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[U] Griffin v. Griffin

Superior Court of Pennsylvania

February 27, 2014

SANDRA E. GRIFFIN, Appellee
v.
TIMOTHY GRIFFIN, Appellant SANDRA E. GRIFFIN, Appellee
v.
TIMOTHY GRIFFIN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on October 26, 2012 in the Court of Common Pleas of Allegheny County, Family Court Division, No. FD 09-007294-004

Appeal from the Orders entered on December 28, 2012 in the Court of Common Pleas of Allegheny County, Family Court Division, No. FD 09-007294-004

BEFORE: PANELLA, OLSON and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Timothy Griffin ("Husband") appeals from the trial court's Order entered on October 26, 2012, which denied his Motion for reconsideration regarding the disposition of his and Sandra E. Griffin's ("Wife") marital assets.[1] Husband also appeals the Orders entered on December 28, 2012, which, pursuant to Wife's Motion to enter QDROs, required Husband to open an IRA account and directed Wife's retirement accounts to fund Husband's IRA. We deny the Motion to quash and affirm the Orders.

Husband and Wife were married on July 1, 2000. The parties did not have children during the marriage. Wife filed a Complaint in Divorce on February 17, 2009. Husband filed an Answer and Counterclaim, seeking, inter alia, spousal support/alimony and attorneys' fees. At the time of the filing for divorce, Wife was 53 years old and worked as a claims adjuster for State Farm Insurance. Husband was 42 years old, a high school graduate, and worked as an auto mechanic at time of the divorce filing.

In August 2009, an interim support order for Husband was entered. Wife disputed the numbers utilized in determining Husband and Wife's respective incomes, as Husband's income from a side business was not included. On November 30, 2009, a complex support hearing was held to determine the appropriate spousal support Wife owed to Husband. At the hearing, Husband stated that he had earned money, which was not included in his income calculation, from conducting vehicle repairs out of his home. Husband also testified that he had directed six witnesses, subpoenaed by Wife, to not appear at the support hearing. Following the hearing, Wife filed a Motion for sanctions due to Husband's conduct with regard to the subpoenaed witnesses. On December 3, 2009, the trial court granted Wife's Motion for sanctions, terminated the interim support Order and dismissed Husband's claims for alimony and attorneys' fees. Husband filed a Motion for reconsideration, which the trial court denied.

On April 7, 2010, a divorce Decree was entered. Thereafter, Husband filed a Petition for special relief, seeking the reinstatement of his alimony/attorneys' fees claims, and the interim support Order. The trial court denied Husband's Petition. Husband filed appeals from this Order and the December 3, 2009 Order. This Court quashed the appeals as interlocutory.

On September 19, 2012, after a trial, the Honorable Kathryn Hens-Greco entered an equitable distribution Decree that provided for a 50/50 distribution of the parties' assets. Judge Hens-Greco ordered Wife to pay Husband $13, 218.09 for his interest in the marital residence, and directed Wife to fund Husband's retirement account with the martial portions of her State Farm Insurance pension plan and her Roth IRA accounts. On September 24, 2012, Judge Hens-Greco entered an amended Order requiring Wife to pay Husband his interest in the marital residence within thirty days, but leaving the rest of the September 19, 2012 Order intact. Thereafter, Wife filed a Motion for clarification to correct mathematical errors in the distribution scheme. On October 16, 2012, Judge Hens-Greco entered an amended Order correcting the mathematical errors in the distribution scheme. Wife filed a Motion for reconsideration of the October 16, 2012 Order, seeking the trial court's permission to use her 401(k) retirement account to fund the retirement portion of the distribution to Husband.

In the interim, Husband filed a Motion for reconsideration of the Orders entered on September 19, 2012, and September 24, 2012. The Motion was presented to the Honorable Kathleen Mulligan. On October 19, 2012, Judge Mulligan entered an Order stating that since Judge Hens-Greco had entered a new order on October 16, 2012, the time to consider Husband's Motion for reconsideration would run from October 16, 2012. Judge Mulligan further stated that Judge Hens-Greco would dispose of the Motion on October 26, 2012.

On October 26, 2012, Judge Hens-Greco granted Wife's Motion for reconsideration and allowed her to use her 401(k) account to fund Husband's retirement account. Judge Hens-Greco also set forth the division of all of the marital assets, utilizing her findings from the previous three Orders. By a separate Order, Judge Hens-Greco also denied Husband's Motion for reconsideration. Husband filed a Notice of appeal from the denial of his Motion for reconsideration. The trial court ordered Husband to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. Husband filed a Concise Statement and the trial court issued an Opinion.[2]

On December 28, 2012, Wife filed a Motion to enter QDROs. On that same date, the trial court entered three Orders ("QDRO Orders") requiring Husband to open an IRA account, directing Wells Fargo to fund Husband's IRA account in the amount of $7, 202.97, and directing State Farm to fund Husband's IRA in the amount of $34, 528.03. Husband filed timely appeals of the QDRO Orders. The trial court ordered Husband to file Rule 1925(b) concise statements. Husband timely filed Concise Statements and the trial court issued an Opinion. Thereafter, this Court, sua sponte, consolidated these appeals with the appeal of the October 26, 2012 Order.

Husband raises the following questions for our review:

I. Should this appeal be dismissed on procedural grounds, i.e., failure to file a timely notice of appeal, failure to file a timely concise statement of matters complained of on appeal and/or failure to cite to the record?
II. Did the trial court abuse its discretion and/or commit [an] error of law by refusing to reconsider its equitable distribution award and by imposing the QDRO Orders?

Brief for Appellant at 4 (questions reordered).

Initially, we note that Wife has filed a Motion to quash Husband's appeal from the October 26, 2012 Order because Husband's appeal was untimely filed. Motion to Quash, 1/15/13, at 1-5 (unnumbered). Wife contends that the trial court's October 26, 2012 Order denied Husband's Motion for reconsideration of the September 19 and 24, 2012 Orders. Id. at 4 (unnumbered). Wife also argues that Husband cannot appeal from the denial of a motion for reconsideration. Id. (unnumbered). Wife further argues that where the trial court does not grant reconsideration, the time to file an appeal is not extended. Id. at 4-5 (unnumbered).

It is well-settled that, upon the filing of a motion for reconsideration, a trial court's action in granting a rule to show cause and setting a hearing date is insufficient to toll the appeal period. Valentine v. Wroten, 397 Pa.Super. 526, 580 A.2d 757 (1990). Rather, the trial court must expressly grant reconsideration within thirty days of entry of its order. Pa.R.A.P. 1701. "Failure to 'expressly' grant reconsideration within the time set by the rules for filing an appeal will cause the trial court to lose its power to act on the application for reconsideration." Schoff v. Richter, 386 Pa.Super. 289, 562 A.2d 912, 913 (1989); Cheathem v. Temple University Hospital, 743 A.2d 518 (Pa.Super. 1999). "Therefore, as the comment to Pa.R.A.P. 1701 explains, although a party may petition the court for reconsideration, the simultaneous filing of a notice of appeal is necessary to preserve appellate rights in the event that either the trial court fails to grant the petition expressly within 30 days, or it denies the petition." [Valley Forge Center Assocs. v. Rib-It/K.P., Inc., 693 A.2d 242, 245 (Pa.Super. 1997).] Moreover, we have consistently held that an appeal from an order denying reconsideration is improper and untimely.

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000).

Here, after Husband filed his Motion for reconsideration of the September 19 and 24, 2012 Orders, and before the Motion was decided, the trial court entered the October 16, 2012 Order. As a result, the trial court found that Husband's reconsideration Motion was considered timely filed and would be addressed on October 26, 2012. Husband's Motion was subsequently denied on October 26, 2012; however, on that same date, the trial court entered a new Order, which granted Wife's Motion for reconsideration and set forth the division of the marital assets. Thereafter, Husband filed a Notice of appeal on November 26, 2012, from the denial of his Motion for reconsideration.

In this case, the trial court entered its final, appealable Order on October 26, 2012. While Husband incorrectly filed his Notice of appeal from the denial of his Motion for reconsideration, his appeal was filed within thirty days of the final Order. See Trial Court Opinion, 1/25/13, at 2 (stating that the trial court believed that Husband "intended to appeal the most recently amended Order of October 26, 2012."); see also Pa.R.A.P. 903(a) (stating that a notice of appeal must be filed within thirty days of the entry of the final order). Accordingly, based upon this procedural history, we conclude that Husband's appeal is timely and deny Wife's Motion to quash.

A trial court has broad discretion when fashioning an award of equitable distribution. Our standard of review when assessing the propriety of an order effectuating the equitable distribution of marital property is whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure. We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence. This Court will not find an abuse of discretion unless the law has been overridden or misapplied or the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence in the certified record. In determining the propriety of an equitable distribution award, courts must consider the distribution scheme as a whole. We measure the circumstances of the case against the objective of effectuating economic justice between the parties and achieving a just determination of their property rights.

Biese v. Biese, 979 A.2d 892, 895 (Pa.Super. 2009) (citations, quotation marks, and brackets omitted). Further, "the trial court can accept all, some or none of the submitted testimony in determining the value of marital property." Isralsky v. Isralsky, 824 A.2d 1178, 1185 (Pa.Super. 2003).

On appeal, Husband contends that trial court abused its discretion in its equitable distribution award and in imposing the QDRO Orders. Brief for Appellant at 31, 39. Husband argues that the trial court erred in accepting Wife's testimony regarding the value of Husband's tools. Id. at 32-34.[3]

Here, the trial court addressed Husband's argument as follows:
[Husband] asserts that the value of the mechanic tools and equipment was Five Thousand Dollars ($5, 000.00), in contrast to the Thirty Five Thousand Dollars ($35, 000.00) value that [Wife] provided. [Husband] testified, "I do not know how tools depreciate, " and made it clear to [the trial c]ourt that he does not know what the mechanic tools and equipment are worth today or what their value was at the time of the parties' marriage. [See N.T., 9/14/12, at 113-14.] [Wife] provided her estimate based on photographs of these items and having observed [Husband] purchase the equipment over the years. [See N.T., 5/16/12, at 26.] The [trial c]ourt found [Wife's] testimony credible and did not find credible [Husband's] testimony as to the value of the tools and equipment.

Trial Court Opinion, 1/25/13, at 7.

Based upon our review of the record, and the trial court's credibility determinations, we conclude that Husband's claim in this regard is without merit. See id.; see also Wayda v. Wayda, 576 A.2d 1060, 1065-66 (Pa.Super. 1990) (stating that the trial court may assign any weight it chooses to testimony that is not supported by any written evidence).

Husband additionally argues that the trial court did not properly consider all of the factors set forth by 23 Pa.C.S.A. § 3502, as he was due a higher percentage of the marital estate. Brief for Appellant at 36-39. Husband asserts that the trial court did not consider the length of the marriage, his age, health, station in life, his usable skills, the fact that he is unable to work and is receiving worker's compensation, his assets and income, his lack of retirement benefits, or the standard of living established during the marriage. Id. at 37-38. Husband claims that his share of the marital estate should have been as high as 70%, instead of the 50-50 split. Id. at 38-39.[4]

Our review of the record reveals that the trial court considered all of the Section 3502 factors and determined that the parties were capable of sustaining themselves and that economic justice would be achieved with an even division of property, including retirement assets. See Trial Court Opinion, 1/25/13, at 8, 10. Indeed, the evidence demonstrated that the parties, who were married for nearly nine years and had no children, did not acquire many marital assets, and did not have any significant changes in their employment during the marriage. Further, the trial court provided Husband with immediate funds from Wife and future retirement income in setting forth the equitable distribution award. Moreover, while the trial court acknowledged Husband's workers' compensation[5] and unemployment compensation claims, they were irrelevant to the division of marital assets, as they were collected after the divorce became final. See id. at 8-9 (wherein the trial court found that Husband's post-divorce workman's compensation was a non-marital asset); see also N.T., 9/14/12, at 6, 43, 59-60, 73-75, 77-78, 100. Husband has not cited to any specific evidence that the trial court failed to consider in rendering its equitable distribution award. Thus, we conclude that Husband's claims are without merit.

Because Husband has not set forth any other claims that would provide him with relief, we affirm the Orders.

Orders affirmed. Motion to quash denied. Judgment Entered.


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