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[U] Cordial v. Olson

Superior Court of Pennsylvania

February 20, 2014



Appeal from the Order Dated June 6, 2012, in the Court of Common Pleas of Allegheny County Family Court Division at No. FD 05-004737-006

Appeal from the Order Entered July 20, 2012, in the Court of Common Pleas of Allegheny County Family Court Division at No. FD-05-004737-006




In this divorce matter, the parties have filed cross-appeals from orders addressing their economic claims and divorcing them.

We adopt the facts and procedural history as summarized by the trial court:

The parties were married on October 2, 1982 after living together for two years. It was the second marriage for both parties. No children were born to either party from either marriage. The parties separated on June 18, 2005 when Husband moved out of the marital residence to reside with Cindy Provencher ("Provencher"), a woman with whom he had been having a relationship since March of 2001. At time of trial, both parties were 56. During the marriage, the parties enjoyed a very high standard of living. Wife worked in the insurance business prior to the marriage, but was not gainfully employed outside of the home for the majority of the marriage. She worked briefly at a restaurant which the parties owned. The last year of the marriage, Wife opened a high end clothing business which closed in 2006. She has since obtained her real estate license.
Husband graduated from Transylvania University in 1974 with a bachelor of arts in theater. After a few years working in theater, he began a career in the exhibits industry designing and manufacturing trade show and corporate exhibits, booths and displays. In 1984, he went to work at Creative Productions, a family owned business, as an account executive/salesman. Husband enjoyed a high income, earning an average of $350, 000 per year and as much as $552, 342 in one year. Creative Productions was sold in 2000 to E/G. Husband received $1, 000, 000 and a three-year written employment contract which contained restrictive covenants. The parties used the $1, 000, 000 to fund their Individual Retirement Accounts and a Merrill Lynch CMA joint investment account.
Husband's job with E/G was in Chicago. He returned to Pittsburgh on weekends. The job did not go well and he predicted that his employment contract would not be extended at the end of the contractual period. In anticipation of that, Husband gave E/G notice that he was not interested in renewing the contract. In 2003, he formed Calan Communications, Inc. ("Calan") to develop and market specialized software programs to the exhibits industry. To start the company, Husband invested $708, 000, Provencher invested $78, 000, and his former partner at Creative Productions, Cliff Helberg (Helberg) invested $1, 200, 000. All three were equal shareholders.
E/G initiated litigation against Husband and Calan for alleged breach of Husband's employment contract. Between March 31, 2003 and December 31, 2005, Husband and Wife loaned Calan $845, 723 to cover legal fees, operating costs and for software development. The litigation caused Provencher to withdraw from the company in 2004, leaving Husband and Helberg as equal shareholders. Provencher accepted a job which paid her $150, 000 per year. In 2007, Husband and Helberg adjusted their respective shareholder loan positions to avoid paying 7.7% interest by reclassifying a portion of their loan as Additional Paid in Capital (APIC). Husband reclassified $470, 000 of the money the parties loaned to Calan as APIC. This reclassification occurred after the parties separated and without Wife's knowledge or consent. The reclassification left only $375, 623 of the $845, 723 loaned by the parties to Calan as actual, recorded shareholder loans, virtually wiping out Wife's interest in the rest. The value of the shareholder loans is a separate marital asset from Husband's 50% stock in the company.
When Husband left E/G and started Calan in 2003, the balance in the Merrill Lynch CMA account was approximately $1.6 million. The Merrill Lynch CMA account was used for the parties' support and to provide loans and capital contributions to Calan. When Husband left Wife in June of 2005, the balance in the Merrill Lynch CMA account was $7, 591. Of that, $6, 475 was used to pay marital debt. The Master found Wife credible when she testified that Husband deceived her into thinking the marriage was viable while he depleted this account. At separation, the IRA account was worth $705, 303. Since separation, $542, 000 has been taken out of the account.
The first Report and Recommendation dated June 18, 2010 contained a detailed discussion of each marital asset. The Master listed the marital assets subject to distribution and placed a value on all but the Merrill Lynch IRAs and Calan Communications. The proposed distribution award was for the parties to keep the assets currently in their possession with Husband making up for the shortfall in Wife's share with additional transfers of property to Wife. Wife was awarded 100% of the remaining IRA accounts by Qualified Domestic Relations Order. She was awarded the next $39, 119.50 in shareholder loan interest payments and 80% of all subsequent interest payments until she is repaid $138, 000, the agreed portion of the loan balance. Husband was to execute a promissory note in the amount of $93, 640 payable over eight years at 5% interest and pay Wife $3000 for certain artwork. The Master found that Calan was incapable of valuation, but awarded all of Husband's interest in Calan to him. The result was an award in Wife's favor of approximately 60% of the marital estate.
In addition to equitable distribution, Wife raised claims for alimony pendente lite ("APL"), alimony, counsel fees, costs and expenses. Both parties presented expert testimony regarding an earning capacity for Husband. Husband's expert opined that a fair earning capacity was between $30, 673 and $45, 010. Husband's expert was not aware that Husband testified at his deposition that his earning capacity was between $80, 000 and $100, 000. Wife's expert recommended an earning capacity between $250, 000 and $300, 000. The Master recommended an earning capacity for Husband of $150, 000, an amount more in line with his deposition testimony and one which took into consideration his age and his seven years out of the paid work force. The Master recommended an earning capacity for Wife based on full-time minimum wage position. Wife was awarded alimony of $2, 086 per month until age 62. Wife was awarded counsel fees of $30, 000 and expert fees of $12, 000.
Husband filed 130 exceptions to the report. A few were directed to the value, or failure to value, all marital assets. The vast majority objected to specific factual findings made by the Master based on credibility. Wife filed 17 cross exceptions. By Order dated October 7, 2011, the court remanded the case with instructions for the Master to place a valuation on all assets, including Calan. A remand hearing was held on January 5, 2012. The parties stipulated to everything except the value of Calan. The Master issued a second Report and Recommendation dated January 9, 2012 setting a value on Calan of $480, 489. Husband filed exceptions and Wife filed cross exceptions. By order dated June 6, 2012, the court granted Husband's exceptions in part. The court determined that Wife did not have a need for alimony under the equitable distribution award, but continued APL until the litigation is ended or by further order of court. Husband filed a motion for clarification regarding the characterization of his APL payment. In response, the court issued an order dated June 28, 2012, clarifying that Husband's obligation of $2, 000 per month is regarded as APL retroactive to October 5, 2011.
Husband filed notices of appeals [sic] from all orders and the entry of the divorce decree. Wife filed cross appeals. These six appeals are docketed at Nos. 1234, 1240, 1241, 1242, 1290 and 1291 WDA 2012. The appeals at Nos. 1234, 1242, 1290 and 1291 were filed from orders dealing with property distribution prior to the entry of a final decree in divorce and are interlocutory. Campbell v. Campbell, 516 A.2d 363 (Pa. Super. 1986). The divorce decree entered on July 20, 2012 was appealed at Nos. 1240 and 1241. By order dated September 5, 2012, the Superior Court dismissed the four premature appeals and consolidated all properly preserved issues sought to be raised in those appeals at Nos. 1240 and 1241. The Court consolidated Husband's appeal and Wife's cross appeal in accordance with Pa.R.A.P. 2136. Husband's application for stay/supersedeas was denied by order dated September 5, 2012.

Trial court opinion, 1/23/13 at 1-6.

Husband raises the following nine issues for our review, all of which concern the equitable distribution award:

[1.] Whether the trial court erred by lacking any mathematical basis for ordering Appellant/Husband to transfer to Appellee/Wife his entire IRA and pay over $270, 000 (to balance an alleged discrepancy in what the parties received from the marital estate)[?]
[2.] Whether the trial court erred by using the wrong figure for Husband's pretrial advances from his IRA, counting $197, 356 twice[?]
[3.] Whether the trial court erred by charging Husband with taxes and penalties of $45, 753 on one of Wife's pretrial advances from the IRA, representing an error of $91, 506[?]
[4.] Whether the trial court erred by failing to make $240, 592 of IRA appreciation part of the marital estate and not dividing it among the parties[?]
[5.] Whether the trial court erred by ordering Husband to repay Wife $184, 104 in post-trial advances he received from the IRA[?]
[6.] Whether the trial court erred by using the wrong value of $375, 653 for the Calan Shareholder loans[?]
[7.] Whether the trial court erred by failing to clarify the status of the APIC (additional paid in capital) as a marital asset/debt[?]
[8.] Whether the trial court erred by treating the APIC as a marital asset or debt (if the trial court is doing this)[?]
[9.] Whether the trial court erred by using the wrong value for the APIC (if the trial court is treating the APIC as a marital asset or debt)[?]

Husband's brief at 5-6.

Husband's issues challenge the trial court's valuation of marital property. Our standard of review of a trial court's equitable distribution award is well settled: "The trial court has broad discretion in fashioning [equitable distribution] awards, and we will overturn an award only for an abuse of that discretion." Wang v. Feng, 888 A.2d 882, 887 (Pa.Super. 2005). An abuse of discretion is not merely an error of judgment. Rather, we will find an abuse of discretion only if "the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record[.]" Id. "[Further, ] the finder of fact is free to believe all, part, or none of the evidence and the Superior Court will not disturb the credibility determinations of the court below." Lee v. Lee, 978 A.2d 380, 382 (Pa.Super. 2009).

Moreover, we note that in determining the value of marital property, the court is free to accept all, part, or none of the evidence as to the true and correct value of the property. Litmans v. Litmans, 673 A.2d 382, 387 (Pa.Super. 1996), citing Aleto v. Aleto, 537 A.2d 1383 (Pa.Super. 1988). "Where the evidence offered by one party is uncontradicted, the court may adopt this value even though the resulting valuation would have been different if more accurate and complete evidence had been presented." Litmans, supra, quoting Holland v. Holland, 588 A.2d 58, 60 (Pa.Super. 1991), appeal denied, 528 Pa. 611, 596 A.2d 158 (1991). Accord Smith v. Smith, 653 A.2d 1259, 1267 (Pa.Super. 1995), appeal denied, 541 Pa. 641, 663 A.2d 693 (1995) (stating if one party disagrees with other party's valuation, it is his burden to provide court with alternative valuation). A trial court does not abuse its discretion in adopting the only valuation submitted by the parties. Id. See also Baker v. Baker, 861 A.2d 298 (Pa.Super. 2004), appeal denied, 591 Pa. 694, 918 A.2d 741 (2007).

In his first issue, Husband claims the Master did not specify what percentage of the marital estate was awarded to each party, that the Master lacked any mathematical basis for its recommendations, that the Master failed to discuss the marital value of each asset, and that the Master failed to assign a percentage to most of the assets.

"In fashioning an equitable distribution award, the trial court must consider, at a minimum, the [13[1] factors set forth in 23 Pa.C.S.A. § 3502, Equitable division of marital property, (a) General Rule." Gates v. Gates, 933 A.2d 102, 105 (Pa.Super. 2007). "We do not evaluate the propriety of the distribution order upon our agreement with the court['s] actions[, ] nor do we find a basis for reversal in the court's application of a single factor." Lee, supra at 383. Rather, "[i]n determining the propriety of an equitable distribution award, the court must consider the distribution scheme as a whole." Wang, supra at 887, quoting Schenk v. Schenk, 880 A.2d 633, 643 (Pa.Super. 2005); see Mercatell v. Mercatell, 854 A.2d 609, 612 (Pa.Super. 2004) (examining equitable distribution award as a whole to determine trial court did not abuse its discretion in awarding wife 60% of marital property).

The trial court responded to Husband's argument as follows:
After conducting nine days of trial, the Master prepared a thorough, thirty-two page report in which she made specific findings concerning the nature and value of the parties' marital estate. She provided detailed explanations for each asset prior to summarizing the information in the two schedules. She considered all appropriate factors. Factors which the Master pointed out as particularly relevant in her award were Husband's significantly higher earnings and earning capacity, the fact that he voluntarily chose not to seek paid employment for seven years and that he dissipated the parties['] significant investment account and retirement assets accumulated during the marriage.
The thirty-two page report goes into great detail on how each asset was to be distributed. In accordance with §3502, she divided some assets differently than others. There is no requirement that the Master must select an ultimate percentage distribution for each party and apply the same percentage to the entire marital estate. While the court recognizes that this is the usual procedure in the usual case, this case is far from usual. Following the first round of exceptions, the court agreed that values needed to be placed on Calan and IRA accounts. Upon remand, the parties stipulated to everything except the value of Calan. The Master heard expert testimony from both parties and placed a value of $480, 489. With these values established, the court was satisfied that the award was equitable. The failure of the Master to do the math for Husband is not grounds for overturning it. It is the result of the distribution to which Husband objects, not the methodology. The result is that Wife was awarded roughly 60% of a marital estate of approximately $1, 624, 000.00.
After eight days of testimony, the Master assigned values to the assets and recommended an equitable division of them. She complied with Pa.R.A.P. 1920.54 by listing marital property and providing an explanation for her recommended distribution. The Master's recommendations should be given the "fullest consideration, " particularly on issues of credibility, since she is the individual hearing the testimony and observing the demeanor and appearance of the witnesses. Kohl v. Kohl, 564 A.2d 222 (Pa. Super. 1989), affirmed, 585 A.2d 463 (Pa. 1991); Rorabaugh v. Rorabaugh, 448 A.2d 64 (Pa. Super. 1982).
The court looked to the Master's recommended distribution as a whole and found that it was equitable. It is the policy of this Commonwealth to effectuate economic justice in the division of marital assets. 23 Pa.C.S.A. §3102(a)(6). Mathematical precision in calculating amounts or percentages is not required in dividing the marital estate. Smith v. Smith, [595 Pa. 80, 85 n.2, 938 A.2d 246] at 248 [n.2 (2007)]. Husband presented nothing on exceptions to support his contention that the equitable distribution award was not properly based on the evidence presented and the law.

Trial court opinion, 1/23/13 at 9-11.

Based on the above, we find Husband's argument meritless. We remind Husband that our role as an appellate court is to determine whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure. McCoy v. McCoy, 888 A.2d 906, 908 (Pa.Super. 2005). Husband's claims of error concern mathematical calculations and not legal points. The trial court found the Master's recommended distribution was equitable and based on the evidence presented by the parties; as such, we find no abuse of discretion.

In his second issue, Husband argues the trial court erred by using the wrong figure for Husband's pretrial advances from his IRA. More specifically, Husband contends there were two advances totaling $355, 658 and $197, 356 assigned to him. Husband maintains the second number, $197, 356, was included in the first number. (Husband's brief at 20.) Husband argues there was no extra $197, 356 of withdrawals. (Id. at 21.)

The trial court addressed this argument as follows:
The Master relied on the expert testimony of Beth Mascetta. The Master determined that, of the total withdrawals, $355, 658 was allocated to Husband and $168, 129 was allocated to Wife. This was for advances through January 2009 as set forth by Wife's expert and is the amount reflected as Merrill Lynch advances in the last item on the distribution to each party.

Trial court opinion, 1/23/13 at 11. Clearly, Husband does not dispute that through January 2009, he received $355, 658 in advances from an IRA account as determined by the Master.

Husband was withdrawing $6, 200 per month. Ms. Mascetta, Wife's expert, testified that any additional withdrawals of $6, 200 per month should be added to the advances of Husband. Husband also withdrew $26, 200 in July 2009 near the end of the trial.[2] The parties entered into stipulations at the remand hearing which confirm that $197, 356 in advances was not in error. The parties specifically stipulated that Husband received $184, 104 in advances after March 2, 2009. (See Master's Report, 1/9/12 at 2.) Adding $12, 400 for January and February 2009 with some minor interest results in the $197, 356 figure.

We note Husband offered no expert testimony on this matter. This was a complicated issue with multiple advances made to both parties to pay marital debt and living expenses. The Master relied on the expert testimony of Beth Mascetta. We see no abuse of discretion. See Smith, 653 A.2d at 1267 (the trial court did not err in accepting the Master's recommendation based on the essentially uncontradicted testimony of the expert witness).

In his third issue, Husband argues the trial court erred by charging him with taxes and penalties of $45, 753 on one of Wife's pretrial advances from the IRA representing an error of $91, 506. The trial court addressed this issue as follows:

In October of 2008, Husband was ordered to withdraw $75, 000 as an advance to pay Wife. The Order specifically stated that the tax liability would be determined at equitable distribution. He withdrew $131, 578 assuming the tax and penalties would be $56, 578. The actual liability for the withdrawal was $45, 753, giving Husband a windfall of $10, 825. The Master included this in [her] schedule of advances based on the expert report of Ms. Mascetta. According to Ms. Mascetta, $45, 753 was the estimated taxes and penalties due on all IRA withdrawals made by Husband in 2008. These withdrawals totaled $182, 702. (Exhibit PP, Schedule 5). In fact, Husband paid only $46, 403 in taxes and penalties on all his 2008 income over and above the $182, 702 IRA withdrawals. Wife was charged with taxes and penalties of $19, 784 for the $75, 000. As with the previous issue, Husband presented no expert testimony on this matter, and the Master appropriately relied on Ms. Mascetta's testimony. Hence the court found no merit to Husband's assertion of a math error.

Trial court opinion, 1/23/13 at 12.

Once again, Husband failed to offer expert testimony on this complicated issue. When one party offers uncontradicted evidence of the value of a particular marital asset, this court may adopt that value even if the resulting valuation would have been different if more accurate and complete evidence had been presented. Holland v. Holland, 588 A.2d at 60. A trial court does not abuse its discretion in adopting the only valuation submitted by the parties. Baker v. Baker, 861 A.2d at 302. We find no abuse of discretion by the trial court here.

In his fourth issue, Husband argues the trial court erred by failing to make $240, 592 of IRA appreciation part of the marital estate and not dividing it among the parties. The trial court's opinion addresses this claim and deems it without merit. The trial court explained:

In response to a Petition for Special Relief seeking clarification on the remand order, the court issued an order dated October 20, 2011 that the valuation of the IRAs should include the current value, appreciation since March 2, 2009 and an itemization of advances since March 2, 2009. The remand hearing was held on January 5, 2012. The parties stipulated as to the value of the IRA accounts as of February 29, 2009 and November 30, 2011. Such stipulation should have included appreciation. Husband's stipulation to the value as of November 30, 2011 precludes him from raising an issue with respect to the Master failing to include appreciation in the IRA.

Trial court opinion, 1/23/13 at 12. We agree with the reasoning of the trial court, and affirm on that basis.

In his fifth issue, Husband argues the trial court erred by ordering him to repay Wife $184, 104 in post-trial advances he received from the IRA. Husband claims the trial court did not address this issue. However, the trial court specifically mentioned Husband's fifth issue in conjunction with his second issue. (Id. at 12.) Again, the trial court relied on the testimony of Beth Mascetta, the only expert to testify. We see no reason to disturb the award.

In his sixth issue, Husband argues the trial court erred by using the wrong value of $375, 653 for the Calan Shareholder loans. Husband contends the Master placed a value of $375, 653 for the shareholder loans on her first schedule while Husband's expert valued the loans at $138, 126. According to the record, it is undisputed that the parties loaned $845, 723 in Husband's name to Calan nor is there any dispute that $470, 000 of those loans were reclassified after separation as additional paid in capital "(APIC") by Husband and his partner without Wife's consent and without the court's permission. (See Master's Report and Recommendations, 6/18/10 at 24 n.32.) In her initial report, the Master clearly determined that the value for the remaining Calan shareholder loans was $375, 653 ($375, 653 is the difference between the total amount of the loans, $845, 723, and the $470, 000 of reclassified loans). We find no abuse of discretion regarding the trial court's acceptance of $375, 653 for the value of the remaining shareholder loans.

Husband's remaining three issues concern the value or status of the APIC as a marital asset or debt. The trial court found all three issues waived due to Husband's failure to raise these claims in his motion for clarification or elsewhere. (See trial court opinion, 1/23/13 at 13.) We have reviewed Husband's motion for clarification and agree with the trial court that there is no mention of the APIC. An issue may not be raised for the first time on appeal, and matters not presented to the trial court are not reviewable by an appellate court. Thompson v. Thompson, 963 A.2d 474, 475-476 (Pa.Super. 2007).

We now turn to Wife's issues on appeal. First, Wife argues that the earning capacity assigned to Husband was too low. Wife asserts Husband should be assessed an earning capacity between $250, 000 and $346, 000. "A person's earning capacity is defined not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training." Gephart v. Gephart, 764 A.2d 613, 615 (Pa.Super. 2000) (quotation omitted). Past earnings alone are not sufficient to support a determination of earning capacity without corroborating evidence that the party still has the capacity to earn that amount. See D.H. v. R.H., 900 A.2d 922 (Pa.Super. 2006) (holding trial court erred in determining earning capacity based solely upon party's most recent tax return).

Instantly, the trial court took into consideration that Husband did not perform well for three years at E/G from 2000 to 2003. With Wife's support, Husband left E/G to start a new company. Husband had virtually no earnings from the new company until he was able to take a small salary in 2008. The trial court determined that due to Husband's length of time being out of the work force, any contacts he had as an account executive are no longer viable. (Trial court opinion, 1/23/13 at 14.) Husband is also now 60 years old. While Husband believes his earning capacity is between $80, 000 and $100, 000, the Master set his earning capacity at $150, 000, which happens to be the amount Cindy Provencher was able to secure when she left Calan. That estimate is reasonable. Accordingly, the trial court did not abuse its discretion in setting Husband's earning capacity at $150, 000 per year.

Next, Wife complains the trial court erred in failing to award her alimony. In reviewing this claim, we are mindful that the role of an appellate court in reviewing alimony orders is limited; we review only to determine whether there has been an error of law or abuse of discretion by the trial court. Dalrymple v. Kilishek, 920 A.2d 1275, 1278 (Pa.Super. 2007).

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.
In determining whether alimony is necessary, and in determining the nature, amount, duration and manner of payment of alimony, the court must consider numerous factors including the parties' earnings and earning capacities, income sources, mental and physical conditions, contributions to the earning power of the other, educations, standard of living during the marriage, the contribution of a spouse as homemaker and the duration of the marriage.

Gates, 933 A.2d at 106 (citations and quotation marks omitted); see also 23 Pa.C.S.A. § 3701(b) (setting forth 17 statutorily mandated factors that a court must consider when determining whether alimony is necessary and in fashioning an award).

Wife argues that based on Husband's earning capacity of $150, 000, she should have been awarded alimony. It is interesting that nowhere in Wife's discussion of this issue does she mention that she was awarded 60 percent of the marital assets. The trial court was well aware of the assets Wife was to receive and explained its decision as follows: "The court reviewed the relevant factors and determined that, with the significant assets Wife will receive from equitable distribution, in addition to her earning capacity, Wife has sufficient income to provide for her needs and alimony was not necessary." (Trial court opinion, 1/23/13 at 14.)

As to Wife's claim that she should have been awarded alimony so that she could maintain the high standard of living she was accustomed to during the marriage, our review indicates that the standard of living was provided by the parties living off an IRA valued at $1.6 million. The standard of living was not provided by a salary that Husband earned. In fact, Husband had no earnings from 2003 to 2008. There is no merit to Wife's argument. The trial court's findings are supported by the record. We cannot conclude the trial court abused its discretion in failing to award alimony to Wife in this case.

Last, Wife argues the trial court erred and abused its discretion when it modified the amount of Wife's APL, sua sponte, without a petition for modification being filed and without a hearing. More specifically, Wife argues no petition for modification was ever filed by Husband after the Master's original report that was issued on June 17, 2010, and the order of August 2, 2010, which resulted in a PACSES order in the amount of $3, 408.

Our review of the record shows that Husband filed exceptions to the August 2, 2010 order. According to the applicable rules of civil procedure, "[i]f exceptions are filed, the interim order shall continue in effect." Pa.R.C.P. 1910.12(h). On October 5, 2011, the trial court entered an order stating, "Pending further order of Court, Husband shall pay the sum of $2, 000 per month to Wife. Following the Remand hearing, the Court will characterize these payments as either APL, alimony or payment on equitable distribution." The remand hearing took place on January 5, 2012, and the Master filed her report on January 9, 2012. The focus of the report was the valuation of Husband's business, Calan Communication. The report, however, does not discuss APL.

Husband's exceptions were not ruled upon until June 6, 2012. In its June 6, 2012 order, the trial court decreed: "Husband's exceptions are granted in part. Given the distribution Wife received and given the award of fees and retroactive APL, Wife does not have a need for alimony. Accordingly, Wife is granted no alimony. APL will continue, however, until litigation is terminated or by further order of court." The trial court then dismissed the remaining exceptions and cross exceptions, and adopted the Master's reports of June 17, 2010, and January 9, 2012, as final orders of court. (See June 6, 2012 order.)

Husband next filed a motion for clarification in which he sought clarification of the October 5, 2011 order; specifically, whether the $2, 000 monthly obligation was to be considered APL, alimony, or payment on equitable distribution. (See motion for clarification, 6/20/12, page 7, at No. 18.) By order dated June 28, 2012, the trial court specifically stated, "Husband's obligation of $2, 000/month is regarded as APL."

Based on the above tortuous history, it appears to us, based on this record, the trial court erred when it reduced the amount of APL on October 5, 2011, without any further proceedings or without a petition to modify being filed.[3] We are constrained to reinstate the $3, 408 monthly amount.

In all other respects, the orders of the trial court are affirmed.

Judgment Entered.

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