Schultz, R. v. Schultz, S.

J-A05032-18
2018 Pa. Super. 83
RONALD SCHULTZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SUZETTE SCHULTZ :
:
Appellant : No. 1055 EDA 2017
Appeal from the Decree March 8, 2017
In the Court of Common Pleas of Delaware County Civil Division at No(s):
No. 2010-06754
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED APRIL 10, 2018
Suzette Schultz (“Wife”) appeals from the decree in divorce entered on
March 8, 2017, in the Court of Common Pleas of Delaware County, related to
the dissolution of her marriage to Ronald Schultz (“Husband”). The trial court
entered the final decree following an order resolving the parties’ economic
claims, as well as an order denying Wife’s outstanding petition for contempt
related to the trial court’s discovery order. After a careful, we affirm.
The relevant facts and procedural history are as follows: The parties
were married on September 22, 1984, and they separated on December 2,
2009. Trial Court Order, filed 1/26/17, at 1. The parties have one adult
emancipated daughter, and both parties are college educated. Id. Husband,
who is sixty-one years old, is an executive at Cardinal Health, and Wife, who
is fifty-six years old, is a project manager at Astra Zeneca. Id.
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* Former Justice specially assigned to the Superior Court.
J-A05032-18
On December 8, 2009, Husband filed a complaint in divorce in the
Chester County Court of Common Pleas averring the parties’ marriage was
irretrievably broken and requesting, inter alia, equitable distribution of the
marital estate. On January 19, 2010, Wife filed preliminary objections seeking
to transfer the matter to Delaware County, which is where the marital home
was located and the parties resided. By order entered on April 1, 2010, the
trial court granted Wife’s preliminary objections and transferred the matter to
the Delaware County Court of Common Pleas.
Wife filed an affidavit indicating she was not opposed to the entry of a
divorce decree, but that she sought economic relief, including equitable
distribution of the marital estate and alimony. Thereafter, the trial court held
numerous hearings regarding the economic claims.
At the conclusion of all testimony and evidence, the trial court entered
an order on January 26, 2017, disposing of the equitable distribution claims
and denying Wife’s alimony claim.1 Specifically, the trial court determined
Husband’s net monthly income was $15,941.00, and Wife’s net monthly
income was $10,409.00. Trial Court Order, filed 1/26/17, at 1. The trial court
noted Wife had been receiving $2,213.00 in spousal support since 2012. See
id. Further, after setting forth in detail the items contained in the marital
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1 Wife filed an appeal from the equitable distribution order; however, she
subsequently withdrew the appeal.
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estate, as well as the valuation for each item, the trial court directed that Wife
is to receive 55% of the marital estate, while Husband is to receive 45% of
the marital estate. See id. at 1-5. In furtherance of this division, the trial
court directed the following:
1. Wife is to receive the real estate at 1 Pickering Trail, Thornton,
PA.
2. Husband is to receive the real estate located in Michigan.
3. All four (4) defined benefit pension plans are to be divided by
QUADRO.
4. Wife is to receive 55% and Husband is to receive 45% of the
Stock Certificates held in Wells Fargo[.]
5. Husband is to retain the following automobiles:
1. 2007 Volvo
2. 1984 Mercedes
3. 2006 Ford Escape
6. Wife is to retain the 2004 BMW.
7. Each party is to retain the artwork currently in their possession.
Wife owes Husband $4,641.00.
8. Wife is to retain the collectibles located in the marital home.
9. Each party is to keep the household furnishings currently in
their possession.
10. Cash assets are to be divided based on the values as of
December 31, 2016[,] or as close thereto as possible.
11. Retirement accounts (other than defined benefit plans) are
to be divided based on the values as of December 31, 2016[,]
or as close thereto as possible.
Id. at 5. The trial court directed each party to pay their own counsel fees and
directed no alimony for either party. Id. at 5-6.
The trial court set forth the following explanation for its distribution:
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Husband’s contribution during the marriage by way of salary
and stock options was at time far greater than Wife’s contribution.
However[,] testimony also showed that Husband expended assets
during the marriage which may not have been expended for the
purpose of benefitting the parties but for the benefit of other
persons.
It is not the role of the Court to recoup expenditures made
during the marriage by one party that the other party does not
know about or does not agree with, or to make a party whole
again. However, it is the duty of the Court to equitably divide the
marital assets.
In determining the percentage division of marital assets
awarded to each party, the Court reviewed all the factors as set
forth in the Statute. The Court did give considerable consideration
to both the contributions of the parties, both monetary and non-
monetary, and the dissipation of assets by the parties.
In addition, the Court is not awarding any division of the
following as marital property. Instead, the Court considered the
following along with other items and testimony when determining
the percentage of the marital assets to award to each party.
1. 310 W. Broad Street
4542 Game Preserve Road
Except for funds deposited into joint account when
property sold
2. Missing artwork-no evidence presented as to what
was missing or its value
3. LEH Preservation book-$100,000.00 investment by
Husband
4. Monies used by Husband during course of marriage
5. Tuition paid for daughter by Wife
6. Expenses for House paid by Wife while residing
there[.]
Id. at 6-7.
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Moreover, as there was an outstanding petition for contempt filed by
Wife regarding a discovery order entered in this case,2 the trial court issued
an order denying Wife’s contempt petition. Wife filed motions for
reconsideration of the trial court’s January 26, 2017, equitable distribution
order, as well as the order relating to the denial of her contempt petition. By
order entered on February 22, 2017, the trial court denied Wife’s motions for
reconsideration. The trial court entered a final divorce decree on March 8,
2017, and Wife filed a notice of appeal on March 23, 2017. By order entered
on March 29, 2017, the trial court directed Wife to file a Pa.R.A.P. 1925(b)
statement, Wife timely complied, and the trial court filed a responsive
Pa.R.A.P. 1925(a) opinion on July 7, 2017.
On appeal, Wife presents the following issues for our review:
1. In fashioning the equitable distribution award, did the trial
court err by failing properly to apply the factors outlined in 23
Pa.C.S.[A.] § 3502 to divide the marital estate in an equitable
manner and to give a reasoned explanation for that division,
as required by 23 Pa.C.S.[A.] § 3506?
2. In its division of marital property, did the trial court err by
failing to give any consideration to Wife’s evidence that
Husband dissipated $4.4M of marital property?
3. Did the trial court erroneously neglect to divide the artwork
acquired during the marriage?
4. Did the trial court err by assigning a value to Wife’s 401(k)
without the benefit of any expert opinion?
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2 Specifically, on February 10, 2014, Wife filed a petition for contempt averring
that Husband had not complied with the trial court’s May 16, 2013, discovery
order.
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5. Did the trial court erroneously hold that a severance payment
made prior to separation was not marital property?
6. Did the trial court make various errors in its valuation of bank
and brokerage accounts and erroneously ignore stipulations as
to the value of these and other items of personality?
7. Did the trial court err when it failed to award alimony to Wife?
8. Did the trial court err when it denied Wife’s claim for counsel
fees?
9. Did the trial court err by failing to find Husband in contempt of
the May 16, 2013[,] Order?
Wife’s Brief at 13-14.
Initially, as Wife’s issues one through six relate to the trial court’s
equitable distribution order, we note the following relevant legal precepts.
A trial court has broad discretion when fashioning an award of
equitable distribution. Our standard of review when assessing the
propriety of an order effectuating the equitable distribution of
marital property is whether the trial court abused its discretion by
a misapplication of the law or failure to follow proper legal
procedure. We do not lightly find an abuse of discretion, which
requires a showing of clear and convincing evidence. This Court
will not find an “abuse of discretion” unless the law has been
overridden or misapplied or the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence in the certified record.
In determining the propriety of an equitable distribution award,
courts must consider the distribution scheme as a whole. We
measure the circumstances of the case against the objective of
effectuating economic justice between the parties and achieving a
just determination of their property rights.
Carney v. Carney, 167 A.3d 127, 131 (Pa.Super. 2017) (internal citations,
quotation marks, and quotation omitted). Moreover, it is within the province
of the trial court to weigh the evidence and decide credibility, and this Court
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will not reverse those determinations as long as they are supported by the
evidence. Sternlicht v. Sternlicht, 822 A.2d 732, 742 (Pa.Super. 2003).
In her first issue, Wife claims that, in fashioning the equitable
distribution award, the trial court erred by failing properly to apply the factors
outlined in 23 Pa.C.S.A. § 3502(a)3 to divide the marital estate in an equitable
____________________________________________
323 Pa.C.S.A. § 3502(a), relating to the equitable division of marital property,
provides the following:
(a) General rule.--Upon the request of either party in an action
for divorce or annulment, the court shall equitably divide,
distribute or assign, in kind or otherwise, the marital property
between the parties without regard to marital misconduct in such
percentages and in such manner as the court deems just after
considering all relevant factors. The court may consider each
marital asset or group of assets independently and apply a
different percentage to each marital asset or group of assets.
Factors which are relevant to the equitable division of marital
property include the following:
(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.
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manner and failing to give a reasoned explanation for its division, as required
by 23 Pa.C.S.A. § 3506.4 Specifically, Wife alleges:
The trial judge provided no explanation for the 55%/45%
division of the marital property. Neither her Order nor her Opinion
demonstrates that she considered or weighed the factors. If she
did, she did not identify the weight and/or significance she gave
to each and how she synthesized the results and arrived at the
split. At the very least, this Court should remand the case and
order that [the trial judge] provide some explanation for her
55%/45% division of the marital property.
Wife’s Brief at 34 (footnote and citation omitted).
In support of her argument, Wife cites to Powell v. Powell, 577 A.2d
576 (Pa.Super. 1990), in which this Court held the trial court must not
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(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.
(11) Whether the party will be serving as the
custodian of any dependent minor children.
23 Pa.C.S.A. § 3502(a). We note that this list is not exhaustive, there is no
simple formula by which to divide marital property, and the list of factors in
Section 3502 serve as a guideline for consideration by the trial court. See
Ressler v. Ressler, 644 A.2d 753 (Pa.Super. 1994).
4 Pertaining to the statement of the reasons for the distribution, the Divorce
Code relevantly provides that “[i]n an order made under this chapter for the
distribution of property, the court shall set forth the percentage of distribution
for each marital asset or group of assets and the reason for the distribution
ordered.” 23 Pa.C.S.A. § 3506.
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presume a 50/50 distribution, but must examine the factors set forth in
Section 3502(a).
In the case sub judice, the trial court specifically stated that “[i]n
determining the percentage division of marital assets awarded to each party,
the Court reviewed all the factors as set forth in the Statute.” Trial Court
Order, filed 1/26/17, at 6. After a careful review, we find no indication the
trial court improperly presumed a 50/50 split; but rather, the trial court
carefully examined the appropriate factors under Section 3502(a), as well as
set forth the reasons for the distribution as directed by Section 3506. See id.
at 1-7. Without additional development of the argument by Wife, we decline
to address the issue further and conclude she is not entitled to relief.
In her second issue, Wife claims that, in fashioning its equitable
distribution order, the trial court erred in failing to give any consideration to
Wife’s evidence that Husband dissipated $4.4M of the marital estate.
Specifically, Wife contends Husband dissipated the marital funds “by giving it
to or using it for the benefit of paramours with whom [he was] involved in
extra-marital affairs.” Wife’s Brief at 37 (citations omitted). In furtherance
of her argument, Wife sets forth various purchases and expenditures allegedly
made by Husband, which she claims were made for the benefit of Husband’s
“presumptive paramour-Evelyn Beckman,” as well as Husband’s “admitted
paramour-Barbara G. Smith,” and she suggests the trial court wholly failed to
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consider these purchases/expenditures in fashioning its equitable distribution
order. Id. at 38-41. We find no merit to Wife’s issue.
In its January 26, 2017, order, the trial court specifically indicated:
Husband expended assets during the marriage which may
not have been expended for the purpose of benefitting the parties
but for the benefit of other persons.
It is not the role of the Court to recoup expenditures made
during the marriage by one party that the other party does not
know about or does not agree with, or to make a party whole
again. However, it is the duty of the Court to equitably divide the
marital assets.
Trial Court Order, filed 1/26/17, at 6. Further, the trial court specifically
indicated that, in dividing the marital assets, it gave “considerable
consideration” to “the dissipation of assets[.]” Id. Moreover, the trial court
indicated that, in determining the percentage of the marital assets to award
to each party, it considered the “[m]onies used by Husband during course of
marriage[.]” Id.
Further, to the extent Wife presented the issue in her Rule 1925(b)
statement,5 the trial court relevantly responded that “[i]n this case, hundreds
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5 The majority of Wife’s allegation that Husband dissipated $4.4M in favor of
his paramours relates to alleged expenditures made by Husband with regard
to Ms. Beckman, who Wife argued is Husband’s “presumptive paramour.”
Wife’s Brief at 38-39. However, in her court-ordered Pa.R.A.P. 1925(b)
statement, Wife presented no specific issue as it relates to Husband’s alleged
dissipation of funds in favor of Ms. Beckman. For instance, in her Pa.R.A.P.
1925(b) statement, Wife alleged the “trial court abused its discretion by failing
to: . . .address the $87,750.00 that Husband removed from marital accounts
and gave to his paramour, Barbara Smith. . .[or] take into account the
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of documents were entered into evidence and days upon days of testimony
presented for consideration by the trial court. . . .All the evidence and
testimony was considered by the trial court when deciding the equitable
distribution order in this matter.” Trial Court Opinion, filed 7/7/17, at 21.
Accordingly, we find Wife is not entitled to relief.
In her third issue, Wife claims the trial court erred in neglecting to divide
the artwork acquired by the parties during the marriage pursuant to the
parties’ stipulated gross values. Wife avers the trial court erred in failing to
set values for the artwork or fashioning an appropriate division thereof. Wife’s
Brief at 48-49. Accordingly, she requests this Court “remand for a distribution
of the artwork.” Id. at 49.
Initially, we note that the issue as phrased by Wife on appeal is different
from her issue as presented in her court-ordered Pa.R.A.P. 1925(b) statement.
Specifically, in her Rule 1925(b) statement, Wife averred the following as it
related to the artwork:
Valuation Errors
Artwork
1. The trial court made an error and/or abused its discretion by:
____________________________________________
furniture that Husband gifted to his paramour and her children. . .[or] take
into account the monies Husband invested in the Leh Book Deal.” Wife’s
Pa.R.A.P. 1925(b) Statement, filed 4/19/17. However, she does not present
a specific issue identifying Ms. Beckman as Husband’s “presumptive
paramour” or Husband’s dissipation of marital funds in furtherance of the
relationship.
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a. holding the artwork that it awarded to Wife was
worth $52,505.00.
b. holding that the artwork awarded to Husband was
worth $440,845.00.
c. using these figures and charging them to each
respective party in reaching its conclusion that it
had generated a 55%/45% split of the marital
estate to Wife/Husband.
Wife’s Pa.R.A.P. 1925(b) Statement, filed 4/19/17 (emphasis in original).
In addressing Wife’s claim as presented in her Rule 1925(b) statement,
the trial court indicated:
[Wife] also complains that the trial court did not
appropriately divide the parties’ artwork. The trial court, however,
divided the artwork in accordance with the parties’ stipulation,
which was placed on [the] record in open court. Specifically, the
parties accepted the appraisals submitted by each expert and a
value was assigned based upon these appraisals although not
included in the order itelf.1 However, for purposes of dividing the
marital estate, the value of Husband’s artwork was $440,845
(N.T., 8/22/16, at 108) and Wife’s appraiser set the value of Wife’s
artwork at $52,505. (N.T., 4/27/15, at 32).
1This was an omission by the trial court not to include the values
of the artwork; however, [Wife] has failed to raise this specific
issue on appeal and has therefore waived this.
Trial Court Opinion, filed 7/7/17, at 7.
Seizing upon the trial court’s acknowledgment in its Rule 1925(a)
opinion that the trial court had omitted from its order the values for the
artwork, Wife now claims, for the first time, that the trial court erred in failing
to set values for the artwork. However, this specific claim is waived. See
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
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raised in accordance with the provisions of this paragraph (b)(4) are
waived.”).
In any event, the record reflects Wife and Husband stipulated at trial
they would each retain the artwork in their possession and Wife would pay
Husband $4,631.00 for an appraisal. This stipulation is reflected in the trial
court’s order in which it specifically listed as a marital asset: “Artwork-Various
paintings held by each party-Stipulation that Wife owes Husband
$4,641.00[.]” Trial Court Order, filed 1/26/17, at 2. Further, the trial court
directed “[e]ach party is to retain the artwork currently in their possession.
Wife owes Husband $4,641.00.” Id. at 5. Thus, we find Wife is not entitled
to relief.
In her fourth issue, Wife claims the trial court erred in assigning a value
to Wife’s 401(k) without the benefit of an expert’s opinion. In this regard,
Wife contends that, after the trial court indicated the court would not accept
Wife’s expert’s report, the trial court erred in denying Wife’s request for
permission to supplement the record with a revised report from her existing
expert or a new expert. See Wife’s Brief at 53. Alternatively, she contends
the trial court should have “hired a court-appointed expert to perform the
appropriate calculations.” Id. at 55. Further, she contends the trial court’s
conclusion that the entirety of her 401(k), valued at $959,376.00, constitutes
marital property is not supported by adequate evidence in the record. See
id.
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Initially, we note that, in her court-ordered Pa.R.A.P. 1925(b)
statement, as it related to her 401(k), Wife presented the following issue:
The trial court incorrectly evaluated Wife’s Astra Zeneca 401(k).
The Court held that the fund was worth $959,376. It erred and
abused its discretion by including post-separation figures in
valuing Wife’s 401(k). It reached said evaluation of the Astra
Zeneca 401(k) without any documentation, evidence or
testimony.
Wife’s Pa.R.A.P. 1925(b) Statement.
As is evident, Wife did not allege in her court-ordered Pa.R.A.P. 1925(b)
statement that the trial court erred in denying her request for permission to
supplement the record with a revised expert report or that the trial court
should have appointed an expert. Accordingly, we decline to address these
specific issues further. See Pa.R.A.P. 1925(b)(4)(vii).
Regarding Wife’s contention the record does not support the trial court’s
inclusion of the entirely of her 401(k) as marital property (valued at
$959,376.00) the trial court relevantly explained in its Rule 1925(a) opinion
that Wife presented an expert witness, William Troyan. However, Mr. Troyan
admitted his reports were erroneous, N.T., 1/15/17, at 33, and Wife’s counsel
acknowledged this fact as well. N.T., 1/15/17, at 50. Despite being warned
that “Mr. Troyan’s report could not be accepted as evidence,” Wife offered no
evidence to establish that any portion of her 401(k) was non-marital property.
Trial Court Opinion, filed 7/7/17, at 8-10. Accordingly, the trial court accepted
Husband’s contention that the entirety of the 401(k), valued at $959,376.00,
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constituted marital property. We find no abuse of discretion in this regard.
See Carney, supra.
In her fifth issue, Wife claims the trial court erred in holding that a
$218,673.00 severance payment made to Husband by his former employer,
Teva Pharmaceutical Company, was not marital property. Specifically, Wife
contends the severance payment was made to Husband prior to the date of
the parties’ separation and, further, that the date of payment is dispositive of
the issue such that there is no need to determine the reason for the payment.
In addressing Wife’s issue, the trial court relevantly indicated the
following:
[Wife] complains that the trial court did not include
[Husband’s] severance check as part of the marital estate for
distribution. [Husband,] however, produced competent evidence
that the severance check was not for past services which occurred
during the marriage but for a non-compete clause for twelve (12)
months moving forward post 2009. (N.T., 8/22/17, at 171). The
trial court accepted the evidence presented that established that
the severance was paid to [Husband] in exchange for his non-
competition with his former employer, Teva Pharmaceuticals. The
trial court did not, therefore, abuse its discretion or err when
deciding that the severance was executed in exchange for future
restraint on employment and was not paid for past services
rendered [such that it did not constitute marital property].
Trial Court Opinion, filed 7/7/17, at 19.
We agree with the trial court’s sound reasoning. Initially, contrary to
Wife’s assertion, the trial court determined the parties separated on December
2, 2009 (and not December 8, 2009). See Trial Court Order, filed 1/26/17,
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at 1; Wife’s Brief at 57. Husband received the severance payment on
December 4, 2009.
As to the nature of the payment, the severance agreement sets forth
the payment was in exchange for Husband’s agreement not to compete with
Teva Pharmaceuticals for twelve months following the termination of his
employment on December 31, 2009. Thus, pursuant to the Divorce Code, the
severance payment did not constitute marital property. See 23 Pa.C.S.A. §
3501 (“[M]arital property does not include. . .(8) Any payment received as a
result of an award or settlement for any cause of action or claim which
accrued. . . after the date of final separation regardless of when the payment
was received.”); Berry v. Berry, 898 A.2d 1100, 1105-06 (Pa.Super. 2006)
(in determining whether severance pay is marital property the court must
determine whether the pay was intended to compensate the employee for
efforts made during the marriage or to replace post-separation earnings; in
the latter situation, it is not marital property). Accordingly, we find no abuse
of discretion. Carney, supra.
In her sixth issue, Wife claims the trial court erred in its valuation of the
bank and brokerage accounts, and further, erred in failing to accept the
parties’ stipulation of value as to various assets. Specifically, Wife claims (1)
the parties stipulated the value of Husband’s three retirement accounts (T.
Rowe Price Account ending 6042, Merrill Lynch Account ending 0655, and
Merrill Lynch Account ending 0015), was valued at $1,073,968.39; however,
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the trial court simply indicated “Merrill Lynch #0015, All marital at
$806,761.00;” (2) the trial court erred in omitting as marital property a
National Penn IRA (Acct. # 6802, now 4022), which the parties stipulated was
worth $24,452.95; (3) the trial court failed to credit the parties’ stipulation
that the 2007 Volvo was worth $5,875.00, thus erring in valuing the car at
$4,875.00; and (4) the trial court failed to credit the parties’ stipulation that
the Mercedes Benz was worth $8,250.00, thus erring in valuing the car at
$8,000.00. Wife’s Brief at 60-61.
Initially, we note that, in her court-ordered Rule 1925(b) statement,
with regard to bank and brokerage accounts, Wife indicated the following:
Valuation Errors
Bank Accounts
5. The trial court made an error and/or abused its discretion by:
a. incorrectly stating the value of the Merrill Lynch
account owned by the parties with an account number
ending in numbers 1080.
b. incorrectly stating the value of the Bank of America
account owned by the parties with an account number
ending in numbers 4842.
c. incorrectly stating the value of the National Penn
Bank account owned by the parties with an account
number ending in numbers 1820.
Wife’s Pa.R.A.P. 1925(b) Statement, filed 4/19/17 (emphasis in original).
However, on appeal, Wife challenges the valuation of Husband’s three
retirement accounts: T. Rowe Price Account ending 6042, Merrill Lynch
Account ending 0655, and Merrill Lynch Account ending 0015. Wife’s Brief at
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59-60. She also challenges the trial court’s alleged omission of the National
Penn IRA (Acct. # 6802, now 4022) as a marital asset. 6 Id. at 60. As is
evident, Wife did not present these specific issues in her court-ordered Rule
1925(b) statement, and accordingly, we decline to address the issues further.
See Pa.R.A.P. 1925(b)(4)(vii).
As it relates to the valuation of the 2007 Volvo, Wife asserts the trial
court “failed to credit the parties’ stipulation that the 2007 Volvo was worth
$5,875.[00]; [but rather,] it valued the vehicle at $4,875.[00].” Wife’s Brief
at 60. Wife is mistaken in this regard. In its January 26, 2017, order, the
trial court specifically listed: “2007 Volvo-$5,875.00.” Trial Court Order, filed
1/26/17, at 2.
With regard to the trial court’s valuation of the Mercedes Benz, Wife is
correct that the trial court valued it at $8,000.00. See id. However, we find
no abuse of discretion in this regard. While Wife argues the value of the
Mercedes Benz was stipulated to be $8,250.00, the trial court indicated at trial
“[i]t looks like there was a stipulation, 8,000--.” N.T., 8/22/16, at 215. In
any event, the record reveals that, in reviewing the list of assets, Wife argued
the Mercedes Benz was a “classic car,” while Husband argued it was “an old
car.” Id. at 214. The trial court was permitted to take this into consideration
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6We note Wife is mistaken in her assertion. The trial court specifically listed
“National Penn #6802-All marital” in its January 26, 2017 order. Trial Court
Order, filed 1/26/17, at 2.
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in valuing the asset. See Morgante v. Morgante, 119 A.3d 382, 391
(Pa.Super. 2015) (holding the trial court’s equitable distribution order should
be upheld where it “effectuates economic justice between the parties and
achieves a just determination of their property rights”) (citation omitted)).
In her seventh issue, Wife claims the trial court erred in failing to award
her alimony. More specifically, Wife contends that a proper analysis of the
statutory factors set forth in 23 Pa.C.S.A. § 3701(b), which the trial court
failed to analyze, reveals the trial court abused its discretion in awarding her
alimony.
Initially, we note:
Our standard of review regarding questions pertaining to the
award of alimony is whether the trial court abused its discretion.
We previously have explained that the purpose of alimony is not
to reward one party and to punish the other, but rather to ensure
that the reasonable needs of the person who is unable to support
himself or herself through appropriate employment, are met.
Alimony is based upon reasonable needs in accordance with the
lifestyle and standard of living established by the parties during
the marriage, as well as the payor’s ability to pay. Moreover,
alimony following a divorce is a secondary remedy and is available
only where economic justice and the reasonable needs of the
parties cannot be achieved by way of an equitable distribution
award and development of an appropriate employable skill.
Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa.Super. 2004) (citation and
internal quotation marks omitted).
In general, the court may award alimony, as it deems reasonable, to
either party only if it finds that alimony is necessary. 23 Pa.C.S.A. § 3701(a).
In determining whether alimony is necessary and in determining the nature,
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amount, duration, and manner of payment of alimony, the trial court shall
consider all relevant factors, including those listed in 23 Pa.C.S.A. § 3701(b).
The relevant statutorily-mandated factors to determine whether alimony is
necessary include the following: the relevant earnings and earning capacities
of the parties; the ages and physical conditions of the parties; the sources of
income of both parties; the duration of the marriage; the standard of living
the parties established during the marriage; the relative assets and liabilities
of the parties; the relative needs of the parties; and the marital misconduct
of the parties. See 23 Pa.C.S.A. § 3701(b). We note that the factors in
Section 3701(b) do not create an exhaustive list. Ressler, supra. In fact,
the trial court should also consider the assets the petitioning spouse received
in equitable distribution. Id.
Here, regarding the Section 3701 factors, the trial court made the
following findings. Husband is sixty-one years old, and Wife is fifty-six years
old. Trial Court Order, filed 1/26/17, at 1. The parties were married for
twenty-five years, and both are employed in the pharmaceutical field. Id.
The trial court determined Husband’s net monthly income was $15,941.00,
while Wife’s monthly net income was $10,409.00. Id. The trial court
considered that Husband contributed monetarily to the marriage to a degree
greater than that of Wife; however, the trial court also considered that
Husband expended assets to a greater degree. Id. at 6.
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In its opinion, after setting forth the Section 3701(b) factors, the trial
court found that Wife “is in good health and has many employable years ahead
of her.” Trial Court Opinion, filed 7/7/17, at 13. Further, the trial court noted
that it found much of Wife’s testimony concerning her monthly expenses to
be incredible. Id. at 12. In any event, the trial court concluded that “even
if the trial court accepted as true all the expenses [Wife] alleges as reasonable,
which the trial court did not, [Wife] has enough net monthly income to cover
her monthly expenses in total without need for assistance from Husband.” Id.
at 14.
Additionally, the trial court indicated:
[T]he trial court as part of its equitable distribution order
divided an estate worth over $7 million not including certain
pension benefits that are to be QDRO’ed, giving [Wife] fifty-five
percent (55%). The trial court found that [Wife’s] reasonable
needs would be met with her current net income and her share of
the marital estate, which is in excess of $3.8 million excluding the
aforesaid pensions. Furthermore, the trial court finds awarding
[Wife] alimony would be inappropriate given the income of the
parties and the value of the marital estate.
In the instant matter, after equitable distribution, [Wife] will
have sufficient income and assets to provide for her current
lifestyle. Therefore, the trial court, having made such finding[,]
did not award [Wife] alimony.
Id. at 15.
In light of the aforementioned, we conclude the trial court did not err in
denying Wife’s request for alimony. Specifically, in light of its consideration
of the relevant statutory factors and the assets Wife received in equitable
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distribution, the trial court “effectuated economic justice.” See Teodorski,
supra.
In her eighth issue, Wife claims the trial court erred in denying her
request for counsel fees. Specifically, Wife contends the trial court should
have awarded her counsel fees since Husband resisted discovery, thus causing
Wife to expend “unnecessary legal resources.” Id. at 73.
Reasonable counsel fees may be awarded in divorce proceedings under
23 Pa.C.S.A. § 3702. With regard to petitions filed under Section 3702:
We will reverse a determination of counsel fees and costs only for
an abuse of discretion. The purpose of an award of counsel fees
is to promote fair administration of justice by enabling the
dependent spouse to maintain or defend the divorce action
without being placed at a financial disadvantage; the parties must
be “on par” with one another.
Counsel fees are awarded based on the facts of each case after a
review of all the relevant factors. These factors include the
payor’s ability to pay, the requesting party’s financial resources,
the value of the services rendered, and the property received in
equitable distribution.
Teodorski, 857 A.2d at 201. In determining whether the trial court has
abused its discretion, we do not usurp the trial court’s duty as fact finder. Id.
In explaining the reasons it denied Wife’s request for counsel fees, the
trial court indicated the following:
[Wife] requested reimbursement from [Husband] for the
legal fees expended, not only in the divorce action but several
other actions, separate and apart from the divorce. (N.T.,
1/14/17, at 106). These charges included payment by [Wife] to
an attorney to review a judicial conduct complaint [Wife] filed
against a visiting judge, the Honorable John Braxton, who was
assigned the discovery portion of the equitable distribution case.
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They also included a request for reimbursement for an $800.00
sanction assessed against [Wife’s] then counsel and
reimbursement for attorney’s fees that [Wife] was court ordered
to pay [Husband’s] then counsel following a Protection from Abuse
action, where [Wife] had put a GPS tracker on [Husband’s]
vehicle. (N.T., 1/14/16, at 115-16). [Wife] also admitted to
including a $7,500.00 bill without knowing what it was for. (N.T.
1/14/17, at 129).
Counsel fees are [generally] awarded in divorce actions [ ]
upon a showing of need. The purpose of an award of counsel fees
is to “promote fair administration of justice by enabling the
dependent spouse to maintain or defend the divorce action
without being placed at a financial disadvantage.” Furthermore,
counsel fees are awarded in divorce actions, based “on the facts
of each case after a review of all relevant factors, which include
the payor’s ability to pay, the requesting party’s financial
resources, the value of the services rendered, and the property
received in equitable distribution.”
The trial court found that based on [Wife’s] income and her
share of the marital estate, [Wife] would not be at a financial
disadvantage and could pay her own counsel fees.
Trial Court Opinion, filed 7/7/17, at 21-22 (citation, quotations, and footnote
omitted).
Under the facts of this case, we cannot find that the trial court abused
its discretion and thus, given our standard of review, we must affirm the denial
of counsel fees. Teodorski, supra. The trial court considered the financial
resources of each party and found Wife’s request for counsel fees was not
reasonable. Further, while this Court has acknowledged counsel fees may be
awarded under Section 3702 where one spouse’s conduct results in protracted
litigation, Wife has not demonstrated that such occurred in this case. See
Busse v. Busse, 921 A.2d 1248 (Pa.Super. 2007).
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In her final issue, Wife claims the trial court erred in failing to find
Husband in contempt of the May 16, 2013, order. Specifically, Wife contends
“[t]his Court should overturn the [trial] court’s refusal to find Husband in
contempt of its May 16, 2013, order because its ruling flowed from its
erroneous decision that Husband’s siphoning of $4.4 million in marital assets
did not constitute a dissipation of assets within the meaning of 23 Pa.C.S.[A.]
§ 3502(a)(7).” Wife’s Brief at 78. Further, she contends that, to the extent
the trial court “castigated Wife’s counsel” for “abusing the discovery
process[,]” the trial court’s finding “is simply not true.” Id. at 79.
Initially, we note that we review the trial court’s decision on Wife’s
contempt petition for a clear abuse of discretion. Flannery v. Iberti, 763
A.2d 927 (Pa.Super. 2000). “This Court will reverse a trial court’s order
denying a [ ] contempt petition only upon a showing that the trial court
misapplied the law or exercised its discretion in a manner lacking reason.”
MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012). Thus,
“even where the facts could support an opposite result,. . .we must defer to
the trial [court] so long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an error of law or an
abuse of discretion.” In re Adoption of S.P., 616 Pa. 309, 47 A.3d 817,
826–27 (2012). Moreover, we defer to the trial court’s credibility
determinations with respect to witnesses who have appeared before it because
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that court has had the opportunity to observe their demeanor. Habjan v.
Habjan, 73 A.3d 630, 644 (Pa.Super. 2013).
In addressing Wife’s claim, the trial court provided the following
rationale for its denial of Wife’s petition for contempt:
On or about May 16, 2013, the Honorable John L. Braxton
entered an order which [directed], in pertinent part, that [Wife]
produce a list to [Husband] of all outstanding discovery and
information sought and that [Husband] would have twenty (20)
days from receipt to produce the requested information, imposing
a daily penalty for noncompliance. On [ ] February 10, 2014,
[Wife] filed a “Motion for Contempt of Order of May 16, 2013 and
for Injunctive Relief to Prevent Sale/Dissipation of Marital
Assets.”. . .[Husband] filed a response thereto. . . outlining the
ways [he] was complaint [sic] with the trial court’s May 16,
2013[,] order.
The trial court held a hearing on [Wife’s] petition for
contempt on [ ] September 16, 201[6], which the trial court
permitted to continue until completion at 7:00 P.M. During the
extended hearing, the trial court patiently listened to testimony
on 134 items requested by [Wife] in discovery. As the testimony
ensued[,] however, it became clear that [Wife’s] extended use of
discovery was a flagrant abuse of the discovery process with
[Wife’s] requests intended to harass [Husband] rather than gather
pertinent information. For example, [Wife] testified that she
removed stacks of documents from [Husband’s] car trunk and
found a “Bill of Sale” for a vehicle. [Wife], in spite of knowing the
exact price the vehicle was purchased for, proceeded to send
discovery to [Husband] requesting all documents relating to the
vehicle’s purchase. Counsel for [Wife]. . .was outraged that in
response to this discovery request, she received a reference to
the “Bill of Sale” she had submitted earlier in one of the many
proceedings as evidence. Counsel for [Wife] indicated that[,]
although [Wife] had broken into [Husband’s] vehicle and removed
documents, which [Wife] now retained possession of, [Husband]
should be forced to go to the car dealership to regather
information she already had [in her possession].
[Wife] likewise claimed [Husband] was in contempt merely
because she did not like his responses to Interrogatories. For
example, for several bank accounts, [Wife] requested “withdrawal
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and deposit information,” for which [Husband] produced bank
statements which included deposits and withdrawals. At the
hearing, which occurred on September 16, 2016[,] [Wife]
demanded [Husband] produce the actual withdrawal and deposit
slips submitted to the bank in spite of the fact that her vaguely
worded request did not specify this was the information sought.
[Wife] also claimed [Husband] was in contempt when he did not
produce documents [Husband] testified simply did not exist, such
as a rental agreement for a property and [an] employment
contract with Evelyn Beckman. Although the trial court attempted
to explain that[,] although Wife may not like the answer,
[Husband’s] answer was a response to the questions, neither
[Wife] nor [her] counsel seemed to grasp this [concept]. [Wife]
further testified that she was able to get some bank statements
herself with a previous court order; however, and in spite of the
fact that she now had this information, continued to request [that
Husband] produce it. [Wife] claimed [Husband] was in contempt
for not producing bank statements for banks that no longer
existed and likewise testified that she herself had difficulty getting
some documentation even with a court order that permitted her
access.
[Husband] testified that when he received the 134 items
requested he attempted to schedule an administrative conference
but [Wife’s counsel] objected to this request. [Husband] then
testified that he, within twenty (20) days[,] complied with the
request and supplemented the response when additional
information became available.
***
In the instant matter, the trial court found that [Wife] was
abusing the discovery process by filing a contempt petition against
[Husband] and seeking information and documents[,] many of
which were already in her possession. It is unimaginable how the
discovery process can be abused more than taking documents
from [Husband] and turning around and requesting production of
these same documents. Further, [Husband] timely and
substantially complied with the requests, even with the short
timeframe allotted. The trial court, therefore, found that
[Husband] substantially complied with the exhaustive discovery
request and properly entered an order. . .denying [Wife’s] petition
for contempt.
Trial Court Opinion, filed 7/7/17, 23-26.
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Applying the appropriate standard of review, we find no abuse of
discretion. MacDougall, supra. We conclude the record supports the trial
court’s factual findings, and further, we remind Wife that, under our standard
of review, we defer to the trial court’s credibility determinations. Habjan,
supra. To the extent Wife claims the trial court’s denial of Wife’s petition for
contempt was based on the court’s “erroneous decision that Husband’s
siphoning of $4.4 million in marital assets did not constitute a dissipation of
assets within the meaning of 23 Pa.C.S.[A.] § 3502(a)(7),” we find no merit
to her contention. As is evident, the trial court denied Wife’s petition for
contempt on the basis that Wife failed to demonstrate that Husband did not
comply with the trial court’s May 16, 2013, discovery order. Thus, Wife is not
entitled to relief on this claim.7 See Gunther v. Bolus, 853 A.2d 1014
(Pa.Super. 2004) (setting forth the relevant elements for contempt).
____________________________________________
7 In his appellate brief, Husband requests that we impose counsel fees upon
Wife in connection with her pursuit of the instant appeal. Pa.R.A.P. 2744
provides, in relevant part, that this Court may impose reasonable counsel fees
“if it determines that an appeal is frivolous or taken solely for delay or that
the conduct of the participant against whom costs are to be imposed is
dilatory, obdurate, or vexatious.” Pa.R.A.P. 2744. Husband avers Wife’s
instant appeal is frivolous and, as evident by the number of issues she raised,
grounded in bad faith. See Husband’s Brief at 41. While we conclude Wife is
not entitled to relief on appeal, we disagree with Husband that her appeal has
no basis in law or fact such that it may be deemed “frivolous” under Pa.R.A.P.
2744. See U.S. Claims, Inc. v. Dougherty, 914 A.2d 874, 878 (Pa.Super.
2006) (“In determining the propriety of [ ] an award [under Rule 2744], we
are ever guided by the principle that an appeal is not frivolous simply because
it lacks merit[;][r]ather, it must be found that the appeal has no basis in law
or fact.”) (quotation marks and quotation omitted)). Further, we disagree
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For all of the foregoing reasons, we find Wife is not entitled to relief.
Accordingly, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/18
____________________________________________
with Husband that the number of issues raised by Wife is, by itself, evidence
of Wife being “dilatory, obdurate, or vexatious.” See Pa.R.A.P. 2744.
Accordingly, we decline to order Wife to pay counsel fees under Pa.R.A.P.
2744.
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