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Cook v. Cook

Superior Court of Pennsylvania

May 4, 2018

RONALD COOK Appellee
v.
DEBORAH COOK Appellant

          Appeal from the Order January 27, 2017 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD 13-006245-017

          BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

          OPINION

          SHOGAN, J.

         Appellant, Deborah Cook ("Wife"), appeals from the order setting forth the equitable distribution of marital assets in this divorce action with Appellee, Ronald Cook ("Husband"). In addition, Husband has filed a motion to dismiss particular issues raised by Wife in her Pa.R.A.P. 1925(b) statement that she has failed to set forth in her appellate brief. We affirm in part, reverse in part, and remand with instructions. Husband's motion to dismiss Wife's abandoned issues is granted.

         We summarize the procedural history of this case as follows. Husband and Wife married in 1986. They have one adult child. Husband filed a divorce complaint in February of 2013. Wife filed an answer and counterclaim in June of 2013. The parties entered into a consent order in August of 2013, with Husband agreeing to pay Wife alimony pendente lite in the amount of $2, 300.00 per month.

         A master's hearing on equitable distribution was held in June of 2016. The master issued a report on August 3, 2016. Wife filed timely exceptions, and Husband filed cross-exceptions. The trial court ruled on the exceptions on January 27, 2017, and granted and denied each party's exceptions in part. The trial court determined the marital estate to be valued at $638, 567.00. Wife was awarded 55% of the marital estate ($351, 212.00). Husband received 45% ($287, 355.00). In addition, each party was responsible for a relatively small amount of debt (Wife $8, 000 and Husband $6, 400). Husband's attempts to terminate alimony pendente lite have been denied by the trial court.

         The parties' divorce decree was dated March 6, 2017, and filed on March 7, 2017. On March 21, 2017, Wife filed this timely notice of appeal. Both Wife and the trial court have complied with Pa.R.A.P. 1925.

Wife presents the following issues for our review:
I. Whether the lower court committed an error of law and abuse of discretion by denying Wife alimony.
II. Whether the lower court committed an error of law and abuse of discretion by denying Wife's Petition to Modify Alimony pendente lite.
III. Whether the lower court committed an error of law and abuse of discretion by awarding only 50% of the proceeds from the sale of the marital residence, and 55% of the remainder of the marital estate to Wife.
IV. Whether the lower court erred as a matter of law and abused its discretion by denying Wife her claim for counsel fees, despite the disparity in incomes.
V. Whether the Court erred in awarding Husband counsel fees.

Wife's Brief at 5.[1]

         Initially, we observe that in the context of an equitable distribution of marital property, a trial court has the authority to divide the award as the equities presented in the particular case may require. Mercatell v. Mercatell, 854 A.2d 609, 611 (Pa. Super. 2004). "Our scope of review in equitable distribution matters is limited. Awards of alimony, counsel fees, and property distribution are within the sound discretion of the trial court and will not be disturbed absent an error of law or abuse of discretion." Smith v. Smith, 749 A.2d 921, 924 (Pa. Super. 2000).

         Wife first argues that the trial court erred in addressing her request for alimony, claiming the factors set forth in 23 Pa.C.S. § 3701(b) weigh in favor of long-term alimony. Wife's Brief at 10-14. Specifically, she contends that her income, earning capacity, education, age, medical issues, contributions as homemaker, current needs, the modest size of her share of the marital estate, and the length of the marriage favor her receipt of alimony.

We begin by noting the following:
Following divorce, alimony provides 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. Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004) (citation omitted). An award of alimony should be made to either party only if the trial court finds that it is necessary to provide the receiving spouse with sufficient income to obtain the necessities of life. Stamerro v. Stamerro, 889 A.2d 1251, 1259 (Pa. Super. 2005). "The purpose of alimony is not to reward one party and punish the other, but rather to ensure that the reasonable needs of the person who is unable to support herself through appropriate employment are met." Miller v. Miller, 744 A.2d 778, 788 (Pa. Super. 1999) (citation omitted).
"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." Teodorski, [supra] at 200 (citation omitted). An award of alimony may be reversed where there is an apparent abuse of discretion or there is insufficient evidence to support the award. Jayne v. Jayne, [] 663 A.2d 169[, 174] ([Pa. Super.] 1995).

Kent v. Kent, 16 A.3d 1158, 1161 (Pa. Super. 2011) (quoting Balicki v. Balicki, 4 A.3d 654, 659 (Pa. Super. 2010)). In determining "whether alimony is necessary and to establish the appropriate nature, amount, and duration of any alimony payments, the court is required to consider all relevant factors, including the 17 factors that are expressly mandated by statute."[2] Lawson v. Lawson, 940 A.2d 444, 447 (Pa. Super. 2007) (emphasis in original).

          In addressing this claim, the trial court offered the following pertinent discussion:

The Master denied Wife's request for alimony; th[e trial c]ourt affirmed. The purpose of an alimony award "is not to reward one party or punish the other, but rather, as held by our Supreme Court, to provide the receiving spouse with sufficient income to obtain the necessities of life." Lawson v. Lawson, 940 A.2d 444, 447 (Pa. Super. Ct. 2007) (internal citations omitted). In other words, "to ensure that the reasonable needs of the person who is [unable] to support himself or herself through appropriate employment are met." Id. (internal citations omitted). To that end, "alimony is considered a secondary remedy, 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." Id. (internal citations omitted). If a party who is receiving alimony is able to meet his or her reasonable needs through employment, "the court is to fashion an alimony order to be in effect only until such employment has been obtained or the party has developed an appropriate employable skill." Mazzei v. Mazzei, 480 A.2d 1111, 1116 (Pa. Super. Ct. 1984). . . .
Husband is a college educated sports writer and journalist who is employed by the Post-Gazette and CBS with earnings over $160, 000 per year. Hearing transcript, p.73-84; Husband's 2015 1040. Wife is a high school graduate who works as an income maintenance caseworker for the Commonwealth of Pennsylvania with earnings of over $44, 500. Hearing transcript, p. 138-139; Wife's 2015 1040. At the time of the hearing, Wife was 61 years old and Husband was 59 years old.1 Hearing transcript, p. 133 & 9. Both parties have established retirement accounts with Husband's accounts having a larger balance. Neither party testified to receiving or expecting to receive an inheritance. The parties were married for 26 years. Hearing transcript, p. 4-5. The parties have one emancipated child.
Hearing transcript, p. 5. In regards to the parties' standard of living during the marriage, Husband testified, "It was nice. We went on a nice vacation every year. We didn't go to the French Alps, but we would go to Florida once a year. We would eat out a lot. It was okay. It was nice. I wouldn't say extravagant.
But it was fine." Hearing transcript, p. 14. Both parties have obtained appropriate employment.
1 The Hearing Officer referenced the parties' ages incorrectly in the "History" portion of his Report. Wife was reported as 59 years old while Husband's age was reported as 61. Throughout the Equitable Distribution portion of the Report, however, the Master correctly referenced the number of years both parties have until retirement including that Wife will reach retirement first.
The Master denied alimony to Wife on numerous grounds including the property Wife retained and the retirement assets Wife is to receive. Th[e trial c]ourt rejects the Master's determination that the retirement assets justify a denial of alimony. Instead, th[e trial c]ourt finds that Wife has already obtained appropriate employment that is sufficient to meet her needs, thereby rendering alimony unnecessary.
Additionally, the Master found Wife's budget to be incredible. "A master's report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties." Childress v. Bogosian, 12 A.3d 448, 455-456 (Pa. Super. Ct. 2011). Further, with regards to witness credibility, "It is within the province of the trial court to weigh the evidence and decide credibility and th[e appellate c]ourt will not reverse those determinations so long as they are supported by the evidence." Id. The record supports the Master's credibility determination on this issue. Wife's monthly budget exceeded her monthly income plus the APL she has been receiving since July 2013. Wife received $4, 450 net per month through her salary and APL. Wife's monthly expenditures total $6, 317.26. This includes a mortgage of $1, 388 per month, $635 per month in clothing expenses, $200 per month in donations, $900 per month in attorneys' fees, and $450 per month on vacations.

Trial Court Opinion, 5/12/17, at 3-5 (emphasis in original).

          Upon review of the record, we are constrained to conclude that the trial court did not abuse its discretion in refusing to award alimony to Wife. Wife appended a budget to her pretrial statement that neither the Master nor the trial court found to be credible. Wife's Pretrial Statement, 5/27/16, at 9. The trial court properly noted that the budget presented by Wife was not credible because it exceeded Wife's combined net monthly income received from her salary and the alimony pendente lite from Husband. The trial court was acting within its discretion in crediting the testimony of Husband regarding the parties' standard of living, particularly Husband's statement that "It was okay. It was nice. I wouldn't say extravagant. But it was fine." N.T., 6/6/16, at 14. The trial court also properly analyzed Wife's reasonable needs and determined that Wife has already obtained appropriate employment that is sufficient to meet her needs, thereby rendering alimony unnecessary." Trial Court Opinion, 5/12/17, at 5. We conclude that the trial court's findings are supported by the record. Hence, we agree with the trial court's determination in this regard and conclude that Wife's contrary claim lacks merit.

         Wife next argues that the trial court erred with regard to its determination pertaining to the award of alimony pendente lite. Wife's Brief at 15-18. Wife claims that, in calculating the amount of alimony pendente lite, the trial court erred in projecting incomes for 2016, which were based upon pay stubs from the early months of 2016. Id. at 15. Wife asserts that the trial court should have used the parties' actual incomes from 2015. Id. In addition, Wife contends that the trial court, in preparing its calculation, failed to account for the mortgage deviation under Pa.R.C.P. 1910.16-6(e) and Wife's unreimbursed medical expenses under Pa.R.C.P. 1910.16-6(c). Id. at 17-18.

         The Divorce Code provides, "In proper cases, upon petition, the court may allow a spouse reasonable alimony pendente lite, spousal support and reasonable counsel fees and expenses." 23 Pa.C.S. § 3702. By way of background:

[Alimony pendente lite] is an order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding. [Alimony pendente lite] is designed to help the dependent spouse maintain the standard of living enjoyed while living with the independent spouse. Also, and perhaps more importantly, [alimony pendente lite] is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets which are the financial sinews of domestic warfare. [Alimony pendente lite] 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. . . . [T]he purpose of [alimony pendente lite] is to provide the dependent spouse equal standing during the course of the divorce proceeding. . . . [Alimony pendente lite] focuses on the ability of the individual who receives the [alimony pendente lite] 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.

Schenk v. Schenk, 880 A.2d 633, 644-645 (Pa. Super. 2005).

         The amount awarded as alimony pendente lite is within the sound discretion of the trial court and, absent an abuse of discretion, will not be disturbed on appeal. Litmans v. Litmans, 673 A.2d 382, 388 (Pa. Super. 1996). An award of alimony pendente lite "may be modified or vacated by a change in circumstances. The award is always within the control of the court. It is the burden of the party seeking to modify an order of support to show by competent evidence that a change of circumstances justifies a modification." Id. (citations omitted). "If an order of [alimony pendente lite] is bolstered by competent evidence, the order will not be reversed absent an abuse of discretion by the trial court." Strauss v. Strauss, 27 A.3d 233, 236 (Pa. Super. 2011).

         Pursuant to Pa.R.C.P. 1910.16-2, "the amount of support to be awarded is based upon the parties' monthly net income." The same rule directs that, to arrive at monthly net income, the court shall deduct specific items from monthly gross income. Pa.R.C.P. 1910.16-2(c). In addition, the rule instructs that "[m]onthly gross income is ordinarily based upon at least a six-month average of all of a party's income." Pa.R.C.P. 1910.16-2(a) (emphasis added).

         In addressing this claim, the trial court offered the following discussion:

Wife filed a Petition to Modify Support on August 26, 2015, that was heard by the Master during the equitable distribution hearing. The Master denied Wife's Petition stating that it was not warranted. Wife filed Exceptions to this issue arguing that the Master erred in calculating Husband's income. Wife relied upon Husband's 2015 tax return showing a wage/salary of $169, 852.

          Pa.R.C.P. 1910.19(c), governing support modifications, provides:

(c) Pursuant to a petition for modification, the trier of fact may modify or terminate the existing support order in any appropriate manner based upon the evidence presented without regard to which party filed the petition for modification. If the trier of fact finds that there has been a material and substantial change in circumstances, the order may be increased or decreased depending upon the respective incomes of the parties, consistent with the support guidelines and existing law, and each party's custodial time with the child at the time the modification petition is heard.

Pa.R.C.P. 1910.19(c) (emphasis added).

The Master utilized the parties' most recent paystubs to calculate their projected net incomes for 2016. Husband's paystubs reflect projected 2016 earnings of $160, 148.04, resulting in a net [monthly] income of $8, 721.47. Wife's paystubs reflect projected 2016 earnings of $46, 371, resulting in a net [monthly] income of $2, 967.54. The difference in the parties' incomes is $5, 753.93; and when multiplied by 40%, is $2, 301.57. Husband had been paying Wife $2, 300 in alimony pendente lite. There is a difference of $1.57 per ...

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