J-A14005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 THOMAS J. MACKIE                      :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                   Appellant           :
                                       :
                                       :
              v.                       :
                                       :
                                       :
 DIANE E. MACKIE                       :   No. 1499 WDA 2018

            Appeal from the Order Entered September 18, 2018
           In the Court of Common Pleas of Washington County
               Domestic Relations at No(s): 00236 DR 2017

 DIANE E. MACKIE                       :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 THOMAS J. MACKIE                      :
                                       :
                   Appellant           :   No. 1502 WDA 2018

           Appeal from the Order Entered September 18, 2018
          In the Court of Common Pleas of Washington County
      Domestic Relations at No(s): Docket Number: 00473 DR 2013,
                         PACSES No. 516114042


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                        FILED OCTOBER 02, 2019

     In these consolidated appeals, Thomas J. Mackie (“Husband”) appeals

from the order entered September 18, 2018, in the Court of Common Pleas of

Washington County awarding alimony pendente lite (“APL”) during the
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pendency of the direct appeal of the parties’ divorce action.1 He argues the

trial court erred in awarding Diane E. Mackie (“Wife”) APL during the pendency

of appeal, failed to assign an adequate earning capacity to Wife, improperly

failed to deviate from the award because of Wife’s failure to make mortgage

payments, and erred in counting certain job perquisites and reimbursed

business expenses as income. For the reasons set forth below, we affirm in

part, vacate in part, and remand for further proceedings.

       As we write primarily for the parties, a detailed factual and procedural

history is unnecessary. We briefly note Husband filed for divorce in 2013.

Since then, the proceedings have been tortuous and acrimonious. The trial

court entered a decree of divorce on May 19, 2017. Both parties appealed

and this Court affirmed on May 1, 2018. See Mackie v. Mackie, 2018 WL

2016377 (Pa. Super. filed May 1, 2018) (unpublished memorandum). The

Pennsylvania Supreme Court denied leave to appeal on January 16, 2019.

See Mackie v. Mackie, 200 A.3d 937 (Pa. 2019).

       On August 18, 2017, the hearing officer held a hearing concerning

outstanding petitions for modification of the support order and the grant of

APL during the appeal. On October 2, 2017, the hearing officer issued two




____________________________________________


1Husband also purported to appeal from the award of child support. However,
none of his issues on appeal concerns this award. Therefore, we will not
address the award of child support.

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reports one in the APL case and one in the child support case. Of pertinence

to the present appeal, the hearing officer stated the following:

      The beginning point is the last report and recommendation of the
      former [s]upport [h]earing [o]fficer dated May 16, 2016[,] and
      effective March 31, 2016[,] in which the Husband was ordered to
      pay as spousal and child support an unallocated sum of $ 2,782.00
      per month. It is worth noting that had the order been allocated,
      child support was $941.79 and spousal support was $1,875.86 per
      month. The court order entered pursuant to the report was
      appealed to the Superior Court but the appeal was dismissed as
      being interlocutory.

      Later, the [m]aster in the Divorce Action, in a comprehensive and
      cogent report, which, except for some minor changes, was
      adopted by the [j]udge, recommended that the Husband pay as
      alimony, beginning August 1, 2016 the sum of $2000.00 per
      month. Effective August 1, 2017 (the current year) the alimony
      payment was reduced to $1800.00 per month and then reduced
      by $200.00 monthly each year thereafter, until terminated August
      1, 2020. Both [p]arties filed appeals to the Superior Court . . .

      In the meantime, on May 19, 2017 a [d]ivorce [d]ec[r]ee was
      entered pursuant to the no-fault provisions of the Pennsylvania
      Divorce Code. The [d]ecree contained the customary language
      that “any existing spousal support order shall be deemed an order
      for [APL] if any economic claims remain pending[.]”

                                    ****

      The Wife submitted for consideration the case of DeMasi v.
      DeMasi, 597 A.2d 101 (Pa. Super 1991)[, appeal denied, 621
      A.2d 1380 (Pa. 1993)].

      That decision, which has been followed in numerous subsequent
      cases, holds that, despite the entry of a divorce decree, if an
      appeal is pending on issues of equitable distribution, APL will
      continue throughout the appeal process and until a final Order has
      been entered.

      The only real issue is whether APL shall continue in the previous
      amount or whether the amount should now be modified to account
      for the changes in circumstances arising since the last order i.e.

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      the child residing with the Husband and the increase in his average
      net monthly income. It is noted that [Wife’s] petitions pre-date
      the entry of the divorce decree and the appeal to the Superior
      Court and therefore it would be appropriate to modify the APL
      order retroactive to the filing date of the petition for modification.

Hearing Officer’s Report 1, 10/02/2017, at 1-2. Ultimately, the hearing officer

recommended Wife be paid $2,509.00 per month in APL during the pendency

of the appeal.

      Both parties filed exceptions to this report. On February 2, 2018, the

trial court issued an order, which stated therein it was an interim order,

denying Husband’s exception regarding the award of APL to Wife. Trial Court

Order, 2/02/2018, at 1. It granted one of Wife’s exceptions and held all other

exceptions in abeyance pending a second hearing by the hearing officer with

respect to the parties’ 2016 income. Id.      Further, the court directed if new

issues arose at the remanded hearing, the parties would need to file additional

exceptions with respect to those issues. Id.

      The remand hearing took placed on April 24, 2018. On May 29, 2018,

the hearing officer issued a second report. Of pertinence to the instant appeal,

the hearing officer rejected Husband’s argument that there should be a

deviation in the APL award to reflect Wife’s alleged failure to pay a mortgage

obligation on a marital property.     Hearing Officer’s Report, 5/29/2018, at

unnumbered page 4. The hearing officer directed Husband to pay $2,818.00

per month in APL for the closed period of September 16, 2016, through March

13, 2017. Wife filed exceptions to this report but Husband did not.


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       On September 18, 2018, the trial court issued an order granting in part

and denying in part the parties’ exceptions. Trial Court Order, 9/18/2018, at

1. In the order, the trial court declined to address Husband’s claim that Wife

was not entitled to APL because the issue had previously been decided in its

February 2, 2018 interim order.           Id. at 12.   The court denied Husband’s

exception with respect to Wife’s earning capacity.         Id. at 12-13.   Despite

noting Husband had not filed exceptions to the May 29, 2018 order, the court

briefly addressed the issue of the deviation from APL for Wife’s alleged failure

to make mortgage payments.            Id. at 14. Lastly, the court granted Wife’s

exception with respect to the failure to included Husband’s job perquisites and

reimbursed business expenses as income. Id. at 5-6. The instant, timely

appeal followed.2

       In his first issue, Husband contends the trial court erred in concluding

that Wife qualified for APL during the pendency of the appeal. Husband’s Brief,

at 17-21. We disagree.

       Our standard of review for awards of APL is “If an order of APL is

bolstered by competent evidence, the order will not be reversed absent an

abuse of discretion by the trial court.” Busse v. Busse, 921 A.2d 1248, 1255




____________________________________________


2 The trial court did not order Husband to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On October 23, 2018,
the trial court issued an order incorporating its February 2, 2018 and
September 18, 2018 orders as its Rule 1925(a) opinion.

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(Pa. Super. 2007) (citation omitted), appeal denied, 934 A.2d 1275 (Pa.

2007). Further,

      [i]n ruling on a claim for [APL], the court should consider the
      following factors: the ability of the other party to pay; the
      separate estate and income of the petitioning party; and the
      character, situation, and surroundings of the parties.

Id. (citations omitted).

      Preliminarily, we must decide if this issue is properly before us. As noted

above, the trial court addressed the issue of Wife’s entitlement for APL in its

February 2, 2018 interim order. Trial Court Order, 2/02/2018, at 1. The trial

court declined to address the issue in its September 18, 2018 final order. Trial

Court Order, 9/18/2018, at 12. In his notice of appeal, Husband only appeals

from the September 18, 2018 order.          Notice of Appeal, 10/28/2018.     In

addressing a similar issue, this Court has stated:

      Pa.R.A.P. 904 provides that a notice of appeal must include the
      order from which the appeal is taken. However, “[a] notice of
      appeal filed from the entry of the final order in an action draws
      into question the propriety of any prior non-final orders.” Quinn
      v. Bupp, 955 A.2d 1014, 1020 (Pa. Super. 2008). Once an appeal
      is filed from a final order, all prior interlocutory orders become
      reviewable. Id. at 1020 (internal quotations and citations
      omitted). . . . Thus, this issue is properly before us.

Rohm and Haas Co. v. Lin, 992 A.2d 132, 149 (Pa. Super. 2010), cert.

denied, 565 U.S. 1093 (2011). Accordingly, we will address the merits of

Husband’s claim.

      In its February 2, 2018 interim order, the trial court aptly addressed this

issue as follows.


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     By way of further explanation, [APL] is an order for temporary
     support during the pendency of a divorce action. 23 Pa.C.S.A. §§
     3702, 3103. Awarding [APL] is not a matter of right. Nemoto v.
     Nemoto, 620 A.2d 1216, 1221 (Pa. Super. [] 1993). Instead,
     “[APL] 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.”      DeMasi v. DeMasi, [supra at 104].
     Regardless, if [APL] has been awarded, the recipient is eligible to
     receive APL during the pendency of an appeal to the Superior
     Court.

           Considerations of public policy require that the
           dependent party be entitled to support, in the form of
           [APL] . . . before entry of the lower court’s decree[.] .
           . . Since there is an absolute right of appeal from the
           lower court’s decree, these same considerations
           require that the dependent party be entitle[d] to
           support during the pendency of the appeal.

     Prol v. Prol, 840 A.2d 333,335-36 (Pa. Super. []. 2003) (citing
     Shuda v. Shuda, 423 A.2d 1242, 1244 (Pa. Super. [] 1980))[,
     appeal quashed, 871 A.2d 791 (Pa. 2005)].

     [The trial c]ourt has also emphasized that [APL] eligibility during
     an appeal is not absolute. “[APL] may be terminated before the
     litigation is concluded where the recipient has acquired assets or
     income which sufficiently equalizes the financial ability of the
     parties to pursue the action.” Brody v. Brody, 758 A.2d 1274,
     1281 (Pa. Super. [] 2000)[, appeal denied, 786 A.2d 984 (Pa.
     2001)].

     When analyzing appellate cases where [APL] was terminated after
     the entry of a divorce decree, [the trial c]ourt finds that they
     indicated a change in the financial circumstances of the dependent
     spouse. Compare, e.g., Brody, 758 A.2d at 1281 (recognizing
     termination of APL proper where wife was awarded $319,501 in
     pension assets, continued to receive generous support from her
     parents, and was capable of working); Jayne v. Jayne, 663 A.2d
     169, 176 (Pa. Super. [] 1995) (concluding award of [APL] was
     improper where wife had acquired $225,866.84, plus alimony of
     $200.00 per month for two years, which sufficiently equalized the
     financial ability of the parties to pursue the action); Nemoto, 620
     A.2d at 1221 (recognizing that although wife’s earning capacity

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         and actual income were less than husband’s, she had “acquired
         adequate assets and income available through equitable
         distribution, alimony, and her own earning capacity so that she
         [could] litigate the case as she [chose]” moving forward); Spink
         v. Spink, 619 A.2d 277 (Pa. Super. [] 1992) (concluding that the
         trial court would not have abused its discretion in discontinuing
         APL to wife while appeal of that order was pending where, wife
         would receive $120,000 from sale of marital residence.); with
         Haentjens v. Haentjens, 860 A.2d 1056, 1063 (Pa. Super. []
         2004) (continuation of APL appropriate where wife had not yet
         received her equitable distribution award of $688,000).

         That being said, [the trial c]ourt finds that there were very few
         assets to be equitably divided in the parties[’] divorce proceeding.
         Eleven assets were addressed in the divorce master’s report and
         recommendation. Seven of the assets were not valued, including
         the [marital] residence[,] which was in foreclosure. The only
         liquid cash distribution to [Wife] was $2,299.35 representing one-
         half of the sales proceeds of the parties’ Cadillac automobile. The
         remaining assets were [H]usband’s two business (G-Force and
         Check Six) that were awarded to him (not valued), and
         retirement/pension assets in [Husband’s] name from current or
         prior employers. None of the retirement assets are in pay status.
         In addition, once [the trial c]ourt issued a divorce decree on May
         19, 2017, [Wife] was not [] eligible to remain on [Husband’s]
         employer provided health care plan at American Airlines; from
         that day forward, [Wife] would have the expense of purchasing
         her own medical insurance policy. Further, [Husband’s] income is
         substantially greater than [Wife’s] income. Consequently, [the
         trial c]ourt concludes that [APL] should continue pending the
         conclusion of the litigation in the Superior Court.[a]

               [a][APL]will not be suspended or terminated since the
               Superior Court may remand the case for additional
               proceedings if it finds the appeal has merit.

Trial Court Order, 2/02/2018, at 1-3.

         Our review of the certified record, submissions of the parties, and

relevant law reveals no abuse of discretion or errors of law attendant to this

issue.     Accordingly, we adopt the trial court’s well-reasoned decision, as


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quoted above, as dispositive of this issue. Husband’s first claim does not merit

relief.

          In his second issue, Husband argues the trial court abused its discretion

in refusing to impute an earning capacity to Wife of more than $10.00 an hour.

Husband’s Brief, at 22. We disagree.

          Again, we note our standard of review is an abuse of discretion.

DeMasi, supra at 877 (citations omitted).            Moreover, the same factors

regarding earning capacity apply to both APL and child support. Id. at 878

(citation omitted).      The Pennsylvania Rules of Civil Procedure describe the

factors thusly:

          Age, education, training, health, work experience, earnings
          history and child care responsibilities are factors which shall be
          considered in determining earning capacity. In order for an
          earning capacity to be assessed, the trier of fact must state the
          reasons for the assessment in writing or on the record. Generally,
          the trier of fact should not impute an earning capacity that is
          greater than the amount the party would earn from one full-time
          position. Determination of what constitutes a reasonable work
          regimen depends upon all relevant circumstances including the
          choice of jobs available within a particular occupation, working
          hours, working conditions and whether a party has exerted
          substantial good faith efforts to find employment.

Pa.R.C.P. 1910.16-2(d)(4).

          Here, the hearing officer found Wife was fifty-three years old at the time

of the hearing. Hearing Officer Report, 5/29/2018, at unnumbered page 2.

She was a high-school graduate with no post-secondary education or training.

Id. Moreover, she had not worked from approximately 1999-2016. Id. In

the 1990s, she worked as a model. Id. In 2016, she obtained a part-time

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job that paid $10.00 per hour. Id. The trial court agreed with the hearing

officer’s findings, noting there was no objective evidence Wife was capable of

earning more than $10.00 an hour. Trial Court Order, 9/18/2018, at 12. It

stated Wife was currently working as a salesperson for a skin care company,

which paid her on a commission basis.          Id. at 12-13.   It credited Wife’s

testimony that she worked over 50 hours per week but had not yet earned

$10.00 per hour. Id. at 13.

      We see no abuse of discretion in the trial court’s decision. We have

reviewed Husband’s arguments. He offers nothing to support a contention

that Wife’s previous employment prior to the year 2000 as a model and actor

affected her current earning capacity.        He provides no legal support for a

claim that the trial court was required to factor her experiences as a military

wife and mother into her earning capacity. Moreover, his contention that her

representation of herself in the instant matter qualified her to work as a legal

secretary is clearly speculative. See Husband’s Brief, at 23-27. Husband’s

second issue does not merit relief. See DeMasi, supra at 878; see also

Baehr v. Baehr, 889 A.2d 1240, 1245 (Pa. Super. 2005).

      In his third issue, Husband contends the trial court erred in not lowering

the award of APL because of Wife’s alleged failure to pay the mortgage on a

marital property. Husband’s Brief, at 29-32. However, Husband waived this

claim.




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      The hearing officer first addressed the issue of the deviation for the

failure to make mortgage payments during the remand hearing held April 24,

2018, and in the May 29, 2018 report. Hearing Officer’s Report, 5/29/2018,

at unnumbered page 4. Husband did not file exceptions to that report. The

trial court acknowledged this in its September 9, 2018 order but very briefly

addressed the issue. Trial Court Order, 9/09/2018, at 14. This was error.

      This Court has held a party must file exceptions from a master’s report

and a party waives any issue not raised in those exceptions for purposes of

appeal. Cook v. Cook, 186 A.3d 1015, 1024-1025 (Pa. Super. 2018); see

also Nagle v. Nagle, 799 A.2d 812, 821 (Pa. Super. 2002) (holding issue

waived because it was not included in exceptions to master’s report). Here,

because Husband did not file exceptions to the May 29, 2018 report, he waived

this issue on appeal. Cook, supra at 1024-1025; Nagle, supra at 821.

      In his fourth issue, Husband maintains the trial court abused its

discretion in including his perquisites and reimbursed business expenses in

calculating his income. Husband’s Brief, at 32-39. Based upon the record

before us, we believe the trial court erred in considering all of Husband’s flight

perquisites as income. Moreover, we are unable to determine from the current

record either the legal or the factual basis for the trial court’s determination

that Husband’s substantiated employee expense reimbursements constituted

income. Accordingly, we are constrained to vacate the determination of




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Husband’s taxable income for the periods of 2016, 2017, and 2018, and

remand for further proceedings.

      Pennsylvania law defines income for purposes of support and APL as

follows:

      “Income.” Includes compensation for services, including, but
      not limited to, wages, salaries, bonuses, fees, compensation in
      kind, commissions and similar items; income derived from
      business; gains derived from dealings in property; interest; rents;
      royalties; dividends; annuities; income from life insurance and
      endowment contracts; all forms of retirement; pensions; income
      from discharge of indebtedness; distributive share of partnership
      gross income; income in respect of a decedent; income from an
      interest in an estate or trust; military retirement benefits; railroad
      employment retirement benefits; social security benefits;
      temporary and permanent disability benefits; workers’
      compensation; unemployment compensation; other entitlements
      to money or lump sum awards, without regard to source, including
      lottery winnings; income tax refunds; insurance compensation or
      settlements; awards or verdicts; and any form of payment due to
      and collectible by an individual regardless of source.

23 Pa.C.S.A. § 4302 (some emphasis added). In Mascaro v. Mascaro, 803

A.2d 1186 (Pa. 2002), our Supreme Court held, “[p]ersonal perquisites, such

as entertainment and personal automobile expenses paid by a party’s business

must be included in income.” Mascaro, supra at 1194 (citation omitted,

emphasis added).     The only exception permitted under Mascaro, is if the

perquisite benefited both parties. Id.

      In Murphy v. McDermott, 979 A.2d 373 (Pa. Super. 2009), this Court

held, relying on Mascaro, vehicle expenses paid by an employer must be used

when calculating income. Murphy, supra at 379. We arrived at the correct

figure by looking to the amount the employer paid per year for the vehicle,

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dividing that figure by the percentage of time the husband employed it for

personal use, then subtracting any monies husband paid to the employer for

use of the vehicle. Id. at 379-380.

      Here, in its October 2, 2017 report on child support, the hearing officer

dealt with the issue of Husband’s flight perquisite thusly:

      [Husband] in the past had also been imputed additional income
      from a perquisite of his employment in that he was able to fly to
      various locations by “standby” for free or for a nominal fee. This
      [h]earing [o]fficer will decline to impute additional perquisite
      income to [Husband] because he accepts [Husband’s] explanation
      that these flights were only for purpose of commuting from his
      home to the airport location where he commenced his
      international flights.    [Husband’s] last six months[’] pay
      statements for the most part corroborates [Husband’s] testimony
      on this issue for the vast majority of the flights listed were in
      [Husband’s] name and were from the place he was living to a
      remote airport. However, there were a few flights in which the
      child [] was listed as the designee and this has caused the
      [h]earing [o]fficer some concern; but [Husband] will be given the
      benefit of the doubt on this matter.

Hearing Officer Report 2, 10/02/2017, at 4.

      While we agree the cost of those flights from Husband’s place of

residence to his place of employment did not constitute income, the cost of

any flights for Husband, his guests, or designees made for personal reasons

was income. See Mascaro, supra at 1194; Murphy, supra at 379-380. It

was incumbent upon the hearing officer to differentiate among the flights and

further determine whether Wife accrued any benefit from those flights on

which the child flew free or at a reduced fare.




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         Wife filed an exception to this finding.     In its September 18, 2018

opinion, the trial court correctly found under Mascaro that job perquisites

that do not benefit Wife were income; however, it disregarded the holding in

Mascaro that limited the income to personal use.                Trial Court Order,

9/18/2018, at 5-6; Mascaro, supra at 1194. This was error. Moreover, the

trial court went further and counted the substantiated reimbursed business

expenses listed in box 12C, code L on Husband’s W-2 form as income. Trial

Court Order, 9/18/2018, at 5-6. This may be double counting, and hence,

error.

         We are simply unable to determine from the current record and trial

court’s order whether there is legal support for the trial court’s determination

that the reimbursed expenses were income. If the expenses were only the

flight perquisite, then the trial court should treat them as delineated in

Murphy.       See Murphy, supra at 379-380.           However, if there are other

reimbursed      business   expenses   such     as   meals,   lodging,   and   ground

transportation, it is simply not clear on this record whether they constitute

income. If Husband submitted receipts to his employer and his employer only

reimbursed him for what he paid out then, clearly, it is not income under

Mascaro. However, if Husband received a per diem for these expenses and

the record demonstrated he spent less than the per diem amount, then the

difference would be income under Mascaro.




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      Because we are unable to determine this from the current record, we

are constrained to vacate the determination of Husband’s income for the years

of 2016, 2017, and 2018 as enunciated in the trial court’s September 18, 2018

order. Further we remand the matter for additional testimony to determine

the amount of income Husband derives from the perquisites.

      Accordingly, for the reasons discussed above, we affirm in part, vacate

in part, and remand for further proceedings.

      Order affirmed in part and vacated in part. Case remanded. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2019




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