Appeal from the Order Entered June 5, 2008, Court of Common Pleas, Chester County, Domestic Relations Division, at No. 1279 N 1997.
The opinion of the court was delivered by: Shogan, J.
BEFORE: KLEIN, SHOGAN, JJ. and McEWEN, P.J.E.
¶ 1 Appellant, Sheila T. Krebs, n/k/a Sheila Johnson, ("Wife") appeals from the order awarding her counsel fees in the amount of $5,000.00 to be paid by Appellee, William A. Krebs, III ("Husband"). We vacate and remand.
¶ 2 The trial court stated the factual and procedural history as follows:
The parties married in 1988. They have three children. The parties separated in 1996 and were subsequently divorced. On April 24, 2006, [Wife] filed a Petition to Modify Support to increase the existing support Order. On January 27, 2007, Hearing Officer Gregory Marshall issued a Report and Recommendation which retroactively modified Mr. Krebs' support obligation effective January 1, 2001. Mr. Krebs filed one exception to the Hearing Officer's Report. On May 8, 2007, I found that [Wife] was entitled to an increase in support retroactive to May 21, 2004. On May 29, 2007, I amended the May 8, 2007 Order to add an arrearages payment schedule to the support obligation.
Both parties appealed to the Superior Court. [Wife] claimed that I erred in declining to order the arrearages retroactive to 2001 when Mr. Krebs failed to disclose increases in his income. Mr. Krebs asserted that I erred in imposing retroactive child support payments beyond the date that [Wife] filed the modification petition.
On March 5, 2008, the Superior Court (1) affirmed in part, holding that I properly found compelling reasons [that] warranted child support arrearages; (2) reversed in part, holding that I erred in limiting the retroactivity only to May 21, 2004 rather than extending it to January 1, 2001, when Mr. Krebs first failed to report the substantial increases in his income; and (3) remanded to review the method and payment of arrearages and possible interest, and to consider the amount, if any, of counsel fees owed to [Wife].
On June 5, 2008, upon remand, I found that Mr. Krebs owes arrearages of $72,603 (as of May 19, 2008) plus interest at a rate of six percent (6%) on the monthly shortfall of support payments commencing January 1, 2001 to the date all arrearages are paid in full. I also ordered Mr. Krebs to pay [Wife's] counsel fees of $5000.*fn1
¶ 4 Wife claims that the trial court erred in limiting the award of counsel fees to $5,000.00 when the fees were incurred as a direct result of the fraudulent concealment of increases to Husband's income from the time period of 2001 through 2006 in order to avoid paying additional child support. Wife asserts the fees were reasonable in light of the 21/2 years spent on the litigation.
¶ 5 In child support matters reviewing an award of attorneys' fees, our standard of appellate review is for an abuse of discretion. Bowser v. Blom, 569 Pa. 609, 615, 807 A.2d 830, 834 (2002). An abuse of discretion occurs when there is a misapplication of the law or an unreasonable exercise of judgment. Diament v. Diament, 816 A.2d 256, 263-264 (Pa. Super. 2003).
¶ 6 An award of attorneys' fees to the prevailing obligee incurred in a support matter is authorized pursuant to 23 Pa.C.S.A. § 4351. This section provides, in pertinent part, as follows: "If an obligee prevails in a proceeding to establish paternity or to obtain a support order, the court may assess against the obligor filing fees, reasonable attorney fees and necessary travel and other reasonable costs and expenses incurred by the obligee and the obligee's witnesses." 23 Pa.C.S.A. § 4351(a).
¶ 7 In construing Section 4351, our Supreme Court has indicated that unreasonable or obstreperous conduct on the part of the obligor in a child support action is one basis which would warrant an award of attorneys' fees to the obligee.*fn2 The guidance provided by the Supreme Court in Bowser instructs that the obligor in a child support case who unnecessarily imposes costs on an obligee by improperly ...