J-A11014-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JULIE S. SELWOOD                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MICHAEL J. SELWOOD

                        Appellant                  No. 1214 WDA 2013


                   Appeal from the Decree June 28, 2013
            In the Court of Common Pleas of Allegheny County
                 Family Court at No(s): FD-10-007983-008

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. and OLSON, J.

MEMORANDUM BY OLSON, J.:                             FILED JULY 31, 2014



divorce entered June 28, 2013.      We affirm in part, reverse in part, and

remand.

     As we write solely for the parties, we only outline the portions of the

factual and procedural history of this case necessary to our disposition.



union produced three children, 17-year-old C.S., 14-year-old A.S., and nine-

year-old T.S. Wife works as a part-time teacher while Husband works as a

bankruptcy and restructuring consultant.1    On April 5, 2010, the parties

separated. On May 24, 2010, Husband signed a new employment contract.


1
   Husband avers that less than a week after the decree of divorce was
entered he was laid off.
J-A11014-14

As part of that contract, Husband was given restricted stock, stock options,

and a forgivable loan.

      Prior to marriage, Wife opened an investment account with Janney



family. At the time the parties were married, the account had a balance of

$29,253.29.      During   their   marriage,   Wife    received   approximately

$134,121.00 in gifts from her family which she deposited in her JMS

account.   At the time Wife and Husband separated, the account had a

balance of $158,395.93. Also prior to marriage, Wife and her brother were

owners of a second-to-die policy on the lives of their parents. During the

marriage, that policy was rolled over into a new policy.

      On July 23, 2010, Wife filed a complaint in divorce.       The resulting

litigation has been acrimonious and has exhausted a great deal of judicial




master held a six day trial, four days in May 2012 and two days in

September 2012.     Prior to the two days in September 2012, Wife filed a

supplemental pre-trial statement.    The master permitted Wife to present

evidence included in her supplemental pre-trial statement that was not

                             re-trial statement.     On October 26, 2012, the

master submitted a report and recommendation to the trial court.




                                     -2-
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November 9, 2012. Husband then filed cross-exceptions. On May 20, 2013,

t



account and the life insurance policy held jointly by Wife and her brother

were non-marital property. The trial court also ordered Husband to maintain

life insurance to insure his future alimony and child support obligations. The

previous alimony pendente lite

and 2012 were retroactively made allocated instead of unallocated. The trial

court ordered Husband to pay for any extracurricular activities in which the



alimony and counsel fees.     On June 28, 2013, the trial court entered a

decree of divorce. This timely appeal followed.2

      Husband raises seven issues for our consideration:

      1. [Did t]he trial court abuse[] its discretion in reversing the

      property[?]

      2.  [Did the trial court abuse[] its discretion by (a) granting
                                                         -trial statements
      and (b) permitting Wife to present evidence that was only
      identified in a belatedly filed amended pre-trial statement?]

      3. [Did t]he trial court abuse[] its discretion in failing to
      designate as marital property any component of the life


2
   Husband and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                     -3-
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       insurance policy titled in the joint names of Wife and her
       brother[?]

       4. [Did t]he trial court abuse[] its discretion in ordering Husband
       to maintain life insurance coverage to secure his [child] support
       and alimony obligations[?]

       5. [Did t]he trial court abuse[] its discretion in retroactively
       modifying the unallocated [APL] and child support awards for
       2011 and 2012 by making them allocated[?]

       6. [Did t]he trial court abuse[] its discretion in vacating the


       parents agree upon, and instead delegating final authority to the
       children to bind their parents to the cost of their activities[?]

       7. [Did t]he trial court abuse[] its discretion in awarding both
       alimony and legal fees to Wife in the absence of actual need[?]

                      -6.3

       Our standard of review is well settled.

       A trial court has broad discretion when fashioning an award of
       equitable distribution. Our standard of review when assessing
       the propriety of an order effectuating the equitable distribution
       of marital property is whether the trial court abused its
       discretion by a misapplication of the law or failure to follow
       proper legal procedure. We do not lightly find an abuse of
       discretion, which requires a showing of clear and convincing
       evidence. This Court will not find an abuse of discretion unless
       the law has been overridden or misapplied or the judgment
       exercised was manifestly unreasonable, or the result of
       partiality, prejudice, bias, or ill will, as shown by the evidence in
       the certified record. 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
    We have re-numbered the issues for ease of disposition.



                                       -4-
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Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super. 2012) (citation omitted).



for an abuse of discretion. See S.M.C. v. W.P.C., 44 A.3d 1181, 1190 (Pa.

Super. 2012).

     In his first issue on appeal, Husband claims that the trial court abused




and non-marital assets.   However, the master determined that it was not

possible to determine what portions of the JMS account was marital

property.   Therefore, she concluded that she was required to consider the

full amount of the JMS account as marital property. Wife filed an exception

                               report and recommendation, arguing that the

JMS account was solely non-marital property.




called by Wife, that the account was not marital property.    The trial court

                                          MS account were gifts to Wife from

her family. The trial court further found that all marital expenses paid from




account.




                                    -5-
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         On appeal, Husband argues that the trial court overturned a credibility



recommendation does not include any credibility determination as to this

issue. The master did not find

credible.     Instead, the master found that, because it was impossible to



full amount must be considered marital property.

         Under Pennsylva

either party during the marriage is presumed to be marital property

regardless of whether title is held individually or by the parties in some form

of co-

prior to marriage or property acquired in exchange for property acquired



spouses, bequest, devise or descent or property acquired in exchange for

                   s non-marital property. 23 Pa.C.S.A. § 3501(a)(1,3); see

23 Pa.C.S.A. § 3501(b).         Even if the property were acquired prior to

marriage or by gift, any increase in the value of that property during the

marriage is marital property. 23 Pa.C.S.A. §§ 3501(a), 3501(a.1).

                                                                        -marital

property. The undisputed evidence presented at trial showed that between

her pre-

account included over $163,000.00 in non-marital assets. See, e.g., Trial



                                       -6-
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Exhibits V, W, X, Y, Z, AA, BB, and CC. There was no testimony or evidence

presented that Wife made any personal expenditures from the JMS account.

      Instead, the undisputed evidence was that Wife made approximately



expert testified at trial that he assumed for the purposes of his analysis that

those funds were the increased value of the JMS account during marriage,

which would be a marital asset. Husband attacks this assumption, arguing



marital asset.   However, this is simply not the case.   The statute is clear,

only the increase in value of any non-marital property acquired prior to

marriage or through gift is marital property.

      With an asset like the JMS account, there was likely to be some

increase in value of the non-marital property.    Wife could have chosen to

keep those marital funds with her non-marital funds in the JMS account.

However, there was no requirement that she do so.          Instead, there was

testimony that showed she chose instead to use the marital portion of the

JMS account to pay for marital expenses. There was nothing improper about



the fact that Wife used the marital portion of her JMS account to pay for

marital expenses did not tend to prove that the entire account was marital

property.




                                     -7-
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       Husband cites Busse v. Busse, 921 A.2d 1248 (Pa. Super. 2007),

appeal denied, 934 A.2d 1275 (Pa. 2007), and Winters v. Winters, 512

A.2d 1211 (Pa. Super. 1986), for the proposition that the co-mingling of

funds caused the JMS account to become marital property. However, both

Busse and Winters are easily distinguishable. In Busse, the husband had

a pre-marital account.   Busse, 921 A.2d at 1257.     The husband admitted

that he deposited funds into his pre-marital account during the course of the

marriage. Id. Furthermore, he admitted that he combined his pre-marital

account with various marital accounts. Id. These deposits and the merging

of a pre-marital account with marital accounts caused his pre-marital funds

to become marital property. None of those facts are present in the case at

bar.   To the contrary, Wife testified that she never deposited marital

property into her JMS account. Husband offered no testimony or evidence to

the contrary.

       In Winters, this Court expressly rejected the same argument being

made by Husband in the case at bar.        In particular, we noted that the

comingling of assets does not result in the funds being transmuted from

non-marital property to marital property. Winters, 512 A.2d at 1215, citing

Anthony v. Anthony, 514 A.2d 91 (Pa. Super. 1986) (en banc).          As we

noted in Anthony

from that in many other jurisdictions.    Anthony, 514 A.2d at 94.    Taking

                                                              -marital asset



                                    -8-
J-A11014-14

were to appreciate in value the asset would be converted to a marital asset

because the non-marital and marital portions of the asset would be

comingled. That would be an absurd result. Accordingly, we conclude that

                                                             ount was a non-

marital asset.

      In his second issue on appeal, Husband challenges two procedural

determinations by the trial court.     We conclude that both challenges are

waived. First, Husband contends that the trial court abused its discretion by

grantin                                                      -trial statements.

In that petition, Wife sought to enforce prior court orders relating to

discovery by ending discovery 30 days prior to trial and requiring all pre-trial

statements be filed 15 days prior to trial.

      As this Court has explained, Pennsylvania Rule of Appellate Procedure



any discussion of a claim with citation to relevant authority or fails to

develop the issue in an

Tosi v. Kizis, 85 A.3d 585, 589 n.6 (Pa. Super. 2014) (citation omitted). In



                                                            amended pre-trial




                                      -9-
J-A11014-14

Branch Banking & Trust v. Gesiorski, 904 A.2d 939, 942 943 (Pa. Super.




to enforce and limit amended pre-trial statements is waived.



introduce, at the September portion of the trial, evidence relating to the life



by exceptions [to a

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

                                                          -2(b); Hayward v.

Hayward, 868 A.2d 554, 561 (Pa. Super. 2005). Less than a week before

the trial was to resume, Wife filed a supplemental pre-trial statement which

included the new exhibits. Husband filed a motion in limine requesting that

the exhibits be excluded as they were untimely filed with the master. The

master heard argument on the motion in limine and deferred ruling until

after the evidence was presented.     After the evidence was presented, the

master denied the motion in limine.          Husband did not object to the

admission of these exhibits in his cross-exceptions. See Hus                  -



determination that the life insurance policy was non-marital property. See

id. at 2. Accordingly, his argument that the master erred by permitting the

exhibits into evidence is waived.



                                    - 10 -
J-A11014-14

      In his statement of questions involved, Husband argues that the




interest in life insurance policies and failure to produce evidence in discovery

related to the JMS account. See                          -6. These arguments

are also waived.    See Pa.R.A.P. 2119(a).     As such, all of the arguments



      In his third issue on appeal, Husband contends that the trial court

erred by designating the life insurance policy held by Wife and her brother as

a non-marital asset.4 Husband contends that the evidence used by Wife to

prove the non-marital status of the property should have been excluded by

the master. Husband also contends that, even with that evidence, at least

some portion of the insurance policy should be considered marital property.

The trial court found that the premiums for the policy were paid by

parents.   Wife contends that the policy was non-marital property as the




      As we have noted above, Husband has waived his argument relating to

the admission of evidence at the September 2012 portion of the trial.        As

such, we must view all of the evidence presented during the trial, including

4

                         Yuhas v. Yuhas, 79 A.3d 700, 707 n.1 (Pa. Super.
2013) (citations omitted).



                                     - 11 -
J-A11014-14

the evidence belatedly produced by Wife, when determining if any portion of

the insurance policy is marital property.

      First, Wife presented evidence that the insurance policy, which was

issued during the marriage, arose from a life insurance policy issued prior to

the marriage that was later rolled over into a new policy.         See N.T.,

9/10/12, at 66-67. Husband offered no evidence to the contrary. As such,



time of marriage is non-marital property is supported by the record. See 23

Pa.C.S.A. § 3501(a)(1). Thus, the issue is whether the increase in the value

of the life insurance policy (and its predecessor policy) from the time of



      We conclude that a portion of the increase in the value of the policy is

marital property and a portion is non-marital property.    Wife testified and

presented documentary evidence that her parents gave her gifts which she

then spent on the life insurance premiums.       See N.T., 9/10/12, at 67;

Exhibits PPP2, RRR, QQQ. There was no evidence presented that Wife ever

paid life insurance premiums from the joint checking account with funds that



life insurance policy that derived from the continued premium payments was

property acquired in exchange for a gift. Such property is non-marital. See

23 Pa.C.S.A. § 3501(a)(3). However, Wife also admits in her brief that the

life insurance policy earned interest and dividends. See



                                    - 12 -
J-A11014-14

citing Exhibit 16. Wife avers that a portion of the interest and dividends was



the total premiums owed on the policy. Wife also admits that the value of

the policy increased as a result of the interest and dividends earned on the

account.



insurance policy, whether used to pay premiums or to increase the value of

the policy, is marital property. See 23 Pa.C.S.A. § 3501(a). We therefore



non-marital property. In the interest of judicial economy, we direct the trial

court on remand to determine the value of the insurance policy that was

marital property.    The trial court shall then determine what percentage of

the marital asset, if any, should be awarded to Husband and what

percentage should be awarded to Wife.           After making any required

adjustment for taxes, Husband shall be awarded a credit on the equitable

distribution of liquid assets in that amount.

      In his fourth issue on appeal, Husband argues that the trial court

abused its discretion by requiring him to maintain life insurance to secure his

child support and alimony obligations. The trial court determined that the




minor children.     Trial Court Opinion, 10/29/13, at 8.   Wife contends that



                                     - 13 -
J-A11014-14

section 3502(d) authorized the trial court to require Husband to maintain his

life insurance.   Husband contends that section 3707 barred the trial court

from requiring him to maintain life insurance. To the extent that this issue

requires us to interpret a statute, our standard of review is de novo and our

scope of review is plenary. See Pilchesky v. Lackawanna Cnty., 88 A.3d

954, 965 (Pa. 2014) (citation omitted).

      The maintenance of an insurance policy is governed by section

3502(d), which provides that:

      The court may direct the continued maintenance and beneficiary
      designations of existing policies insuring the life or health of
      either party which were originally purchased during the marriage
      and owned by or within the effective control of either party.
      Where it is necessary to protect the interests of a party, the
      court may also direct the purchase of, and beneficiary
      designations on, a policy insuring the life or health of either
      party.

                                                                     pon the

death of the payee party, the right to receive alimony pursuant to [the

Divorce Code] shall cease. Upon the death of the payor party, the obligation

to pay alimony shall cease unless otherwise indicated in an agreement

between the parties or an or

      In support of his argument, Husband relies upon Balicki v. Balicki, 4

A.3d 654, 667 (Pa. Super. 2010). However, our holding in Balicki regarding

life insurance was narrow. In that case, we determined that the trial court

did not abuse its discretion in declining to order the husband to maintain a

life insurance policy.   Id.


                                    - 14 -
J-A11014-14

alimony requirement ceased upon his death, there was no obligation to

maintain life insurance to secure alimony payments after his death.          Id.

(citations omitted). We did not say, however, that it would be an abuse of

discretion for a trial court to order a party to maintain life insurance in order

to secure alimony obligations after death. See id.

      Section 3707 specifically provides that alimony obligations only cease

upon death of the payor if there is no agreement of the parties or court

order to the contrary. See 23 Pa.C.S.A. § 3707. In the case sub judice, the



should not terminate upon his death.          Such a determination is clearly

permitted by section 3707.        Thus, because Husband was required to

continue making alimony payments even if he passed away, the trial court

was authorized by section 3502(d) to require that Husband maintain life

insurance to secure his future alimony obligations.

      Husband also relies upon Benson ex rel. Patterson v. Patterson,

830 A.2d 966 (Pa. 2003), in support of his argument that child support

obligations end at death. In Patterson, our Supreme Court determined that

an estate could not be sued for child support. Id. at 969-970. In so doing,

our Supreme Court examined the laws of our sister states relating to child

support obligations upon death.       Id. at 968-969.      Our Supreme Court



contract or an express provision in a judicial decree (e.g., divorce



                                     - 15 -
J-A11014-14

decree, child support order), that the duty to support minor children ends at

         Id. at 968 (emphasis added). It then adopted the majority position

when determining that the estate had no duty to pay child support. Id. at

969.

       In so adopting the majority rule, our Supreme Court implicitly held

that an express provision in a judicial decree could make a child support

obligation continue, even upon the death of the payor. In this case, the trial

court explicitly provided for child support payments to continue upon



Therefore, the trial court had the authority to order that Husband maintain

his life insurance policy to secure his alimony and child support payments.



3502(d) authority was not an abuse of discretion. We agree with the trial



potential. See Trial Court Opinion, 10/29/13, at 8. Furthermore, the trial




to maintain the life insurance is relatively small when compared to the



support and alimony payments provide Wife. Accordingly, we conclude that




                                    - 16 -
J-A11014-14

      In his fifth issue on appeal, Husband argues that the trial court abused

its discretion by retroactively making his APL and child support awards for

2011 and 2012 allocated instead of unallocated. In its Rule 1925(a) opinion,

the trial court concedes that remand on this issue may be appropriate. See

Trial Court Opinion, 10/29/13, at 9-10. Wife argues that it was correct for

the trial court to retroactively allocate the APL and child support because it



      Pennsylvania Rule of Civil Procedure 1910.15-4 provides, in relevant



award giving consideration to the federal income tax consequences of an



1910.16-4(




evidence that the trial court made such a determination that it was not

appropriate under the circumstances.     As such, the trial court abused its

discretion in failing to consider the federal tax implications of retroactively

making the payments allocated.

      Furthermore, as a matter of law, the APL and child support payments

for 2011 and 2012 must remain unallocated. Wife already filed her income

tax returns for 2011 and 2012 listing the awards as unallocated. Wife would

not be able to file an amended tax return to reap the benefits of the



                                    - 17 -
J-A11014-14

allocation order.                                , T.C. Summ. Op. 2010-15

(2010) (citations omitted);                    , T.C. Summ. Op. 2009-185

(2009) (citations omitted);                        , 45 T.C. 530, 532-533

(1966); see also Rev. Rul. 71-416.      Thus, there would be no benefit to

retroactively making the APL and child support allocated. The only result of

such action would be to cause confusion and possible further expenses for



making the APL and child support allocated. Upon remand, the trial court is

directed to reinstate its order which made the APL and child support

payments for 2011 and 2012 unallocated.

         In his sixth issue on appeal, Husband argues that the trial court

abused its dis

extracurricular activities because he should not be required to pay for

activities in which he does not believe the children should participate. Wife

                                               ould be quashed as it attacks

the custody order, not the child support order.      Wife also defends this

requirement as she argues that Husband may be relieved of his obligation to

pay for certain extracurricular activities by filing a motion with the trial

court.



portion of the child support order should be quashed. When the briefs in this




                                    - 18 -
J-A11014-14

However, after briefing was completed in this case, this Court vacated the

child custody order and remanded the matter to the trial court to expressly

consider the statutory best interest factors. See J.S.S. v. M.J.S., 641 WDA

2013 (Pa. Super. Feb. 11, 2014) (unpublished memorandum).               After

remand, the trial court filed an opinion addressing each of the best interest

factors. See Trial Court Opinion, 3/6/14. Husband then filed a new appeal

to this Court from the child custody determination.   See J.S.S. v. M.J.S.,

850 WDA 2014. In his Rule 1925(b) statement in that case, Husband does




                                             ild Custody Order, 1/18/13, at

10.




extracurricular activities. See                                           rly

granted from the child support order and not the child custody order.




children in the manner he deems fit is properly construed as a challenge to

the child custody order and not the child support order. Thus, we will not



custody order but confine our review to his challenge to the requirement



                                   - 19 -
J-A11014-14

that he pay for extracurricular activities in which the children choose to

participate.

      Pennsylvania Rule of Civil Procedure 1910.16-6(d) provides that:

      The support schedule does not take into consideration
      expenditures for private school tuition or other needs of a child
      which are not specifically addressed by the guidelines. If the
      court determines that one or more such needs are reasonable,
      the expense thereof shall be allocated between the parties in
                                                      s share may be
      added to his or her basic support obligation.

Pa.R.C.P. 1910.16-6(d).

       A parent can be required to pay for extracurricular activities under

Rule 1910.16-6(d), even if he or she does not believe they are necessary,

when the activities are



                            Silver v. Pinskey, 981 A.2d 284, 302 (Pa. Super.

2009) (en banc), citing Holland v. Holland, 663 A.2d 768 (Pa. Super.

1995); Marshall v. Marshall, 591 A.2d 1060 (Pa. Super. 1991).

      In this case, the trial court found that Husband refused to pay for

extracurricular activities in bad faith. See Trial Court Opinion, 10/29/13, at

10-11.   Thus, instead of imposing the burden upon Wife to file a motion

every time a child wanted to participate in a particular activity, the trial court

shifted the burden to Husband to file a motion when he believed that an

activity was not beneficial or consistent with th




                                     - 20 -
J-A11014-14

and situation in life.    We agree with the trial court that this step was a

                                   Id. at 11.

      We conclude, however, that this extraordinary solution was not an

abuse of discretion. The trial court found that husband unreasonably, and in

bad faith, withheld payments for reasonable extracurricular activities. See

id. at 10-11.     This finding is supported by the record.         At a hearing on

November 15, 2011, Husband testified to his position regarding the

                         See N.T., 11/15/11, at 193-199. He testified that he

was only willing to pay for activities to which he had agreed.          Id. at 194-

195. The trial court actively questioned Husband with respect to this issue

in order to ascertain his position with respect to extracurricular activities.

See id. at 193-197. Thus, we conclude that the trial court was presented



activities and crafted a unique solution that ensured the children are able to

participate in appropriate activities.     In addition, the trial court provided

Husband    with    the    opportunity     to     challenge   certain   expenditures.



      In his final issue on ap

decision to award alimony and counsel fees to Wife. We first consider the



need for alimony because her income was sufficient to cover her expenses.




                                        - 21 -
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standard of living while she attempted to garner full-time employment. Wife



permitted Wife to maintain her standing of living.



lifestyle and standard of living established by the parties during the

                                                     Kent v. Kent, 16 A.3d

1158, 1161 (Pa. Super. 2011), appeal denied, 29 A.3d 797 (Pa. 2011)

(citation omitted).   When determining if alimony is appropriate, the trial

court must consider the following 17 factors:

      (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.

      (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.



                                    - 22 -
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      (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

      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.A. § 3701(b)(1-17).

      Husband argues that many of the statutory factors weigh in favor of a



Husband argues that the gap in

was not as large as it appeared.          However, the exhibits entered into

evidence show that Husband earned over 13 times more than Wife in 2010.

See                                                                   ny were

accepted, Husband had an earnings potential 5 times that of Wife.           These




                                      - 23 -
J-A11014-14

figures indicate that the first statutory alimony factor weighed in favor of a

large alimony award.

      Husband contends that the other sources of income for the parties

weighed in favor of a lower alimony award. He lists the many other forms of

income available to Wife.     However, it is at this point in his brief that

Husband fails to recognize the forgivable loan, restricted stock, and stock

options that the trial court found to be non-marital property. When these

are considered, the third factor does not weigh in favor of a smaller alimony

award. In fact, it may weigh in favor of a larger alimony award.

      Husband also argues that the duration of the marriage weighs in favor



order to advance his position. The reason is obvious; the length of alimony

and APL actually ordered by the trial court was less than the duration of the

                                 ument that the fifth statutory factor weighs

in favor of a smaller alimony award is without merit.

      Husband contends that the relative education of the parties and the

time necessary for Wife to find appropriate employment weighs in favor of a

smaller alimony award.     He contends that throughout the course of the

divorce litigation, Wife did not attempt to further her education or gain other

employment skills.     It is only in this section of his brief that Husband



29.   However, even with these qualities, it is not possible for Wife to find



                                    - 24 -
J-A11014-14




determination that Wife needed five years to garner such employment was

not an abuse of discretion.

        Husband argues that the relative needs of the parties weigh in favor of

a smaller alimony award. However, Husband is using his own calculations



Wife.     Wife listed $1,722.37 per month in income and $5,015.50 in



        Furthermore,    Husband   ignores   the    eighth   statutory   factor,   the

standard of living established by the parties during their marriage, which this

Court has repeatedly stated is the key in determining the size of an alimony

award.     Instead, he argues that Wife should only receive alimony based

upon a lower standard of living. For example, Husband argues that certain



expenditures.     See                             -27.   The master agreed with

Husband and reduced the alimony award to eliminate these discretionary

                                                                             to this

determination.

        Husband and Wife chose to live a luxurious lifestyle during their

marriage.    Almost every expense of the parties during their marriage was

discretionary in nature. The parties combined income was over 34 times the

federal poverty level for a family of five. See Exhibits U, 13. The parties



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J-A11014-14

spent their funds in a manner consistent with such an income and had a



lifestyle after the divorce is contrary to the Divorce Code and the well-settled



alimony award was not an abuse of discretion.



counsel fees.    Remarkably, according to the parties, combined they have

expended well over $500,000.00 in legal fees contesting this divorce case

and the accompanying child custody dispute.5 Under the Divorce Code, in

proper cases, the trial court may award counsel fees.        See 23 Pa.C.S.A.

§ 3702. As we have explained:

      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; th
      another. Counsel fees are awarded based on the facts of each
      case after a review of all the relevant factors. These factors

      resources, the value of the services rendered, and the property
      received in equitable distribution. Counsel fees are awarded only
      upon a showing of need.

Busse, 921 A.2d at 1258 (internal quotation marks and citations omitted).

      Husband contends that counsel fees were unnecessary because Wife




5
   As the master in this case aptly noted, the parties have attempted to
make this case as complicated as taking the cube root of pi. See N.T.,
9/10/12, at 66.



                                     - 26 -
J-A11014-14




10/29/13, at 9. Furthermore, the trial court determined that Husband was

unreasonably litigious in prosecuting this case. Wife defends the counsel fee

as reasonable when compared to her total expenditures to litigate this

divorce action and her child custody case.

      We first note that although the total amount of counsel fees expended

in the child custody dispute is startling, we may not consider that when

determining if the award of counsel fees in the divorce action was



parents, grandparents, siblings, and other family members are not obligated



satisfying the legal fees accrued over the course of this litigation.



an award of a significant portion of the marital estate precludes an

                                                          because the wife will

receive [APL] and [55] percent of the marital estate does not preclude an

                                     Butler v. Butler, 621 A.2d 659, 667 (Pa.

Super. 1993),                                     , 663 A.2d 148 (Pa. 1995).

Although the marital estate award in this case was slightly larger than that

in Butler, that does not impact our reasoning. In Butler, we affirmed the



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J-A11014-14




earnings of the two parties.   Id.   As we have discussed above, there is a

relatively vast disparity in incomes between the two parties in this case.

Husband had an almost unlimited war chest to spend on litigating every

issue in this divorce proceeding and, without an award of counsel fees, Wife
                                                                             6




case was not an abuse of discretion.

       In sum, we conclude that the trial court erred by retroactively

making the 2011 and 2012 APL and child support payments allocated. We



conclude that a small portion of the life insurance policy held by Wife and

her brother is marital property and, therefore, we remand this case for a

determination by the trial court as to which portion of the policy was marital

property and what percentage of the marital asset shall be awarded to

Husband. Finally we conclude that the trial court did not abuse its discretion

with the remainder of its equitable distribution award and its counsel fee




6

frivolous issues. We disagree. Although Wife did not succeed on every
position she advanced in the trial court, our review of the record indicates
that none of the positions taken by Wife were frivolous.




                                     - 28 -
J-A11014-14




determinations.7

      Decree affirmed in part and reversed in part.         Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2014




7
   Although not included as a question presented on appeal, we believe it
                                                               hat the trial
court in this case was biased.        Husband never filed a motion for
disqualification in the trial court. Yet, throughout his appellate brief he
attacks the trial judge as being biased. Such accusations are serious and
experienced counsel for Husband should know better than to make such bold

Cf. Lewis v. Smith
bar should not make unfounded accusations of judicial bias). Furthermore,
our review of the record indicates that the trial court in this matter was not
biased against Husband. Instead, the trial court decided issues in a manner
it believed correct, much like a baseball umpire calls balls and strikes as he
sees them. Cf. Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d

the Senate Judiciary Committee regarding the role of judges).



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