensating a spouse for that which is
fairly due to him or her.
Wang, 888 A.2d at 888-89 (some citations and punctuation omitted).
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“Relevant factors in fashioning an equitable distribution or
reimbursement award are set forth at 23 Pa.C.S.A. § 3502(a).” Dalrymple
v. Kilishek, 920 A.2d 1275, 1280 (Pa. Super. 2007). Those factors are:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income,
vocational skills, employability, estate, liabilities and needs of
each of the parties.
(4) The contribution by one party to the education, training or
increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of
capital assets and income.
(6) The sources of income of both parties, including, but not
limited to, medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the
acquisition, preservation, depreciation or appreciation of the
marital property, including the contribution of a party as
homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the
marriage.
(10) The economic circumstances of each party at the time the
division of property is to become effective.
(10.1) The Federal, State and local tax ramifications associated
with each asset to be divided, distributed or assigned, which
ramifications need not be immediate and certain.
(10.2) The expense of sale, transfer or liquidation associated
with a particular asset, which expense need not be immediate
and certain.
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(11) Whether the party will be serving as the custodian of any
dependent minor children.
23 Pa.C.S. § 3502(a).
Instantly, the trial court denied Wife’s request for equitable
reimbursement because, among other reasons, the $64,032.21 Custom
Homes judgment was Wife’s non-marital debt. Trial Ct. Op., 4/14/16, at 16.
We have held that the judgment is marital debt. Thus, the trial court’s
reasoning for denying equitable reimbursement was flawed. Accordingly, we
vacate the portion of the trial court’s order regarding equitable
reimbursement so that the trial court may reconsider whether Wife is
entitled to equitable reimbursement in light of our holding regarding the
Customs Homes judgment.26
Wife’s Request for Counsel Fees
Due to Husband’s refusal to comply with various court orders, the
court thrice ordered Husband to pay counsel fees to Wife, with the amount
to be determined at the equitable distribution hearing. On June 22, 2011,
the trial court found that Husband engaged in vexatious litigation behavior,
and awarded counsel fees of “$50,000 and other sums” as would be
determined by the master. Order, 6/22/11. On July 14, 2011, the court
stated it would resolve Wife’s request for counsel fees when it divided the
____________________________________________
26
The trial court may again exercise its discretion to deny equitable
reimbursement to Wife. The trial court, however, should discuss the Section
3502(a) factors. See Dalrymple, 920 A.2d at 1280.
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marital estate. Order, 7/14/11. Finally, on October 3, 2014, the court
ordered Husband to pay counsel fees to Wife based on his failure to comply
with two court orders compelling him to respond to Wife’s discovery
requests. Order, 10/3/14. The order stated that the amount of counsel fees
would be determined at the time of equitable distribution. Id.27
At trial, Wife requested $183,853.15 in counsel fees28 for the divorce
proceeding, as well as an additional $3,440 in expert fees. Trial Ct. Op.,
4/14/16, at 17. Wife also requested counsel fees for defending her claims in
Husband’s bankruptcies and the two lawsuits involving Custom Homes and
____________________________________________
27
We note that although much of the wrangling in this case involved
Husband’s failure to comply with, and ultimately successful efforts to
overturn, Judge DiSalle’s initial interpretation of Paragraph 3(c) of the
prenuptial agreement, the court made clear that there were additional
grounds for an award of fees. See generally Hill v. Divecchio, 625 A.2d
642, 645 (Pa. Super. 1993) (“An order issued by a court with jurisdiction
over the subject matter and the person must be obeyed by the parties until
it is reversed by orderly and proper proceedings.”), appeal denied, 645
A.2d 1316 (Pa. 1994).
28
The $183,853.15 amount did not include the fees expended for the actual
trial. The trial court did not identify a source for this amount or otherwise
explain how it arrived at this figure, but the parties do not dispute it. Upon
review of the certified record, it appears the source of this figure is one of
Wife’s numerous trial exhibits — an unlabeled exhibit with the title, “Legal
Fees-All Cases (v.5).” This exhibit identified Wife’s counsel fees for all
litigation matters, including such matters as the construction litigation and
Husband’s bankruptcy, and stated that the fees for all litigation matters were
$452,807.19. The non-divorce counsel fees total $268,954.04. The exhibit
also identified expert fees totaling $36,347.30, or $32,907.30 for the non-
divorce cases. The grand total of counsel fees for the non-divorce cases is
$301,861.34.
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the construction of the marital residence — apparently an additional
$301,861.34. Id.In resolving Wife’s request for counsel fees, the trial court initially
noted it had previously ordered Husband to pay Wife “$30,981.89 in counsel
fees due to his obdurate and vexatious behavior.” Trial Ct. Op., 4/14/16, at
17. Husband has paid that amount in full. Joint Ex. 1 at ¶ 31.
The trial court then reasoned that, although Wife did not provide any
case support for her claim to additional fees —
[T]here are several outstanding orders (June 22, 2011, July 14,
2011, October 3, 2014) stating that [W]ife’s request for
additional counsel fees due to [H]usband’s contemptuous
behavior would be addressed at the equitable distribution trial.
With this in mind, the Court will order an additional $3,000.
Trial Ct. Op., 4/14/16, at 17 (footnote and citation omitted). The trial court
explained why it limited the award to $3,000:
Save the three specific instances addressed above, this Court
has already addressed reimbursing [W]ife $30,981.89 for
counsel fees. What is more, the only marital asset to value
according to the prenuptial agreement is [H]usband’s IRA, which
does not require an expert. The prenuptial agreement
addressed marital and non-marital property and how same was
to be divided. The only issues that required litigation were
[H]usband’s support obligation to [W]ife and whether the
mortgage on the Dyers Stone property was to be considered a
marital debt. Certainly, these issues needed to be fully
explored. . . . But, whether the mortgage is a marital debt
should not take inordinate and extensive research and
preparation for trial. The [c]ourt finds that wife’s counsel fees
are grossly out of proportion to the relative value and complexity
of the case. Moreover, and importantly, [W]ife has a substantial
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source of income from which she supports herself.[29] For these
reasons, the [c]ourt denies additional fees.
Trial Ct. Op. at 17-18 (footnotes and citation omitted).
The standard of review for an award of counsel fees is an abuse of
discretion. Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. 2004).
“An abuse of discretion is not 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 or the record, discretion is abused.” Nobles
v. Staples, Inc., 150 A.3d 110, 113 (Pa. Super. 2016) (citation omitted).
Wife argues that an award of $3,000 in counsel fees, in addition to the
$30,981.89 previously awarded by the court, was too low. Wife’s Brief at
56. Wife contends the trial court’s basis for the $3,000 amount lacked any
support in the record, and she attacks the court’s assessment of credibility
because it was based partly on facts outside of the instant record:
____________________________________________
29
The court explained:
Wife testified on cross-examination that she “uses” her
“mother’s” PNC checking account . . . to support her on a daily
basis. There was no testimony of how this account is titled, but
wife has free access to it. The [c]ourt does not find her
testimony credible that her withdrawals are to be repaid to
mother.
Trial Ct. Op., 4/14/16, at 18 n.37. Wife’s mother “loaned” $1,138,757.54 to
Wife. Id. at 7.
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It relied, in part, on observations relating to an ancillary claim,
unrelated to the instant case, against Wife and her mother,
arising from the original Custom Homes litigation. The trial court
considered in some detail the nature of this case, and discussed
certain interlocutory proceedings relating to it. These facts,
however, are not present in the record of the instant case, and
the trial court’s reliance on them in its adverse credibility
determination as to Wife is an abuse of discretion.
Id. at 57 (citations omitted).
After careful review of the parties’ arguments, the record, and the
decision of the trial court, we affirm on this issue on the basis of the trial
court’s opinion. See Trial Ct. Op., 4/14/16, at 17-18 (holding (1) Wife’s
requested counsel fees of $183,853.15 were excessive; (2) the court already
ordered Husband to pay $30,981.89 for his obdurate and vexatious
behavior; (3) the prenuptial agreement addressed the division of marital and
non-marital property; (4) the only issues were Husband’s support obligation
and the Dyers Stone mortgage; and (5) Wife has a significant source of
income). Contrary to Wife’s assertion that the trial court relied on non-
record facts in concluding she was not credible, the trial court specifically
held: “The [c]ourt does not find her testimony credible that her withdrawals
are to be repaid to mother.” Trial Ct. Op. at 7 (Wife’s mother loaned over
one million dollars to Wife) & 18 n.37 (Wife uses her mother’s checking
account for daily living expenses). We cannot conclude that Wife established
that the trial court abused its discretion in denying the entire amount that
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she claimed. See Teodorski, 857 A.2d at 201; see also Nobles, 150 A.3d
at 113.30
Husband’s Cross-Appeal
Having resolved Wife’s issues, we examine Husband’s issues, which
are:
Did the trial court err and abuse its discretion in failing to
terminate Husband’s alimony pendente lite obligation at earlier
date when the parties were only married a short period?
Did the trial court err in calculating Wife’s income by failing to
include all sources of income reported on her tax return?
Did the trial court err and abuse its discretion in obligating
Husband for the full cost of the life insurance proceeds through
date of divorce?
Husband’s Brief at 4 (reordered to facilitate disposition).
Length of Alimony Pendente Lite
Briefly, the parties stipulated that the court “ordered Husband to pay
$50 per month to Wife as provisional” alimony pendente lite in October
2015. Joint. Ex. 1 at ¶ 16. At the divorce trial, the court awarded alimony
pendente lite as follows:
____________________________________________
30
We note that the value of Husband’s retirement account in June of 2015
was $232,585.79. Joint Ex. 1 at ¶ 29. Thus, even if the trial court had
awarded Wife $180,853.15 of counsel fees for the divorce, let alone the
$301,861.34 non-divorce counsel fees, Husband’s sole asset would be
almost depleted, at best. Husband’s only other significant asset is the
proceeds from the sale of his premarital home, which, at that time, was
$50,000. Trial Ct. Op., 4/14/16, at 8 n.13.
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Husband’s A.P.L. Obligation
Effective Date Per Month Per Year
May 14, 2010[31] 2,531 19,305
January 1, 2011 2,717 32,604
January 1, 2012 555 6,660
January 1, 2013 630 7,560
January 1, 2014 1,629 19,548
January 1, 2015 1,634 19,608
January 1 through March 2016 1,634 4,902
TOTAL $110,187
Trial Ct. Op., 4/14/16, at 11 (footnote omitted). 32 In a footnote, the trial
court stated:
The A.P.L. will be charged through March 2016. Husband argued
that this obligation should be terminated after three and one-half
years since the marriage lasted only three and one-half years.
Pa.R.C.P. 1910.16-1(C)(2). Support orders, however, are
effective from the date of filing. Pa.R.C.P. 1910.16-7(a).
Husband has not filed a petition to modify/terminate. Therefore,
the Court is unable to consider his request.
Id. at 11 n.26. The trial court later explained:
The [c]ourt extended A.P.L. to the date of the trial because
[H]usband caused some of the delay in the scheduling of the
trial itself (as set forth above, [H]usband filed bankruptcies that
had no merit and he was not cooperative in the discovery
process) and because he never filed a petition to modify.
____________________________________________
31
This was the date Wife filed for alimony pendente lite.
32
In addition to the $110,187 amount of alimony pendente lite, the court
also determined that Husband owed Wife an additional $23,300 (Husband’s
proportionate share of Wife’s medical insurance premiums and her
unreimbursed medical expenses), for a total of $133,487. The parties had
previously stipulated that Husband paid $84,056.38 directly to Wife and paid
an additional $12,676.12 to the Domestic Relations Office for repayment to
Wife. Trial Ct. Op., 4/14/16, at 12. Thus, Husband owed an additional
$36,754.50 in alimony pendente lite and additional support. Id.
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Further, the [c]ourt is not imposing A.P.L. if [W]ife files an
appeal, nor is alimony being granted.
. . . The [c]ourt ordered [H]usband to pay five years of A.P.L., a
year and one-half longer than the length of the marriage.
Trial Ct. Op., 4/14/16, at 13.33
“If an order of [alimony pendente lite] is bolstered by competent
evidence, the order will not be reversed absent an abuse of discretion by the
trial court.” Strauss v. Strauss, 27 A.3d 233, 236 (Pa. Super. 2011).
Citing Pa.R.C.P. 1910.16-1(c), Husband argues that the award was in error
because the trial court failed to consider the short length of the parties’
marriage. Specifically, Husband objects to paying alimony pendente lite for
“almost double the length of the marriage” when the parties were married
for only three-and-a-half years. Husband’s Brief at 10. He also points out
that Wife requested several continuances, thus delaying the court’s
resolution of their divorce. Id. But for Wife’s delays, Husband reasons, she
would not have received this additional windfall. Id. at 10-11.
Wife counters that Husband failed to cite any case authority that a
court cannot extend alimony pendente lite over an extended duration.
____________________________________________
33
In fact, the court ordered Husband to pay alimony pendente lite for a little
over five years and ten months. The court, we note, could have ordered
Husband to pay alimony pendente lite until resolution of any appeal from the
divorce decree, but it declined to do so. See Brody v. Brody, 758 A.2d
1274, 1281 (Pa. Super. 2000), appeal denied, 786 A.2d 984 (Pa. 2001);
DeMasi v. DeMasi, 597 A.2d 101, 104 (Pa. Super. 1991) (stating, “a
divorce is not final for purposes of APL until appeals have been exhausted
and a final decree has been entered.”).
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Wife’s Brief at 23. She maintains that the court actually did consider the
duration of the parties’ marriage, but that the divorce was delayed because
Husband refused to comply with ten discovery requests and filed two
meritless bankruptcy petitions.
The Divorce Code provides, “In proper cases, upon petition, the court
may allow a spouse reasonable alimony pendente lite, spousal support and
reasonable counsel fees and expenses.” 23 Pa.C.S. § 3702. By way of
background:
[Alimony pendente lite] is an order for temporary support
granted to a spouse during the pendency of a divorce or
annulment proceeding. [Alimony pendente lite] is designed to
help the dependent spouse maintain the standard of living
enjoyed while living with the independent spouse. Also, and
perhaps more importantly, [alimony pendente lite] 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.
[Alimony pendente lite] 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. . . . [T]he purpose of
[alimony pendente lite] is to provide the dependent spouse equal
standing during the course of the divorce proceeding . . . .
[Alimony pendente lite] focuses on the ability of the individual
who receives the [alimony pendente lite] 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.
Schenk v. Schenk, 880 A.2d 633, 644-45 (Pa. Super. 2005).34
____________________________________________
34
“Alimony, in contrast, is terminated upon remarriage or cohabitation.”
Schenk, 880 A.2d at 644 (citation omitted).
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With respect to duration of alimony pendente lite, Pennsylvania Rule of
Civil Procedure 1910.16-1(c)(2) states, “In determining the duration of an
award for spousal support or alimony pendente lite, the trier of fact shall
consider the duration of the marriage from the date of marriage to the date
of final separation.” A comment explains that the “primary purpose of this
provision is to prevent the unfairness that arises in a short-term marriage
when the obligor is required to pay support over a substantially longer
period of time than the parties were married and there is little or no
opportunity for credit for these payments at the time of equitable
distribution.” Pa.R.C.P. 1910.16-1, cmt. G. Thus, “alimony pendente lite may
be terminated before the litigation is concluded where the recipient has
acquired assets [or] income which sufficiently equalizes the financial ability
of the parties to pursue the action.” Brody, 758 A.2d at 1281 (citation
omitted).
Instantly, contrary to Husband’s argument, the trial court explicitly
considered Rule 1910.16-1(c)(2). See Trial Ct. Op., 4/14/16, at 13. The
trial court acknowledged that both parties contributed to the delay in the
scheduling of the divorce trial, including Husband’s filing of two meritless
bankruptcy petitions. Id. But for the delay, the litigation would have ended
earlier, which would likely have resulted in a shorter duration of alimony
pendente lite. Because competent evidence establishes that the trial court
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considered the length of the parties’ marriage, we discern no abuse of
discretion by the trial court. See Strauss, 27 A.3d at 236.
Husband also disputes the trial court’s statement that he had not filed
a petition for modification. Husband’s Brief at 9-10 (referencing Trial Ct.
Op., 4/14/16, at 11 n.26). He points out that he “was paying under an
interim support order” until the February 2016 trial. Id. at 9 (apparently
referencing the October 2015 order directing him to pay $50 per month of
provisional alimony pendente lite. Joint Ex. 1 at ¶ 16). Husband
emphasizes that he could not have moved for modification absent a final
order resolving alimony pendente lite. Id. at 9 (stating, “there was not a
final order for [Husband] to modify”). In support, Husband cites a
September 28, 2013 order canceling the alimony pendente lite hearing and
stating, “Said issue shall be consolidated with those claims heard by the
divorce master if the parties are unable to settle.” Id. at 9. Husband
construes the order as barring him from filing any petition to modify because
there was no final order. Id. In sum, Husband contends he could not have
filed a petition to modify from an interim order of support; rather, he could
only have filed such a petition from a final order of support. Wife did not
address this argument in her appellate brief.35
____________________________________________
35
Husband also claims that he filed a petition to modify alimony pendente
lite on June 24, 2015. Husband’s Brief at 10 (citing R.R. at 32a-25a (sic)).
He maintains that the trial court did not entertain his petition because the
alimony pendente lite issue was deferred to the equitable distribution
(Footnote Continued Next Page)
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The premise of Husband’s argument is false. Our case law is well-
settled that Husband could have filed a petition to modify from an interim
order of support at any time:
[A]n award of support, once in effect, may be modified via
petition at any time, provided that the petitioning party
demonstrates a material and substantial change in their
circumstances warranting a modification. See 23 Pa.C.S. §
4352(a); see also Pa.R.C.P. 1910.19. The burden of
demonstrating a “material and substantial change” rests with the
moving party, and the determination of whether such change
has occurred in the circumstances of the moving party rests
within the trial court’s discretion. See Bowser v. Blom, 569 Pa.
609, 807 A.2d 830 (2002).
Summers v. Summers, 35 A.3d 786, 789 (Pa. Super. 2012) (emphasis
added). Husband was not obligated to wait until the court issued a final
order of support. See id. A “final” order resolving alimony pendente lite is
not a necessary prerequisite for filing a petition to modify. See id.36
Husband therefore is entitled to no relief on this issue.
_______________________
(Footnote Continued)
hearing. Id. However, the docket does not reflect Husband’s purported
filing, which tends to support the trial court’s observation that Husband did
not file a petition to modify. The reproduced record, R.R. at 34a-35a,
includes what appears to be a petition for modification dated June 15, 2015,
but the certified record for June 2015 does not include that petition.
36
The rule is eminently practicable, because even if the trial court deferred
final resolution of alimony pendente lite until the time of trial, a payor should
not be barred from pursuing relief from an interim order of support due to a
material change in the payor’s financial circumstances prior to trial.
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Amount of Alimony Pendente Lite
Husband also challenges the trial court’s calculation of Wife’s income,
which affected the amount of alimony pendente lite Husband must pay Wife.
Trial Ct. Op., 4/14/16, at 10 n.19. Specifically, the trial court found Wife
had an earning capacity of at least minimum wage, i.e., $15,080 per year.37
The standard of review for a challenge to the amount of alimony pendente
lite is abuse of discretion. See Strauss, 27 A.3d at 236.
Husband contends the trial court failed to add Wife’s income from a
retirement account she inherited from her father. Husband refers this Court
to Wife’s 2012 tax return, in which Wife received a distribution of $8,954
from that retirement account. Husband’s Brief at 16. Husband also points
to Wife’s testimony about that Individual Retirement Account, in which —
according to Husband — she testified she “continued to receive $10,000 in
____________________________________________
37
Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4) discusses earning
capacity as follows:
If the trier of fact determines that a party to a support action
has willfully failed to obtain or maintain appropriate
employment, the trier of fact may impute to that party an
income equal to the party’s earning capacity. Age, education,
training, health, work experience, earnings history and child care
responsibilities are factors which shall be considered in
determining earning capacity. In order for an earning capacity
to be assessed, the trier of fact must state the reasons for the
assessment in writing or on the record. . . .
Pa.R.C.P. 1910.16-2(d)(4).
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distributions every year since 2012.” Id. at 16 (citing R.R. at 666a).38
According to Husband, Wife did not argue that the IRA distributions should
be excluded for purposes of calculating alimony pendente lite.
In response, Wife refers this Court to her argument that the trial court
did not abuse its discretion in awarding alimony pendente lite for almost six
years. Wife does not articulate a specific argument that the trial court did
not abuse its discretion in excluding the IRA distributions. She asserts,
however, that if the trial court erred by failing to include the IRA income,
this Court should also conclude that Rule 1910.16-2 applies “to Husband,
who regularly bolstered his income with 401(k) withdrawals.” Wife’s Brief at
25. Wife does not cite any legal authority in support of this position.
The trial court’s opinion did not explain why it excluded the
distributions from Wife’s father’s retirement account. We conclude that the
court erred in calculating Wife’s income for purposes of calculating the
amount of Husband’s alimony pendente lite obligation.
Pennsylvania Rule of Civil Procedure 1910.16-2 defines monthly gross
income for purposes of calculating support:
Monthly gross income is ordinarily based upon at least a six-
month average of all of a party’s income. The term “income” is
defined by the support law, 23 Pa.C.S.A. § 4302, and includes
____________________________________________
38
Wife’s actual testimony follows: “So it was about $10,000, maybe, one
year, and now it’s dropped a lot. So it’s dependant [sic], of course, on the
value of the account. So hopefully it doesn’t go below that.” R.R. at 666a.
Wife did not clarify her testimony.
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income from any source. The statute lists many types of income
including, but not limited to:
(1) wages, salaries, bonuses, fees and commissions;
(2) net income from business or dealings in property;
(3) interest, rents, royalties, and dividends;
(4) pensions and all forms of retirement;
(5) income from an interest in an estate or trust;
(6) Social Security disability benefits, Social Security retirement
benefits, temporary and permanent disability benefits, workers’
compensation and unemployment compensation;
(7) alimony if, in the discretion of the trier of fact, inclusion of
part or all of it is appropriate; and
(8) other entitlements to money or lump sum awards, without
regard to source, including lottery winnings, income tax refunds,
insurance compensation or settlements; awards and verdicts;
and any form of payment due to and collectible by an individual
regardless of source.
Pa.R.C.P. 1910.16-2. “In ruling on a claim for alimony pendente lite, the
court should consider the following factors: the ability of the other party to
pay; the separate estate and income of the petitioning party [, i.e., Wife];
and the character, situation, and surroundings of the parties.” Busse v.
Busse, 921 A.2d 1248, 1255 (Pa. Super. 2007) (citation omitted). In
Kessler v. Helmick, 672 A.2d 1380, 1383 (Pa. Super. 1996), the trial court
erred by including only the payor’s income from his occupation and not
income from other sources, as reported in a tax return. Kessler, 672 A.2d
at 1383. The other income included interest income, capital gains, and
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pension income. Id. Thus, this Court remanded to have the trial court
recalculate income by including all sources of income. Id.Similar to the trial court in Kessler, the trial court here did not include
Wife’s admitted other source of income: the distributions she receives from
an inherited IRA. See Pa.R.C.P. 1910.16-2.39 The court thus failed to
consider all of Wife’s sources of income. See Busse, 921 A.2d at 1255;
Kessler, 672 A.2d at 1383. We therefore vacate the amount of the award
of alimony pendente lite, and remand to have the trial court recalculate the
amount.40
Life Insurance Policy – Duration of Payment
We briefly set forth the following as background. Prior to the parties’
marriage, Wife quit her part-time job at Husband’s suggestion, making
Husband the only income earner in the household during the parties’
marriage. N.T., 2/25/16, at 401, 415, R.R. at 437a, 451a. Husband did not
encourage Wife to find employment prior to their separation. Id. at 415-16,
R.R. at 451a-52a. The parties entered the prenuptial agreement with the
____________________________________________
39
The trial court had previously acknowledged that Wife also supported
herself by freely withdrawing from her mother’s checking account. Trial Ct.
Op., 4/14/16, at 18 n.37. Husband, however, does not argue on appeal that
the court should have construed those withdrawals as part of Wife’s income.
40
Wife did not challenge the trial court’s calculation of Husband’s income on
appeal. Thus, she has waived that issue. Also, she failed to cite any legal
authority in support of her position that Husband’s withdrawal from his
retirement account should be considered in calculating the amount of
alimony pendente lite.
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intent to protect Wife. Id. at 402, R.R. at 438a. Paragraph 5(e) of the
prenuptial agreement provides:
Except as otherwise set forth herein, and in particular with
respect to the Plan, the provisions set forth in Paragraph 1.a.,
and with respect to life insurance on the life of [Husband], as set
forth in this Paragraph 5.e., each of the parties agrees that the
rights and benefits of each party under any pension, profit
sharing, employee benefit or retirement plan, and all insurance
on the life of either party, is now and shall continue to be the
separate property of the respective parties and is not and shall
not become marital property, community property or quasi
community property, without regard to where in the world the
parties may reside. Notwithstanding the foregoing, the parties
hereto contemplate acquiring, from their joint funds, insurance
on the life of [Husband] for which [Wife] shall be the owner and
primary beneficiary. Upon termination of the contemplated
marriage for any reason other than upon the death of
[Husband], ownership of this policy shall remain with [Wife], but
[Husband] shall be excused from any future obligation to pay
premiums.
R.R. at 1064a (emphasis added).
According to the trial court, under the prenuptial agreement:
The parties purchased a term life insurance policy in September
2007 from American General Life Insurance Company. The
policy indicates husband as the owner and that the death benefit
is $500,000. Husband, however, did not transfer ownership
thereof to wife as required by the prenuptial agreement.[41] To
ensure that the policy would be maintained after separation,
[W]ife expended $157.94 per month from April 2010 through
December 2015 for a total of $10,900.83.
Trial Ct. Op., 4/14/16, at 15.
____________________________________________
41
This statement is inaccurate, as we explain infra.
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For his last issue, Husband argues that the trial court erred by
construing the prenuptial agreement to obligate him to pay, through the
date of their divorce, 100% of the premiums on a life insurance policy on his
life with Wife as the primary beneficiary. As noted above, our standard of
review is to determine whether the trial court made an error of law or
abused its discretion. Laudig, 624 A.2d at 653.
Husband specifically claims that Paragraph 5(e) of the prenuptial
agreement is ambiguous as to the phrase “Upon termination of the
contemplated marriage for any reason.” Husband’s Brief at 13. He
contends that his obligation to pay the life insurance premiums terminated
on the date of the parties’ separation and that the trial court erred in holding
that it continues up to the date of their divorce.
As noted above, an agreement is “ambiguous if it is reasonably
susceptible of different constructions and capable of being understood in
more than one sense.” See Nicholas, 158 A.3d at 693. Contrary to
Husband’s argument, we do not agree that “termination of the contemplated
marriage” has multiple meanings; rather, the phrase refers to the date when
the parties’ marriage ends upon entry of a divorce decree. There is nothing
in the premarital agreement to suggest that the phrase has a different
meaning in the context of Paragraph 5(e). In particular, we do not agree
that, as used in Paragraph 5(e), “termination of the contemplated marriage”
should be interpreted to refer to the parties’ separation, because a
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separation does not formally terminate a marriage; if parties can separate,
they also can reconcile. Termination of a marriage does not occur until the
court enters a decree of divorce. See 23 Pa.C.S. § 3323(b); see also 23
Pa.C.S. § 3504 (statute regarding “disposition of property after termination
of marriage,” which provides: “whenever a decree of divorce or annulment is
entered by a court . . . both parties whose marriage is terminated or
affected shall have complete freedom” to dispose of their separate property).
We recognize that there may seem to be a tension between this
interpretation of “termination of the contemplated marriage” in Paragraph
5(e) and our earlier interpretation of “term of the marriage” in Paragraph
3(c), but we perceive no inconsistency. Paragraph 3(c) required Husband to
deposit his net income during the “term of the marriage,” and we had to
construe that requirement in light of the provisions for post-separation
support of Wife in Paragraph 4. Those support obligations applied under
Paragraph 4 when “the marital relationship contemplated hereunder, once
contracted, shall thereafter no longer be maintained, whether under the
provisions of a separation agreement, by reason of separation, divorce, or
otherwise.” To give effect to both Paragraphs 3(c) and 4 without conflict, we
construed the “term of the marriage” as ending on the date of the parties’
separation, thereby preventing post-separation financial support of Wife
under both provisions. But there is no part of the prenuptial agreement that
provides us with similar guidance in construing “termination of the
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contemplated marriage” in Paragraph 5(e), and, in particular, there is no
provision containing language comparable to that in Paragraph 4 to suggest
that we should construe “termination” in Paragraph 5(e) to mean separation.
The insurance policy contemplated in Paragraph 5(e) was for Wife’s benefit,
and we therefore construe the agreement to require payment of premiums
to maintain the policy until the marriage formally ends.
Husband also contends that we should construe Paragraph 5(e) in a
manner consistent with the way the trial court applied Paragraph 1(a) of the
prenuptial agreement, which deals with the non-marital portion of Husband’s
Section 401(k) retirement plan. Paragraph 1(a) states, “In the event of
divorce, the increase in the value of the Plan over its value as of the date of
the marriage shall be deemed to be marital property to which each party is
entitled to a fifty (50.0%) percent share.” R.R. at 1055a. Husband points
out that when the trial court had to determine the value of the increase
under this provision, the court used the date of separation, and not the date
of divorce. Husband’s Brief at 13. We decline Husband’s invitation to apply
that same approach to the life insurance premiums.
In addressing the 401(k) issue, the trial court was not asked to
construe “termination of the contemplated marriage” or any similar phrase.
Rather, because the prenuptial agreement was silent, the trial court was left
to divine on what date — date of separation or date of divorce — the plan
was to be valued for distribution. See Trial Ct. Op., 4/14/16, at 8. Unlike
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J-A33025-16
Paragraph 1(a), Paragraph 5(e) explicitly states that Husband’s obligation to
pay premiums ends “[u]pon termination of the contemplated marriage.”
R.R. at 1064a. In light of this language, the trial court did not err in
requiring Husband to pay the premiums until the marriage was terminated
on the date of divorce. Trial Ct. Op., 4/14/16, at 16.42
Life Insurance Policy – Amount of Payment
In addition to the duration of his obligation to pay the premiums of the
life insurance policy, Husband also challenges the trial court’s interpretation
of the prenuptial agreement as requiring that he pay 100% of the premiums.
Husband’s Brief at 14. We restate the disputed passage from Paragraph
5(e) of the agreement:
[T]he parties hereto contemplate acquiring, from their joint
funds, insurance on the life of [Husband] for which [Wife] shall
be the owner and primary beneficiary. Upon termination of the
contemplated marriage for any reason other than upon the death
____________________________________________
42
The trial court reasoned that because Husband improperly delayed the
divorce trial, it was appropriate to compel Husband to pay. Trial Ct. Op.,
4/14/16, at 15. We need not ascertain whether the trial court’s rationale
was correct because the unambiguous language of the prenuptial agreement
obligated Husband to pay until the parties divorced. Mariner Chestnut,
152 A.3d at 277 (stating this Court may affirm on any basis). The trial court
also stated that Husband was required to transfer the life insurance policy
to Wife per the prenuptial agreement. Trial Ct. Op., 4/14/16, at 15. It is
more accurate to state that Wife, based upon her interpretation of
Paragraph 5(e), asked Husband to transfer ownership of the policy
“immediately.” Ex. B to Wife’s Pet. to Enforce Life Insurance Provision,
3/27/14 (April 19, 2010 email from Wife’s counsel to Husband’s counsel).
Husband, in response, agreed to maintain the life insurance policy, as set
forth in further detail below. Ex. C to Wife’s Pet. to Enforce Life Insurance
Provision (quoting May 24, 2010 letter).
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J-A33025-16
of [Husband], ownership of this policy shall remain with [Wife],
but [Husband] shall be excused from any future obligation to
pay premiums.
R.R. at 1064a (emphasis added).
The parties had purchased the life insurance policy so that if Husband
passed away, Wife would have been able to pay off the mortgage on the
parties’ then-anticipated new marital residence. N.T. Trial, 2/26/16, at 585,
R.R. at 620a. As noted above, in anticipation of the parties’ marriage, Wife
quit her part-time job based on Husband’s representation that he would be
the sole wage-earner, and she was not employed during the parties’
marriage. N.T. Trial, 2/25/16, at 401, 415, R.R. at 437a, 451a.
On appeal, Husband argues that Paragraph 5(e) contemplated that
because the premium was to be paid from “joint funds,” both parties were to
contribute their incomes to the joint account. Thus, Husband reasons, he
should not be held solely responsible for the premium payment. Husband’s
Brief at 14.
In contrast, Wife contends that the prenuptial agreement obligated
Husband to pay the premiums. Wife’s Brief at 24. Wife notes that after the
parties separated, Husband failed to pay the premiums and she therefore
was obligated to pay them on her own. Id. She contends that the trial
court did not abuse its discretion by requiring Husband to repay Wife for the
premiums she paid.
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We perceive no error of law or abuse of discretion in the trial court’s
decision. See Laudig, 624 A.2d at 653. We may affirm the trial court on
any basis. Mariner Chestnut, 152 A.3d at 277. In that connection, we
note that —
In the absence of an express [contract] provision, the law
will imply an agreement by the parties to a contract to do
and perform those things that according to reason and
justice they should do in order to carry out the purpose for
which the contract was made and to refrain from doing
anything that would destroy or injure the other party’s
right to receive the fruits of the contract.
Courts employ the doctrine of necessary implication as a means
of avoiding injustice by inferring contract provisions that reflect
the parties’ silent intent. In the absence of an express term, the
doctrine of necessary implication may act to imply a requirement
necessitated by reason and justice without which the intent of
the parties is frustrated.
Stamerro v. Stamerro, 889 A.2d 1251, 1259 (Pa. Super. 2005) (citations
and quotation marks omitted) (affirming trial court’s imputation of term into
marital settlement agreement preventing the husband from voluntarily
reducing his income in order to reduce his alimony payments).
Thus, where it is clear that an obligation is within the
contemplation of the parties at the time of contracting or is
necessary to carry out their intentions, the court will imply it.
This is true even where the contract itself is not ambiguous.
Since the doctrine of necessary implication serves not to instruct
the court as to which of two possible interpretations of a contract
should be adopted, but rather to allow the court to enforce the
clear intentions of the parties and avoid injustice, the court does
not need to find an ambiguity before it will employ the doctrine.
- 62 -
J-A33025-16
Slater v. Pearle Vision Center, Inc., 546 A.2d 676, 679 (Pa. Super. 1988)
(citations omitted). The doctrine supports Husband’s obligation to pay the
premium here.
Husband contends that the trial court incorrectly based its ruling that
he was solely responsible to pay the full amount of the premiums on a
May 24, 2010 letter from Husband’s prior counsel that acknowledged
Husband’s “obligation to comply with a prior order of court entered requiring
him to pay the premium.” Husband’s Brief at 14. The letter stated:
To confirm in writing the matters on which we agree (subject to
our agreement as to the percentage of salary and without
prejudice to either party at the time of the September[43]
hearing). I note that [Husband] does not intend for the below to
be independent covenants and, as such, we either have a global
agreement or no agreement at all:
* * *
4. [Husband] will maintain the $500,000 term policy in
existence;
* * *
Please let me know if I have misstated anything in this
letter when we discuss matters on Wednesday. . . .
Ex. C to Wife’s Pet. to Enforce Life Insurance Provision, 3/27/14 (quoting
May 24, 2010 letter). Husband asserts that because Judge Gilman vacated
____________________________________________
43
Presumably, this was in reference to Judge DiSalle’s May 19, 2010 order
granting Wife’s petition to enforce Paragraph 3(c), which stated that both
parties must contribute their net income to a joint account pending a hearing
scheduled for September 2010. Order, 5/19/10.
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Judge DiSalle’s prior orders, the court abused its discretion by relying on this
letter to require him to pay, since the letter was prompted by Judge DiSalle’s
now-vacated court order. Husband’s Brief at 14.44
Initially, we conclude that Husband misstates both the letter and the
reason for Judge Gilman’s reliance on it. The letter does not state or
otherwise assert that Husband was ordered by Judge DiSalle to pay the
premium, and Judge Gilman never said Husband’s obligation to pay
premiums stemmed from any “prior order of the court.” Rather, the court
stated: “According to a letter dated May 24, 2010 from [H]usband’s attorney
to [W]ife’s attorney, . . . [H]usband acknowledges that he will maintain the
life insurance policy.” Trial Ct. Op., 4/14/16, at 16.
We also disagree with Husband’s interpretation of the prenuptial
agreement on this issue. Paragraph 5(e) states that “the parties hereto
contemplate acquiring, from their joint funds, insurance on the life of”
Husband. R.R. at 1064a.45 Paragraph 5(e) does not specify which party
would actually pay or in what amount; the prenuptial agreement is silent on
this issue.
But the prenuptial agreement does acknowledge that upon termination
of the parties’ marriage, Husband was “excused from any future obligation
____________________________________________
44
Husband does not argue on appeal that there was no “global agreement.”
45
Because a life insurance policy exists, we do not examine whether the
parties were obligated to acquire one. The prenuptial agreement states that
the parties “contemplate acquiring.”
- 64 -
J-A33025-16
to pay premiums.” R.R. at 1064a. Because Husband was the sole wage
earner, the necessary implication is that the agreement obligated Husband
to pay for 100% of the premium, notwithstanding that the source of the
payment was the parties’ joint account. See Stamerro, 889 A.2d at 1259;
Slater, 546 A.2d at 679. This is particularly true because Husband did not
object to being the sole wage earner. R.R. at 451a-52a. Thus, separate and
apart from any reliance the trial court may have placed on the May 24, 2010
letter in obligating Husband to pay 100% of the premiums, we conclude that
it was proper to recognize that the prenuptial agreement necessarily implied
such an obligation. See Stamerro, 889 A.2d at 1259; Slater, 546 A.2d at
679. The agreement did not create any obligation to pay for the premiums
out of joint funds and it therefore did not obligate Wife to share the payment
obligation. We therefore conclude that Husband is entitled to no relief on
this issue.
Conclusion
For the foregoing reasons, we affirm the decree granting the parties’
divorce, and affirm the April 14, 2016 order in part, reverse it in part, and
vacate that order in part. Because the trial court erred by holding that the
$64,032.21 Custom Homes judgment was solely Wife’s non-marital debt,
and not a marital debt, the court must include that judgment as part of the
marital estate and equitably re-divide the marital estate in accordance with
the factors set forth in the Divorce Code. We vacate the amount of the
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J-A33025-16
award of alimony pendente lite and remand to have the court recalculate the
amount because the court erred by not including the distributions Wife
received from the retirement account she inherited from her father. The
trial court must also reconsider Wife’s request for equitable reimbursement;
nothing within our decision precludes the trial court from again denying
Wife’s request for equitable reimbursement if it deems that result
appropriate, but it should thoroughly discuss the Section 3502(a) factors.
We remand for further proceedings in accordance with this decision.
Motion to substitute amended second brief for Wife granted. Motion to
amend certified record granted. Decree granting divorce affirmed. Order
dated April 14, 2016, affirmed in part, reversed in part, and vacated in part.
In future filings that reference this Court’s memorandum, the parties shall
attach a copy of the trial court’s April 14, 2016 opinion. Case remanded for
further proceedings. Jurisdiction relinquished.
Judge Lazarus joins the memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
- 66 -
Circulated 06/30/2017 02:43 PM
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IN THE COURT OF COMMON PLEAS OF WASHINGTON COUN"J Y PENNSYLVANlA
CIVIL DIVISION
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OPINION
The parties Bruce Goldblatt ( husband,' age 62 at the time of tnal), and lane Young
( wife: age 58 .u the time of tual) rnarucd on October 24. 2006 For each, thrs was their second
I
rnarnagc and no children were born therefrom They separated on Apnl 2. 2010 when husband
left the mantal residence Husband filed ,1 divorce complaint on April 28. 2010 111 the
Washington County Court of Common Pleas The complain: contained Just one count which
was for a dt vorce from wile On M,1y 14. 20 IO wt le filed an answer and counter claim, which -
included requests fo: alimony pendente lite ( AP L ), alimony. equitable distnbuuon of marital
property enforcement or a prcnupual agreement. and mjuncuve rchcf2 fhc Court held a four-
day tnal on the issues star t111g on February 23. 2016
There IMS been protracted hugauon rcgaidmg these divorce claims as well us chums
ancillary to the divorce I'luoughout the proceedings. there have been voluminous pcuuons for
I
Husband has tlu«. children n om Im tits! marnagc, wile has one child from hct fitst marnage All children are
emancipated
2
The parnes signed c1 document ruled Amended Prenuptial Agreement' on December 15, 2006 almost two months
after the marriage See Joint C,h1b11 I I he 011g111,d prenuptial ag1 cement was nevei tcsufied to nor introduced mto
evidence However It rs self-evident that such document cvistcd basedupon the language m the. fir~! paragraphof
the Amended P1 cnuptial Agreement s p1 eamble 1 he Amended Pt enupnal Agreement \\ 111 be referred to heremafter
as the prenupual agreement
contempt of court order ~ and I or the enforcement of discovery Iequests Most of these contempt
and enforcement proceedings were the result of husband's behavior 01 faihuc to comply with the
payment of support or d 1 scovei y r eq nests Accordingly, wife incun cd attorney fees to en lorce
the Court s orders and her cl.urns were stalled d~ d result of husband's contemptuous behavior
Specifically, ten court orders were issued agamst husband for furling to comply with discovery
matters 3 A~ a result wife had been awarded $30 981 89 in counsel fees through February 23,
4
2016 due to husband s failure to comply with discovery requests or to pay support as ordered
See Joun Exhibu I Supulauon at iJ 31
On M,1y 19 2010. wi fc s counsel presented to Judge John D1Salle a Petition to Enfot ce to
compel husband to deposit hrs entire paycheck into the patties· joint checking account The
Court scheduled a hearing on the request that was set for September 24 2010 Judge D1Sallc
issued an order on October 19 20 IO gi antmg wife c; pennon The Court 1 equrred husband to
deposit his entire paycheck into the patties· joint account and insnucted that [husband] shall not
make any wnhdrawals or transactions from the account absent any agreement by the parties
Two weeks later on November I. 2010. husband filed a Chapter 13 bankruptcy pennon. which
WI fc did not JO in S
The U S Bankruptcy Court disnussed husband s pennon because it had no merit
Husband. the, carter. filed <1 second Chapter 13 bankruptcy pennon on December 15, 2010 that
wt fc did not jom The pt occedmg was converted to a Chapter 11 proceeding Again, the U S
Bankruptcy Court dismtssed the petition because It had no merit All divorce proceedings were
3
I'hesc order-, were issued on May 4, 2011, May 26, 2011 July 14, 2011, August 3, 2012, October 25, 2012 March
27, 2014, June 2, 2014 October 3, 2014 August 19 2015 and October 2 7. 2015 The Court notes that there were
also occasions that wife had to file monons to enforce cornphance wuh the prenuptial agreement 1 e to enforce the
life insurance provisions
I
ln addmon the Court issued several orders sanc11011111g husband but delerrcd the unposrnon of attorney fees on
those orders until equitable drstnbuuon
51
lusband s Suggestion of Bankruptcy nonce was filed wtth the Court of Common Pleas on November 22, 2010
2
halted for I our months due to the automauc stays in place pcndmg drsrmssal of husband s
bankruptcy cases Husband explained that filing the bankruptcies was .u the advice of counsel·
but did not elaborate Tim Court believes the bankruptcy pennons were filed m pall. to relieve
husband s financial obligauon that Judge D1Salle had imposed upon 111111
Another reason for the delay in the divorce proceedings concerned a residence located on
Dyers Stone Dnvc 111 Notungham Township Washmgton County When the parties married
husband sold his home and moved into wife's premarital residence located on Arrowhead Lane.
Eighty Pour, Pennsylvania According to the prenuptial agreement however. wife was to sell her
Arrowhead Lane I esidcncc and use those proceeds to purchase a manta I I csidcncc for the parucs
The new home was to be utlcd in hci name only and any apprcciauon in value was to rcmam
wifes separate property Wile conuactcd with Custom Homes followmg the maruagc to
construct the new home on Dyers Stone Dnvc Dunng the construcuon process. the parties
6
noticed that the walls were crackmg and that drywall nails were popping from the drywall
7
These problems led to wile filing two lawsuits Believmg that one of the lawsuus the Codesys
6
I he home was already bricked ,ll this Juncture, some floors had been tiled and dry wall had been put on the studs
Plaster had not yet been smcai cd to cover nail heads and no cabmetry or appliances had been installed As w: fe
testified, the home was about two-thirds complete when the builder was fired The. parties supulaied th,n the cost to
stabilize the subsidence and to make the necessai y repairs to the home would be between $425 000 and $475,000
Further the co« to then complete the house would be between $300,000 and $350 000 Based upon same, the total
esumated cost of complete Icmcdiauon rs between $725,000 and $825,000 fherefore, this 'leaves Dyer, Stone wuh
<1 fair market value as ts of between SI 00,000 <111d $200,000, without considering the cxpcndnure of $104,904 55
in counsel fees thus f.ir See Snpulauon, Jomt Evlubit I, ~ 22
1
Imua lly husband and wift wu L sued by tlH.11 builder, Custom Hornes, Inc in /\ llegheny County for wrongful
termmauon (husband tcsntlcd th,ll wile decided that the buildc: should be filed, wife testified that Um w<1, <1 joint
decision) J\t w1d111g to w1 fe, she w.i~ served with process on July 3 l, 2009 After an a: bmauon hcai mg, .i Judgment
in the amount of $64,032 21 was entered <1g,11n,t husband and wife at Docket # GD- J 0-21463 Husband tcsuficd
dunng the divorce procccdmgv th,ll he. did not parucrpatc m the Custom Homes lnig,111011 strategy lie cl.urned that
he was a named plarntiff'becauve hi~ name was on the deed to the p1 operty
On May 1, 20 I 0, wue filed ,, compl.unt c1g,1111~t Codesys 111 Allegheny County with res pcct to the Dyers Stone
Dn ve property Codesys was the company lured to per form 'inspections on the Pi oputy durmg the course of the
project Wife alleged that Codesys 'f,uled to review the Property and permitted construction to move forward
despne a defective foundauon ' 51:e Jane Young v Codesis GD-12-5436 (Complamt, iii! 20, 21) Alter many
continuances the Court of Common Pleas has set the tnnl for the fii st week of September 20 t 6 Wrfc has also sued
her counsel who 1 epresentcd hct 111 the case that she de fended against Custom I lame, See Jane Young v John Lippi
GD-12-19194
3
lawsuit should be litigated bcfoi c the di vorcc tual. wr le Ji led requests to continue the scheduling
of the inal foui separate umes R Eventually, this Court would not grant (my further continuances
In addnion wife caused some delay m the divoicc piocccdings for f .ulmg to comply with
9
husband s discovery requests The Court sanctioned wile three limes
Most of the divorce proceeding focused on the p,11 tics prenuptial agreement specifically
paragraph 3(c) As aforementioned Judge Di'Salle held (l hcanng on September 14 2010
regard mg wife s claim for support On October 18. 20 I 0, he concluded that this paragraph of the
prenuptial agreement imposed a duty upon husband to deposit I 00% of his mcomc into the
parties· joint account On May 23. 2011. Judge D1S..illc modified that order and directed
husband to deposit 50% of his income rn to the Joint account After the case was transferred to
the undersigned m January 2012 husband filed an Omnibus Motion on January 4, 2013 to
reconsider Iudge Di Salle s decisions on this matter On Feb, uaiy I 2013. the undersigned.issued
an order and opiruon grant mg husband -; 1 cqucst A supplemental opmion was issued on
September 3 2013 when wife filed a request for rcconsidcrauon Both opmions arc incorporated
herem as if specifically set forth
A second issue concerning paragraph 3(c) of the prenuptial agreement concentrated on
the Dyers Stone Drive property A substantial poiuon of the divorce tnal was devoted to this
matter Paragraph 3(c) of the prenuptial agreement states
It rs hereby acknowledged that as of the date of this Agreement, lane is the owner
of her personal residence located at 253 Arrowhead Lane, Erghtlsie] Four, PA
Said residence is fully pm d. enc um bet cd by no mot tgagc debt havmg an
approx nnate value on the date of tlns Ag: cement o ! $400 000 00 Both Bruce and
Jane acknowledge that this residence is the non-murnal property ol lane and 111
this regard. Bruce specifically acknowledges that he waives any ,111d all nght, title
and interest he may have by v11 tue ol his m,11 nage to J anc 111 her personal
residence, or the proceeds there ft om, however in vested or titled The parties
I
The Court also granted wt fe s Icquest to postpone the ll ial on October 27, 2015 due to med1(.,1l problems
~ 1 hese sanctions were on December 30, 2014, Apnl 23 2015 and October 27, 20 l S
4
acknowledge that following the contemplated man rage, Jane will sell her personal
1 esidcnce and uuhzc a portion of the proceeds therefrom to acquire a new manta!
residence for the parties The amount of the proceeds that Jane will mvest m the
new marital residence along with all equity and appreciation in the new manta!
residence shall rcmam Jane s non-mai ital property 1 he new mantal residence
shall be titled in Jane's name, but shall be subject to the terms and condiuons set
forth in this Agreement The parties shall cooperate to obtam mortgage
documents. if req uircd If t cqun cd by the lend mg mstitutron the property shall be
titled m joint names, as tenants by the entireties. but shall remam subject to the
terms and <-0nd111011 set foi th in this Agreement
Wife did not have sufficient funds to build the Dyers Stone Dnve home, so she applied
for a mortgage with Washington Financial Wife was unable to qualify for a mortgage on her
own-Washmgton Financial obligated husband to co-sign the mortgage and promissory note and
10
required that Ins name be on the deed Ihe parties do not dispute that the Dyers Stone Dnve
residence is wife's separate property and that any increase 111 value is to be hers as well What is
disputed is whether husband is 1 esponsiblc for any portion of the mortgage related thereto Both
patties acknowledged on the record that the above paragraph m the prenuptial agreement is silent
on the matter
Husband accepts that he has a contractual habihty with the bank, but contends that he has
no such habihty within the context of the prenuptial agreement Husband argues that he was
'required .. under the terms of the prenuptial agreement lo co-sign the mortgage and note so that
wife would qualify I'ui ther, his name appears on the deed only because the bank required it, the
prenuptial agreement recognizes this fact as immatcnal to any clann husband may have to the
property Tim. husband contends. is evidence of the parties mtcnt that the debt also be wife's
rcsponsibrhty Moreover, husband signed a separate waiver of spousal intcicst acknowledging
that his signature on the deed of Dyers Stone Dnve had no effect upon the parties' prenuptial
agreement that the property was to be wife's non-ma11tal property See Lxhibrt 8
10
Wife s Arrowhead I ane I esideuce secut ed the note l he parucs bm rowed $623,200
5
Conversely. wife testified dunng the divorce trial that husband always held himself out as
a person liable on the note Wife elm med husband took tntei est in the design and buildrng of the
home and that he often communicated wuh the builder about the progress or lack thereof In
addinon. wile testified that husband selected the attorney to defend them in the lawsuit filed by
II
the builder, Custom Hornes, Inc. for wrongful tcumnauon Most rmportantly wife argues that
because paragraph 3(e) of the prenuptial agreement is silent on the matter, the Court must
adjudicate the issue based upon the divorce code, which would make the debt a manta!
obhgation since it was incurred during the man rage
The Court finds th.n the mortgage on the Dyers Stone Drive property is wife 's separate
debt Tlns finding is based upon the language of the prenuptial agreement Itself According to
paragraph 6, · [ejvcept as otherwise expressly provided herein neither pally. nor Im or her
property shall be held liable for or subject to the debts of or the claims against the other party,
whether such debts or claims be acquu cd p1101 to 01 din mg the man rage of the pa1 lies '' See Joint
Exlubit 1. Amended Prenuptial Agreement The patties acknowledged on the iccoid, and wife 111
her pi c-tual statement, that parag1 aph 3( c) ol the pi cnuptial agreement rs silent as to the
apportionment of the liabrlrty between the parties but that Dyers Stone D11ve is wife's separate
property The Court therefore. must conclude that wile J!. responsible for the associated debt. to
find otherwise would render paragraph 6 meaningless And as previously noted. husband only
signed the mortgage note because wt fc was unable to qualify on her own Pursuant to the terms
ot the prenuptial agreement, husband was required to cooperate to obtam mortgage documents
11
See supra note 7 On May 5 2011, the builder filed an acuon m Washington County, Pennsylvama (CV-2011·
3052) to register and enforce the Judgment I'hc [udgmen! rcmams unsausfied
6
Id at ii 3(c) For the same reason the Court finds that the $64 032 21 Judgment m connection
with the Dyers Stone Dnvc residence shall also be wife s habrhty alone 12
The only asset to be divided by the Court rs husbands Individual Retirement Account
(" IRA") Accoidmg to the prenuptial agreement. [1]n the event of divorce, the increase m value
of the Plan over its value as of the date of the marriage shall be deemed to be marital property to
which each party is cnutlcd to a fifty (50 0%) percent share · See Jomt Exhibn 1 Amended
Prenuptial Agreement. iJ 1 I he parties however disagree on the increased value F irst, husband
claims that the increase in value should only be until the date of separation since it represents the
lesser increase 111 value of his separate asset 23 Pa CS A ~ 350 I (a 1) Second and
alternauvcly, he argues that the date of divorce value should not be considered because wife
caused many delays in schcdulmg the ti ial In contrast wife argues that the IRA must be valued
on the date of divorce because the prenuptial agreement states · m the event of a divorce· and
12
Du1 mg the divorce trial wtlc introduced evhrbus of loans she has taken from her mother, K1K1 Doumas
( mother ) See Evlubits M N Wrte testified that these loans were for the burldmg of the Dyers Stone Drive home
wife s post-sepa: anon support, and wife s counsel fees incurred for the five court cases mvolvmg Dyers Stone Drive
consu ucuon issues I'he first set of Joans was issued between March 3 0, 2008 and December S 2008 (December 5
2008 note) for the purpose of purchasmg the lot, closmg costs the dcposu for Custom I lames, and extras' beyond
builder allowaru.. cs See Evhibu K, L No loans were issued m 2009 but addrnonal loans were issued m 20 IO
through2016 Id TnalArdc 'LoantoJnneYoung3-I0-08through8-2J-J3 TheseloanstotalSl,138,75754 The
fhst set of loans ($214 330 86), however, was not recorded
Unable to collect its Judgment against husband and wt fe Custom Homes sued wife and mother tn the
Washington County Court of Common Pleas at CV-20 l l-3052 Custom Homes alleged that the above recorded
Joans which were secured by wife's real property, were fraudulent uansacnons made solely to defraud a creditor
See Custom l lomes v Jane Young and K1K1 Dou111C1J, CV-2012-2460 Ihe Court (President Judge Katherrne 8
Emery) ruled that Custom I Ionics proved d prrma tacie case that fraudulent transfers took place and that
commumc auons between the actoi s mvolved <11 e therefore not privileged Wife filed an mterlocutory appeal to the
Supenor Court, which was quashed
Mother tcvuficd that she expected husband to repay the. loans issued from March 30, 2008 through December 5
2008 l Iowcvci, husband did not enter into thcvc written loans, only wife appeared thereon See Lxhrbu M
Assuming the December 5, 2008 note was It uly issued on that date this is evidence that wife expected and
understood th<1t debt associated wuh Dyers Stone Drive was not rnantal debt This supports the Court's conclusion
On the other hand, the note is not recorded r!11S rs evidence that the note was issued subsranually after December S
2008, i e , c1ft(.1 husband and wife were sued by Custom Homes, to demonstrate a consistent pattern of lending from
the. outset and to l<..g1l11111.lc the recorded loans isvucd on and after November 17, 20 IO Under either scenario. wife s
credibility rs sci iously impeached when claunmg that the mortgage. ts a JO mt debt and that the $I, 138,757 54 rs
compused of lonns Certainly, 11 wife recovers in her cases against Codcsys and Lippi, she may repay mother for
lruganon C.'1.pcn~<.., But, the Cot11 l docs not believe that wife will repay mother if the lmganon rs unsuccessful nor
will there. be a 1 cpayrnent for lrvmg expenses, home c xtras, the covt of the lot 01 ciovmg costs
7
docs not suggest any other time period 111 relation to this asset Specifically. wife stresses that the
prenuptial agreement docs not use the words · in the event of ,1 separation · Id Further. wife
tcsn lied that the prenuptial agreement was drafted to protect her and thus the date of dr vorce
value should be used
The Court concludes that the prenuptial agreement only mentions when husband's asset
is to be drvidcd It is to be divided at the time of dr vor ce mstead of separation The agreement
does not discuss how the asset rs to be valued for dist: I but ion Therefor c. the intent of the parties
must be cxpio: cd because "the car dinal rule in interpretatton of contracts rs to ascertain mtcnnon
ol parties and give effect to that mtcntion if rt can be done consistently with legal pnnctples
Sa anton Ilouvtng Authoruy v Cuyo/Sc,anton.284A2d 148 151 (Pa Cmmw Ct 1971)
rhc Court finds that the agreement was drafted to protect both panics, not JU5.t wife
Although many or the terms of the agreement favor wife (1 e the cquny m Dyers Stone Drive rs
<1ll wile 5,, and only wife may file for support APL. and alimony). there arc terms protectmg
husband s mtcicsts as well F01 instance, the equity m his premarital residence was not required
13
to be used towai d the purchase of the parues new home That the prenuptial agreement
protects both parties docs not however. reflect upon the specific rssuc of how to value the
increase in husband s IRA Neither pally presented relevant testimony regarding their intentions
on this subject Under these circumstances the apphcable statutes and case law must dcterrmne
the 'mcrcasc m value of the Plan· subject to equitable drstnbuuon See Rullo v Rullo, 18 Pa D
& C 4th 636, 639 (1993) (where the marnagc settlement agreement 1'> silent on the issue of
payment or unrcnnbui scd medical expenses the issue is open to consideration by the court
1~
• ['] [he per,011.11 residence oJ [husband] is to be liquidated shortly lnllowmg the.. d,111. of the m,1111,,ge and the net
proceeds therefore, approvnnatcly $50,000 00, shall remam the separate non-marual property ol [husband],
regardless of choice of mvcstment or locatron of aswt ' 5'ee Amended Prenupual Agreement, Joint i:,h1b1t l, p 7
8
pursuant to the Support Code) Accoidmgly, the Court will use the date of separation, not the
date of divorce. to dctcrnunc the increase in value of husband's IRA for equitable distnbuuon
The pt cnupual ag1 cement states that the account val uc ,l!:i of an attached statement dated
October 26. 2006 was "$345.000 00 vested balance $320 000 00 .. See Amended Prenupual
Agreement Iomt Evhibu I (Lvhibu B therein) Wife tcsnficd that she did not see Evlnbit ·B
before s1gnmg the agreement Exlubrt · B' was not dtl,u.. hcd to the prenuptial agreement and
neither party introduced it t1<; evidence at the tnal Wife introduced an exhibit from husband s
IRA plan that provided $304.533 42 of vested value " of' October I, 2006 See Exhibit C
Effecuvcly, wife would like the Colli! to use $304.533 42 msicad of $320 000 00 as the date of
marriage value
Generally. the patties arc bound by then agreements absent fraud. rmsreprescntauon or
duress They arc bound 'wnhout regard to whether the tcuns were read and fully understood and
irrespective of whether the agreements embodied reasonable or good bargains .. Sabad v
Fessenden. 825 A 2d 682, 688 (Pu Super Ct 2003) (quoung Simeone v Simeone. 581 A 2d 162,
165 (Pa 1990)) The Court dcchncs to iewi ue the panics' agreement because it docs not find any
nusrcpicsentauon Far be 1t Iot the Court to conclude that an investment asset could not increase
m value from $304 533 42 to $320 000 00 111 almost one month 1~ The following calculauon for
the division of husband s IRA I!) being employed
$355 338 401(k) value as of 4/1/10.15 less
(_$320.000) Prcmarual value as of the date ol man rage
$35 338 rota! met case during marnagc
Wife s share = 50% of $35.338 = SI 7,669
1~
In 2006 the Dow Jones lndusu Ml A vcragc increased a healthy 16 29% Ii om January I to December 31 The
increase from $304 533 02 to 5320,000 00 Is 4 8%
15
Value of 401 (h.) one day prior to separation, as stipulated by the. partxs See Jo111t Exhibit 1, ~ 28
9
Wife's claim for APL shall be from the mcepuon of the divorce complaint and be
calculated d~ follows
201016 201117 2012'8
Type l/11., baud Wife / lus band Wrfe H111ha11d Wife
Gross Income 132 836 IS 0801') 141 542 15 080 34, 1_8920 15 080
--- -
LocalIncome Ta, ( 1.328) (I~ (I 41 S) (151)
- ~ _(l~I)_
Slate Income Ta, (40782 (j_~ {4 345L (463) _(2592.. _l!01
Sacral Seel~ itr__ ~-- __ (6 621) (~ 19) (6 621)__ (219) __ (523) _Q.!_2)_
Medicare ___ ( 1,926)_ _ J93~L. _(2 05~) (935) __ j 122) _J2lJ)
-
red Income Tax Frlmg
(29,641) 021 (32301)
MS I exemption 0 (3,246) 0
Fotal Net Income------ $89 242 $13,312 $94 808 $13 312 $29,95~ --$13312
- --- ----
Net Income Per Month $7, ...37 $1,109 S7,901 Sl,109 $2,496 $1,109
lb See E,h1b11 6
17
See E,h1b11 5
18
See Evhibu 4
w Despite that Iact that wife claims she has anviety and 1~ depressed and therefore cannot work, rnmunum wages arc
bemg nnputcd to her Ac tnal, wt le·~ testimony Wd\ ai uculate and she testified that she works approvun.nely I 20
hours per week on her lawsurts
20
Ihe SJ4 189 of gross income consists of $8,432 of mcomc and $25, 757 of unemployment compensancn Ihe
local income tax, state income tax, social secui rty, and medicare amounts are derived fl om earned income only 1 he
Court finds that husband based upon hrs testimony, was making reasonable efforts to find employment in hrs chosen
field of evperuse I herefore, he will not be imputed adduronal mcome dunng the years of 2012 and 2013 I lusband
lost his Job <1! Dentsply through no fault of his own I le was able to find snmlar ernplovrnent m September 20 l 3 with
l'P Orthodontics J le was fired from TP Orthodonucs on Aprrl 17, 2015
11
Wife would ttermze her deductions with $28,6 I 5 111 mortgage interest and at least S6 769 (Dyers Stone Drive
property) m real estate taxes See C,h1b11 6 Further, wife can deduct her interest on het Arrowhead Lane property
10
201322 20142' 2015
Ivne Husband IV!fe I Im hand Wife I lusband Wife
Gross Income
Local Income Fax
-·--
----
·--
41 06124
(3.2~
15.080 --- 87,722
( 151) -- - (877)
15 080
( I 2_!)
87,76425 - -- 15,080
(877)
-- ( 151)
State Income Tav -- (!,``) ( 463) -- (2,693) (4j3) (2,693) (463)
--·
Social Sccunty (573) (219) _ _(5 439) (212) (5,439) (219)
Medicare
-- (2 449) (935) ( 1,272) . (9_35)
-- ( 1,272) (935)
reel Income !'ax r1lmg
MS 1 cxcrnptron (4 212) 0 ( 15 249) 0 (15,149) 0
Total Net Income - - ·- $32 220 $13,312 $62, 192 $13,312_ $62,331 Ji !3,312
--
Net Income Pei Month $2,685 $1,109 $5,183 $1,109 $5,195 Sl,109
Husband's APL Obl1L?.1tt10n
Effective Date Pe, Month Pe, Yea,
Max 14,_~010 2 531
-- - -- -- - -- 19 305
Jdnuar)_'. I 2011 2 717 32 604
- -
t ,_ 2012
-- ---- --
----555 6 660
- Janua0~
- --- ---
2013 630
- -- Januai ~-1-
---- --- -- 7 560
J anuar)'.__J 2014 1 629
- --- -- -- 19 548
-- Januai}'._I, 2015 I 634 19 608
January I through March 201626 I 634 4 902
TOTAL $11 o, 187
22
See E,h1b1t 3
21
See Exlubu 2
.~ [ he $41,061 of gross mcornc consivts of $39,495 of income and $1 5 GG of unemployment compenvauon l he
local uicomc tc1x state mcomc tax, social secui ny, and Medicare amounts are derived from earned income only
25
Shortly before turning 62, husband lost his Job wtth TP Orthodonncs Husband wav filed, but Ile. has filed a clann
for wt ongtul tcrmmauon When he turned 62, husband stopped look mg f01 work 111 Im chosen profession and
decided to retire I lusband ts being imputed this F P Orthodontic income because he was tcrmmated for cause and
because he acknowledged th,n he would most likely go bad. to work LI a Job were ottered to hun
2('
Inc A P L will be charged tln ough March 2016 Husband argued that this obi rg.mon should be termmated after
three and one-halt years since the marriage lasted onlv th1 ee and one-half ycar-, P,1 RC P 1910 l 6· l(C)(2)
Support orders, however are effective from the datt. of filmg P<1 RC P 1910 16-7(,1) Husband has not filed a
pennon to mod.ry/tcrrnmate ·r herefore the Court ts unable to consider has request
11
In .idd1t1011 to the above A P L, husband shall pay his proper uonatc share of wife s
medical msuiunc. c premiums and Im pioporuonatc share of wtfe's unrcunbursed medical
expenses that exceed $250 annually
Medrcul Invurance Premiums
Amount Wife Husband's Amount Husband to
Date
Pmd Shure(%) Reuuburve
July - D~5,,em_be1 201127
--- - 3,532
- - 88%
- -· - 3~ I 08
2012 5,799 69% ___ 4,_001
- -
201328 3,718 71% ~640
-- --- -- - - ~
2014 --- 3,837 ·--- 82% _3_,lj6
--- -
2015 4,749 82% 3 894
IL111u<11 v • March, 2016 1,295 82% 1 061
TOTAL $17 ,851
Mcchc,ll E'-pcm,c<, 29
Amount Wife Husband's Amount Husband to
Dute
Pmd Share (%) Rcnnburse
2010 269 87%
--- --- -- - ~ -- --- - 17
2011- --- I I 15--
--- 88%
-
-- --- 76 I
2012- --- 611 -- 69% 249
- -----· -- ---
- - -- 201
- --
J I 988 71% --
- --- I 234
2014
--- -- I -320 82%
----l-- - 877 -
2015 3,068 82% 2 311
TOTAL SS,449
The above amounts for APL, medical insurance premiums and medical expenses total
$133.487 The paiucs stipulated that husband has paid $84 056 38 111 support payments directly
to wife Further husband has paid $12 676 12 to PACSES at the Domestic Relations Office as of
March 4 2016 After these credits husband would owe wife $36 754 50
27
In 2011, husband lost hrs job with Dentsply 1 herctorc wife was required to pur chasc medical insurance through
COBRA which she did for 2011 and 2012
28
ln 2013, COBRt\ coverage was no longe: available, so wife purchased her own rnedu.al 111~u1<1ncc plan
'9
- Pursuant to Pennsylvania Rules of Civil Procedure 1910 16-6 (c)(l), husband must pay bis proportionate share of
wifes unrennburscd medical expenses above an a1111u<1l $250 threshold
12
Husband argued that AP L should not be any longer than the years of the marriage See
Pa R C P 1910 16- J ( c )(2) The Coui t ex tended A P L to the date of the Uta! because husband
caused some of the delay m the schcdulmg of the tnal itself (as set forth above. husband filed
bankruptcies that had no mcnt and he was not cooperative 111 the discovery process) and because
he never filed a pennon to modify Further. the Court rs not rmposing A P L 1 f wt le files an
appeal nor rs alunony bemg granted
Wife filed a clarrn lo1 alimony but did not present testimony 01 argument m support of
the claim In addiuon wife did not mention the request for altmony 111 her prc-tnal statement
Even if wif c had testified as to alimony. thrs Court rs not mclmed to gr,1111 alnnony pursuant to 23
Pa CS A ~ 370l(b) The Court ordered husband to pay five years of APL, a year and one-half
longer than the length of the marriage Wife also owns the home m which she lives (the
Arrowhead Lane property) rt is mortgage free and had a value of $400.000 ten years ago when
the parties entered mto then prenuptial agreement "O
~ Certainly. the carrung capacities of the
parties favors husband and the Court recognizes that wife has a substanual mortgage on the
11
Dyers Stone D11vc property with Washmgton l-mancial, which costs $2.673 80 monthly And.
the relative needs of the parties weigh in wifes favor since she 1!. hugating multiple cases to
resolve the issues surrounding the Dyers Stone Dnve property which were unforeseen at the
32
lime the pm ucs entered into their ag1 cement However, this matter conc..crns a non-manta! debt
according to the prenuptial agreement and parties arc flee to enter bad bai gams Considerauon of
the reasonableness of their bargain is rnappropnatc See Simeone v Simeone. 581 A 2d 162, 165
(Pa 1990) 'I Ejvcryone who enters <1 long-term agreement knows that cucumstanccs can change
10
Wtlc testified that her Arrowhead Lane home 1~ 4 000 square feet on the mccvt block m the neighborhood
Husband docs not own a home, he rents a two-bedroom apartment for $1,700 per month
JI l he parues vnpulated that the balance of the mortgage rs $506 398 40 as of January 25, 2016 See Jornt Evhibrt I
12
Wife resu fjied that she has expended SI 04,904 55 in counsel fees to pursue claims against Codesys and John Lippi
to date See C,h1b1t P
13
during its term, so that what 1111t1c1lly appeared desirable might prove to be an unfavorable
bargain Such are the n sks that contracting pa: ties rouuncly assume Id at 166
As for the parties' lifestyle they lived a comfortable upper middle class Ide This Court
33
concludes that both parties also lived a comfortable lifestyle before they marned Wife afforded
and maintamcd a $400.000 home purchased m 2001 (which was mortgage free in October 2006
when the parties entered into their p1 cnupual agi cement) on an income that ncvci reached
$10.000 annually The Court behoves wile was able to do so because she was a joint holder with
her mother on cl substantial checking ,\c<..0L11ll with Cinzcns Bank
Wife testified on dn cct c;,...c1111111.1t10n that hei mother loaned her money from the joint
Citizens Bank account for "extras' Io: the construction ot the Dyers Stone Drive home, as well
as for post-separation hving expenses and counsel fees Wife claimed she did not know the
account cvistcd until 2008 when the Dye, s Stone Drive home construction started On cross-
cvammauon, however wife was presented with Evhibn ·A from the prenuptial agreement In
that agreement, wife drscloscd that said account· exceeds $200 000 ·· See Jomt Exhibit I (Evhibu
· A therein) The Court concludes that not only did wife know about the account at least two
years earhci. she did not disclose an approximate value l·or these reasons, this Court did not find
wile s testimony credible and behoves she has had access to this substantial checking account to
34
support her lifestyle since before mcctmg husband Accordingly the Court denies wile's clam,
for ahmony
11
Wife was previously married but d ivorccd 111 1993
J~ •
See also ~11p1 a note 12 (th rs Court docs not believe wife wrl I repay lte1 mother) furthermore, the prenupual
agreement imposed a duty upon wife to sell he, Auowhead Lane residence and 10 use a portion of the proceeds
therefrom to fund the purchase of a new residence Wife, however did not sell her Arrowhead Lane rcvidcnce Ihc
Court finds that this fact lends support to the concluvion that wife had ready access to the Cmzens Bank account as
well as other accounts of mother
14
The next issue to tackle concerns a life insurance policy I'hc prenuptial agreement
includes a clause regarding the purchase of life insurance Spcciflcally, the agreement states the
following
[T]hc parties contemplate acqumng. from jornt funds insurance on the life of
[husband] for which I wife] shall be the owner and primary beneficiary Upon the
termmauon of the contemplated mau mge for any I eason other than upon the death
of [husband] ownership of this policy shall remain with [wife] but [husband]
shall be excused from any future obhgauon to pay premiums
See Exhibit 1 Amended Pt enuptral Agreement. il 5( c)
The parties purchased ,1 term h tc insurance policy in September 2007 ft om Amcucan
General Life insurance Company The policy indicates husband as the owner and that the death
benefit is $500.000 Husband, however, did not transfer ownership thereof to wife as required by
the prenupual agreement l'o ensure that the policy would be mamtamcd alter scparauon, wife
expended $157 94 per month fl om Ap1 ti 20 IO through December 2015 for a total of $10.900 83
See Exhibit Q. Trial Aide, '! ifc lnsurancc Prermums Irorn DOS through 12-31-15
Husband contends that he should not be responsible for all or these premium payments
since wife caused delay of the trial Wife did make such requests but the Court found reason to
grant them In addition husband was culpable for delaying the tnal due to filing two mcntlcss
bankruptcies and not complymg with many discovery requests Therefore. the obhgauon to repay
life insurance policy prcrnunns 1!-i imposed on husband With respect to the amount to be repaid
by husband. paragraph 5(c) of' the prcnupual agreement states that payment shJII come from
· joint funds " The agreement also states that alter the parties many they both 'shall contnbutc
their entuc net income to .i Joint account 01 accounts. to be utilized for household and hvmg
expenses of the parucs dunng the term of the marriage The parties acknowledge that their
contnbuuons to tlus account 01 accounts shal I not be equal · See Ioint Evhi bit I. Amended
15
Prenuptial Agreement if3 (c) Therefore, 1l could be argued that the premium payments should be
apportioned based upon the parties mcomc or earmng capacttrcs According 10 ,l letter dated
May 24 20 IO from husband's attorney to wile s attorney. however husband acknowledges that
he will mamtam the Ide insurance pohcy See Pcuuon to Enforce Insurance Provision filed
March 27. 2014 Therefore. husband will be charged the cnurc sum of the premiums which
equals $157 94 per month See Evhrbit Q Wife paid $10,900 83 through 2015 Id The Court will
add an addtuonal four months for the year 2016 or $631 76 for a total of $11 532 59
Wife argued that the Court should impose an award cl equitable rcnnbursement
Equitable rcunburscmcnt I'> a remedy where rt rs necessary to produce an cquuablc result when
the manta] estate rs msutflcrcnt to achieve (au ncss Wang 1· Feng 888 A 2d 882 888 (Pa Super
Ct 2005) Specifically u may be awarded when one spouses contribuuons to the "education
traming or increased carnmg capacity of the other spouse exceeds the bare mnumum legally
obligated support as reflected m the [suppou] gindclincs " Bold v Bold. 574 A 2d 552, 556 (Pa
1990) The Courts have alvo pcmuttcd equitable rcnnbuiscmcm m the form of alimony where
fairness requires the repayment of a ccrtarn mat Hal debt Zullo v Zullo. 613 A 2d 544, 546 (Pa
1992)
rim Court docs not find the same circumstances as those found m Wang. Bold, and
Zullo The parucs entered into a prenuptial agreement that delineates the non-manta] assets, the
marual assets, and the drstubuuon regarding same Addiuonally there was no evidence that wife
contributed to husband s education or increased cc11111ng power durrng the man iage Finally, this
Court has concluded that the mortgage debt on the Dyers Stone D11ve property and the
$64,032 2 I Judgment related thereto arc solely wife's debts, husband will not be repaying wife
on a rn.n ital debt Therefore, wife's request t'> denied
16
The final issue for the Colli I to address is anoi ncy fees Counsel Ices arc awarded to
promote fair adnumstration of'jusucc by cnablmg the dependent spouse to maintain 01 defend the
divorce acuon without being placed c11 a financial disadvantage, the paiues must be 'on par with
each other " Busse \' Bus r;;e, 921 A 2d 1248, 1258 (Pa Super Ct 2007) The decisron to make an
award rs on a case-by-case basis after Icvi cwmg relevant factors These factors me. I ude the
payor s ability to pay. the financial resources or the requesting party the size or the estate. the
value of the services rendered the proper ty received m equitable d1st11but1011 and whether the
conduct of one of the parucs protracted the hugation and increased the expenses of the
proceeding Gates \' Gares, 933 A 2d I 02, I 09 (Pd Super Ct 2007), Jacobs v Jacobs. 884 A 2d
30 I 307 (Pa Super Ct 2005), Adelstetn v Ade/Hem, 553 A 2d 436, 437 (Pa Super Ct 1989)
A<, of the date of trial. the Court had icquucd husband to pay $30,981 89 m counsel fees
due to lus obdurate and, exauous behavior See loint Exlubit I. Sttpulauon, if 31 Wife requests
that husband reimburse her for all ol he, counsel tees m this divorce proceeding which total
$183 853 15. plus an additional $3 440 00 111 expert Ices as well as those she incurred in
def ending her claims m husband s two bankruptcy proceedings and the two Custom Home
35
cases With respect to the bankruptcies and Custom Home cases this Court is unaware of' case
law that pcmuts a court to order a party m ,1 divorce acuon to pay for counsel fees in ., separate
p1 occcdmg 1 ndeed wi fe did not provide any supper ting case law It is ti uc, however, that there
arc several outstanding orders he1e111 (June 22 2011 July 14 2011. October 3 2014) staung that
wi fe · s rcq ucst for addiuonal counsel Ices due to husband s contemptuous behavior would be
addressed at the equitable disru bull on trial With this 1t1 mmd the Court wrll order ctn addiuonal
$3 000
35
These fees do not include those expended for tbc actual equitable distnbuuon tnal
17
l'hcrc is no reason to order that husband satisfy wile s enormous counsel fees Save the
three specific mstances addressed above. this Court has already addressed reunbursmg wife
$30 981 89 lot counsel fees What 1~ mot c. the only marital asset to value according to the
prenuptial agreement is husband s IRA. whic. h docs not require an expe: t The prenuptial
agreement addressed manta! and non-muutal piopcuy and how same was to be divided The
only issues th,u requued hugation were husband [:. support oblrgation to wife and whether the
mortgage on the Dyers Stone property was to be considered a manta! debt Certainly these
issues needed to be fully explored Judge D1Sallc held a hearing on September 24. 2010
regarding the intcrprctatron of the support oblrgauon clauses 111 the prenupual agreement albeit
36
the under signed vacated his findings But whether the mortgage is a manta I debt should not
take moidmatc and evtensive research and prcpaiauon foi trial
The Court finds that wife's counsel lees me gios-Iy out of proportion to the relative value
and complcvrty of the case Moreover, and imponuntly, wire has a substantial source ol income
37
from which she supports herself For these reasons, the Court denies addiuonal fees
In conclusion, the Court finds tl1dt husband owes wile the following
Tvpc Amount
IRA 17 669 00
Supp~11-Payments '8
- - ---
36.754 50
- ----
Life lnsuiance Prenuum Rc1111bw scmcnt
-- -
l 1,532 59
--
--Additional Counsel rev,
---- - - -
3 000 00
TOTAL $68,956 09
it>Judge D1S,tllc also enter tamed several motions regarding tlus ISMIC before the September 20 IO hearing In
addrtion this mauer was re-litigated and argued before the undeisigncd
17
Wire tesuflcd on cross-e xarrnnanon that she "uves' her mother's" PNC checking account ending m '3304 to
support her on ,1 daily basis There was no tesumony of how tlns account rs utled, but wife has free access to tt The
Court docs not find her tesnmony credible that hei wuhdrawals are !O be repaid to mother See supra note 12
38
Support payments consist of A P L , medical msuiance prenuum I eunbursernents ,md medical expense
rermbursementv
18
. '
Husband shall make said payment withm thirty day') of' this 01dc1 Wife shall hold husband
harmless regarding the mortgage on Dyers Stone Drive and the Custom Home Judgments at GD~
I 0-21463 m the Allegheny County Court of Common Pleas and CV-2011-3052 m the
Washington County Com t of Common Pleas Finally, husband shall sign the appropriate
documents transferring ownership of the Ameucan General Life Insurance Company pohey to
wife within 30 days ol this order
BY THC COURT
Date
ArrEST:
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