J-A33013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CORETTA R. HAIRE                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARK V. HAIRE

                            Appellant                 No. 688 EDA 2014


                   Appeal from the Decree of February 7, 2014
              In the Court of Common Pleas of Philadelphia County
             Domestic Relations at No.: March Term 2005 No. 8565


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                           FILED JANUARY 20, 2015

       Mark Haire (“Husband”) appeals the trial court’s February 7, 2014

divorce decree and equitable distribution order.     For the reasons set forth

below, Husband has waived the issues set forth in his brief.       Accordingly,

Husband is not entitled to any form of relief. Moreover, for the reasons set

forth herein, we grant Coretta Haire (“Wife”) relief in the form of additional

counsel fees. We remand this case to the trial court for the limited purpose

of setting reasonable counsel fees to be paid by Husband.

       On April 1, 2005, Coretta Haire (“Wife”) filed a complaint in divorce, in

which Wife included claims for equitable distribution, alimony, and counsel

fees. Husband filed an answer, in which he also raised claims for equitable

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-A33013-14



distribution, alimony, and counsel fees.      The matter proceeded initially

before a Permanent Master in Divorce, who filed a report addressing the

claims raised by the relevant parties. Thereafter, Husband filed a praecipe

for a trial de novo.   On October 16, 2012, the trial court held a de novo

hearing. On 2/7/2014, the trial court entered a divorce order, in which the

court disposed of all of the parties’ economic claims. In that order, the trial

court summarized the basic factual history of this case in its divorce decree

in pertinent part as follows:

      The parties were married on November 22, 1997, and their final
      date of separation was March 25, 2005, approximately seven-
      and-one-half years later. The parties also separated in 2002,
      but reconciled thereafter, in addition to a few other brief periods
      of separation.

      These parties are the parents of three children: [M.H.], born [in
      June 1993]; [D.H.], born [in February 2000]; and [Ma.H,] born
      [in June 2002]. Wife is the custodial parent of the two younger
      children, and she is the recipient of a child support order for the
      two children [] in the amount of $768.88 monthly, with arrears
      totaling approximately $2,500.00.

      Wife was born on June 17, 1970 and [was at the time of the
      hearing] forty-three years old. Wife testified that she was
      previously employed as a certified nursing assistant, and her
      greatest   annual    earnings   from     that   position  totaled
      approximately $35,000.00 gross income. As a result of an injury
      sustained in July, 2012, Wife testified that she was unemployed
      and not receiving any income, although she had a Worker’s
      Compensation claim that was pending.          Wife described her
      injuries as upper neck and middle back injuries. Wife stated
      [that] friends were assisting her [in] meeting her living
      expenses, pending the resolution of her Worker’s Compensation
      claim.

      Husband was born on February 14, 1967, and [was at the time
      of the hearing] almost forty-seven years old. Since June 2001,
      Husband has been continuously employed by the Water

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     Department of the City of Philadelphia. Husband described his
     position as “water repair,” and stated that he was assigned to
     the shut off unit. His base salary is $35,000.00. Husband
     stated [that] in 2011, he earned $51,021.00 gross income from
     his employment with the City, which included his overtime pay,
     which amount was consistent with his previous earnings from his
     job with the Water Department.

     Clearly, even when Wife was employed, Husband’s earnings
     exceeded that of Wife, apparently as a result of his overtime
     pay. Unlike Wife who does not have retirement benefits other
     than her participation in Social Security, Husband is a participant
     in the multitude of benefits from his employment with the City of
     Philadelphia, including retirement and health insurance benefits.

     Wife resides at 6239 Tackawanna Street, Philadelphia, with the
     two minor children of the marriage. Wife is the custodial parent
     of the minor children, who attend public school. Wife pays a
     monthly mortgage on the Tackawanna Street property in the
     amount of $805.00, which amount includes real estate taxes and
     insurance.

     Husband testified that he resides [in a home located] at 8661
     Williams Avenue, Philadelphia, Pennsylvania, with his brother,
     Cleveland Haire, Cleveland’s wife, and Cleveland’s two children.
     This property is not subject to any mortgage. Wife disputed that
     Husband resided at 8661 Williams Avenue, and testimony was
     presented on this issue.

     The parties’ oldest child, Mark, Jr., testified that he had lived
     with Wife until he was [seventeen] years old and then moved
     into the basement of 8661 Williams Avenue with Husband,
     Husband’s girlfriend Dena, and their child: Malachi. Mark Jr.
     further testified that several months prior to the [de novo]
     hearing, Husband, Dena, Malachi and he moved to 4120 Stenton
     Avenue, which is a property owned by Dena’s father. Mark Jr.
     stated that Husband’s brother, Cleveland Haire, along with
     Cleveland’s family, resided in the upstairs unit at 8661 Williams
     Avenue.

     Cleveland Haire, Husband’s brother, testified that Husband does
     reside in the basement apartment. Cleveland further stated that
     since 2010, Cleveland’s family has resided in the upstairs
     apartment. Cleveland testified that he does not pay rent to
     Husband, but he pays all of the utilities for the property, so
     Husband has no utility expense for his basement apartment.

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      Cleveland and his wife are both employed by the federal
      government.

      Husband stated that he primarily resides in the basement of
      Williams Avenue, although he frequently stays with Dena and his
      two sons (Mark, Jr. and Malachi) at the Stenton Avenue
      property. Husband acknowledged that his brother paid all of the
      utility expenses. Husband testified that he failed to pay the real
      estate taxes on the Williams Avenue property because of his
      legal fees for this litigation.

Order, 2/7/2014, at 2-4.     With respect to the property located at 8661

Williams Avenue, the trial court set forth the following discussion:

      This property was purchased for $46,000.00 on June 11, 1997,
      approximately five months prior to the parties’ marriage on
      November 22, 1997.      The parties had already been living
      together for some years at the time of this purchase. As
      stipulated, Husband purchased the property with $46,000.00
      that he received from a Worker’s Compensation commutation
      settlement, which Husband also received before the marriage.
      This property was not subject to a mortgage, either at the time
      of purchase or at the time of the [divorce] hearing. At the
      hearing before [the trial court], Husband stipulated that the
      property was marital. However, during the proceedings before
      the Master, the title and ownership of this property was a
      contentious issue [].

      At the time of its original acquisition, the property was titled in
      the name of “Lynette McMichael, trustee for [Husband].” On
      March 11, 1999, which was after the date of marriage, a new
      deed was recorded whereby title was placed in the name of
      “Lynette McMichael, trustee for [Husband], and [Wife].” The
      language found in the deed, this second indenture provided that
      said property was held:

         “IN TRUST, nevertheless to let, demise and manage the
         premises hereinafter described, to receive and collect the
         rents and profits therefrom and after the payment of
         taxes, cost of repair and maintenance, insurance,
         mortgage interest and amortization and all proper and
         legal charges, to take, appropriate and pay over the whole
         of the net income to [Husband], and [Wife], for and during
         the term of their natural lives.

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        FURTHER, the trustee shall have the power to sell, convey,
        mortgage or otherwise encumber the said premises, clear
        and discharge of the herein created trust, and to execute,
        acknowledge and deliver such deeds, . . . upon such terms
        and for such price or amounts as the said trustee shall
        determine in her sole discretion. . . .

        AND, upon the death of the said Lynette McMichael,
        Trustee title to the aforementioned premises or the
        proceeds of sale thereof shall vest in [Husband], and
        [Wife], their heirs and assigns in fee simple, free and
        discharged of and from any and all trusts whatsoever.”

                                *     *     *

     During the proceedings conducted by the Master, the status of
     the deed of record for this property was questioned with respect
     to whether the deed dated March 11, 1999 had been replaced by
     a subsequent deed executed and recorded without Wife’s
     agreement.      At the request of the Master in Divorce, the
     Administrative Order of December 8, 2010 was entered which
     provided that “Husband shall produce documentation relating to
     any actions taken by himself or by Lynette McMichael for
     purposes of setting aside the existing deed for 8661 Williams
     Avenue, Philadelphia, Pennsylvania, dated March 11, 1999,
     whereby that property is titled in the name of Lynette McMichael
     as trustee for Husband and Wife.” At the Master’s request,
     another Administrative Order was entered on March 11, 2011,
     which granted leave for Husband to join his sister as an
     Additional Defendant, or in the alternative leave was granted for
     her to intervene in this manner. That Order further provided
     that: “It shall be understood that if Lynette McMichael fails to
     perfect her claim to the aforesaid real estate in this action by the
     expiration of sixty (60) days following the date hereof, premises
     8661 Williams Avenue, Philadelphia, Pennsylvania, shall be
     regarded as marital property in its entirety, to the exclusion of
     any equitable interest therein by Lynette McMichael.”

     No action was ever taken by Ms. McMichael as a consequence of
     that Order. Therefore, in keeping with the terms thereof, the
     Master treated the Williams Avenue premises as marital property
     that is subject to equitable distribution. At the hearing before
     [the trial court], Husband stipulated that this entire
     property was marital and subject to equitable distribution,
     which is clearly consistent with all of the evidence in this case.


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J-A33013-14



Order, 2/7/2014, at 10-12 (emphasis added).          In the February 7, 2014

order, the trial court established an equitable distribution plan, the details of

which are immaterial to our disposition of this case.

      On March 5, 2014, Husband filed a notice of appeal.          On March 7,

2014, the trial court directed Husband to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on or before March

28, 2014. Husband had filed an action in bankruptcy, which he purportedly

believed stayed all active legal burdens and proceedings, including his

obligation to file timely a concise statement. Thus, Husband did not file his

concise statement within the trial court’s deadline.     The initial bankruptcy

action was dismissed due to some defect in the bankruptcy filing. However,

Husband filed a second bankruptcy action on April 9, 2014, which he again

believed stayed all legal proceedings, including this appeal.            Despite

believing that the proceedings were on hold, Husband nonetheless filed a

facially tardy concise statement on May 12, 2014. On June 11, 2014, the

trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Presently, Husband raises two questions for our review:

      1. Was the [trial court’s] holding that 8661 William Avenue[,]
         Philadelphia, PA 19150, was marital property subject to
         equitable distribution [] an error?

      2. Further and in the alternative, [was the trial court’s]
         calculation of the value of the marital property portion of
         8661 William Avenue[,] Philadelphia, PA 19150 [] an error[?]

Brief for Husband at 5.



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      The glaring and difficult question in this case is whether Husband’s

filing of bankruptcy proceedings stayed the instant appeal such that the

facial tardiness of his Rule 1925(b) statement could be excused. However,

because Husband has waived the two issues that he has raised in this appeal

for different reasons, we need not address the more complicated question.

Thus, for ease of disposition, it does not matter if Husband’s issues are

waived due to an untimely Rule 1925(b) statement.

      Rule 302(a) of the Pennsylvania Rules of Appellate Procedure states:

“Issues not raised in the [trial] court are waived and cannot be raised for the

first time on appeal.” Pa.R.A.P. 302(a); Willoughby v. Willoughby, 862

A.2d 654, 659 (Pa. Super. 2004); Weir v. Weir, 631 A.2d 650 (Pa. Super.

1993). Our Supreme Court has explained the vital necessity of preserving

an issue in the first instance in the trial court as follows:

      Issue preservation is foundational to proper appellate review.
      Our rules of appellate procedure mandate that ‘[i]ssues not
      raised in the lower court are waived and cannot be raised for the
      first time on appeal.’ Pa.R.A.P. 302(a). By requiring that an
      issue be considered waived if raised for the first time on appeal,
      our courts ensure that the trial court that initially hears a dispute
      has had an opportunity to consider the issue.                Lincoln
      Philadelphia Realty Assoc. v. Bd. of Revision of Taxes of
      Philadelphia, 758 A.2d 1178, 1186 (Pa. 2000).                    This
      jurisprudential mandate is also grounded upon the principle that
      a trial court, like an administrative agency, must be given the
      opportunity to correct its errors as early as possible. Wing v.
      Com. Unemployment Comp. Bd. of Review, 436 A.2d 179,
      181 (Pa. 1981). Related thereto, we have explained in detail the
      importance of this preservation requirement as it advances the
      orderly and efficient use of our judicial resources.             See
      generally Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d



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      114, 116–17 (Pa. 1974). Finally, concepts of fairness and
      expense to the parties are implicated as well.

In re F.C. III, 2 A.3d 1201, 1211-12 (Pa. 2010) (citations modified).

      Moreover, it is axiomatic that “[i]n order to preserve an issue for

appellate review, a party must make a timely and specific objection at the

appropriate stage of the proceedings before the trial court. Failure to timely

object to a basic and fundamental error will result in waiver of that issue.”

Thompson v. Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008). “On

appeal [this Court] will not consider a claim which was not called to the trial

court’s attention at a time when any error committed could have been

corrected.” Id. at 476.

      Instantly, Husband’s first stated issue challenges the trial court’s

determination   that   the   property    situated   at   8661   Williams   Avenue

constituted marital property for the purposes of equitable distribution.

However, Husband stipulated at trial that the property was marital property.

His concession of that fact, or the failure to otherwise contest an issue in any

manner, necessarily results in waiver of the issues that he is pursuing in this

appeal. As noted above, a litigant must object or otherwise contest a fact or

issue at the appropriate time in the trial proceedings in order to preserve the

issue for our review. Because Husband failed to do so, his challenge to the

trial court’s determination that the property was a marital asset is waived.

      Husband does not separate his argument into two distinct arguments,

one for each question stated, as is required by Pa.R.A.P. 2119(a) (“[t]he



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argument shall be divided into as many parts as there are questions to be

argued”). Thus, it is difficult to discern where his first argument ends, and

where the second begins.     Nor does Husband point to the location in the

record where he preserved such an argument, which also violates our

briefing rules. See Pa.R.A.P. 2119(c).

      Regardless, Husband appears to concede the point that he sets forth in

his statement of the question presented.     Husband questions whether the

trial court erred in calculating the value of the marital property situated at

8661 Williams Avenue. Brief for Husband at 5. However, in his argument,

Husband states that he “is not pressing the issue that the [trial court’s]

valuation of the fair market value of Williams Street as a piece of real estate

is incorrect.” Brief for Husband at 17.

      Husband nonetheless advances the argument that he only possesses a

remainder interest in the property, being that it is deeded to Lynette

McMichael, and that presently there is no value in such an interest.      This

argument is waived for lack of development.

      “The Rules of Appellate Procedure state unequivocally that each

question an appellant raises is to be supported by discussion and analysis of

pertinent authority.” Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa.

Super. 2002); see Pa.R.A.P. 2119(a) (each point in an argument must be

“followed by such discussion and citation of authorities as are deemed

pertinent”). “It is not this Court’s function or duty to become an advocate

for the [A]ppellant.” Commonwealth v. Birdseye, 637 A.2d 1036, 1043

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(Pa. Super. 1994).       “[W]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

waived.”     Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009);

Estate of Lakatosh, 656 A.2d 1378, 1381 (Pa. Super. 1995) (an appellant

waives issues where corresponding argument in brief includes only general

statements without appropriate citation to authority); Umbelina v. Adams,

34 A.3d 151, 161 (Pa. Super. 2011) (same).

      Herein, Husband does not cite a single binding authority in support of

any pillar of his argument.      Husband does not establish with relevant

authority that the interest that he possesses is in actuality only a remainder

interest, or that such an interest has no value for equitable distribution

purposes. We will not develop Husband’s argument for him. Consequently,

this issue is also waived for purposes of this appeal.

      Finally, we must address Wife’s request for additional counsel fees

associated with the costs of this appeal.       See Brief for Wife at 15-19.

Pursuant to Pa.R.A.P. 2744:

      an appellate court may award as further costs damages as may
      be just, including:

           (1) a reasonable counsel fee and

           (2) damages for delay at the rate of 6% per annum in
           addition to legal interest,

      if it determines that an appeal is frivolous or taken solely for
      delay or that the conduct of the participant against whom costs
      are to be imposed is dilatory, obdurate or vexatious. The


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J-A33013-14


      appellate court may remand the case to the trial court to
      determine the amount of damages authorized by this rule.”

Pa.R.A.P. 2744. “An appeal is not frivolous simply because it lacks merit.”

Winpenny v. Winpenny, 643 A.2d 677, 680 (Pa. Super. 1994) (citing

Marino by Marino v. Marino, 601 A.2d 1240 (Pa. Super. 1992)). “A claim

is frivolous, however, if it has no basis in law or fact. . . .   Allowing [an

appellant] to continue to utilize the courts to pursue fruitless claims at the

expense of not only the opponents significantly, but also the public, will not

be tolerated.”   Id.   Appeals that are taken for the purposes of delay and

involve “issues that have already been resolved, or which present arguments

running counter to well settled rules of law will be deemed ‘frivolous’ by this

Court. Such appeals are the proper subject for sanctions under Rule 2744.”

Murphy v. Murphy, 599 A.2d 647, 654 (Pa. Super. 1991) (citations

omitted). Finally, in Murphy, we cautioned delay-focused litigants that “an

appeal is considered ‘frivolous’ and warrants the award of attorney fees if,

either as a matter of fact or law, the appellant’s contentions have no

likelihood of success.” Id. (citations omitted). We explained that “[t]o do

otherwise would be to reward an unreasonable prolongation of the contest.”

Id. (citations omitted).

      Herein, Husband implicitly admits that the core issue on which he

sought our review, i.e., whether the property in question was a marital

asset, was waived. Husband repeatedly concedes that he stipulated to that

fact at the de novo trial. See Brief for Husband at 12-13. Additionally, as



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noted above, Husband has not offered to this Court any binding or relevant

case law or statutory law in support of his second argument.        Hence, we

have little difficulty in declaring Husband’s appeal to be frivolous, because

his issues find no support in either fact or law. See Winpenny; Murphy,

supra.

     Not only is Husband’s appeal frivolous, it is also the next step in his

transparent attempts to delay this case, which were apparent from the

outset. The examples of his delay tactics have been well-documented by the

Master and the trial court in this case, both of whom believed the award of

counsel fees was warranted for Husband’s actions before those respective

fact-finders. The Master, in awarding fees, explained as follows:

     Given the overall economic circumstances of the parties and the
     amount Wife is receiving through equitable distribution, the
     Master would ordinarily be disinclined to recommend any counsel
     fees in a case such as this. However, it seems clear that
     throughout this litigation Husband has forced Wife to incur
     otherwise avoidable legal fees by adopting a position of
     unrelenting intransigence.

     [Wife’s attorney] represented that he has thus far appeared on
     Wife’s behalf in a total of twenty-six different hearings. Many, if
     not most of these, related to child custody and support (which
     were also heavily litigated), and fees relating thereto are not
     recoverable in this proceeding.       Still, in the divorce itself,
     Husband forced Wife into a hearing on the diamond ring and
     then sold it during the pendency of those proceedings. After the
     first listing in this matter, an Administrative Order was entered
     which delineated what would be needed for the second listing,
     but while Wife complied therewith, Husband produced nothing
     (not even his most recent income tax return as had been
     mandated in the Order).

     Husband’s mindset towards this matter was reflected by the fact
     that after three hearings and his rejection of the Master’s

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       recommendation (which he clearly had a right to do), he simply
       reverted back to his original position that Wife should receive
       nothing from him, or at best a de minimis amount. Even at that
       point, he seemed unwilling to accept the concept that his
       pension is subject to equitable distribution (let alone that she
       has rights with regard to the Williams Avenue Property).

Master’s Report, at 16. The trial court agreed with the Master’s assessment

of Husband’s tactics and awarded Wife counsel fees associated therewith.

Order, 2/7/2014, at 21.

       Based upon the frivolousness of Husband’s appeal, we can only

conclude that this appeal is another step in Husband’s attempt to delay

paying Wife any of the money owed to her. Consequently, we conclude that

Wife is entitled to counsel fees pursuant to Pa.R.A.P. 2744. We remand this

case to the trial court to determine, and thereafter to set, a reasonable

amount of fees to be paid to Wife.

       Order affirmed.1      Case remanded for determination of counsel fees.

Jurisdiction relinquished.




____________________________________________


1
      Wife has filed with this Court a motion to quash Husband’s appeal, on
the basis that Husband has waived all of his issues due to his untimely Rule
1925(b) statement. Because of our disposition finding Husband’s issues to
be waived for different reasons, we deny Wife’s motion to quash.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2015




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