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.
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.
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.
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.
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.
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).
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." Lawson v. Lawson, 940 A.2d 444,
447 (Pa. Super. 2007) (emphasis in original).
addressing this claim, the trial court offered the following
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
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).
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.
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.
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.
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).
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).
addressing this claim, the trial court offered the following
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,
(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 ...