J-A27020-17

                               2018 PA Super 117



RONALD COOK                              :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
                                         :
DEBORAH COOK                             :
                                         :
                   Appellant                  No. 454 WDA 2017


                  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 BY SHOGAN, J.:                                 FILED MAY 04, 2018

      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 counter-

claim in June of 2013. The parties entered into a consent order in August of
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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.


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       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
____________________________________________


1  We observe that Wife has included in her Pa.R.A.P. 1925(b) statement
additional issues of trial court error that she has not presented in her
appellate brief. Wife’s Brief at 2. Husband has filed a motion to dismiss
issues on appeal that have not been presented in Wife’s brief. Motion to
Dismiss, 10/20/17. We conclude that those claims not included in Wife’s
appellate brief have been abandoned because Wife has not included those
issues in her statement of questions involved, Wife’s Brief at 5, nor has she
developed any argument relating to those issues in the argument section of
her brief as required by Pa.R.A.P. 2119(a). Wife’s Brief at 10-28. See
Green v. Green, 69 A.3d 282, 286 n.3 (Pa. Super. 2013) (finding issues
waived for failure to develop claims in argument section of appellate brief).
Accordingly, we grant Husband’s Motion to Dismiss those issues.



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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




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J-A27020-17


statute.”2    Lawson v. Lawson, 940 A.2d 444, 447 (Pa. Super. 2007)

(emphasis in original).


____________________________________________


2  Section 3701 of the Divorce Code, 23 Pa.C.S. §§ 3101-3904, sets forth
the relevant factors for determining alimony as follows:

       § 3701. Alimony

             (a) General rule.--Where a divorce decree has been
       entered, the court may allow alimony, as it deems reasonable, to
       either party only if it finds that alimony is necessary.

             (b) Factors relevant.--In determining whether alimony is
       necessary and in determining the nature, amount, duration and
       manner of payment of alimony, the court shall consider all
       relevant factors, including:

              (1) The relative earnings and earning capacities of
              the parties.

              (2) The ages and the physical,           mental    and
              emotional conditions of the parties.

              (3) The sources of income of both parties, including,
              but not limited to, medical, retirement, insurance or
              other benefits.

              (4) The expectancies and inheritances of the parties.

              (5) The duration of the marriage.

              (6) The contribution by one party to the education,
              training or increased earning power of the other
              party.

              (7) The extent to which the earning power, expenses
              or financial obligations of a party will be affected by
              reason of serving as the custodian of a minor child.

(Footnote Continued Next Page)


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(Footnote Continued) _______________________

             (8) The standard of living of the parties established
             during the marriage.

             (9) 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.

             (10) The relative assets and liabilities of the parties.

             (11) The property brought to the marriage by either
             party.

             (12) The contribution of a spouse as homemaker.

             (13) The relative needs of the parties.

             (14) The marital misconduct of either of the parties
             during the marriage. The marital misconduct of
             either of the parties from the date of final separation
             shall not be considered by the court in its
             determinations relative to alimony, except that the
             court shall consider the abuse of one party by the
             other party. As used in this paragraph, “abuse” shall
             have the meaning given to it under section 6102
             (relating to definitions).

             (15) The Federal, State and local tax ramifications of
             the alimony award.

             (16) Whether the party seeking alimony lacks
             sufficient property, including, but not limited to,
             property distributed under Chapter 35 (relating to
             property rights), to provide for the party’s
             reasonable needs.

             (17) Whether the party seeking alimony is incapable
             of self-support through appropriate employment.

23 Pa.C.S. § 3701(a)-(b).



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J-A27020-17


     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.


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J-A27020-17


      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).




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J-A27020-17


      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


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J-A27020-17


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


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J-A27020-17


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.


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J-A27020-17


            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 month. [The
      trial c]ourt denied Wife’s exception finding that there had not
      been a material and substantial change in circumstances.

Trial Court Opinion, 5/12/17, at 6.

      The   master’s   report      presented    the   following,   more   detailed,

explanation of the calculations:

            On August 26, 2015, Wife petitioned to modify the alimony
      pendente lite alleging a material change in circumstances had
      occurred since the entrance of the original order. Wife alleged
      that Husband’s income had increased.

           Husband submitted his paystubs from his employers.
      According to the paystub from [Husband’s first employer],
      (Husband’s exhibit A) Husband’s year-to-date gross income as of

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J-A27020-17


     May 26, 2016 was $25,465.89. This amount also included
     bonuses. When this amount is extrapolated to the end of the
     year, his salary would be $60,192.82. According to the paystub
     from [husband’s second employer], (Husband’s exhibit B)
     Husband’s year to date gross income as of May 28, 2016 was
     $42,289.19. When this amount is extrapolated to the end of the
     year, his salary would be $99,995.96. Therefore, Husband’s
     annual gross income from both employers is $160,148.78.
     Placing Husband as married filing separately for federal income
     tax purposes, and taking into consideration his annual union
     dues of $230, Husband’s net monthly income is $8,721.47.

           Wife submitted her paystubs from her employer.
     According to the paystub submitted by Wife, (Exhibit 26) her
     year-to-date gross income as of April 29, 2016, was $16,051.50.
     When this amount is extrapolated to the end of the year, her
     salary would be $46,371.       Placing Wife as married filing
     separately for federal income tax purpose, her net monthly
     income is $2,967.54.

           The difference between the parties’ net monthly incomes
     of $5,753.93, multiplied by 40%, is $2,301.57. As Husband has
     been paying $2,300 per month to Wife, it appears that a
     modification of the existing Alimony Pendente Lite is not
     warranted and her petition is dismissed.

Master’s Report, 8/3/16, at 10-11.

     Upon review of the certified record, it is obvious that the master and

the trial court relied upon five months of pay stubs in calculating Husband’s

projected gross income for 2016. The trial court and master relied upon four

months of pay stubs in calculating Wife’s projected income for 2016. This

method is in contradiction with Pa.R.C.P. 1910.16-2(a), which instructs that

“[m]onthly gross income is ordinarily based upon at least a six-month

average of all of a party’s income.”          Therefore, we are constrained to

conclude that the trial court abused its discretion in failing to employ the


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method of calculation set forth in Rule 1910.16-2(a). Hence, we reverse the

portion of the trial court’s order that denied Wife’s exception number five,

which alleged an error by the master in calculating the parties’ incomes

pursuant   to   her   request   for   modification   of   alimony   pendente   lite.

Furthermore, we remand the matter to the trial court for a proper calculation

of the parties’ incomes as directed under Rule 1910.16-2.

      Wife further claims that, in calculating the award of alimony pendente

lite, the trial court erred in failing to account for the mortgage deviation and

Wife’s unreimbursed medical expenses. However, this allegation is waived

for purposes of appeal.

      Generally, pursuant to Pa.R.A.P. 302(a), “issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”           See

Twilla v. Twilla, 664 A.2d 1020, 1027 (Pa. Super. 1995) (holding issues

waived in equitable distribution matter where the wife failed to raise the

issues before the lower court in exceptions to master’s report).         Likewise,

Pa.R.C.P. 1920.55-2(b) addresses exceptions to master’s reports and

provides that “[e]ach exception shall set forth a separate objection precisely

and without discussion.     Matters not covered by exceptions are deemed

waived unless, prior to entry of the final decree, leave is granted to file

exceptions raising those matters.” See Nagle v. Nagle, 799 A.2d 812, 821

(Pa. Super. 2002) (concluding that issue was waived because it was not

included in exceptions to the master’s report); Schuback v. Schuback, 603


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A.2d 194, 197 (Pa. Super. 1992) (finding issue to be waived and refusing to

consider it for the first time on appeal because the husband failed to present

the claim in his exceptions to the master’s report).

      Our review of the record reflects that Wife failed to present specifically

the issue of the mortgage deviation and unreimbursed medical expenses to

the trial court. The only exception raised by Wife pertaining to modification

of alimony pendente lite provides as follows:

      5. The Master erred as a matter of law and/or abused his
      discretion when he denied Wife’s request for modification of the
      alimony pendent lite order; specifically, the Master erred and/or
      abused his discretion, by failing to accurately calculate the
      income of the parties and by failing to tax-impact the income of
      the parties relative to the payment of alimony pendent lite.

Wife’s Exceptions, 8/22/16, at 2.

      Accordingly, Wife has failed to preserve this particular claim of error in

the calculation of the award of alimony pendente lite for appellate review.

Consequently, this argument has been waived.

      Wife next argues that the trial court improperly distributed the marital

estate. Wife’s Brief at 19-21. Wife notes that the trial court awarded her

fifty-five percent of the marital estate and fifty percent of the proceeds of

the marital residence.    Id. at 19-20.      Wife contends that, because she

stopped working when her daughter was born, she lost the ability to add

value to her retirement savings.    Id. at 20.    Wife further claims that the

factors that weigh in favor of her receiving a larger share of the marital

estate include the length of the marriage, Wife’s age being sixty-two, her

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J-A27020-17


contributions to the household, and her current and future income versus

Husband’s income.        Id. Wife is seeking a sixty percent share of both the

marital estate and proceeds from the sale of the marital residence. Id. at

21.

       The following principles guide our review:

       Our standard of review in assessing the propriety of a marital
       property distribution is whether the trial court abused its
       discretion by a misapplication of the law or failure to follow
       proper legal procedure. An abuse of discretion is not found
       lightly, but only upon a showing of clear and convincing
       evidence.

Smith v. Smith, 904 A.2d 15, 18 (Pa. Super. 2006) (quoting McCoy v.

McCoy, 888 A.2d 906, 908 (Pa. Super. 2005)). As we previously observed,

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, 854 A.2d at 611. “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.”3 Morgante v.

____________________________________________


3   The relevant factors in an equitable distribution determination are:

       (1) The length of the marriage.

       (2) Any prior marriage of either party.

(Footnote Continued Next Page)


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J-A27020-17


Morgante, 119 A.3d 382, 387 (Pa. Super. 2015) (quoting Biese v. Biese,

979 A.2d 892, 895 (Pa. Super. 2009)).               “[A] master’s report and
(Footnote Continued)   _______________________


      (3) The age, health, station, amount and sources of income,
      vocational skills, employability, estate, liabilities and needs of
      each of the parties.

      (4) The contribution by one party to the education, training or
      increased earning power of the other party.

      (5) The opportunity of each party for future acquisitions of
      capital assets and income.

      (6) The sources of income of both parties, including, but not
      limited to, medical, retirement, insurance or other benefits.

      (7) The contribution or dissipation of each party in the
      acquisition, preservation, depreciation or appreciation of the
      marital property, including the contribution of a party as
      homemaker.

      (8) The value of the property set apart to each party.

      (9) The standard of living of the parties established during the
      marriage.

      (10) The economic circumstances of each party at the time the
      division of property is to become effective.

      (10.1) The Federal, State and local tax ramifications associated
      with each asset to be divided, distributed or assigned, which
      ramifications need not be immediate and certain.

      (10.2) The expense of sale, transfer or liquidation associated
      with a particular asset, which expense need not be immediate
      and certain.

      (11) Whether the party will be serving as the custodian of any
      dependent minor children.

23 Pa.C.S. § 3502(a).



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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.” Moran v. Moran, 839 A.2d 1091, 1095 (Pa.

Super. 2003).

      The trial court addressed the distribution of the marital estate as

follows:

             The parties were married for 26 years. Hearing transcript,
      p. 4-5. Both parties are employed and nearing retirement age.
      Wife is slightly closer to retirement and earning a lesser income.
      Based on Husband’s career and age, he has a greater
      opportunity for future acquisition of capital assets and income.
      Both parties receive benefits through their respective
      employment.        The marital estate is comprised mainly of
      retirement accounts with little tangible property going to the
      parties other than vehicles. 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. The
      parties’ only child is emancipated.

             Based on these factors, a 55%/45% distribution in favor of
      Wife, excluding the marital residence, is equitable.          This
      distribution provides slightly more to Wife given her lesser
      income and lesser opportunity for acquisition of future assets.

Trial Court Opinion, 5/12/17, at 12-13.       Upon our thorough review of the

record, we agree with the trial court and conclude that the trial court did not

abuse its discretion in distributing the marital property.

      In her fourth issue, Wife argues that the trial court erred in denying

her claim for counsel fees.      Wife’s Brief at 22-24.      Wife contends that

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Husband’s income provides him with the ability to pay all or a substantial

portion of Wife’s counsel fees.    Wife posits that she needs the award of

counsel fees in order to pursue her divorce and not to be at a financial

disadvantage.

      Before we address this issue, we must consider whether the claim

presented by Wife has been preserved for appellate review.         Wife alleges

that she raised the issue of her request for counsel fees in her exception

number six to the Master’s Report. Wife’s Brief at 22.

      As we previously discussed, pursuant to Pa.R.A.P. 302(a), “issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.” Further, Pa.R.C.P. 1920.55-2(b) explains that “[e]ach exception

[to a master’s report] shall set forth a separate objection precisely and

without discussion. Matters not covered by exceptions are deemed waived

unless, prior to entry of the final decree, leave is granted to file exceptions

raising those matters.”

      Our review of the record reflects that Wife has failed to present

precisely this issue challenging the denial of her claim for counsel fees to the

trial court. The trial court made the following relevant observation:

            The Master’s Report and Recommendation denied Wife’s
      claim for counsel fees while awarding Husband’s claim for
      counsel fees in the amount of $2,500 to [be] paid by Wife. On
      Exceptions, Wife raised the following issues pertaining to counsel
      fees:

            #6 The Master erred as a matter of law and/or
            abused his discretion when he decided that Wife

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J-A27020-17


             should pay $2,500 in counsel fees to Husband;
             specifically, the Master erred by awarding fees
             to Husband on the basis that Wife should have
             been satisfied with informal discovery, while
             disregarding Husband’s failure to either informally or
             formally provide the model year of his vehicle to
             Wife, by disregarding Husband’s failure to provide
             the balance in his bank account at separation to
             Wife, by disregarding Husband’s failure to provide
             Marriott points information to Wife; and by
             disregarding the expenses, fees, and costs which
             Husband caused Wife to incur due to Husband’s
             refusal to provide any documents except by way of
             authorizations; additionally, the Master erred by
             awarding fees on the finding that Wife did not
             provide her address to Husband even though
             Husband was dropping their daughter at Wife’s
             address.

             #7 The Master erred and abused his discretion by
             awarding [f]ees to Husband based upon Wife’s
             request to transfer venue to Butler County, when
             Husband gave a false Allegheny County address
             under oath in his verified divorce complaint, both
             parties were living together in Butler County at the
             time when the divorce complaint was filed, and both
             parties still live in Butler County.

             Wife failed to take exceptions to her denied request for
      counsel fees. Wife’s Brief in Support of Exceptions is scant of
      any reference to her request for counsel fees. . . . Therefore,
      this issue has been waived.

Trial Court Opinion, 5/12/17, at 8 (bold emphasis added, italic emphases in

original).   Upon review of the record, we conclude that the language Wife

used in her exceptions was an argument to support her assertion that

counsel fees should not have been awarded to Husband. The language was

not an actual request that Wife be awarded counsel fees, as required under

Pa.R.C.P. 1920.55-2(b).     Moreover, Wife’s Brief in Support of Exceptions

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J-A27020-17


filed with the trial court did not address the lack of counsel fees being

awarded to Wife.   Wife’s Brief in Support of Exceptions, 10/31/16 (Docket

#45). Hence, we are constrained to agree with the trial court that Wife has

failed to preserve this issue for appellate review. Accordingly, we conclude

that the issue has been waived.

     Wife last argues that the trial court erred in awarding counsel fees to

Husband.   Wife’s Brief at 25-28.    Wife claims the trial court abused its

discretion in awarding Husband $2,500 in counsel fees, alleging that there

was no basis in the record for such a sanction. She asserts that Husband did

not properly request such sanctions because his request for counsel fees was

raised under section 3702 of the Divorce Code, which permits counsel fees

to a dependent spouse in order to place the parties on equal financial

footing. Id.

     We observe that Section 3702 of the Divorce Code provides that “the

court may allow a spouse . . . reasonable counsel fees and expenses.” 23

Pa.C.S. § 3702. “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.”   McCoy, 888 A.2d at 909

(quoting Teodorski, 857 A.2d at 201). “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


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J-A27020-17


resources, the value of the services rendered, and the property received in

equitable distribution.” Id. (quoting Teodorski, 857 A.2d at 201).

      Moreover, we observe that counsel fees were imposed in favor of

Husband pursuant to 42 Pa.C.S. § 2503, which provides, in relevant part, as

follows:

      § 2503. Right of participants to receive counsel fees

           The following participants shall be entitled to a reasonable
      counsel fee as part of the taxable costs of the matter:

                                    * * *

                   (7) Any participant who is awarded counsel
            fees as a sanction against another participant for
            dilatory, obdurate or vexatious conduct during the
            pendency of a matter.

42 Pa.C.S. § 2503(7). In addition, we have stated:

      Section 2503(7) is a statutory provision enabling a participant to
      receive reasonable counsel fees when another participant
      engages in dilatory, obdurate or vexatious conduct during the
      pendency of a matter. In re Estate of Liscio, 432 Pa. Super.
      440, 638 A.2d 1019 (1994). . . . Moreover, “it is well-settled
      that this Court will not reverse the trial court on its decision to
      award counsel fees absent an abuse of discretion.” O’Connell
      v. O’Connell, 409 Pa. Super. 25, 597 A.2d 643, 647 (1991)
      (citation omitted).

Bonds v. Bonds, 689 A.2d 275, 279–280 (Pa. Super. 1997). See Kulp v.

Hrivnak, 765 A.2d 796, 800 (Pa. Super. 2000) (trial court award of

attorneys’ fees affirmed where lower court found the appellants’ conduct

dilatory, obdurate, and vexatious).   Cf. Busse v. Busse, 921 A.2d 1248,

1258 (Pa. Super. 2007) (no abuse of discretion for award of counsel fees


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J-A27020-17


where the husband prolonged the already extensive litigation, he was not

forthcoming with information the wife requested, and the wife incurred

counsel fees as a result of the husband’s conduct).

     The trial court addressed Wife’s challenge to the award of counsel fees

to Husband as follows:

           Part of the Master’s Report and Recommendation included
     a $2,500 counsel fee award for Husband to be paid by Wife. The
     Master found, “Husband’s request for counsel fees stems from
     his contention that Wife has caused him unnecessary counsel
     fees throughout the litigation.    Husband’s contention is not
     without merit.” The Master went on to list the ways in which
     Wife caused Husband to incur unnecessary counsel fees. Wife
     filed multiple Exceptions related to the counsel fees Husband
     requested and the grounds upon which they were awarded.

            Wife first argued that the Master erred as a matter of law
     when he decided that Wife should pay $2,500 in counsel fees to
     Husband by sua sponte awarding counsel fees without an
     underlying motion for sanctions or a showing of need. Under 42
     Pa.C.S.A. §2503, the following party may be awarded counsel
     fees, “(7) Any participant who is awarded counsel fees as a
     sanction against another participant for dilatory, obdurate or
     vexatious conduct during the pendency of a matter.” Husband’s
     Petition Raising Claims filed February 10, 2016, included a claim
     for counsel fees. Specifically, Husband’s Petition stated:

           COUNT III      —    COUNSEL      FEES,     COSTS   AND
           EXPENSES

           3. [Husband] has employed the Law Firm of
           VOELKER & COLTON, LLC and has been put to
           considerable expense in the preparation of this case
           because of [Wife’s] conduct, in the employment of
           counsel for work which should not have been
           otherwise necessary, appraisers and/or valuators
           and the payment of legal fees, costs and expenses
           related to this case.




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J-A27020-17


          4. Plaintiff believes [Wife] should pay the above-
          mentioned legal feels, costs and expenses related to
          this action.

     Given Husband’s request for counsel fees, the Master did not
     award counsel fees sua sponte.

           Wife also argued that the Master erred as a matter of law
     by awarding counsel fees based on the finding that Wife
     surreptitiously moved from the marital residence and that Wife
     had been uncooperative with the sale of the property. The
     Master based the counsel fee award on the finding that:

          Husband’s counsel has had to write numerous letters
          to Wife’s counsel concerning Wife’s failure to pay
          expenses associated with the [marital] residence,
          including the real estate taxes, this coming after
          Wife’s    counsel   initially acknowledged    Wife’s
          obligation to pay these expenses. Wife’s actions
          surrounding the marital residence have also caused
          Husband unnecessary counsel fees, such as her
          failing to inform Husband she vacated the marital
          residence and decided to no longer pay the mortgage
          associated with it. Wife’s continuous wavering with
          respect to selling the residence has also caused
          Husband’s attorney to do additional work and
          Husband incurring additional fees.

            The parties separated July 1, 2013. Hearing transcript, p.
     5. Husband testified that aside from the first few months
     following separation, he paid support to Wife, who then paid the
     mortgage on the marital residence. Hearing transcript, p. 35.
     Husband testified that this arrangement continued for nearly two
     and-a-half years. Hearing transcript, p. 36. Husband made no
     mortgage payments, utility payments, real estate tax payments
     or homeowners insurance payments during this time. Id. Then,
     Husband stated that in early 2016, he began receiving phone
     calls that mortgage payments were not being made, utility bills
     were being sent to Husband unpaid with penalties, and taxes for
     2014, 2015 and 2016 were owed, totaling over $11,000.
     Hearing transcript, p. 36-37. Husband assumed payments for
     the expenses fearing foreclosure. Hearing transcript, p. 45.
     Wife testified that she stopped paying the mortgage because she
     “ran out of money.” Hearing transcript, p. 173. Wife left the

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J-A27020-17


     marital residence, “Because I wanted out of the house. I never
     wanted that house any way. My husband picked that house.”
     Hearing transcript, p. 173.

           In regards to the sale of the residence, Husband testified
     that there was an offer of $212,500 that he accepted, but Wife
     declined. Hearing transcript, p. 48. This was the only offer
     submitted to the parties.     Hearing transcript, p. 48.    Wife
     responded that she turned down the offer because, “I think its
     worth a lot more.” Hearing transcript, p. 204. Husband testified
     that he initially agreed to Wife’s request to have the home
     auctioned. Hearing transcript, p. 49. Husband signed the
     appropriate paperwork for the auction to occur, but “Wife backed
     out.” Hearing transcript, p. 49. Wife then testified that she
     backed out of the auction process because she did not realize
     she had to pay a 10% commission. Hearing transcript, p. 205.
     Wife acknowledged that six weeks passed before Husband was
     informed that the auction process had been permanently halted.
     Hearing transcript, p. 205.

           “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).          With regards to witness
     credibility, “It is within the province of the trial court to weigh
     the evidence and decide credibility and this Court will not reverse
     those determinations so long as they are supported by the
     evidence.” Id. The Master had the opportunity to assess the
     witness’s credibility and make a recommendation based thereon.
     The record supports the Master’s findings and Recommendation
     regarding an award for Husband’s counsel fees based on Wife’s
     conduct surrounding the marital residence.

Trial Court Opinion, 5/12/17, at 9-11.

     Upon review of the certified record, we agree with the trial court that

Husband, in his petition raising claims, properly requested counsel fees

pursuant to 42 Pa.C.S. § 2503(7).        Husband’s Petition Raising Claims,

2/10/16, at unnumbered 1-2. Accordingly, we discern no abuse of discretion

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J-A27020-17


by the trial court in awarding the counsel fees to Husband, which were

incurred due to Wife’s conduct pertaining to the marital residence.

      Order affirmed in part and reversed in part.       Case remanded for

further calculations of income for purposes of modification of alimony

pendente lite.   Husband’s motion to dismiss Wife’s abandoned issues is

granted. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2018




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