J-S39031-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

LAURA J. MCCLEARY,                            : IN THE SUPERIOR COURT OF
                                              :        PENNSYLVANIA
                 Appellant                    :
                                              :
                      v.                      :
                                              :
ROGER L. MCCLEARY,                            :
                                              :
                 Appellee                     : No. 1457 WDA 2016

              Appeal from the Order Entered September 27, 2016
                in the Court of Common Pleas of Clarion County
                     Civil Division at No(s): 549 C.D. 2012

BEFORE:       BENDER, P.J.E., BOWES, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 27, 2017

     Laura J. McCleary (Wife) appeals from the order entered September

27, 2016, which decreed that she and Roger L. McCleary (Husband) are

divorced, and inter alia, ordered equitable distribution of the marital

property, denied Wife’s request for counsel fees, and directed the parties to

cash savings bonds for the benefit of their minor son.        We affirm in part,

vacate   in   part,   and    remand   for    proceedings   consistent   with   this

memorandum.

     Wife and Husband married in 2005 and separated in 2012. This was

the first marriage for Wife, age 44.        Husband is 57 and had two previous

marriages. Wife and Husband resided together at their marital residence in

Shippenville, Pennsylvania until their separation in 2012.          During their




*Retired Senior Judge assigned to the Superior Court.
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marriage, Wife and Husband had one child, W.M. (Son), born in 2008. The

parties share 50/50 custody of Son.

     Wife filed a complaint in divorce on June 7, 2012, seeking equitable

distribution of the parties’ marital assets, alimony, alimony pendente lite,

counsel fees, costs, and expenses. After three hearings before a master, the

master issued a report on May 5, 2016, which recommended that Husband

receive marital equity of $50,230.34, or 54% of the total, and Wife receive

$42,737.37, or 46% of the total. Master’s Report, 5/5/2016, at 1. Although

Husband received a larger portion of the marital assets, the master also

recommended that Husband take on almost all of the parties’ marital debt,

including the mortgage and home equity loan on the residence where Wife

resides. Id. at 18-20.

     The parties have a significant disparity in their incomes.   Husband,

who has a high school education, has been employed at Columbia Gas since

1991. At the time of the final hearing before the master, his employment as

a plant service specialist yielded a net monthly income of $3,958.62. Wife,

who has an associate’s degree from Dubois Business College, was employed

for 20 years as an administrative assistant to the president of an insurance

company, until she was laid off in 2014. Wife’s net monthly income while

she was employed in 2014 was $1,275.26. In February or March 2015, Wife

began employment as a self-employed house cleaner, earning $842.36 a

month in gross income.     The master determined that Wife has failed to


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locate “appropriate employment fitting her education and experience” and

has the capacity to earn a net monthly income of $1,275.26.          Master’s

Report, 5/5/2016, at 4. Nevertheless, the master acknowledged that even if

Wife finds appropriate employment, Husband’s income greatly exceeds

Wife’s earning capacity, and she has a more limited ability to acquire new

assets.1 Id. at 17-18, 23.

     Regarding Wife’s request for counsel fees and expenses, the master

recommended the following.

     Wife has requested counsel fees and expenses in this matter.
     Husband does not have the ability to pay for Wife’s counsel fees
     given the proposed distribution and being responsible for
     practically all of the outstanding marital debt. Husband also has
     substantial attorney’s fees. Wife will have sufficient resources
     given the proposed distribution to pay for her own attorney’s
     fees. Neither of the parties objected to the counsel fees, their
     reasonableness or the value of the services. Counsel fees should
     not be awarded as there is no need.

     Husband shall pay the [m]aster’s fee and [c]ourt reporter fees
     related to this proceeding. His superior income, financial assets
     and ability to acquire assets in the future allow him to best carry
     the burden of these costs.

Master’s Report, 5/5/2016, at 25.



1
  The master recommended denial of Wife’s request for alimony, finding,
inter alia, that Wife is capable of self-support through appropriate
employment and that she will have sufficient resources to maintain and
meet her needs as she did prior to the parties’ relatively short marriage,
especially since she will not be responsible for the mortgage or home equity
loan for the home where she resides. The master also determined that,
notwithstanding Husband’s larger salary and receipt of most of the marital
assets, Husband cannot afford to pay alimony due to his responsibility for
the vast majority of the marital debt. Id. at 24.

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      The master also noted that Wife is custodian for an already-existing

bank account at Clarion County Community Bank. The master deemed this

account to be non-marital property, as Son is a beneficiary of this account

under the Pennsylvania Uniform Transfers to Minors Act (PUTMA), 20 Pa.C.S.

§§ 5301–5310.     The master found that Wife and Son jointly own savings

bonds valued at $2,000, which were a gift to Son, but the savings bonds are

currently in Husband’s possession. Master’s Report, 5/5/2016, at 13. The

master recommended that the savings bonds “be cashed and deposited into

the Clarion County Community Bank account under [PUTMA].” Id. at 20.

      Wife timely filed numerous exceptions to the recommendation of the

master, and on August 31, 2016, the trial court issued an opinion denying all

of the Wife’s exceptions, except one not at issue on appeal, and entered an

order modifying the master’s recommendation consistent with its opinion.

On the same date, the trial court entered a decree in divorce. Wife timely

filed a notice of appeal and concise statement of errors complained of on

appeal.   Wife sets forth two issues for our consideration, which we review

mindful of the following principles.

      It is well established that absent an abuse of discretion on the
      part of the trial court, we will not reverse an award of equitable
      distribution. [In addition,] when reviewing the record of the
      proceedings, we are guided by the fact that trial courts have
      broad equitable powers to effectuate [economic] justice and we
      will find an abuse of discretion only if the trial court misapplied
      the laws or failed to follow proper legal procedures. [Further,]
      the finder of fact is free to believe all, part, or none of the



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      evidence and the Superior Court will not disturb the credibility
      determinations of the court below.

Lee v. Lee, 978 A.2d 380, 382-83 (Pa. Super. 2009) (quoting Anzalone v.

Anzalone, 835 A.2d 773, 780 (Pa. Super. 2003)).

     Moreover,

      [w]e 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. Rather,
      we look at the distribution as a whole, in light of the court’s
      overall application of the [23 Pa.C.S.A. § 3502(a)] factors [for
      consideration in awarding equitable distribution]. If we fail to
      find an abuse of discretion, the [o]rder must stand. The trial
      court has the authority to divide the award as the equities
      presented in the particular case may require.

Childress v. Bogosian, 12 A.3d 448, 462 (Pa. Super. 2011) (internal

citations and quotations omitted).

      Wife’s first issue asks us to determine whether the trial court abused

its discretion by denying her request for counsel fees.2 The trial court stated

the following in denying Wife’s request.

      Wife’s argument in support of this exception consists primarily of
      an assertion that Husband’s superior financial position entitles
      her to the payment of attorney[s’] fees. The master reasonably
      found that Wife did not present a showing of need, which is the
      relevant inquiry as to counsel fees, rather than solely Husband’s
      ability to pay. Moreover, the court’s review of the record and
      master’s report supports the master’s conclusion that Husband
      should not have to pay Wife’s counsel fees, which significantly
      exceed his own, due to his already existing obligation to pay his
      own attorney’s fees and all of the master’s costs, as well as


2
 The master determined that Wife’s attorneys’ fees totaled $30,186.18 and
Husband’s totaled $14,959.38. Master’s Report, 5/5/2016, at 14. Neither
party objected to the other’s fees as unreasonable. Id.

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      Wife’s wrongdoing in perpetrating an act of domestic violence
      upon Husband. Therefore, this exception will be denied.

Trial Court Opinion and Order, 8/31/2016, at 3 (unnecessary capitalization

omitted; references to parties altered).

      We review an award of counsel fees mindful of the following.

            We will reverse a determination of counsel fees and costs
      only for an abuse of discretion. 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 disadvantage; the
      parties must be “on par” with one another.

                                     ***

            Counsel fees are awarded based on the facts of each case
      after a review of all the relevant factors. These factors include
      the payor’s ability to pay, the requesting party’s financial
      resources, the value of the services rendered, and the property
      received in equitable distribution. Counsel fees are awarded only
      upon a showing of need. Further, in determining whether the
      court has abused its discretion, we do not usurp the court’s duty
      as fact finder.

Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. 2004) (internal

quotations and citations omitted).

      We have held “[t]he simple fact that one spouse earns more than the

other does not automatically entitle the dependent spouse to receive counsel

fees or expenses.   Rather, there must be a showing that the spouse who

earns less needs the relief in order to adequately defend his or her rights.”

Nemoto v. Nemoto, 620 A.2d 1216, 1222 (Pa. Super. 1993) (citation

omitted).   The trial court may consider the parties’ improved financial



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position after the equitable distribution award, even if the spouses still have

a significant disparity in income. Ganong v. Ganong, 513 A.2d 1024, 1029

(Pa. Super. 1986) (affirming denial of counsel fees despite three to one

income disparity between the parties).

      Wife argues that she demonstrated sufficient need for assignment of

her counsel fees to Husband due to the disparity in the parties’ incomes,

noting the master’s determination that Husband was better suited to pay the

costs of the master and court reporter based upon his “superior income,

financial assets, and ability to acquire assets in the future….”     Id. at 13

(citing Master’s Report, 5/5/2015, at 25). She also points to her testimony

regarding her financial inability to pay her own health insurance, her need to

obtain a cash advance on two credit cards to pay $2,100 towards her

attorneys’ fees and for money to live, and her eligibility for assistance to pay

her utilities. Wife’s Brief at 12-13. Wife argues that the assets she obtained

through equitable distribution are mostly not liquid, whereas Husband has

liquid assets to draw upon. Id. Finally, Wife asserts that it was improper for

the trial court to have considered the domestic violence Wife perpetrated

against Husband when affirming the master’s recommendation to deny

Wife’s request for counsel fees.3 Id. at 13.



3
  Wife also asserts one other argument that we dispose of here. She claims
baldly that she is entitled to attorneys’ fees because Husband protracted the
litigation by denying the existence of a defined benefit plan up until the last
day of testimony. Id. A party to an equitable distribution action may be

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      The issue of whether Wife is entitled to counsel fees is a close call. We

recognize, as the master did, that even if Wife works to her full capacity, she

has a limited ability to acquire new assets, and Husband’s income still

greatly exceeds Wife’s earning capacity.     Additionally, while the equitable

distribution award gives Wife certain assets, as she points out, most of these

assets are not liquid. The facts suggest that the parties may not be “on a

‘par’ with one another as to cash available for counsel fees….” Litmans v.

Litmans, 673 A.2d 382, 390–91 (Pa. Super. 1996) (citing Perlberger v.

Perlberger, 626 A.2d 1186 (Pa. Super. 1993)).

      On the other hand, the master and the trial court determined that

Husband does not have the ability to pay Wife’s counsel fees on top of his

own because Husband is burdened with almost all of the marital debt and

other costs of litigation.   Furthermore, although Wife argues that her

financial need to be relieved of counsel fees is demonstrated by her



awarded counsel fees when another party engages in dilatory, obdurate, or
vexatious conduct during the pendency of a matter. Verholek v. Verholek,
741 A.2d 792, 799 (Pa. Super. 1999) (citing 42 Pa.C.S. § 2503(7)).
However, Wife did not include this issue in her exceptions to the master’s
report. See Wife’s Exceptions to Master’s Report, 5/25/2016, at ¶ 11
(alleging the denial of counsel fees was improper because Wife established
need and Husband’s ability to pay). Because it was neither presented to nor
addressed by the trial court, Wife has waived this theory. See Nagle v.
Nagle, 799 A.2d 812, 821 (Pa. Super. 2002) (holding that a party waived
his claim because his exceptions presented a different argument to the trial
court). Even if Wife had preserved her objection to the denial of counsel
fees based on this theory, the citations Wife provides to the record, without
more, do not compel the conclusion that husband engaged in dilatory,
obdurate, or vexatious conduct.

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incurrence of post-separation credit card debt, the master specifically found

“Wife’s testimony that after separation she was required to cash in her IRA,

refinance her vehicle and incur credit card debt to live [to] not [be]

credible.” Master’s Award, 5/5/2016, at 6 (emphasis added).

     Specifically, the master assigned an earning capacity to Wife of

$1,275.26, and determined that prior to the parties’ marriage, Wife was able

to meet her reasonable needs, including paying the mortgage on her

residence, with income of $1,275.26 a month. Id. In 2013, Wife refinanced

her vehicle and took out a loan from her life insurance policy despite

receiving $1,275.26 a month in income from her employment plus child

support, and not being responsible for the mortgage because Husband was

paying it. Id. In 2014 and 2015, although Wife had been laid off, she was

still receiving other sources of income ($1,275.26 a month in salary for part

of 2014, unemployment compensation in 2014, $842.36 a month in salary

starting in 2015, and child and spousal support in both years in the amounts

of $428.06 and $566.00 per month, respectively), and Husband was paying

almost all of the marital debt, including the mortgage on Wife’s residence.

Id. at 6-7.    The master determined Wife could meet her reasonable

expenses without receiving $23,235.00 from her IRA, which was more than

she earned in a year when she had been employed at the insurance

company. Id. at 7. He also found the second distribution from her IRA in

the amount of $2,800 and loans from her credit card in the amount of


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$4741.10 to be unnecessary. Id. at 7. Additionally, in 2015, Wife had to

pay $9,959.21 to Husband in restitution for his medical bills caused by her

violence towards him, which was not a part of Wife’s ordinary living

expenses. Id.

     Thus, there are competing considerations in this case regarding the

factors described in Teodorski, and if the trial court had confined its

analysis to these factors, we would be constrained to conclude that the trial

court acted within its discretion in denying Wife’s request for counsel fees.

However, an examination of the trial court’s decision plainly shows that the

trial court impermissibly considered Wife’s domestic violence against

Husband when ruling upon Wife’s counsel fee request.       As Wife correctly

observes, unlike the statutory alimony factors which explicitly list marital

misconduct as a factor the trial court may consider, the statutory provision

regarding assignment of counsel fees does not mention marital misconduct.

Compare 23 Pa.C.S. § 3701(b)(14) with 23 Pa.C.S. § 3702. Furthermore,

the cases construing the Divorce Code have not listed wrongdoing against

another party as a factor for consideration. See, e.g., Teodorski, 857 A.2d

at 201.   In fact, this Court has stated that “[t]he purpose of an award of

counsel fees is not to punish one spouse [or] to reward the other.” Hoover

v. Hoover, 431 A.2d 337, 338 (Pa. Super. 1981). Therefore, we conclude

that the trial court committed reversible error in basing its counsel fee

determination in part upon an impermissible factor.


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        In Wife’s second issue, she asks us to decide whether the trial court

abused its discretion by directing that the savings bonds held jointly

between Wife and Son be cashed and deposited into the Clarion County

Community Bank savings account, which designated Son as a beneficiary

under PUTMA.

        In denying Wife’s exception, the trial court stated that

        [t]he record supports the conclusion that the master directed
        that these savings bonds be removed from Wife’s name and
        deposited in [Son’s] name only so as to remove the possibility
        that Wife could cash the bonds out for her own benefit and
        disrupt the equitable distribution scheme crafted by the master.
        In the absence of any legal authority as to why this is improper,
        the court finds this conclusion reasonable, and will deny this
        exception.

Trial Court Opinion and Order, 8/31/2016, at 3 (unnecessary capitalization

omitted; references to parties altered).

        Wife has failed to develop any meaningful argument on appeal as to

why the trial court’s ruling was an abuse of discretion. Not only did Wife’s

exception to the master’s recommendation regarding the savings bond not

contain any legal authority, other than noting that the bonds had not

matured, Wife’s exception was devoid of analysis as to why the master

allegedly erred.    See Wife’s Exceptions to Master’s Report, 5/25/2016, at

¶ 16.    In her brief, Wife faults the trial court for not making any findings

regarding the financial impact of cashing the bonds, but Wife did not present

evidence on this issue. The only testimony regarding the bonds comes from



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Husband, who testified that he estimated their worth to be approximately

$2,000, that Wife’s relatives gifted the bonds to Son, that the names of Wife

and Son are on the bonds, and that the bond certificates are located in

Husband’s filing cabinet. Master’s Report, 5/5/2016, at 13 (citing N.T.,

11/17/2015, at 149-50). Wife also alludes to the possibility that the bonds

could    be   Son’s   property   under    PUTMA         and   exempt    from    equitable

distribution, see Wife’s Brief at 15 (“[Wife] submits the savings bonds could

very well meet the requirements of [PUTMA] and therefore, be the minor’s

property and not subject to the trial court’s determination in the equitable

distribution scheme.”), but Wife fails to set forth the requirements of PUTMA

or apply the requirements to the bonds at issue.                  Finally, although Wife

notes correctly that Husband has possession of the bonds, thereby limiting

Wife’s ability to cash them, Wife fails to convince us that the trial court’s

direction to cash the bonds to ensure that Son receives them was outside of

its discretion. Accordingly, Wife’s second issue does not merit relief.

        Based on the foregoing, we vacate the portion of the trial court’s order

denying Wife’s request for counsel fees and remand for the trial court to re-

evaluate Wife’s request for counsel fees pursuant to the factors described in

Teodorski      without   consideration     of     her   marital    misconduct    against

Husband. Because Wife has failed to convince us that the trial court abused

its discretion in adopting the recommendations of the master regarding

cashing of the bonds, we affirm that portion of the trial court’s order.


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      Order affirmed in part and vacated in part. Case remanded to the trial

court for proceedings consistent with this memorandum.           Jurisdiction

relinquished.

      PJE Bender joins.

      Judge Bowes files a dissenting statement.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/27/2017




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