Smith, S. v. Smith, C.

J-S41024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SUSAN C. SMITH IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER C. SMITH
Appellant No. 190 MDA 2017
Appeal from the Order Entered December 29, 2016
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2013-20491
*****
SUSAN C. SMITH IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER C. SMITH
Appellant No. 191 MDA 2017
Appeal from the Order Entered September 15, 2015
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2013-20491
*****
SUSAN C. SMITH IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER C. SMITH
Appellant No. 192 MDA 2017
J-S41024-17
Appeal from the Order Entered December 29, 2016
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2013-20491
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 07, 2017
These are three consolidated appeals filed by Christopher Smith
(“Husband”), pro se, from the orders entered on September 15, 2015 and
December 29, 2016.1 The September 15, 2015 order entered a divorce
decree and order of equitable distribution/qualified domestic relations order
(“QDRO”), and the December 29, 2016 order granted Susan C. Smith’s
(“Wife”) motion to compel Husband to sign Wife’s proposed QDRO, and
denied Husband’s motion to compel Wife to sign the QDRO that he proposed.
After our review, we quash the appeal at 191 MDA 2017, and affirm the
appeals at 190 MDA 2017 and 192 MDA 2017.2
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Two of Husband’s appeals, 190 MDA 2017 and 192 MDA 2017, are from
the same order, entered on December 29, 2016. This Court consolidated
these appeals, sua sponte, with the appeal filed at 191 MDA 2017. See
Order, 2/13/17. See also Pa.R.A.P. 513. Because Husband’s appeal from
the September 15, 2015 order was stayed and subsequently withdrawn, we
quash the appeal docketed at 191 MDA 2017. See discussion infra, at p. 8.
2
Wife’s counsel has notified this Court that, due to Wife’s limited resources,
she would not be filing an appellee’s brief. Counsel has indicated agreement
with the trial court’s findings and opinion.
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The parties were married on September 15, 1984; they separated on
February 24, 2014. The parties have an adult son, who is now 29 years
old.
On June 12, 2014, the court appointed Loreen Burkett, Esquire, as a
special master to hear the issue of alimony pendent lite (APL). On June 23,
2014, the court appointed Special Master Burkett to make recommendations
on the claim for equitable distribution. Following a hearing on February 24,
2015, Special Master Burkett determined that Wife was entitled to APL and
recommended Husband pay $1,178.00 per month. Husband, who argued
Wife had not demonstrated need for APL, filed exceptions. The trial court
denied Husband’s exceptions, and, thereafter, denied Husband’s motion for
reconsideration. Husband appealed to this Court, and we quashed that
appeal. See Smith v. Smith, 121 MDA 2015 (Order, filed February 12,
2015). See also Calibeo v. Calibeo, 663 A.2d 184 (Pa. Super. 1995)
(order for either spousal support or alimony pendente lite is interlocutory
and not appealable until all economic claims have been resolved).
On April 28, 2015, Special Master Burkett filed a motion for
withdrawal, stating that she had recently “identified an issue which may
create the appearance of a conflict in the future[.]” Motion for Withdrawal
of Appointment of Special Master, 4/28/15, at ¶ 5. On May 5, 2015, the
court granted the motion to withdraw and appointed Keith Kilgore, Esquire,
as Special Master, who, on May 12, 2015, petitioned the court to appoint an
alternate because he had previously represented Husband. On May 18,
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2015, the court vacated Kilgore’s appointment and appointed Anne Kline,
Esquire, to address the issues of divorce, equitable distribution and alimony.
On July 7, 2015, Special Master Kline recommended a divorce be
granted pursuant to section 3301(c) of the Divorce Code,3 and that the
marital assets be distributed 53% to Wife and 47% to Husband; she also
recommended Wife’s request for alimony be denied.
Husband and Wife both filed exceptions. The Honorable Bradford H.
Charles dismissed both parties’ exceptions and entered an order on
September 15, 2015, which states, in relevant part:
AND NOW, THIS 15TH DAY OF September, 2015, after a careful
consideration of the file, including the transcript of the hearing
on February 24, 2015 and the Special Master’s report of July 7,
2015, the Exceptions filed by both parties in the above-captioned
matter are DENIED and the recommendations of the Special
Master are AFFIRMED in their entirety as follows:
1. Pursuant to Section 3301(c) of the Divorce Code, Susan
C. Smith (hereafter “Wife”) and Christopher C. Smith
(hereafter “Husband”) are hereby divorced from the
bonds of matrimony.
2. Provided that no appeal of this decision is filed, alimony
pendente lite will be terminated effective immediately.
If an appeal is filed, we will entertain a hearing to
determine whether alimony pendente lite should
continue during the pendency of the appeal.
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3
Section 3301(c) provides: “The court may grant a divorce where it is
alleged that the marriage is irretrievably broken and 90 days have elapsed
from the date of commencement of an action under this part and an affidavit
has been filed by each of the parties evidencing that each of the parties
consents to the divorce.” 23 Pa.C.S.A. § 3301(c).
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3. The marital property, excluding the joint TD Ameritrade
stock account and Husband’s [State Employee
Retirement System] Pension [SERS], shall be divided
53% to Wife and 47% to Husband, with an offset for
credits.
****
7. Within sixty (60) days of the date of the final decree,
Husband shall pay to Wife the sum of $92,310.88 to
effectuate equitable distribution of the [marital]
assets.
8. Husband’s existing SERS pension value shall be
divided equally between the parties by way of a
QDRO. Husband shall elect the survivor annuity
option. QDRO preparation costs shall be divided
between the parties.
9. The joint TD Ameritrade stock account shall be divided
53% to Husband and 47% to Wife based upon its
current valuation at the time [] the final Divorce
Decree is entered.
10. Wife’s request for alimony is DENIED.
Order, 9/15/15.
On October 5, 2015, Husband filed a pro se notice of appeal. Wife
filed a petition to stay the order pending appeal, averring irreparable harm
in that Husband “will be free to remarry and name his future spouse as a
beneficiary of his State Employees Retirement Pension to which [Wife] was
awarded a fifty percent (50%) share.” Application for Stay, 10/14/15, ¶ 6.
The court granted the stay on October 20, 2015. Despite the filing of an
appeal from the September 15, 2015 order, Husband filed a petition to seek
enforcement of that order on October 19, 2015. The court denied that
request on October 22, 2015, and five days later Husband filed a motion
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seeking disqualification of the Honorable Bradford H. Charles. See Motion
for Immediate Disqualification of Judge Bradford H. Charles Due to Multiple
Violations of the Code of Judicial Conduct, 10/27/15.
In his motion, Husband claimed Judge Charles allowed Wife’s attorney
“to knowingly make false statements about [Husband,] . . . and is clearly
biased against [Husband] in his rulings and actions by allowing this
misconduct of [Wife’s] lawyer.” Id. at 2. Husband also claimed that Judge
Charles’ granting of Wife’s petition for stay “is illegal and biased against
[him].” Id. On October 29, 2015, Judge Charles denied this motion, and
also denied Husband’s motion for reconsideration of the September 15,
2015 order. Order of Court, 10/29/15. Order of Court, 10/29/15.
On November 3, 2015, Husband filed a “Motion to the President Judge
of the Court of Common Pleas of Lebanon County for the Immediate
Reconsideration and Disqualification of Judge Bradford H. Charles due to
Multiple Violations of the Code of Judicial Conduct[.]” In support of this
motion, Husband averred, in part:
This judge has refused to properly calculate the APL payment
based upon the laws of the Commonwealth of Pennsylvania and
adjusted [Husband’s] APL payment. This violation of the Code of
Judicial Conduct has forced [Husband] to pay [Wife] over $270 a
month more than the maximum amount allowed by law.
Rule 2.3 requires a judge to perform the duties of judicial office
without bias or prejudice. A judge shall not by words or
conduct, manifest bias or prejudice. Judge Charles has
showed his distaste towards [Husband] by making a
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number of derogatory comments about [Husband] during
the Judge’s Opinion on Equitable Distribution [referring to
Judge Charles’ September 15, 2015 opinion].4
The granting of the Stay Order is illegal and biased against
[Husband] on the following grounds:
Since [Husband] is fully willing to comply with the
September 15, 2015 Divorce Decree and Order of
Equitable Distribution, there can be absolutely no harm to
[Wife] to allow the Entry and Execution of this September
15 order. [Wife], who is the moving party in the divorce,
is not requesting reconsideration, nor is [Wife] appealing
the September 15, 2015 Divorce Decree and Order of
Equitable Distribution. So if [Husband] fully complies with
the Order, even while [Husband] is appealing the Order,
there is no legal reason for the Stay to be granted. There
is no justifiably claim of economic harm to [Wife] that
[Wife] can make. The only reason Judge Charles
signed this Order is his blatant bias against
[Husband].
The biased Judge failed to consider any of the
economic and health issues (diagnosis of cancer)
being endured by [Husband].
Motion, 11/13/15, at 2-4 (emphasis added).
____________________________________________
4
The trial court stated in its opinion that Husband has “impugned the
integrity of everyone who disagrees with him[.]” Opinion, 9/15/15, at 1.
From our review of Husband’s motions, it appears that the court’s statement
is an accurate assessment. Husband’s characterizations of the judge, the
master, the judicial system and Wife’s attorney, (“the biased judge,” the
“incompetent judge and domestic relations master,” the “lack of integrity in
Lebanon County,” describing the Lebanon County judicial system as a
“compete cesspool of nepotism,” and references to the “unethical lawyer”
who “needs a lesson in English,” to list a few), are inappropriate and detract
from his legal arguments.
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On November 4, 2015, Judge Charles entered an order denying this
second motion to disqualify, noting that President Judge John C. Tylwalk
assigned him to preside over issues pertaining to this divorce.5 In his order,
Judge Charles stated:
Prior to being assigned the responsibility to preside over issues
in the above-referenced matter, this Jurist had no known contact
with either [Wife] or [Husband]. This Jurist is not acquainted
with either party, nor did this Jurist have any known business
relationship with either party at any time in the past. This Jurist
has rendered decisions that have angered [Husband]. By itself,
that does not create grounds for disqualification. The fact that
[Husband] has filed vitriolic-infused motions that have
disparaged this Jurist also does not create a ground for this
Jurist to recuse himself. . . . [Husband] has appealed the
decision rendered by this Jurist with respect to divorce, equitable
distribution and alimony pendente lite. We do not question
[Husband’s] ability to file and pursue an appeal, nor has [his]
appeal engendered any personal animus by this Jurist toward
him. [Husband] has asked us to enforce the Order we entered
that he has appealed. We will not do this. So long as any party
challenges the viability of a civil divorce order by filing an
appeal, it would be improper for this Court to enforce said Order
prior to a decision by the Pennsylvania Superior Court.
Order, 11/4/15, at 1-3.
Thereafter, Husband filed an emergency petition in this Court to vacate
the trial court’s October 20, 2015 order staying enforcement of the
September 15, 2015 order. This Court denied that petition. On November
____________________________________________
5
On November 11, 2015, President Judge Tylwalk issued an order denying
Husband’s motion seeking disqualification of Judge Charles. President Jude
Tylwalk stated that Judge Charles “is in the best position to determine
whether he is able to continue to preside impartially.” Order, 4/11/15.
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16, 2015, Husband filed an application to withdraw his appeal, which this
Court granted on November 24, 2015. That same day, the trial court
vacated the stay order, reinstated its September 15, 2015 order, and the
parties were divorced.
On April 19, 2016, Wife filed a petition to compel Husband to sign the
QDRO. The court held a hearing on June 9, 2016, at which the parties
disagreed on the term “survivor annuity option.” Husband claimed that if
Wife predeceased him, Wife’s share should revert and become his property.
Wife disagreed. The court scheduled another hearing for December 2,
2016, giving the parties time to consult with experts on the meaning of the
term, “survivor annuity option.”
On August 29, 2016, Wife filed a second petition to compel Husband to
sign her proposed QDRO; on November 28, 2016, Husband filed a motion to
compel Wife to sign his proposed QDRO. At a hearing on December 2,
2016, both parties testified; Wife’s expert, Mark Altschuler, President of
Pension Analysis Consultants, also testified. On December 29, 2016, the
court entered an order granting Wife’s motion to compel Husband to sign the
QDRO prepared by Wife’s expert, specifying that the parties were to share
the costs of preparation equally, denying Husband’s motion to compel Wife
to sign his proposed QDRO, and denying Husband’s continuing request that
Judge Charles recuse himself. See Order, 12/29/16.
Husband appealed on January 24, 2017, and the court ordered
Husband to file a Pa.R.A.P. 1925(b) concise statement of errors complained
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of on appeal. Husband filed his Rule 1925(b) statement on February 13,
2017.
In his appellate brief, Husband raises 39 issues, spanning ten pages of
his brief. See Commonwealth v. Snyder, 870 A.2d 336, 340 (Pa. Super.
2005) (“14 very verbose issues which span three pages of his brief”
constituted substantial defect permitting quashal). “Although the page limit
on the statement of questions involved was eliminated in 2013, verbosity
continues to be discouraged.” Pa.R.A.P. 2116, comment. “The appellate
courts strongly disfavor a statement that is not concise.” Id.6 Due to the
verbosity and confusing nature of Husband’s issues, we will attempt to
address Husband’s main points of contention, which we have taken from his
Rule 1925(b) statement.7 We have also reworded and condensed Husband’s
claims for ease of discussion and clarity:
1. Did the court err in refusing to admit as hearsay, at the
June 9, 2016 hearing, an affidavit and “routine business
____________________________________________
6
We also note that Husband has failed to comply with Pa.R.A.P. 2135, which
provides that “[a] principal brief shall not exceed 14,000 words” and “[a]
party shall file a certificate of compliance with the word count limit if the
principal brief is longer than 30 pages . . . when prepared on a word
processor or typewriter.” Pa.R.A.P. 2135(a)(1) and (d). The numbered
pages, not including preliminary pages and appended exhibits, in Husband’s
appellate brief, amount to 69.
7
See Morgante v. Morgante, 119 A.3d 382, 396 (Pa. Super. 2015)
(holding Husband's failure to raise challenge to equitable distribution award
in Rule 1925(b) statement constituted waiver).
- 10 -
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correspondence” by SERS Assistant Counsel Salvatore A.
Darigo, Jr.?
2. Did the court err or abuse its discretion in recessing the
June 9, 2016 hearing and continuing it to December 2,
2016?
3. Did the court err in allowing testimony of Wife’s expert
witness, Mark Altschuler, at the December 2, 2016
hearing?
4. Did the court err in finding Mark Altschuler’s testimony was
not hearsay and was credible?
5. Did the court err in ordering Husband to sign the QDRO
proposed by Wife, which does not comply with the
equitable distribution order, where the payout calculation
was based on a maximum single life annuity and not the
survivor annuity option, thus precluding the pension
amount awarded to Wife to revert back to Husband in the
event Wife predeceases Husband?
6. Did the court err or abuse its discretion in awarding Wife
alimony pendent lite, and in precluding Husband from
cross-examining Wife on financial matters?
7. Did the court err or abuse its discretion in denying
Husband’s motion to recuse?
Pa.R.A.P. 1925(b) Statement, 2/13/17 (rephrased and renumbered).
Our role in reviewing equitable distribution awards is well settled:
Our standard of review in assessing the propriety of a marital
property distribution is whether the trial court abused its
discretion by a misapplication of the law or failure to follow
proper legal procedure. An abuse of discretion is not found
lightly, but only upon a showing of clear and convincing
evidence.
McCoy v. McCoy, 888 A.2d 906, 908 (Pa. Super. 2005) (internal quotations
omitted). Further, this Court will only find an abuse of discretion where
“the law has been overridden or misapplied or the judgment exercised was
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manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence in the certified record.” Biese v. Biese, 979
A.2d 892, 895 (Pa. Super. 2009) (quotations and citations omitted). When
reviewing an award of equitable distribution, “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.”
Hayward v. Hayward, 868 A.2d 554, 559 (Pa. Super. 2005). Moreover, in
determining the propriety of an equitable distribution award, the court must
consider the distribution scheme as a whole. Biese, supra. “[I]t is within
the province of the trial court to weigh the evidence and decide credibility
and this Court will not reverse those determinations so long as they are
supported by the evidence.” Morgante, 119 A.3d at 387.
Husband’s first five claims are related. As such, we will discuss them
together. As detailed in the facts above, Special Master Kline recommended
Husband’s SERS pension be divided equally between the parties by way of a
QDRO, and that “Husband shall elect the survivor annuity option.” Special
Master’s Report, Recommendation 6, 7/15/15. At the June 9, 2016, hearing
on Wife’s motion to compel, during Husband’s cross-examination of Wife,
Husband attempted to enter into evidence a letter from Salvatore Darigo,
Jr., of the State Employee Retirement System, pertaining to Husband’s
proposed QDRO. N.T. Hearing on Motion to Compel, 6/9/16, at 21. Wife’s
counsel objected, arguing it constituted hearsay.
The court ruled as follows:
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THE COURT: I agree. We’re not going to get into the substance
of this today. We’re obviously going to need another hearing to
have additional expert testimony provided. If he wants to show
her the letter in order to establish a sequence of events, he may
do so, but it’s for that purpose only. So if you want to show Ms.
Smith the letter to get into the sequence of events, you may do
so.
****
BY MR. SMITH: Okay. So would you agree that on that May 5 th
document from Salvatore Darigo that in the first paragraph he
does say that the attached would be acceptable to SERS?
MS. WEISS [WIFE’S COUNSEL]: Objection.
THE COURT: It’s the same objection he made to your exhibits.
I will allow some questions about this document to establish the
sequence of events. I will not allow the substance of what is
contained in this letter to be proven for the truth of the matter
asserted. Unless both of you agree to waive any hearsay
problems, the truth of the matter is going to have to be
established by witnesses on the witness stand who have
personal knowledge of these pension.
MS. WEISS: I agree. I don’t want to waive.
THE COURT: Okay. So with that, the objection is sustained.
MR. SMITH: I’m just asking her whether or not the paragraph
says that the document attached is acceptable to the retirement
system.
THE COURT: And that’s calling for a substantive answer. Just
like you objected when Ms. Weiss tried to get substantive
information in through the letters, she’s objecting to your effort
to do that. I sustained your objections and I’m sustaining hers
. . . . [Y]ou’re asking for me to accept that that letter is accurate
and without the witness to testify to the accuracy of the letter I
cannot accept that. You want to question her about: did you
receive this letter? What did you do with the letter? That
establishes a sequence of events. But I’m telling both sides
that as to the substance of which QDRO is correct and
which QDRO is not correct, I’m going to need testimony
from people that have personal knowledge about [the]
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pensions and QDROs at issue. This witness does not have
that expertise or that personal knowledge.
Id. at 21-25 (emphasis added).
The parties disagreed on the meaning of the term “survivor annuity
option.” Husband interpreted it as meaning that if Wife predeceased him,
before retirement, Wife’s share should revert to him. Wife disagreed, and
interpreted it as meaning if Wife predeceased Husband while the pension
was in pay status, after retirement, only then would it revert back to him:
MS. WEISS: I think [t]hat the biggest objection we have is
that it does not provide for the survivor annuity properly.
. . . Paragraph 12 says that if she dies everything reverts
back to him and that’s not the case in a survivor annuity.
It’s not the law. It’s not the case. When she dies, if she
dies before he goes into retirement, it becomes part of her
estate. . . .
MR. SMITH: That’s an incorrect assessment, sir. Because the
survivor annuity is provided for assuming she stays alive. SERS
allows for overriding of the annuity at the point of the various
parties’ death[s].
THE COURT: . . . I don’t know what you’re both trying to
communicate, but what I just heard you both agree. You both
agree that if she dies the amount of the QDRO goes into her
estate.
MR. SMITH: No, I do not agree with that and actually neither
does Attorney Weiss.
MS. WEISS: I certainly do. And so does my expert.
****
MR. SMITH: Sir, I’d also like to direct your attention to Exhibit
Number 4, Paragraph Number 12, so basically it says here is if
she dies before I retire, I pay her estate. If she dies after I
retire all the proceeds revert to me, the member, so she agrees
that if we’re in a state of retirement that I should get all my
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money back all the time. It’s the last sentence in Paragraph 12
of the DRO that her own consultant put together.
MS. WEISS: And I believe that he’s correct. I believe that my
pension analyst guy is correct in interpreting what a survivor
annuity means.
MR. SMITH: No, the survivor annuity says her benefits will
revert to member. I am the member, meaning I get the money
back.
MS. WEISS: When she dies after it’s in pay status, not the way
you want it, which is that it goes back to you at anytime she dies
regardless of the pay status.
Id. at 29-33 (emphasis added).
At that point, the court entered an order on the record, which reads, in
part:
C. The Special Master did not define the term “survivor
annuity option.” This phrase is obviously a term of
art. Neither of the parties have expertise to define
the meaning of that term.
D. It is obvious that expert testimony will be
required to assist the Court in discerning what
is meant by the phrase “survivor annuity
option.” It is also obvious that a new hearing will
have to be scheduled to permit the parties to provide
such expert opinion.
Id. at 33-34; Order, 6/9/16 (emphasis added). The court also ordered that
each party provide the opposing party with a brief expert report, focused on
the meaning of the phrase “survivor annuity option,” and stated: “You both
can have experts. . . . And then I’ll hear testimony at the next hearing as to
what is meant by the term ‘survivor annuity option.’” Id. at 35. The court
recessed the hearing and rescheduled it for December 2, 2016.
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At the December 2, 2016 hearing, Mark Altschuler was qualified as an
expert and testified on Wife’s behalf.8 Husband cross-examined him, and
Husband testified as well. Husband did not present an expert on his behalf.
Against this backdrop, Husband challenges the court’s rescheduling of
the hearing, its refusal to admit the correspondence from SERS
representative Darigo as substantive evidence on hearsay grounds, and its
decision to allow Wife’s expert to testify. Each of these claims is meritless.
The trial court could not have been more transparent or justified in its
reasoning for rescheduling the hearing, requiring expert testimony to assist
the court in making a well-informed decision on the parties’ main point of
contention, and rejecting Husband’s hearsay evidence. Husband had an
opportunity to challenge Wife’s expert’s report and to present his own
expert. As the trial court noted, Husband, “somewhat surprisingly,” chose
not to do so. Instead, he attempted to present unsubstantiated hearsay
evidence. See Sprague v. Walter, 656 A.2d 80, 913 (Pa. Super. 1995)
(affidavit is inadmissible hearsay when offered for its truth); see also
Botkin v. Metropolitan Life Ins. Co., 907 A.2d 641 (Pa. Super. 2006)
(report from financial expert, without testimony as to personal knowledge of
matter, is hearsay). Wife’s expert’s opinion, therefore, was unrebutted.
____________________________________________
8
Altschuler has a degree in mathematics and is a member of the American
Academy of Pension Experts. He has personally prepared over 10,000
QDROs, and he has testified as an expert in pension analysis over 60 times.
N.T. Hearing, 12/2/16, at 11-13.
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Further, the court found Wife’s expert credible. This Court will not reverse
credibility determinations as long as they are supported by the evidence.
Morgante, 119 A.3d at 395. The trial court's reasons for accepting that
testimony are supported by the record, and we decline to revisit the trial
court's credibility determinations.
We conclude, therefore, that the court was within its discretion in
accepting Wife’s proposed QDRO with her interpretation of the term
“survivor annuity option.” Husband was neither surprised nor prejudiced by
the court’s decisions. We find no error or abuse of discretion. See Smith
v. Smith, 653 A.2d 1259 (1995); see also Miller v. Miller, 617 A.2d 375
(Pa. Super. 1992) (where husband had opportunity to challenge wife’s
accounting expert’s report on pension valuation, but instead offered
unsubstantiated alternate calculation, and chose not to present his own
expert valuation, court properly accepted report of wife’s expert).
Additionally, we find no abuse of discretion in the court’s order requiring
Husband to sign Wife’s proposed QDRO. In doing so, the court effectuated
economic justice.9 See Hayward, supra.
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9
As indicated above, there were insufficient liquid assets available to offset
the value of the marital home, and thus the master recommended that a
QDRO of Husband’s pension be used to effectuate economic justice. The
trial court agreed, emphasizing that “a portion of wife’s equitable distribution
award was provided via the QDRO.” Trial Court Opinion, 12/28/16, at 19.
“[Wife’s] rights to Husband’s pension granted through the divorce are part of
her estate and she should retain the ability to designate how and where
those rights are to be distributed in the event of her death.” Id. at 20. The
(Footnote Continued Next Page)
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Next, Husband argues the court erred or abused its discretion in
awarding Wife alimony pendent lite [APL] and in precluding Husband from
cross-examining Wife on financial matters.
We review APL awards under an abuse of discretion standard.
Haentjens v. Haentjens, 860 A.2d 1056, 1062 (Pa. Super. 2004). APL is
“an order for temporary support granted to a spouse during the pendency of
a divorce or annulment proceeding.” 23 Pa.C.S.A. § 3103. It “is designed to
help the dependent spouse maintain the standard of living enjoyed while
living with the independent spouse.” Litmans v. Litmans, 209, 673 A.2d
382, 389 (Pa. Super. 1996). APL is thus not dependent on the status of the
party as being a spouse or being remarried but is based, rather, on the state
of the litigation, DeMasi v. DeMasi, 597 A.2d 101, 104–105 (Pa. Super.
1991), and “focuses on the ability of the individual who receives the APL
during the course of the litigation to defend her/himself[,]” and the only
issue is whether the amount is reasonable for the purpose, which turns on
the economic resources available to the spouse.” Haentjens, at 1062; see
also Carney v. Carney, --- A.3d --- (filed July 11, 2017).
In one of the trial court’s four comprehensive opinions in this case, the
Honorable Bradford H. Charles sets forth a comprehensive analysis of
_______________________
(Footnote Continued)
order entered on December 28, 2016 granted Wife’s motion to compel
Husband to sign the QDRO prepared by Wife’s expert, and it specified that
costs of preparation be shared equally between the parties. Id. at 21.
- 18 -
J-S41024-17
Husband’s challenge to the award of APL. See Trial Court Opinion,
12/19/14, at 6-21 (award of alimony pendente lite is within sound discretion
of trial court; court evaluated facts and circumstances, noting significant
income discrepancy, and concluded Wife established financial need). We,
therefore, rely upon that opinion to dispose of this claim.
In his final issue, Husband claims the court abused its discretion in
denying his continuing requests that Judge Charles, who has presided over
this litigation since its inception, recuse himself. This Court presumes
judges of this Commonwealth are “honorable, fair and competent,” and,
when confronted with a recusal demand, have the ability to determine
whether they can rule impartially and without prejudice. Commonwealth
v. White, 734 A.2d 374, 384 (Pa. 1999). The party seeking disqualification
has the burden of producing evidence establishing bias, prejudice, or
unfairness necessitating recusal, and the “decision by a judge against whom
a plea of prejudice is made will not be disturbed except for an abuse of
discretion.” Commonwealth v. Darush, 459 A.2d 727, 731 (Pa. 1983).
We discern no evidence of partiality on the part of Judge Charles. On
the contrary, his rulings were evenhanded and thoughtfully analyzed.
Husband’s claims of bias and repeated characterizations of Judge Charles as
the “biased judge” throughout his two motions to disqualify, is unsupported
in the record, and his unsubstantiated accusations and allegations, strike
this Court as bluster. We are in full agreement with Judge Charles: “[T]he
time has come for both parties to dial down their rhetoric and focus their
- 19 -
J-S41024-17
attention on moving beyond their vitriolic past. . . . [I]t is now time for both
HUSBAND and WIFE to move forward with their respective lives.” Opinion,
9/15/15, at 1, 21.
We affirm the trial court’s orders, and rely in part on the opinion dated
December 19, 2014. We direct the parties to attach a copy of that opinion
in the event of further proceedings.
Orders in 190 MDA 2017 and 192 MDA 2017 affirmed. Appeal in 191
MDA 2017 quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2017
- 20 -
Circulated 08/23/2017 12:34 PM
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CIVIL ACTION - FAMILY DIVISION
SUSAN C. SMITH NO. 2013-20491
Plaintiff,
v.
CHRISTOPHER C. SMITH
Defendant
·-· .. ·-· .. ' .......
· APPEARANCES:
M. Jannifer Weiss, Esquire For Susan C. Smith
WEISS, WEISS & WEISS
Jessica E. Lowe, Esquire Former Counsel for Christopher
C. Smith
Christopher C. Smith Pro Se
OPINION BY CHARLES, J .• December 19, 2014
This case focuses upon the interplay between financial need and
alimony pendente lite (APL). Susan Smith (hereafter "WIFE") argues that
proof of financial need is no longer a predicate to an award of APL. In
contrast. Christopher Smith (hereafter 11 HUSBAND11) argues that a
threshold showing of financial need is necessary before any APL can be
awarded. Our research has revealed legal precedent that supports the
arguments proffered by both sides. However, because we conclude that
APL cannot statutorily or historically be equated with spousal support, and
because we therefore conclude that something other than the marital
1
relationship is needed to support APL, we hold today that a spouse
seeking APL must establish at least some threshold proof of financial
need. However, we also hold that the definition of "financial need11 must
of necessity be fluid and determined based upon the unique
circumstances presented by each factual dispute. As we will outline in
more detail below, we hold in this case that WIFE has in fact established
that she has a need for APL, and we will therefore affirm the decision of
the Special Master to require that HUSBAND pay APL to WIFE.
. ;,., ..
I. FACTS
HUSBAND and WIFE were married on September 15. 1984. The
relationship obviously had Its ups and downs. Even before separation,
WIFE filed a Complaint for Divorce on June 25, 2013. Included in WIFE's
Complaint was a request for APL. However, WIFE did not pursue her
claim for APL until June of 2014. At that time, WIFE left the marital
residence to move Into an apartment. (Special Master Report at pg. 2).
Attorney Loreen Burkett was appointed as Special Master to hear only
WIFE'S claim for APL.
A hearing regarding APL was conducted before the Special Master
on August 26, 2014. At that hearing, both parties described a pre-
separation lifestyle that could be classified as upper middle class.
Moreover, both parties were able to pay the cost of their son's college
111
education. WIFE aptly said that after college education was paid: did
not have any worries financially." (N. T. 14).
2
The parties' relatively good lifestyle was based upon the fact that
each has enjoyed a relatively good job. HUSBAND has been employed by
the Pennsylvania Higher Education Assistance Agency. Although
HUSBAND did not provide 2014 Income information, WIFE produced a
2013 W-2 wage statement that revealed wages of $105,207.09 and a 2012
W-2 that reflected earnings of $102, 172.33.1 Therefore, she evaluated
HUSBAND's 2013 annual income and calculated HUSBAND's monthly
income at $8,750.00. WIFE has been employed as an office manager at
· "Vlsion ·works, lnc, She is 'sa.arled et $46;000.00 per year. However, she
also receives bonuses. WIFE did produce evidence of her income during
2014 .. Based upon WI FE's 2014 Income documentation, the Special
Master determined her gross monthly income to be $4,429.16.
Following separation, HUSBAND remained in the martial home.
WIFE obtained an apartment at the Rockledge Apartment Complex near
Palmyra. She testified that her standard of living has declined since
separation. (N.T. 15). She specifically testified that she has cut back on
expenses and can no longer attord a vacation or new clothing. She
summarized her situation by stating: "I do not buy anything that I do not
need." (N. T. 16). Moreover, she furnished her apartment by purchasing
used items at a local thrift store. (N.T. 17M18). On cross examination,
WIFE explalned that while she is able to pay her bills, her expenses are
I
In addition, the 2013 income tax return of the parties revealed capital gains of $82,901.00 during that
calendar year. The Special Master determined that capita! gains "can properly be considered as part of
the marital estate for distribution purposes when the estate is tater divided."
3
now based upon a lifestyle that Is "substantlally cut down" from that which
she enjoyed during the marriage. (N.T. 38).
Stunningly, HUSBAND declined to testify or present documentary
evidence at the APL hearing. Instead, he rested upon his cross-
examination of WIFE and his argument that she had no need for APL.
Specifically, HUSBAND argued that WIFE possessed $351000.00 in a
checking and savings account and that she should be required to draw
down those amounts before collecting APL. HUSBAND focuses on WIFE's
·l,wrenl' ·exptmrns ano arques: 11Sha has 'the ability to· a fiord· ail ot her
llving expenses since moving out of the former marital residence ... "
(HUSBAND'S Brief at 6).
Without conducting any extensive legal analysis, the Special 'Master
accepted HUSBAND's premise that WIFE was required to prove financial
need. However, the Special Master determined that WIFE did have
financial need for APL. The Special Master stated:
Husband argues that, even though his income may be
substantially higher than Wife's, she has not demonstrated an
actual need for an award of allmony pendente lite. He
indicates that Wife has been able to meet all of her living
expenses since moving out and has been able to pay her legal
fees. However, Wife testified that she has only been out of
the marital residence for two months and has taken measures
to cut back on expenditures, not knowing what her actual
income will be. She stated that the parties are only at the
beginning of their legal expenses and they are estimated, and
that she will incur more as time goes on. Wife indicated she
does not have access to many of the marital funds. Wife has
demonstrated actual need for an award of alimony pendente
lite.
(Special Master's Report at 3).
4
Based upon the foregoing, the Special Master awarded APL to WIFE
based entirely upon the Pennsylvania Spousal Support Guidelines. The
calculations employed by the Special Master are set forth below:
WIFE HUSBAND
Total gross income per month $4,429 $8, 750
Less Deductions $1,071 2,446
Net Income $3,358 $6,304
Difference $2,946
Percent b{ which to multiply 40
Amount of Monthly Alimony
Pendente Lite Obligation $1, 178
HUSBAND filed timely Exceptions to the decision of the Special
Master. The primary focus of HUSBAND's Exceptions was that WIFE has
not established need for APL. HUSBAND argued: "The learned Master
erred and/or committed an abuse of discretion by adhering to the Spousal
Support Guidelines in determining an award of APL, as the resulting sum
is far more than WIFE needs to maintain herself throughout the divorce
proceedings." Secondarily, HUSBAND also challenged the Special
Master's decision that he should be required to pay a portion of WI FE's
unreimbursed medical expenses.
Following the filing of Exceptions, HUSBAND asked this Court to
stay his payment of APL during the pendency of the underlying
substantive exceptions. By a Court Order dated October 16, 2014, we
denied HUSBAND's request to stay payment of APL. HUSBAND then
5
discharged his lawyer and filed a pro se response by which he reiterated
his aruument that WIFE should not receive anything because she has no
financial need.
As we began our evaluation of HUSBAND s exceptions to APL, we
1
quickly realized the underlying legal precepts governing APL are more
complicated than the partles had realized or we had anticipated. We will
therefore begin our analysis by outlining the history of APL In
Pennsylvania and how it has evolved to closely - but not completely -
· · ·-·.\ -· · · jJa ral lei spousal suppo. t. Atte r anaiyzlny the law, W8 wili appiy the facts ·
of th is case In order to reach our decision.
II. DISCUSSION
A. Legal Analysis
APL began as a precept of Pennsylvania common law. See, Appeal
of Groves, 1871 WL 11028, 68 Pa. 143 (1871 ). Its historical purpose was
summarized in Purman v. Purman, 7 Pa. D & C 755 (1925):
Alimony pendente lite Is not a matter of right, but it is
addressed at the sound discretion of the court, and the court
may refuse it where cause against it is shown.
The controlling element in granting an allowance ln any case
is the wlta's necessity for it, the husband's ability to pay and
all the circumstances of the particular case.
The destitute condition of the wife Is a necessary prerequisite
to an order for alimony pendente lite. Her want of pecuniary
ability must be shown affirmatively before an order will be
made.
6
The husband's ability to pay must be shown and not
presumed, and if the husband's means are limited, the amount
allowed will necessarily be limited. ·
Id. at 758. In 1929, the right to APL was codified by statute. See, 23
P.S. 46 (May 2, 1929) (repealed). However, the amount of APL was
always considered to be "a matter of Judicial dlscr etlcn." Meinel v.
Meinel, 167 A. 385 (Pa.Super. 1933).
When Pennsylvania's Divorce Code was created in 1990, APL was
incorporated. Section 3702 of the Divorce Code States: "In proper cases,
upon petttton; ·the 'court · may allow a· spouse ·rea·s-crrtablEf alimony pendente
lite ... " 23 Pa.C.S.A. § 3702. The definitional section of the Divorce Code
defines APL as "An order for temporary support granted to a spouse
during the pendency of a divorce or annulment proceeding." 23 Pa.C.S.A.
§ 3103. However, the Divorce Code does not specify when or in what
amount APL should be awarded.
Until the advent of Pennsylvania's Support Guidelines, APL was
determined at the discretion of trial courts on a case-by-case basis. From
a broad perspective, our appellate courts recognized a distinct ditterence
between spousal support and APL: the former arose out of the marital
relationship itself and was designed to provide financial maintenance and
support for the dependent spouse, while the latter was considered
ancillary to a divorce action and was intended to equalize the ability of
each spouse to prosecute or defend the divorce action. Remick v.
Remick, 456 A.2d 163 (Pa. Super. 1983). The amount of APL was
7
determined based upon factors identical to those contained in the Divorce
Code regarding alimony. See, e.g. Dyer v. Dyer, 536 A.2d 453
(Pa.Super. 1988) and McNulty v. McNulty, 500 A.2d 876 (Pa.Super.
1985). See also, 23 Pa.C.S.A. § 3701 (b) (repealed).
Pennsylvania adopted Child Support Guidelines in 1981. These
gurdelines were expanded to Include APL in 1994. The following
provisions of the Support Guidelines now address APL:
• Rule 1920.31 requires that APL ordered by a Court must be paid
.· .· -:- ..
. thr6ug ..li· the local Domestlc Relatio.ri's Offi'ce:' .. ~·-
• Rule 1910. 16-1 (c) provides that APL and spousal support cannot be
enforced simultaneously.
• Rule 1910.16-1 (c) requires a Court to consider the duration of the
marriage in determining APL.
• Rule 1910.16·1(b) states: "The amount of support (child support,
spousal support or alimony pendente lite) to be awarded ... shall be
determined In accordance with the support guidelines ... "
In spite of these new APL rules - or perhaps because of them - the
official comment to the Support Guidelines was amended to state:
"Nothing in this Rule should be interpreted to eliminate the distinctions
between spousal support and alimony pendente lite which are established
by case law." Pa. R.C.P. 1910.1 (explanatory comment - March 30, 1994).
Since 1994, mixed messages have been articulated by courts which
were called to rule upon APL issues. In Calibeo v. Calibeo, 663 A.2d
8
184 (Pa.Super. 1995), the Pennsylvania Superior Court acknowledged the
APL changes created by the Support Guidelines and stated: "Since [the
Support Guideline amendment] requires that alimony pendente lite be
determined pursuant to the Support Guidelines) the difference between
alimony pendente lite and spousal support, no matter If it is part of the
divorce action or filed separately, is n egllgible ... " Id. at 185. Moreover,
our Supreme Court has applied the Support Guidellnes and directed that
finders of fact "calculate a spousal support or APL award according to the
1186, 1191 (Pa. 2002).
On the other hand, several Pennsylvania Superior Court cases have
implied that financial need is a precondition of awarding APL. In Schenk
v. Schenk, 880 A.2d 633 (Pa.Super. 2005), a trial court refused to adhere
to the Support Guidelines because an obliges-wife lived with a boyfriend
"who paid all of her bills." In affirming the trial court's decision, the
Superior Court stated:
As for the court's holding that wife is not entitled to APL for
the time when she lived with boyfriend, we find no abuse of
discretion. First, we note our agreement with husband that the
Court's rationale in denying wife APL for the time she lived
with her boyfriend appears not to be based simply upon her
cohabitation, but rather upon her failure to prove her needs in
defending herself in ·the divorce action ... Alimony pendente lite
Is designed to be temporary and Is available to those who
demonstrate the need for maintenance and professional
services during the pendency of the proceedings. Wife failed
to demonstrate her need. Accordingly, we find no abuse of the
Court's discretion.
9
Id. at 646) quoting in part Jayne v. Jayne, 663 A.2d 169, 176 (Pa.Super.
1995). See also Childress v. Bogosian, 12 A.3d 448 (Pa.Super. 2011)
(11APL focuses upon the ability of the individual who receives the APL
during the course of the litigation to defend her/himself, and the only
issue is whether the amount is reasonable for the purpose ... " Id. at 463 ).
Several common pleas decisions have evaluated the question of
whether a financial need litmus test should be imposed as a predicate to
an award of APL. Two courts reached the conclusion that it should not.
···. ·':,··~. · In Freror,'e-:=v. Prerotte, 74 Pa. D u ·v 4th ~9s- ·(Faybtle Cu. 2005), the
Court held that a deviation from the Guidelines in an APL case cannot
occur unless the Court makes a determination that 'the Guidelines
themselves would permit deviation. Even more explicit is an en bane
decision by the Lehigh County Court in Pruti'bomme v. Prud'homme, 48
Pa. D & C 41h 182 {2000). In setting forth a comprehensive history of
Pennsylvania law pertaining to spousal support and APL, the Court
recognized that even under common law principles, both APL and child
support "required the court to determine the recipient's needs based on
the parties' standard of living while they lived together or their station in
life) and the paver's ability to pay considering his/her income, property
and earning capacity." The court stated:
[S]pousal support and APL were always based on similar
financial crite rla, though the procedures and du ration differed.
As a result of the promulgation of new support rules by the
Pennsylvania Supreme Court, and the Interpretation of these
rules by the Pennsylvania Supreme Court and the
Pennsylvania Superior Court, many of the historical
10
distinctions between spousal support and APL. have been
eliminated. APL like spousal support shall be determined in
accordance with the Uniform Support Guidelines. APL and
spousal support shall not be in effect simultaneously. APL
claimants, like spousal support claimants, need not prepare
and file detailed income and expense statements. Upon the
entry of a decree in divorce, if economic claims are still
pending, a spousal support order shall be deemed an order for
APL.
Id. at 192. Essentially, the Prud'homme court determined that 11APL is
merely a type of support awarded in divorce cases." Id. at 191. Having
reached this conclusion, the Court in Prud'homme rejected the obllqor's
eHor·i tocreate ti financlal need litmus test.' The· courtstatec: ... -~
Husband's argument ls-contrary to both the letter and spirit of
the Uniform Support Guidelines. First, from a linguistic
standpoint, Rule 1910.16~1 states very specifically that A PL,
like spousal support and child support, is to be determined In
accordance with the guidelines. If the guidelines establish
APL. .. and there is no basis for a deviation, then APL Is to be
awarded in that amount, so long as there is a divorce action
being pursued. There Is no requirement under the support
rules for a separate demonstration of financial
need ... Husband's contention, if adopted, would return us to
the pre-guideline days when subjective judgments were made
as to "ne ed." This would reintroduce uncertainty into a
process that is intended to be uniform and predictable.
Id. at 193, 194.
In contrast to Frerotte and Prud'homme, the Somerset County
Court of Common Pleas determined that a preliminary finding of financial
need must be established before the spousal support guidelines are
applied. Moore v. Moore, 56 Som.L.J. 110 (1999). The Court in Moore
emphasized that APL was founded on a different historical precept than
· was spousal support. Because APL was intended from the beginning to
11
enable a spouse to prosecute or defend a divorce action, a findlng of
need by the obligee spouse necessary follows in order to accomplish the
purpose of APL.
To date, Pennsylvania's highest court has not yet had the
opportunity to rule upon the question of whether financial need is a
predicate to recovering APL. Moreover, we are aware of no Superior
Court precedent that has either specifically mandated or rejected a
request to employ the "financial need" litmus test prior to awarding APL.2
We .;Were ·particuiarly lrnpre ese d with 'the· 'scholarly approach
undertaken by the Lehigh County Court on the precise issue that is now
before us. Nevertheless, we depart company with our colleagues In
Lehigh County. As we read Prud'homme, we perceive that the Lehigh
County Court has essentially equated APL with spousal support except in
the very unusual situ atlon where separated spouses are involved In
litigation that does not include divorce proceedings. We simply cannot
concur that our Supreme Court Intended to transform APL into "merely a
type of support awarded in divorce cases."
Our appellate courts have always recognized that APL and spousal
support "dlffer in character." Be/shy v. Be/shy, 175 A.2d 348 (Pa.Super.
1962); Hanson v. Hanson, 11 O A.2d 750 (Pa.Super. 1955);
Commonwealth ex rel Lipschultz v. Lipschultz, 117 A.2d 793
2
Sohenkwas affirmed by the Superior Court on two separate grounds. In addition to declaring that the
wife had not established financial need, Schenk also recognized that the Support Guldelines themselves
required a deviation because wife possessed "other income in her household" and this is a factor that the
court must consider when determining whether to deviate from the Support Guidelines.
12
(Pa.Super. 1955). Spousal support has always been predicated upon the
existence of a marital relationship and is designed to enable a dependent
spouse to pay all of his/her necessary expenses. See, e.g.
Commonwealth ex rel Werline v. Werline, 421 A.2d 1080 (Pa.Super.
1980). In contrast, alimony pendente lite has historically been designed
to enable a dependent spouse to prosecute or defend a divorce
proceeding. Price v. Price, 614 A.2d 1386 (Pa.Super. 1992).3 To our
knowledge, no statute, rule of court or appellate decision has ever
·-equaled· AP'L and spousal support as did Prua'homme: · · ·
We place significant emphasis on the official comment to the
support guldelines amendments that incorporated APL. That comment
states: ''Nothing in this Rule should be interpreted to eliminate the
distinctions between spousal support and al/mony pendente lite which are
established by case law." Why would this language have been Included if
the Supreme Court Intended to morph APL into "mere spousal support in a
divorce case?"
Based upon the analysis of Schenk v. Schenk} supra, and upon our
belief that a distinction between APL and spousal support continues to
exist In a post-guideline environment, we conclude today that a plaintiff
seeking APL must establish some financial need in order to obtain APL.
However, we do not necessarily declare that the bar establishing financial
3
There are other differences as well. For example, a spouse may receive APL even when his/her martial
misconduct would have barred an award of spousal support. Wargo v. Wargo, 154 A.2d 339 (Pa.Super.
1959). Also, spousal support is of Indefinite duration, while APL Is llmited in duration to the time that a
proceeding "may with due diligence be prosecuted to conclusion. Be/shy v. Be/shy, supra.
13
need must be high. Financial need cannot be automatically presumed
simply because one spouse earns more than another. However, financial
need cannot be always foreclosed simply because a spouse with lower
Income cuts back expenses in order to make his/her ends meet. The
standard of living developed by the parties during the marriage, the
degree to which either spouse has Independent assets available, the
extent to which either party receives help in paying expenses, and the
nature of the income discrepancy between the parties are all factors that
can ·and rrrust be considered· in assesslnq --mni:-nclai 'need. In · short, a
determination of financial need is of necessity a moving target that must
be evaluated based upon the unique facts and circumstances of each
particular case.
Once a threshold determination of financial need is made, then the
support guideline calculations must be undertaken. Under Pa.A.C.P.
1910.16-1 (b), a formula identical to spousal support must be employed.
This formula necessarily considers the incomes of each party and whether
any child support is also owed.
Applying the spousal support formula to an APL case does not
totally end the analysis. In Colonna v. Colonna, 855 A.2d 648 (Pa.
2004), the Pennsylvanla Supreme Court addressed a support guideline
question by concluding: "[W]here the incomes of the parties differ
significantly, we believe that it is an abuse of discretion for the trial court
to fail to consider whether deviating from the support guidelines Is
14
appropriate ... " Id. at 652. Rule 191 Or. 16·5(b) of the guidell nes sets forth
numerous factors that a court must consider in determining whether to
deviate from the guideline formula amount. Those factors are:
(1) Unusual needs and unusual fixed obligations.
(2) The support obligations of the parties.
(3) Other income in the household.
(4) Ages of children.
(5)" Assets of parties .
... ' ..
· · ·(6}·- ·1v1erdical 'expenses not covered by Insurance."
(7) Standard of living of the parties.
(8) In an APL case, the duration of the marr1age during which the
parties resided together.
(9) Any other appropriate factors. 4
Sifting through everything outlined above, we hold today that the
following analytical paradigm must be employed whenever a spouse seeks
APL:
(1) Is a divorce action pending? Because APL Is ancillary to divorce,
no award can be ordered in the absence of a pending divorce action.
(2) Does the dependent spouse have a financial need for APL? The
question of financial need must of necessity be fact-specific and
based upon the exigencies of each unique case.
4
In a case involving APL, we believe that an appropriate "other factor" would be whether the assets
possessed by the parties will later be attached or divided during equitable distribution. After all, we
question the fairness of granting or denying APL because one spouse may temporarily possess an asset
that wilt later be divided between both.
15
(3) What do the spousal support guidelines require based upon the
Income of both parties?
(4) Is a deviation from the spousal support guideline amount
appropriate based upon the factors set forth in Pa. R. C. P. 1910.16-
5(b)?
It Is the above analytical paradigm that we will apply to the facts of this
case.
B. Factual Analysls ·. .
~- ..... ' ... - .. . .,,..,.., . ~ '.. .. ~
(1) Pending Divorce Action
WIFE filed a Divorce Complalnt on June 25, 2013. That Divorce
Complaint was never withdrawn. Litigation regarding the parties' divorce
is now pending. Thus, APL Is a remedy available to WIFE under the
Pennsylvania Divorce Code.
(2) Financial Need
Stripped of superfluity, HUSBAND posits the following argument:
"Wife Is able to pay her current expenses with her income. Therefore, she
has no financial need/ We categorically reject this simplistlc argument.
A determination of financial need must of necessity analyze far more than
whether an obllgee spouse has unpaid bills and expenses.
HUSBAND earns almost double the Income of WIFE. In terms of
dollars and cents, HUSBAND takes home almost $3.000.00 per month in
net income more than does WIFE. This is a significant income
discrepancy that cannot be ignored.
16
During the marriage, the parties enjoyed an upper middle class
lifestyle. It is certainly true that when two spouses separate, neither will
be able to enjoy the same lifestyle separately that both were able to enjoy
together. Still, a spouse who earns less than her husband should not be
expected to endure a standard of living that Is degraded considerably
below what was previously enjoyed during the marriage. In this case,
WIFE has had to "start over" in an apartment. She testified that she has
been forced to purchase furniture and other items from a thrift store ln
order to set uµ hei household. She J s no longer ab la to eat out or enjoy·
recreational activities as she did prior to separation. In short, WIFE has a
need for additional finances In order to raise her lifestyle to a level closer
to what she enjoyed pre-separation.
Just as important, we are not blind to the fact that when pursuing or
defendlng litigation, money and flnanclal resources can equal leverage -
and we are talking about much more than simply being able to afford
lawyers1 fees and costs. When a litigant is in a precarious financial
situation and is living paycheck-to-paycheck, there is a huge
temptation/incentive for that party to settle promptly. Knowledge of this
fact affords the opposing party with a negotiating advantage that can be
critical. On the other hand, when both parties can enter litigation on a
relatively equal financial playing field, neither has an unfair advantage
over the other. In this case, the fact that HUSBAND earns tar more than
WIFE places him in a vastly superior economic position. Seel e.g.
17
DeMasi v.DeMas/1 597 A.2d 101 (Pa.Super. 1991) (assets and income are
the 11fi nancial sinews of domestic warfare!' Id. at 104). l ndependent of
anything else, this type of vastly superior economic position is precisely
why APL was developed at common law and by statute.
As noted above, the bar to establishing financlal need has never
been impossible. or even difficult to hurdle. See, Kuehnle v. Kuehnle,
157 A.2d 218 (Pa.Super. 1931) ("It Is not necessary that [wife] 'be
financially destitute before an [APL] order Is made." Id. at 219). While
we wouid ·oa···rEductant to award Ai-1L simply· uscause vr1e spouse eatns
only percentage points less than the other, neither are we blind to the
day-to-day and litigation advantages that $3,000.00 per month can afford
to a party. In this case, we agree with the Special Master that WIFE has
established financial need for APL. Therefore, we will move forward to
apply the rules governing the Pennsylvania Support Guidelines.
(3) Guidelines Support Amount
The Special Master determined that the support guidelines result In
an award of APL totaling $1,178.00 per month. Neither HUSBAND nor
WIFE have challenged the Special Master's determination of income or
her calculation of APL using the spousal support guidelines. Accordingly,
we will adopt the calculation of the DRM that the guidelines require that
HUSBAND pay $1, 178.00 per month to Wl FE.
18
14) Deviation
The Special Master did not consider deviation from the support
guidelines as a possibility, nor did she analyze or discuss any of the
support deviation factors. Because we believe that analysis of APL
should gene rally at least contemplate the possibility of deviation, we
would prefer to undertake a deviation analysis. Unfortunately, we are
significantly hindered in our ability to do so by virtue of the fact that
HUSBAND choose not to testify at the APL hearing.
· · ... - In a prO' se 'document filed· on October. 29, 2014; 'HUSBAND asserted
that his monthly expenses greatly exceeds his income and ul can no
longer afford to be represented and maintain any type of a lifestyle I am
accustomed to." Unfortunately, we cannot consider HUSBAND)s post-
hearing protestations of poverty. HUSBAND was afforded the opportunity
to provide testimony and documentation at the APL hearing that occurred
on August 26, 2014. For whatever misguided reason, HUSBAND
voluntarily chose not to present anything. As a practical matter, we are
unable to undertake a meaningful deviation analysis as a resu It. 6
In absence of testimony and evidence from HUSBAND relative to his
. financial situation, we are unable to deviate from the formula calculation
6
We are well aware that HUSBAND has retained possession of the marital home. We suspect that
expenses relating to the marital home could well exceed the $765.00 per month that WIFE spends in rent
for her apartment. (See Exh. 2). This is certainly a factor that we would have considered when
determining whether to deviate from the guidelines. Unfortunately, we cannot consider this or any other
aspect of HUSBAND's financial condition because he stubbornly refused to provide Information regarding
that condition.
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of APL requlred by the Pennsylvania Spousal Support Guidelines.
Accord lngly, no devlation from the guidelines wi 11 be directed.
Ill. CONCLUSION
On the initial legal question of whether financial need Is a
prerequisite to an award of APL, we agree with HUSBAND that some
showing of financial need is a predicate to an award of APL. However, we
categorlcally reject HUSBAND's positron that myopically focuses upon
whether WIFE has unpaid expenses. Evaluating financial need requires a
. . .
global assessment of both spouses' income, expenses, assets and
standard of living. APL has always been Intended to prevent one spouse
from gaining financial leverage over the other during the pendency of a
divorce proceeding, and financial need must be assessed with this
purpose In mind.
In this case, there is a huge disparity of income between HUSBAND
and WIFE. Moreover, WIFE has established to our satisfaction that her
current financial situation is tenuous, and that her standard of living has
diminished significantly since separation. We conclude that absent APL,
HUSBAND would be in a far better position to litigate the parties' divorce
than would WIFE. Accordingly, we agree with the Special Master that
WIFE has established financial need.
Because we conclude that WIFE has established financial need, we
agree with the Special Master's decision to apply the spousal support
formula set forth in the Support Guidelines. Although we would have
20
preferred to undertake a deviation analysis under Pa.R.C.P. 1910.16-5(b),
we were essentially prevented from doing so by virtue of HUSBAND's
dee is ion not to testify or provide documentary evidence. Accordingly, we
will adopt the Special Master's guideline· formula cal cu la ti on and wlll
.affirm her decision to award WIFE $1, 178.00 per month in APL. An Order
to accomplish this wlll be entered today's date.
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