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HomeMy WebLinkAbout01-04676w Superior Court of Pennsylvania Karen Reid Bramblett, Esq. Middle District Prothonotary James D. McCullough, Esq. April 16, 2008 Deputy Prothonotary Certificate of Remittal/Remand of Record TO: Mr. Curtis R. Long Prothonotary RE: Kuntz-Mislitski, J. v. Mislitsky, R. No.797 MDA 20071 sqZ FUA/Uo-l Trial Court/Agency Dkt. Number: 01-4676 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 100 Pine Street. Suite 400 Harrisburg, PA 17101 717-772-1294 www.superior.court.state.pa.us Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Filed Date Description Parts May 22, 2007 3 Envelope of Exhibits May 22, 2007 1 Date of Remand of Record: MAY 2 7 2008 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certifi to to our office. Copy recipients (noted below) need not acknowledge receipt. . .91 t /?A- Ja es D. McCullough, Esq. Deputy Prothonotary Signature Date Printed Name O fri J-AO8005-08 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JUDITH KUNTZ-MISLITSKI, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant V. RICHARD P. MISLITSKY, Appellee No. 797 MDA 2007 Appeal from the Order entered April 5, 2007 In the Court of Common Pleas of Cumberland County Civil at No(s): 01-4676 JUDITH KUNTZ-MISLITSKI, Appellee V. RICHARD P. MISLITSKY, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 842 MDA 2007 Appeal from the Order entered April 5, 2007 In the Court of Common Pleas of Cumberland County Civil at No(s): 2001-4676 CIVIL TERM BEFORE: STEVENS, LALLY-GREEN, and FITZGERALD*, JJ. MEMORANDUM: FILED: April 16, 2008 The instant action is an appeal from an Order of Court entered in the Court of Common Pleas of Cumberland County on April 5, 2007, at which time the trial court vacated the current order of alimony pendente lite *Former Justice specially assigned to the Superior Court. I-A08005-08 alimony with the amount and duration of such payments being subject to modification and termination on petition of either party after an application of relevant provisions in the Domestic Relations Code. The Divorce Master also recommended that Husband pay $5,000.00 toward Wife's counsel fees within two weeks of the entry of a final decree in divorce. Husband filed exceptions to the Report and Recommendation on December 11, 2006, which were briefed and argued on February 27, 2007. After considering the particular facts of this case and the applicable law, the trial court entered its April 5, 2007, Opinion and Order of Court and issued the divorce decree the same day. In its Opinion and Order of Court, the trial court analyzed the seventeen factors listed in 23 Pa.C.S.A. § 3701 when considering whether Wife was entitled to the receipt of alimony payments from Husband. Among the factors the trial court considered were: the relative earnings and earning capacity of the parties; the ages and the physical, mental and emotional conditions of the parties; the sources of income of both parties, but not limited to, medical, retirement, insurance or other benefits; the expectancies and inheritances of the parties; the duration of the marriage; the contribution by one party to the education, training or increased earning power of the other party; the extent to which the earning power, expenses or financial obligations of either party will be affected by reason of serving as the custodian of a minor child; the standard of living of the parties -3- J-A08005-08 established during the marriage; the relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment; the relative assets and liabilities of the parties; the property brought to the marriage by either party; the contribution of a spouse as homemaker; the relative needs of the parties; marital misconduct of the parties; the federal, state and local tax ramifications of the alimony award; whether the party seeking alimony lacks sufficient property; and whether the party seeking alimony is incapable of self-support through appropriate employment. Trial Court Opinion, 4/5/071 at 6-11; 23 Pa.C.S.A. § 3701(b). Upon applying the above factors, the trial court ultimately found Wife was not able to meet her reasonable needs at that time through her appropriate employment in accordance with the comfortable, upper middle class standard of living she enjoyed during her twenty-three and one-half year marriage to Husband. The court explained Husband is a self-employed attorney whose income fluctuates and whose net income after all business expenses and taxes was $77,022.00 in 2005. Husband testified he expected a comparable income in 2006. Wife's gross income was significantly less than Husband's at $45,812.00 and had recently increased $6,539.00 per year due to her obtaining a Master's Degree. The trial court also noted Husband is age fifty-three and suffers from a chronic back problem and arthritis in his shoulder and cervical spine; -4- J-A08005-08 depression; attention deficit disorder; and a sleep disorder for which he takes several medications. The court also determined the evidence established those conditions had not affected his earning capacity. Wife is age forty-nine and in good health, though she testified her nerves were "shot" as a result of her involvement in the divorce proceedings. While wife contributes $87.00 per month for her medical coverage and contributes toward her retirement, Husband expected to pay about $450.00 a month in COBRA payments, and also contributes significant amounts annually into a retirement account. Neither had any expectations of an inheritance. Of the $427,713.00 Wife received in marital assets, $191,568.00 was in cash accounts. Wife owns a mortgaged townhouse and testified she used a $40,000.00 non interest loan from her father to make the purchase. She intended to pay the $11,000.00 in credit card debt which she had accumulated with her settlement proceeds and incurred a total of $47,000.00 in legal fees as a result of the divorce proceeding. Husband received $330,845 in marital assets, $142,926.00 of which was in cash. He has a mortgage on the former, marital residence where he currently resides and has $16,000.00 in business debt. The trial court also noted both parties cosigned for some college loans for their eldest daughter, and with the loss of APL, Wife would have difficulty meeting her expenses at that time. Trial Court Opinion and Order, 4/5/07, at 6-11. -5- J-A08005-08 Wife filed a motion for reconsideration on April 16, 2007, which was not granted. On May 4, 2007, Wife filed a timely notice of appeal. On May 14, 2007, Husband filed a timely cross-appeal. The trial court did not order the parties to file a Concise Statement of Matters Complained of on Appeal, and neither has done so, nor did the trial court issue an opinion pursuant to Pa.R.A.P. 1925(a). In her brief, Wife raises the following two issues for our review: 1. Whether the trial court erred when it reduced the amount and duration of the alimony awarded to Wife, without explanation, when the Court adopted the findings of the Master regarding the pertinent alimony factors listed in 23 Pa.C.S. § 3701(b)? 2. Whether the trial court erred in failing to award Wife counsel fees, when the evidence showed that Husband's conduct throughout the course of litigation was vexatious and obdurate? Brief for Wife at 4. In his brief, Husband raises the following counter statement of questions presented: A. Is it an error of law or an abuse of discretion to apply a customary practice to every alimony claim to determine the fact specific issues of entitlement, amount and duration of alimony? B. Whether, in light of the evidence presented that the Master refused to follow the statutory provisions and as a matter of "custom" enters awards for alimony that are of an indefinite duration, is it error of law or abuse of discretion for a trial court not to issue an order stating that such a practice is contrary to law? C. Whether the facts in the matter sub judice support: a. The lower court's order awarding alimony of $600 per month for a period of three years; or -6- J-A08005-08 b. [Husband's] position that the facts do not justify an alimony award. D. Whether the court correctly denied counsel fees to Wife when Husband had paid alimony pendente cite throughout the course of the proceedings and when such an award was not supported by the facts demonstrating obdurate and vexatious conduct? Brief for Husband at 3. Our standard of review over an alimony award is an abuse of discretion. 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 v, Gates, 933 A.2d 102, 106 (Pa. Super. 2007) (citations omitted) See also Smith v. Smith, 904 A.2d 15, 20 (Pa. Super. 2006). In addition, this Court recently determined that the trial court must substantiate the amount and duration of the alimony award A.2d 1275, 1278-1279 (Pa. Super. 2007). Dalrymple v, Kilishek, 920 -7- J-A08005-08 As has been discussed above, before fashioning an alimony award, the trial court noted the seventeen factors listed in 23 Pa.C.S. § 3701(b). The trial court also considered that Husband had been paying Wife APL in the amount of $632.00 per month since 2001, and that she had been having difficulty paying her bills. The trial court concluded that: [w]eighing all of the Section 3701(b) factors, including a finding that wife is not now able to meet her reasonable needs at this time through her appropriate employment in accordance with the lifestyle and standard of living established during the long marriage, and recognizing that wife and husband have received substantial property in equitable distribution, and considering husband's significantly higher earning capacity as it relates to his ability to pay, and to effectuate economic justice in accordance to (sic) the actual ability to pay, we will award wife $600 per month in alimony limited to three years. Trial Court Opinion and Order, 4/5/07, at 11 (emphasis in original). Upon our review of the record, we find the trial court's award of alimony in an amount comparable to that which Wife received in APL, but limited to a period of three years, in light of the assets she received pursuant to the marital settlement and considering her salary as a school teacher, was reasonable and shall not be disturbed herein. Wife next challenges the trial court's failure to award her attorney's fees. Counsel fees are awarded at the trial court's discretion, and we will disturb such an award only upon the finding of an abuse of that discretion. Factors to consider in such an award are the payor's ability to pay, the requesting party's financial resources, the value of the services rendered, and the distribution of property at equitable distribution. -8- J-A08005-08 Jacobs v. Jacobs, 884 A.2d 301, 307 (Pa. Super. 2005) (citations omitted). The purpose of an award of counsel fees is to promote fair administration of justice by enabling the dependent spouse to maintain or defend the divorce action without being placed at a financial [dis]advantage; the parties must be `on par' with one another. Moreover, counsel fees are awarded only upon a showing of need. Smith v. Smith, 904 A.2d 15, 21 (Pa. Super. 2006) (citations omitted); See also Gates, supra, 933 A.2d at 109. Upon determining Husband was not entitled to contribute to Wife's counsel fees, the trial court stated the following: "We have reviewed the record and do not believe that the conduct of husband warrants a requirement for him to contribute to wife's counsel fees. [2] Considering the financial status of each party, their financial resources, the value of the services rendered to wife, the distribution of marital property to her, the substantial alimony pendente lite since November 2001, and that she is being awarded alimony, her claim for counsel fees will be denied." Trial Court Opinion and Order, 4/5/07, at 12. Following a review of the record, we find the trial court did not err in this determination. Wife has stable employment, obtained over half of the marital assets and will receive alimony payments from Husband for three years. Moreover, both of the 2 In its Opinion and Order, the trial court noted that the Master concluded "husband had, to a certain extent, delayed the proceedings as he '[c]ertainly could have been more forthcoming in his determination to resolve the issues between the parties"" and determined she needed assistance from Husband on order to pay her $46,000.00 in counsel fees. Trial Court Opinion and Order, 4/5/07, at 12. -9- J-A08005-08 parties' children have reached the age of majority. As such, the trial court reasonably concluded Wife is not entitled to counsel fees. Husband initially takes issue with the Master's statement made at a pre-hearing conference that "he will most likely follow his customary procedure of determining an amount based on the factors at the time of the hearing and in awarding alimony for an indefinite period of time." See Pre- Hearing Conference Memorandum Transcript, July 6, 2004. Husband contends this action constitutes reversible error in that a predetermined decision to award alimony prior to a hearing on the merits "violates one of the most fundamental principles in our system of jurisprudence" as it contradicts 23 Pa.C.S. § 3701 which provides a plaintiff pursuing an alimony claim has the burden of proving an entitlement to the same, as well as an appropriate amount and duration. Brief for Husband at 6-8. While Husband devotes a significant portion of his brief to argument on this issue, we find it is not relevant for purposes of this appeal, as Husband has cross-appealed from the trial court's Order and Opinion of April 5, 2007, which did not adopt the Master's recommendation as to alimony. To the contrary, the trial court limited its alimony award to a period of three years and reduced the payment from the $1,200.00 per month which the Master recommended to $600.00 per month. As has been stated above, our standard of review over an alimony award is an abuse of discretion. Gates, supra. As we have -10- J-A08005-08 determined the trial court properly considered the factors articulated in 23 Pa.C.S. § 3701 before making its award, the alimony award is proper. Husband next contends the trial court abused its discretion in failing to issue an order stating the Master's "customary" practice of awarding alimony is contrary to law. We find he has waived this issue. In respectfully submitting that this Court should ""provide direction to the lower court concerning this practice," Husband contends that *"the Master's on-record statement considered together with his published decisions are sufficient to establish that the Master does indeed apply a "customary practice' to issues which are entirely dependent upon the facts" which "practice has a chilling effect on the adjudication of the issue." Brief for Appellant at 11 (emphasis in original). A review of Husband's thirteen pages of exceptions, however, does not reveal that Husband requested the trial court to issue an order informing the Master his alimony award practices were contrary to law. "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a).3 Husband also paradoxically argues that the facts support the trial court's award and his position that they do not justify an alimony award. Brief for Husband at 14. In light of our aforementioned discussion, we find 3 Moreover, as we discussed above, the Order from which Husband appeals does not adopt the Master's Report and Recommendation. Instead, the trial court determined the alimony award should be reduced by half and paid for only three years, not indefinitely. Furthermore, the trial court denied Wife counsel fees, while the Master suggested she receive $5,000.00 for the same. - 11 - J-A08005-08 the trial court properly awarded Wife alimony in the amount of $600.00 for three years. Husband's last issue on appeal is really an affirmation of the trial court's denial of Wife's request for an award of counsel fees. As Husband expressed his agreement with the trial court on this issue, this issue is moot. Order affirmed. Judgment Entered: C, e uty Prothonotary April 16, 2008 Date: -12- C'' ?..? .:_:, r-r '- ? r !?i `t -? ?. ?.._. ??? _? v _ .?. t _? .. '. ?.. t _... 4. ___ j,r „5.? ..,y.- ?.s.} ...i.? ?.. r 1 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: JUDITH KUNTZ-MISLITSKI VS. RICHARD P. MISLITSKY 01-4676 CIVIL TERM 797 MDA 2007 842 MDA 2007 • The documents comprising the record have been numbered from No.l to 592, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 05/22/2007 . Curtis R. Long; ro ho tary Regina K.'Lebo, Depu An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Reoa~ ~ Superior Court Date Signature & Title MAY 2 2 2007 MIDDLE