J-S41024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUSAN C. SMITH                             IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                       Appellee

                 v.

CHRISTOPHER C. SMITH

                       Appellant              No. 190 MDA 2017


          Appeal from the Order Entered December 29, 2016
           In the Court of Common Pleas of Lebanon County
                  Civil Division at No(s): 2013-20491


                                   *****

SUSAN C. SMITH                             IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

CHRISTOPHER C. SMITH

                      Appellant               No. 191 MDA 2017


          Appeal from the Order Entered September 15, 2015
           In the Court of Common Pleas of Lebanon County
                  Civil Division at No(s): 2013-20491

                                   *****

SUSAN C. SMITH                             IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

CHRISTOPHER C. SMITH

                      Appellant               No. 192 MDA 2017
J-S41024-17




               Appeal from the Order Entered December 29, 2016
                In the Court of Common Pleas of Lebanon County
                       Civil Division at No(s): 2013-20491

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED SEPTEMBER 07, 2017

        These are three consolidated appeals filed by Christopher Smith

(“Husband”), pro se, from the orders entered on September 15, 2015 and

December 29, 2016.1          The September 15, 2015 order entered a divorce

decree and order of equitable distribution/qualified domestic relations order

(“QDRO”), and the December 29, 2016 order granted Susan C. Smith’s

(“Wife”) motion to compel Husband to sign Wife’s proposed QDRO, and

denied Husband’s motion to compel Wife to sign the QDRO that he proposed.

After our review, we quash the appeal at 191 MDA 2017, and affirm the

appeals at 190 MDA 2017 and 192 MDA 2017.2




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Two of Husband’s appeals, 190 MDA 2017 and 192 MDA 2017, are from
the same order, entered on December 29, 2016. This Court consolidated
these appeals, sua sponte, with the appeal filed at 191 MDA 2017. See
Order, 2/13/17. See also Pa.R.A.P. 513. Because Husband’s appeal from
the September 15, 2015 order was stayed and subsequently withdrawn, we
quash the appeal docketed at 191 MDA 2017. See discussion infra, at p. 8.
2
  Wife’s counsel has notified this Court that, due to Wife’s limited resources,
she would not be filing an appellee’s brief. Counsel has indicated agreement
with the trial court’s findings and opinion.



                                           -2-
J-S41024-17



       The parties were married on September 15, 1984; they separated on

February 24, 2014.     The parties have an adult son, who is now 29 years

old.

       On June 12, 2014, the court appointed Loreen Burkett, Esquire, as a

special master to hear the issue of alimony pendent lite (APL). On June 23,

2014, the court appointed Special Master Burkett to make recommendations

on the claim for equitable distribution. Following a hearing on February 24,

2015, Special Master Burkett determined that Wife was entitled to APL and

recommended Husband pay $1,178.00 per month.            Husband, who argued

Wife had not demonstrated need for APL, filed exceptions. The trial court

denied Husband’s exceptions, and, thereafter, denied Husband’s motion for

reconsideration.   Husband appealed to this Court, and we quashed that

appeal. See Smith v. Smith, 121 MDA 2015 (Order, filed February 12,

2015).   See also Calibeo v. Calibeo, 663 A.2d 184 (Pa. Super. 1995)

(order for either spousal support or alimony pendente lite is interlocutory

and not appealable until all economic claims have been resolved).

       On April 28, 2015, Special Master Burkett filed a motion for

withdrawal, stating that she had recently “identified an issue which may

create the appearance of a conflict in the future[.]”   Motion for Withdrawal

of Appointment of Special Master, 4/28/15, at ¶ 5.      On May 5, 2015, the

court granted the motion to withdraw and appointed Keith Kilgore, Esquire,

as Special Master, who, on May 12, 2015, petitioned the court to appoint an

alternate because he had previously represented Husband. On May 18,

                                    -3-
J-S41024-17



2015, the court vacated Kilgore’s appointment and appointed Anne Kline,

Esquire, to address the issues of divorce, equitable distribution and alimony.

       On July 7, 2015, Special Master Kline recommended a divorce be

granted pursuant to section 3301(c) of the Divorce Code,3 and that the

marital assets be distributed 53% to Wife and 47% to Husband; she also

recommended Wife’s request for alimony be denied.

       Husband and Wife both filed exceptions. The Honorable Bradford H.

Charles dismissed both parties’ exceptions and entered an order on

September 15, 2015, which states, in relevant part:

       AND NOW, THIS 15TH DAY OF September, 2015, after a careful
       consideration of the file, including the transcript of the hearing
       on February 24, 2015 and the Special Master’s report of July 7,
       2015, the Exceptions filed by both parties in the above-captioned
       matter are DENIED and the recommendations of the Special
       Master are AFFIRMED in their entirety as follows:

          1. Pursuant to Section 3301(c) of the Divorce Code, Susan
             C. Smith (hereafter “Wife”) and Christopher C. Smith
             (hereafter “Husband”) are hereby divorced from the
             bonds of matrimony.

          2. Provided that no appeal of this decision is filed, alimony
             pendente lite will be terminated effective immediately.
             If an appeal is filed, we will entertain a hearing to
             determine whether alimony pendente lite should
             continue during the pendency of the appeal.

____________________________________________


3
   Section 3301(c) provides: “The court may grant a divorce where it is
alleged that the marriage is irretrievably broken and 90 days have elapsed
from the date of commencement of an action under this part and an affidavit
has been filed by each of the parties evidencing that each of the parties
consents to the divorce.” 23 Pa.C.S.A. § 3301(c).



                                           -4-
J-S41024-17


        3. The marital property, excluding the joint TD Ameritrade
           stock account and Husband’s [State Employee
           Retirement System] Pension [SERS], shall be divided
           53% to Wife and 47% to Husband, with an offset for
           credits.

                                  ****

        7.    Within sixty (60) days of the date of the final decree,
              Husband shall pay to Wife the sum of $92,310.88 to
              effectuate equitable distribution of the [marital]
              assets.

        8.    Husband’s existing SERS pension value shall be
              divided equally between the parties by way of a
              QDRO. Husband shall elect the survivor annuity
              option.  QDRO preparation costs shall be divided
              between the parties.

        9.    The joint TD Ameritrade stock account shall be divided
              53% to Husband and 47% to Wife based upon its
              current valuation at the time [] the final Divorce
              Decree is entered.

        10. Wife’s request for alimony is DENIED.

Order, 9/15/15.

     On October 5, 2015, Husband filed a pro se notice of appeal.       Wife

filed a petition to stay the order pending appeal, averring irreparable harm

in that Husband “will be free to remarry and name his future spouse as a

beneficiary of his State Employees Retirement Pension to which [Wife] was

awarded a fifty percent (50%) share.” Application for Stay, 10/14/15, ¶ 6.

The court granted the stay on October 20, 2015.      Despite the filing of an

appeal from the September 15, 2015 order, Husband filed a petition to seek

enforcement of that order on October 19, 2015.        The court denied that

request on October 22, 2015, and five days later Husband filed a motion



                                     -5-
J-S41024-17



seeking disqualification of the Honorable Bradford H. Charles.     See Motion

for Immediate Disqualification of Judge Bradford H. Charles Due to Multiple

Violations of the Code of Judicial Conduct, 10/27/15.

       In his motion, Husband claimed Judge Charles allowed Wife’s attorney

“to knowingly make false statements about [Husband,] . . . and is clearly

biased against [Husband] in his rulings and actions by allowing this

misconduct of [Wife’s] lawyer.” Id. at 2. Husband also claimed that Judge

Charles’ granting of Wife’s petition for stay “is illegal and biased against

[him].” Id. On October 29, 2015, Judge Charles denied this motion, and

also   denied Husband’s motion for reconsideration of the September 15,

2015 order. Order of Court, 10/29/15. Order of Court, 10/29/15.

       On November 3, 2015, Husband filed a “Motion to the President Judge

of the Court of Common Pleas of Lebanon County for the Immediate

Reconsideration and Disqualification of Judge Bradford H. Charles due to

Multiple Violations of the Code of Judicial Conduct[.]”     In support of this

motion, Husband averred, in part:

       This judge has refused to properly calculate the APL payment
       based upon the laws of the Commonwealth of Pennsylvania and
       adjusted [Husband’s] APL payment. This violation of the Code of
       Judicial Conduct has forced [Husband] to pay [Wife] over $270 a
       month more than the maximum amount allowed by law.

       Rule 2.3 requires a judge to perform the duties of judicial office
       without bias or prejudice.    A judge shall not by words or
       conduct, manifest bias or prejudice.      Judge Charles has
       showed his distaste towards [Husband] by making a




                                     -6-
J-S41024-17


       number of derogatory comments about [Husband] during
       the Judge’s Opinion on Equitable Distribution [referring to
       Judge Charles’ September 15, 2015 opinion].4

       The granting of the Stay Order is illegal and biased against
       [Husband] on the following grounds:

          Since [Husband] is fully willing to comply with the
          September 15, 2015 Divorce Decree and Order of
          Equitable Distribution, there can be absolutely no harm to
          [Wife] to allow the Entry and Execution of this September
          15 order. [Wife], who is the moving party in the divorce,
          is not requesting reconsideration, nor is [Wife] appealing
          the September 15, 2015 Divorce Decree and Order of
          Equitable Distribution. So if [Husband] fully complies with
          the Order, even while [Husband] is appealing the Order,
          there is no legal reason for the Stay to be granted. There
          is no justifiably claim of economic harm to [Wife] that
          [Wife] can make. The only reason Judge Charles
          signed this Order is his blatant bias against
          [Husband].

          The biased Judge failed to consider any of the
          economic and health issues (diagnosis of cancer)
          being endured by [Husband].

Motion, 11/13/15, at 2-4 (emphasis added).



____________________________________________


4
   The trial court stated in its opinion that Husband has “impugned the
integrity of everyone who disagrees with him[.]” Opinion, 9/15/15, at 1.
From our review of Husband’s motions, it appears that the court’s statement
is an accurate assessment. Husband’s characterizations of the judge, the
master, the judicial system and Wife’s attorney, (“the biased judge,” the
“incompetent judge and domestic relations master,” the “lack of integrity in
Lebanon County,” describing the Lebanon County judicial system as a
“compete cesspool of nepotism,” and references to the “unethical lawyer”
who “needs a lesson in English,” to list a few), are inappropriate and detract
from his legal arguments.




                                           -7-
J-S41024-17



       On November 4, 2015, Judge Charles entered an order denying this

second motion to disqualify, noting that President Judge John C. Tylwalk

assigned him to preside over issues pertaining to this divorce.5 In his order,

Judge Charles stated:

       Prior to being assigned the responsibility to preside over issues
       in the above-referenced matter, this Jurist had no known contact
       with either [Wife] or [Husband]. This Jurist is not acquainted
       with either party, nor did this Jurist have any known business
       relationship with either party at any time in the past. This Jurist
       has rendered decisions that have angered [Husband]. By itself,
       that does not create grounds for disqualification. The fact that
       [Husband] has filed vitriolic-infused motions that have
       disparaged this Jurist also does not create a ground for this
       Jurist to recuse himself. . . . [Husband] has appealed the
       decision rendered by this Jurist with respect to divorce, equitable
       distribution and alimony pendente lite. We do not question
       [Husband’s] ability to file and pursue an appeal, nor has [his]
       appeal engendered any personal animus by this Jurist toward
       him. [Husband] has asked us to enforce the Order we entered
       that he has appealed. We will not do this. So long as any party
       challenges the viability of a civil divorce order by filing an
       appeal, it would be improper for this Court to enforce said Order
       prior to a decision by the Pennsylvania Superior Court.

Order, 11/4/15, at 1-3.

       Thereafter, Husband filed an emergency petition in this Court to vacate

the trial court’s October 20, 2015 order staying enforcement of the

September 15, 2015 order. This Court denied that petition. On November

____________________________________________


5
 On November 11, 2015, President Judge Tylwalk issued an order denying
Husband’s motion seeking disqualification of Judge Charles. President Jude
Tylwalk stated that Judge Charles “is in the best position to determine
whether he is able to continue to preside impartially.” Order, 4/11/15.



                                           -8-
J-S41024-17



16, 2015, Husband filed an application to withdraw his appeal, which this

Court granted on November 24, 2015.        That same day, the trial court

vacated the stay order, reinstated its September 15, 2015 order, and the

parties were divorced.

     On April 19, 2016, Wife filed a petition to compel Husband to sign the

QDRO.    The court held a hearing on June 9, 2016, at which the parties

disagreed on the term “survivor annuity option.”     Husband claimed that if

Wife predeceased him, Wife’s share should revert and become his property.

Wife disagreed. The court scheduled another hearing for December 2,

2016, giving the parties time to consult with experts on the meaning of the

term, “survivor annuity option.”

     On August 29, 2016, Wife filed a second petition to compel Husband to

sign her proposed QDRO; on November 28, 2016, Husband filed a motion to

compel Wife to sign his proposed QDRO.          At a hearing on December 2,

2016, both parties testified; Wife’s expert, Mark Altschuler, President of

Pension Analysis Consultants, also testified.    On December 29, 2016, the

court entered an order granting Wife’s motion to compel Husband to sign the

QDRO prepared by Wife’s expert, specifying that the parties were to share

the costs of preparation equally, denying Husband’s motion to compel Wife

to sign his proposed QDRO, and denying Husband’s continuing request that

Judge Charles recuse himself. See Order, 12/29/16.

     Husband appealed on January 24, 2017, and the court ordered

Husband to file a Pa.R.A.P. 1925(b) concise statement of errors complained

                                    -9-
J-S41024-17



of on appeal.      Husband filed his Rule 1925(b) statement on February 13,

2017.

        In his appellate brief, Husband raises 39 issues, spanning ten pages of

his brief. See Commonwealth v. Snyder, 870 A.2d 336, 340 (Pa. Super.

2005) (“14 very verbose issues which span three pages of his brief”

constituted substantial defect permitting quashal). “Although the page limit

on the statement of questions involved was eliminated in 2013, verbosity

continues to be discouraged.”           Pa.R.A.P. 2116, comment. “The appellate

courts strongly disfavor a statement that is not concise.” Id.6 Due to the

verbosity and confusing nature of Husband’s issues, we will attempt to

address Husband’s main points of contention, which we have taken from his

Rule 1925(b) statement.7 We have also reworded and condensed Husband’s

claims for ease of discussion and clarity:

          1. Did the court err in refusing to admit as hearsay, at the
             June 9, 2016 hearing, an affidavit and “routine business

____________________________________________


6
 We also note that Husband has failed to comply with Pa.R.A.P. 2135, which
provides that “[a] principal brief shall not exceed 14,000 words” and “[a]
party shall file a certificate of compliance with the word count limit if the
principal brief is longer than 30 pages . . . when prepared on a word
processor or typewriter.” Pa.R.A.P. 2135(a)(1) and (d). The numbered
pages, not including preliminary pages and appended exhibits, in Husband’s
appellate brief, amount to 69.
7
   See Morgante v. Morgante, 119 A.3d 382, 396 (Pa. Super. 2015)
(holding Husband's failure to raise challenge to equitable distribution award
in Rule 1925(b) statement constituted waiver).




                                          - 10 -
J-S41024-17


            correspondence” by SERS Assistant Counsel Salvatore A.
            Darigo, Jr.?

        2. Did the court err or abuse its discretion in recessing the
           June 9, 2016 hearing and continuing it to December 2,
           2016?

        3. Did the court err in allowing testimony of Wife’s expert
           witness, Mark Altschuler, at the December 2, 2016
           hearing?

        4. Did the court err in finding Mark Altschuler’s testimony was
           not hearsay and was credible?

        5. Did the court err in ordering Husband to sign the QDRO
           proposed by Wife, which does not comply with the
           equitable distribution order, where the payout calculation
           was based on a maximum single life annuity and not the
           survivor annuity option, thus precluding the pension
           amount awarded to Wife to revert back to Husband in the
           event Wife predeceases Husband?

        6. Did the court err or abuse its discretion in awarding Wife
           alimony pendent lite, and in precluding Husband from
           cross-examining Wife on financial matters?

        7. Did the court err or abuse its discretion in denying
           Husband’s motion to recuse?

Pa.R.A.P. 1925(b) Statement, 2/13/17 (rephrased and renumbered).

     Our role in reviewing equitable distribution awards is well settled:

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

McCoy v. McCoy, 888 A.2d 906, 908 (Pa. Super. 2005) (internal quotations

omitted).   Further, this Court will only find an abuse of discretion where

“the law has been overridden or misapplied or the judgment exercised was


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J-S41024-17



manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,

as shown by the evidence in the certified record.”         Biese v. Biese, 979

A.2d 892, 895 (Pa. Super. 2009) (quotations and citations omitted). When

reviewing an award of equitable distribution, “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.”

Hayward v. Hayward, 868 A.2d 554, 559 (Pa. Super. 2005). Moreover, in

determining the propriety of an equitable distribution award, the court must

consider the distribution scheme as a whole. Biese, supra.          “[I]t is within

the province of the trial court to weigh the evidence and decide credibility

and this Court will not reverse those determinations so long as they are

supported by the evidence.” Morgante, 119 A.3d at 387.

      Husband’s first five claims are related. As such, we will discuss them

together. As detailed in the facts above, Special Master Kline recommended

Husband’s SERS pension be divided equally between the parties by way of a

QDRO, and that “Husband shall elect the survivor annuity option.” Special

Master’s Report, Recommendation 6, 7/15/15. At the June 9, 2016, hearing

on Wife’s motion to compel, during Husband’s cross-examination of Wife,

Husband attempted to enter into evidence a letter from Salvatore Darigo,

Jr., of the State Employee Retirement System, pertaining to Husband’s

proposed QDRO. N.T. Hearing on Motion to Compel, 6/9/16, at 21. Wife’s

counsel objected, arguing it constituted hearsay.

      The court ruled as follows:

                                      - 12 -
J-S41024-17


     THE COURT: I agree. We’re not going to get into the substance
     of this today. We’re obviously going to need another hearing to
     have additional expert testimony provided. If he wants to show
     her the letter in order to establish a sequence of events, he may
     do so, but it’s for that purpose only. So if you want to show Ms.
     Smith the letter to get into the sequence of events, you may do
     so.

                              ****

     BY MR. SMITH: Okay. So would you agree that on that May 5 th
     document from Salvatore Darigo that in the first paragraph he
     does say that the attached would be acceptable to SERS?

     MS. WEISS [WIFE’S COUNSEL]: Objection.

     THE COURT: It’s the same objection he made to your exhibits.
     I will allow some questions about this document to establish the
     sequence of events. I will not allow the substance of what is
     contained in this letter to be proven for the truth of the matter
     asserted. Unless both of you agree to waive any hearsay
     problems, the truth of the matter is going to have to be
     established by witnesses on the witness stand who have
     personal knowledge of these pension.

     MS. WEISS: I agree. I don’t want to waive.

     THE COURT: Okay. So with that, the objection is sustained.

     MR. SMITH: I’m just asking her whether or not the paragraph
     says that the document attached is acceptable to the retirement
     system.

     THE COURT: And that’s calling for a substantive answer. Just
     like you objected when Ms. Weiss tried to get substantive
     information in through the letters, she’s objecting to your effort
     to do that. I sustained your objections and I’m sustaining hers
     . . . . [Y]ou’re asking for me to accept that that letter is accurate
     and without the witness to testify to the accuracy of the letter I
     cannot accept that. You want to question her about: did you
     receive this letter? What did you do with the letter? That
     establishes a sequence of events. But I’m telling both sides
     that as to the substance of which QDRO is correct and
     which QDRO is not correct, I’m going to need testimony
     from people that have personal knowledge about [the]



                                    - 13 -
J-S41024-17


      pensions and QDROs at issue. This witness does not have
      that expertise or that personal knowledge.

Id. at 21-25 (emphasis added).

      The parties disagreed on the meaning of the term “survivor annuity

option.”   Husband interpreted it as meaning that if Wife predeceased him,

before retirement, Wife’s share should revert to him. Wife disagreed, and

interpreted it as meaning if Wife predeceased Husband while the pension

was in pay status, after retirement, only then would it revert back to him:

      MS. WEISS: I think [t]hat the biggest objection we have is
      that it does not provide for the survivor annuity properly.
      . . . Paragraph 12 says that if she dies everything reverts
      back to him and that’s not the case in a survivor annuity.
      It’s not the law. It’s not the case. When she dies, if she
      dies before he goes into retirement, it becomes part of her
      estate. . . .

      MR. SMITH: That’s an incorrect assessment, sir. Because the
      survivor annuity is provided for assuming she stays alive. SERS
      allows for overriding of the annuity at the point of the various
      parties’ death[s].

      THE COURT: . . . I don’t know what you’re both trying to
      communicate, but what I just heard you both agree. You both
      agree that if she dies the amount of the QDRO goes into her
      estate.

      MR. SMITH: No, I do not agree with that and actually neither
      does Attorney Weiss.

      MS. WEISS: I certainly do. And so does my expert.

                                ****

      MR. SMITH: Sir, I’d also like to direct your attention to Exhibit
      Number 4, Paragraph Number 12, so basically it says here is if
      she dies before I retire, I pay her estate. If she dies after I
      retire all the proceeds revert to me, the member, so she agrees
      that if we’re in a state of retirement that I should get all my


                                    - 14 -
J-S41024-17


        money back all the time. It’s the last sentence in Paragraph 12
        of the DRO that her own consultant put together.

        MS. WEISS: And I believe that he’s correct. I believe that my
        pension analyst guy is correct in interpreting what a survivor
        annuity means.

        MR. SMITH: No, the survivor annuity says her benefits will
        revert to member. I am the member, meaning I get the money
        back.

        MS. WEISS: When she dies after it’s in pay status, not the way
        you want it, which is that it goes back to you at anytime she dies
        regardless of the pay status.

Id. at 29-33 (emphasis added).

        At that point, the court entered an order on the record, which reads, in

part:

              C. The Special Master did not define the term “survivor
                 annuity option.” This phrase is obviously a term of
                 art. Neither of the parties have expertise to define
                 the meaning of that term.

              D. It is obvious that expert testimony will be
                 required to assist the Court in discerning what
                 is meant by the phrase “survivor annuity
                 option.” It is also obvious that a new hearing will
                 have to be scheduled to permit the parties to provide
                 such expert opinion.

Id. at 33-34; Order, 6/9/16 (emphasis added). The court also ordered that

each party provide the opposing party with a brief expert report, focused on

the meaning of the phrase “survivor annuity option,” and stated: “You both

can have experts. . . . And then I’ll hear testimony at the next hearing as to

what is meant by the term ‘survivor annuity option.’” Id. at 35. The court

recessed the hearing and rescheduled it for December 2, 2016.


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J-S41024-17



       At the December 2, 2016 hearing, Mark Altschuler was qualified as an

expert and testified on Wife’s behalf.8            Husband cross-examined him, and

Husband testified as well. Husband did not present an expert on his behalf.

       Against this backdrop, Husband challenges the court’s rescheduling of

the   hearing,    its   refusal    to   admit      the   correspondence   from   SERS

representative Darigo as substantive evidence on hearsay grounds, and its

decision to allow Wife’s expert to testify. Each of these claims is meritless.

       The trial court could not have been more transparent or justified in its

reasoning for rescheduling the hearing, requiring expert testimony to assist

the court in making a well-informed decision on the parties’ main point of

contention, and rejecting Husband’s hearsay evidence.               Husband had an

opportunity to challenge Wife’s expert’s report and to present his own

expert. As the trial court noted, Husband, “somewhat surprisingly,” chose

not to do so.      Instead, he attempted to present unsubstantiated hearsay

evidence.     See Sprague v. Walter, 656 A.2d 80, 913 (Pa. Super. 1995)

(affidavit is inadmissible hearsay when offered for its truth); see also

Botkin v. Metropolitan Life Ins. Co., 907 A.2d 641 (Pa. Super. 2006)

(report from financial expert, without testimony as to personal knowledge of

matter, is hearsay).        Wife’s expert’s opinion, therefore, was unrebutted.
____________________________________________


8
 Altschuler has a degree in mathematics and is a member of the American
Academy of Pension Experts. He has personally prepared over 10,000
QDROs, and he has testified as an expert in pension analysis over 60 times.
N.T. Hearing, 12/2/16, at 11-13.



                                          - 16 -
J-S41024-17



Further, the court found Wife’s expert credible. This Court will not reverse

credibility determinations as long as they are supported by the evidence.

Morgante, 119 A.3d at 395.            The trial court's reasons for accepting that

testimony are supported by the record, and we decline to revisit the trial

court's credibility determinations.

       We conclude, therefore, that the court was within its discretion in

accepting Wife’s proposed QDRO with her interpretation of the term

“survivor annuity option.”       Husband was neither surprised nor prejudiced by

the court’s decisions. We find no error or abuse of discretion.             See Smith

v. Smith, 653 A.2d 1259 (1995); see also Miller v. Miller, 617 A.2d 375

(Pa. Super. 1992) (where husband had opportunity to challenge wife’s

accounting expert’s report on pension valuation, but instead offered

unsubstantiated alternate calculation, and chose not to present his own

expert    valuation,    court    properly      accepted   report   of   wife’s   expert).

Additionally, we find no abuse of discretion in the court’s order requiring

Husband to sign Wife’s proposed QDRO. In doing so, the court effectuated

economic justice.9 See Hayward, supra.
____________________________________________


9
  As indicated above, there were insufficient liquid assets available to offset
the value of the marital home, and thus the master recommended that a
QDRO of Husband’s pension be used to effectuate economic justice. The
trial court agreed, emphasizing that “a portion of wife’s equitable distribution
award was provided via the QDRO.” Trial Court Opinion, 12/28/16, at 19.
“[Wife’s] rights to Husband’s pension granted through the divorce are part of
her estate and she should retain the ability to designate how and where
those rights are to be distributed in the event of her death.” Id. at 20. The
(Footnote Continued Next Page)


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J-S41024-17



      Next, Husband argues the court erred or abused its discretion in

awarding Wife alimony pendent lite [APL] and in precluding Husband from

cross-examining Wife on financial matters.

      We review APL awards under an abuse of discretion standard.

Haentjens v. Haentjens, 860 A.2d 1056, 1062 (Pa. Super. 2004). APL is

“an order for temporary support granted to a spouse during the pendency of

a divorce or annulment proceeding.” 23 Pa.C.S.A. § 3103. It “is designed to

help the dependent spouse maintain the standard of living enjoyed while

living with the independent spouse.” Litmans v. Litmans, 209, 673 A.2d

382, 389 (Pa. Super. 1996). APL is thus not dependent on the status of the

party as being a spouse or being remarried but is based, rather, on the state

of the litigation, DeMasi v. DeMasi, 597 A.2d 101, 104–105 (Pa. Super.

1991), and “focuses on the ability of the individual who receives the APL

during the course of the litigation to defend her/himself[,]” and the only

issue is whether the amount is reasonable for the purpose, which turns on

the economic resources available to the spouse.” Haentjens, at 1062; see

also Carney v. Carney, --- A.3d --- (filed July 11, 2017).

      In one of the trial court’s four comprehensive opinions in this case, the

Honorable Bradford H. Charles sets forth a comprehensive analysis of


                       _______________________
(Footnote Continued)

order entered on December 28, 2016 granted Wife’s motion to compel
Husband to sign the QDRO prepared by Wife’s expert, and it specified that
costs of preparation be shared equally between the parties. Id. at 21.



                                           - 18 -
J-S41024-17



Husband’s challenge to the award of APL.            See Trial Court Opinion,

12/19/14, at 6-21 (award of alimony pendente lite is within sound discretion

of trial court; court evaluated facts and circumstances, noting significant

income discrepancy, and concluded Wife established financial need). We,

therefore, rely upon that opinion to dispose of this claim.

      In his final issue, Husband claims the court abused its discretion in

denying his continuing requests that Judge Charles, who has presided over

this litigation since its inception, recuse himself.     This Court presumes

judges of this Commonwealth are “honorable, fair and competent,” and,

when confronted with a recusal demand, have the ability to determine

whether they can rule impartially and without prejudice. Commonwealth

v. White, 734 A.2d 374, 384 (Pa. 1999). The party seeking disqualification

has the burden of producing evidence establishing bias, prejudice, or

unfairness necessitating recusal, and the “decision by a judge against whom

a plea of prejudice is made will not be disturbed except for an abuse of

discretion.” Commonwealth v. Darush, 459 A.2d 727, 731 (Pa. 1983).

      We discern no evidence of partiality on the part of Judge Charles. On

the contrary, his rulings were evenhanded and thoughtfully analyzed.

Husband’s claims of bias and repeated characterizations of Judge Charles as

the “biased judge” throughout his two motions to disqualify, is unsupported

in the record, and his unsubstantiated accusations and allegations, strike

this Court as bluster. We are in full agreement with Judge Charles: “[T]he

time has come for both parties to dial down their rhetoric and focus their

                                     - 19 -
J-S41024-17



attention on moving beyond their vitriolic past. . . . [I]t is now time for both

HUSBAND and WIFE to move forward with their respective lives.” Opinion,

9/15/15, at 1, 21.

      We affirm the trial court’s orders, and rely in part on the opinion dated

December 19, 2014. We direct the parties to attach a copy of that opinion

in the event of further proceedings.

      Orders in 190 MDA 2017 and 192 MDA 2017 affirmed. Appeal in 191

MDA 2017 quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2017




                                       - 20 -
                                                                                    Circulated 08/23/2017 12:34 PM




      IN THE COURT OF COMMON PLEAS OF LEBANON                                       COUNTY
                        PENNSYLVANIA

                        CIVIL ACTION - FAMILY DIVISION


SUSAN C. SMITH                             NO. 2013-20491
                      Plaintiff,

              v.
CHRISTOPHER C. SMITH
             Defendant

                                                            ·-· ..       ·-·   ..         ' .......
· APPEARANCES:

M. Jannifer Weiss, Esquire               For Susan C. Smith
WEISS, WEISS & WEISS

Jessica E. Lowe, Esquire                 Former Counsel for Christopher
                                                    C. Smith

Christopher        C. Smith              Pro Se


OPINION BY CHARLES,            J .• December 19, 2014

      This case focuses upon the interplay                 between       financial need                  and

alimony pendente lite (APL).          Susan Smith (hereafter "WIFE") argues that

proof of financial     need is no longer a predicate to an award of APL.                                     In

contrast.    Christopher      Smith    (hereafter    11   HUSBAND11)                argues            that   a

threshold showing of financial        need is necessary              before any APL can be

awarded.      Our research     has revealed       legal precedent that supports the

arguments proffered by both sides.              However, because               we conclude               that

APL cannot statutorily or historically be equated with spousal support, and

because     we therefore      conclude that something                other than the marital

                                            1
relationship             is needed      to support   APL,    we hold today     that    a spouse

seeking       APL must establish             at least     some threshold    proof of financial

need.     However, we also hold that the definition                 of "financial     need11 must

of   necessity             be   fluid     and   determined       based     upon     the   unique

circumstances              presented by each factual dispute.            As we will outline in

more detail below, we hold in this case that WIFE has in fact established

that she has a need for APL, and we will therefore affirm the decision of

the Special Master to require that HUSBAND pay APL to WIFE.
          .    ;,., ..


I.      FACTS

        HUSBAND and WIFE were married on September 15. 1984.                                      The

relationship obviously had Its ups and downs.                       Even before separation,

WIFE filed a Complaint for Divorce on June 25, 2013. Included in WIFE's

Complaint was a request for APL.                         However, WIFE did not pursue her

claim for APL until June of 2014.                        At that time, WIFE left the marital

residence to move Into an apartment.                       (Special Master Report at pg. 2).

Attorney Loreen Burkett was appointed as Special Master to hear only

WIFE'S claim for APL.

        A hearing regarding APL was conducted before the Special Master

on August 26, 2014.                     At that hearing, both parties described a pre-

separation         lifestyle    that could       be classified as upper middle             class.

Moreover, both parties were able to pay the cost of their son's college
                                                                                            111
education.        WIFE aptly said that after college education was paid:                          did

not have any worries financially." (N. T. 14).

                                                     2
         The parties'       relatively good lifestyle was based upon the fact that

 each has enjoyed a relatively good job.                    HUSBAND has been employed                    by

 the     Pennsylvania         Higher       Education        Assistance        Agency.            Although

 HUSBAND          did not provide 2014             Income      information, WIFE produced a

 2013 W-2 wage statement that revealed wages of $105,207.09 and a 2012

 W-2 that reflected           earnings of $102, 172.33.1               Therefore, she evaluated

 HUSBAND's           2013     annual      income      and calculated          HUSBAND's           monthly

 income at $8,750.00.             WIFE has been employed                 as an office manager             at

· "Vlsion ·works, lnc, She is 'sa.arled et $46;000.00 per year.                          However,      she

  also receives        bonuses.      WIFE did produce            evidence of her income during

  2014 ..     Based      upon     WI FE's 2014         Income      documentation,          the    Special

  Master determined          her gross monthly income to be $4,429.16.

           Following      separation,       HUSBAND          remained        in the     martial     home.

  WIFE obtained an apartment at the Rockledge                           Apartment Complex             near

  Palmyra.        She testified        that her standard of living has declined                      since

  separation.       (N.T. 15).      She specifically testified that she has cut back on

  expenses and can no longer attord a vacation                             or new clothing.            She

  summarized her situation by stating:                     "I do not buy anything that I do not

  need."     (N. T. 16).      Moreover, she furnished her apartment by purchasing

  used items at a local thrift store.                 (N.T. 17M18).         On cross examination,

  WIFE explalned          that while she is able to pay her bills, her expenses                         are



  I
    In addition, the 2013 income tax return of the parties revealed capital gains of $82,901.00 during that
  calendar year. The Special Master determined that capita! gains "can properly be considered as part of
  the marital estate for distribution purposes when the estate is tater divided."
                                                       3
now based       upon a lifestyle     that Is "substantlally           cut down" from that which

she enjoyed during the marriage.                  (N.T. 38).

         Stunningly,     HUSBAND        declined         to testify    or present      documentary

evidence      at   the   APL      hearing.         Instead,     he     rested   upon     his   cross-

examination        of WIFE     and his argument that she had no need for APL.
Specifically,      HUSBAND         argued that WIFE possessed $351000.00                         in a

checking and savings account and that she should be required to draw

down those amounts before collecting APL.                      HUSBAND focuses on WIFE's

·l,wrenl' ·exptmrns ano arques:              11Sha has 'the ability to· a fiord· ail ot her

llving    expenses since          moving     out of the         former marital         residence ... "

(HUSBAND'S         Brief at 6).

         Without conducting any extensive legal analysis, the Special 'Master

accepted HUSBAND's premise that WIFE was required to prove financial

need.       However, the Special Master determined                         that WIFE did have

financial need for APL.           The Special Master stated:

         Husband     argues that, even though his income may be
         substantially higher than Wife's, she has not demonstrated an
         actual need for an award of allmony pendente lite.         He
         indicates that Wife has been able to meet all of her living
         expenses since moving out and has been able to pay her legal
         fees. However, Wife testified that she has only been out of
         the marital residence for two months and has taken measures
         to cut back on expenditures, not knowing what her actual
         income will be. She stated that the parties are only at the
         beginning of their legal expenses and they are estimated, and
         that she will incur more as time goes on. Wife indicated she
         does not have access to many of the marital funds. Wife has
         demonstrated actual need for an award of alimony pendente
         lite.

(Special Master's Report at 3).

                                                     4
       Based upon the foregoing, the Special Master awarded APL to WIFE

based entirely upon the Pennsylvania Spousal Support Guidelines.                                The

calculations employed by the Special Master are set forth below:

                                                      WIFE                             HUSBAND

Total gross income per month                $4,429                               $8, 750

Less Deductions                             $1,071                                2,446

Net Income                                  $3,358                               $6,304

Difference                                                           $2,946

Percent b{ which to multiply                                                40

Amount   of   Monthly Alimony
Pendente Lite Obligation                                             $1, 178

       HUSBAND      filed        timely Exceptions to the decision of the Special

Master.      The primary focus of HUSBAND's                Exceptions was that WIFE has

not established need for APL.             HUSBAND argued:              "The learned Master

erred and/or committed an abuse of discretion by adhering to the Spousal

Support Guidelines in determining an award of APL, as the resulting sum

is far more than WIFE needs to maintain herself throughout the divorce

proceedings."       Secondarily,         HUSBAND           also    challenged          the   Special

Master's decision       that he should be required to pay a portion of WI FE's

unreimbursed medical expenses.

       Following the filing of Exceptions,                 HUSBAND     asked this Court to

stay   his    payment       of    APL   during       the   pendency      of      the     underlying

substantive exceptions.            By a Court Order dated October                  16, 2014, we

denied HUSBAND's            request     to stay payment           of APL.        HUSBAND        then


                                                 5
            discharged         his lawyer and filed a pro se response by which he reiterated

            his aruument that WIFE should not receive anything because she has no

            financial need.

                      As we began our evaluation of HUSBAND s exceptions to APL, we
                                                                              1




            quickly        realized the underlying legal precepts governing APL are more

            complicated than the partles had realized or we had anticipated.                          We will

            therefore         begin     our   analysis   by       outlining   the      history   of   APL   In

             Pennsylvania and how it has evolved to closely - but not completely -

· · ·-·.\ -· · · jJa ral lei spousal   suppo. t. Atte r anaiyzlny the law, W8 wili appiy the facts ·

             of th is case In order to reach our decision.


             II.      DISCUSSION

                      A.       Legal Analysis

                      APL began as a precept of Pennsylvania common law.                         See, Appeal

             of Groves, 1871 WL 11028, 68 Pa. 143 (1871 ).                        Its historical purpose was

             summarized in Purman v. Purman, 7 Pa. D & C 755 (1925):

                      Alimony pendente lite Is not a matter of right, but it is
                      addressed at the sound discretion of the court, and the court
                      may refuse it where cause against it is shown.

                      The controlling element in granting an allowance ln any case
                      is the wlta's necessity for it, the husband's ability to pay and
                      all the circumstances of the particular case.

                      The destitute condition of the wife Is a necessary prerequisite
                      to an order for alimony pendente lite. Her want of pecuniary
                      ability must be shown affirmatively before an order will be
                      made.




                                                              6
       The   husband's  ability to pay must   be shown      and not
       presumed, and if the husband's means are limited, the amount
       allowed will necessarily be limited.                                   ·

Id. at 758.     In 1929, the right to APL was codified by statute.                  See, 23

P.S. 46 (May 2, 1929) (repealed).               However, the amount of APL was

always considered to be "a matter of Judicial                dlscr etlcn."        Meinel   v.

Meinel, 167 A. 385 (Pa.Super. 1933).

       When Pennsylvania's          Divorce Code was created in 1990, APL was

incorporated.     Section 3702 of the Divorce Code States: "In proper cases,

upon petttton; ·the 'court · may allow a· spouse ·rea·s-crrtablEf alimony pendente

lite ... " 23 Pa.C.S.A.   § 3702.    The definitional section of the Divorce Code

defines APL as "An order for temporary support granted to a spouse

during the pendency of a divorce or annulment proceeding."                   23 Pa.C.S.A.

§ 3103.     However, the Divorce Code does not specify when or in what

amount APL should be awarded.

       Until the advent of Pennsylvania's            Support Guidelines,           APL was

determined at the discretion of trial courts on a case-by-case basis.                  From

a broad perspective, our appellate courts recognized a distinct ditterence

between spousal support and APL:                the former arose out of the marital

relationship itself and was designed to provide financial maintenance and

support    for the    dependent      spouse,     while the    latter   was        considered

ancillary to a divorce action and was intended to equalize the ability of

each   spouse to prosecute          or defend the divorce        action.          Remick   v.

Remick, 456 A.2d          163 (Pa. Super.       1983).   The amount          of APL was



                                            7
                   determined based upon factors identical to those contained in the Divorce

                   Code        regarding        alimony.          See,     e.g.    Dyer     v. Dyer,          536    A.2d     453

                   (Pa.Super.         1988)     and McNulty v. McNulty, 500                           A.2d    876 (Pa.Super.

                   1985).       See also, 23 Pa.C.S.A.                 § 3701 (b) (repealed).
                              Pennsylvania        adopted         Child Support Guidelines                   in 1981.       These

                   gurdelines         were      expanded          to    Include    APL     in     1994.        The      following

                   provisions of the Support Guidelines                     now address APL:

                       •    Rule 1920.31             requires     that APL ordered          by a Court must be paid
.· .·   -:-   ..
                           . thr6ug ..li· the local Domestlc Relatio.ri's           Offi'ce:' .. ~·-

                       •    Rule 1910. 16-1 (c) provides that APL and spousal support cannot be

                            enforced simultaneously.

                       •    Rule 1910.16-1 (c) requires                  a Court to consider the duration                   of the

                            marriage         in determining APL.

                       •    Rule     1910.16·1(b)            states:     "The amount        of support (child support,

                            spousal support or alimony pendente lite) to be awarded ... shall be

                            determined In accordance                   with the support guidelines ... "

                   In spite of these new APL rules -                           or perhaps        because       of them - the

                   official     comment         to     the     Support      Guidelines          was     amended         to state:

                   "Nothing        in this    Rule should          be interpreted to eliminate the distinctions

                   between spousal support and alimony pendente                              lite which are established

                   by case law."         Pa. R.C.P. 1910.1             (explanatory      comment - March 30, 1994).

                           Since 1994, mixed messages have been articulated by courts which

                   were called to rule upon APL issues.                           In Calibeo v. Calibeo, 663 A.2d


                                                                           8
184 (Pa.Super.       1995), the Pennsylvania          Superior Court acknowledged           the

APL changes created by the Support Guidelines and stated:                        "Since [the
Support      Guideline      amendment]     requires     that   alimony pendente      lite   be

determined       pursuant     to the Support       Guidelines)   the difference between

alimony      pendente    lite and spousal support, no matter If it is part of the

divorce action or filed separately, is n egllgible ... "           Id. at 185.    Moreover,

our Supreme       Court has applied the Support Guidellnes and directed that

finders     of fact "calculate   a   spousal support or APL award according           to the



1186, 1191 (Pa. 2002).

          On the other hand, several        Pennsylvania       Superior Court cases have

implied that financial need is a precondition              of awarding   APL.    In Schenk

v. Schenk, 880 A.2d 633 (Pa.Super.              2005), a trial court refused to adhere

to the Support      Guidelines because an obliges-wife             lived with a boyfriend

"who paid all of her bills."             In affirming    the trial court's decision,        the

Superior Court stated:

           As for the court's holding that wife is not entitled to APL for
          the time when she lived with boyfriend, we find no abuse of
          discretion. First, we note our agreement with husband that the
          Court's rationale in denying wife APL for the time she lived
          with her boyfriend appears not to be based simply upon her
          cohabitation, but rather upon her failure to prove her needs in
          defending herself in ·the divorce action ... Alimony pendente lite
          Is designed to be temporary and Is available to those who
          demonstrate the need for maintenance             and professional
          services during the pendency of the proceedings. Wife failed
          to demonstrate her need. Accordingly, we find no abuse of the
          Court's discretion.




                                               9
                 Id. at 646) quoting in part Jayne v. Jayne, 663 A.2d 169, 176 (Pa.Super.

                 1995).      See also Childress v. Bogosian, 12 A.3d 448 (Pa.Super.                  2011)

                (11APL focuses upon the ability of the individual who receives the APL

                during the course of the litigation        to defend her/himself,         and the only

                issue is whether the amount is reasonable for the purpose ... " Id. at 463 ).

                          Several common     pleas decisions have evaluated the question of

                whether      a   financial need litmus test should be imposed as a predicate to

                an award of APL.         Two courts reached the conclusion that it should not.

···. ·':,··~.   · In Freror,'e-:=v. Prerotte, 74 Pa. D u ·v       4th    ~9s- ·(Faybtle Cu. 2005), the

                Court held that a deviation from the Guidelines in an APL case cannot

                occur      unless the     Court   makes   a determination         that 'the    Guidelines

                themselves would permit deviation.              Even more explicit is an en bane

                decision by the Lehigh County Court in Pruti'bomme                 v. Prud'homme,       48

                Pa. D & C 41h 182 {2000).            In setting forth a comprehensive history of

                Pennsylvania        law pertaining    to spousal        support   and   APL,   the   Court

                recognized that even under common law principles, both APL and child

                support "required the court to determine the recipient's needs based on

                the parties' standard of living while they lived together or their station in

                life) and the paver's ability to pay considering his/her income,                 property

                and earning capacity."       The court stated:

                          [S]pousal support and APL were always based on similar
                          financial crite rla, though the procedures and du ration differed.
                          As a result of the promulgation of new support rules by the
                          Pennsylvania Supreme Court, and the Interpretation of these
                          rules   by the        Pennsylvania   Supreme    Court   and     the
                          Pennsylvania       Superior   Court,  many   of   the    historical


                                                           10
       distinctions  between spousal support and APL. have been
       eliminated.   APL like spousal support shall be determined in
       accordance with the Uniform    Support Guidelines.   APL and
       spousal support shall not be in effect simultaneously.    APL
       claimants, like spousal support claimants,   need not prepare
       and file detailed income and expense statements.     Upon the
       entry of a decree in divorce, if economic claims are still
       pending, a spousal support order shall be deemed an order for
       APL.

 Id. at 192.   Essentially,   the Prud'homme court determined that 11APL is

 merely a type of support awarded in divorce cases."           Id. at 191.    Having

 reached this conclusion, the Court in Prud'homme rejected the obllqor's

 eHor·i tocreate ti financlal need litmus   test.' The· courtstatec: ... -~
       Husband's argument ls-contrary     to both the letter and spirit of
       the Uniform Support Guidelines.          First, from a linguistic
       standpoint, Rule 1910.16~1 states very specifically that A PL,
       like spousal support and child support, is to be determined In
       accordance with the guidelines.       If the guidelines establish
       APL. .. and there is no basis for a deviation, then APL Is to be
       awarded in that amount, so long as there is a divorce action
       being pursued.      There Is no requirement under the support
       rules     for   a      separate   demonstration      of  financial
       need ... Husband's contention, if adopted, would return us to
       the pre-guideline   days when subjective judgments were made
       as to "ne ed."     This would reintroduce uncertainty into a
       process that is intended to be uniform and predictable.

 Id. at 193, 194.

       In contrast   to   Frerotte and Prud'homme, the Somerset County

Court of Common Pleas determined that a preliminary finding of financial

need   must    be established    before the       spousal support guidelines     are

applied.   Moore v. Moore, 56 Som.L.J. 110 (1999).            The Court in Moore

emphasized that APL was founded on            a   different historical precept than

· was spousal support.     Because APL was intended from the beginning to


                                       11
enable     a spouse       to prosecute or defend a divorce                      action, a findlng of

need by the obligee spouse necessary follows in order to accomplish the

purpose of APL.

        To     date,    Pennsylvania's          highest          court    has    not    yet    had      the

opportunity        to rule     upon the question            of whether financial need is a

predicate to recovering APL.                  Moreover, we are aware of no Superior

Court     precedent       that has either specifically                   mandated       or rejected       a

request to employ the "financial need" litmus test prior to awarding APL.2

         We .;Were ·particuiarly             lrnpre ese d        with    'the· 'scholarly      approach

undertaken by the Lehigh County Court on the precise issue that is now

before       us.    Nevertheless,         we depart company                with our colleagues           In

Lehigh       County.     As we read Prud'homme,                    we perceive that the Lehigh

County Court has essentially equated APL with spousal support except in

the   very unusual           situ atlon    where    separated            spouses are         involved    In

litigation that does not include divorce proceedings.                             We simply cannot

concur that our Supreme Court Intended to transform APL into "merely a

type of support awarded in divorce cases."

         Our appellate courts have always recognized that APL and spousal

support "dlffer in character."              Be/shy v. Be/shy, 175 A.2d 348 (Pa.Super.

1962);        Hanson         v.    Hanson,         11 O     A.2d         750     (Pa.Super.       1955);

Commonwealth              ex      rel     Lipschultz        v.     Lipschultz,         117    A.2d      793


2
  Sohenkwas affirmed by the Superior Court on two separate grounds. In addition to declaring that the
wife had not established financial need, Schenk also recognized that the Support Guldelines themselves
required a deviation because wife possessed "other income in her household" and this is a factor that the
court must consider when determining whether to deviate from the Support Guidelines.
                                                    12
(Pa.Super.          1955).     Spousal support        has always been predicated                   upon the

existence of a marital relationship                 and is designed to enable a dependent
spouse         to     pay    all   of     his/her      necessary         expenses.             See,      e.g.

Commonwealth ex rel Werline v. Werline, 421 A.2d 1080 (Pa.Super.

1980).        In contrast, alimony pendente lite has historically been designed

to enable           a dependent          spouse       to prosecute           or defend         a    divorce

proceeding.           Price v. Price, 614 A.2d 1386 (Pa.Super.                          1992).3 To our

knowledge,           no statute, rule of court or appellate decision has                                ever

·-equaled· AP'L and spousal support as did Prua'homme:                              ·    · ·

           We place significant emphasis                    on the official comment to the

support guldelines amendments that incorporated APL.                                       That comment

states:         ''Nothing in this Rule            should be interpreted                 to eliminate      the

distinctions between spousal support and al/mony pendente lite which are

established by          case    law." Why would this language have been Included if

the Supreme Court Intended to morph APL into "mere spousal support in a

divorce case?"

          Based upon the analysis of Schenk v. Schenk} supra, and upon our

belief that a distinction between APL and spousal support continues to

exist In a post-guideline               environment, we conclude today that a plaintiff

seeking APL must establish some financial need in order to obtain APL.

However, we do not necessarily declare that the bar establishing financial


3
    There are other differences as well. For example, a spouse may receive APL even when his/her martial
misconduct would have barred an award of spousal support. Wargo v. Wargo, 154 A.2d 339 (Pa.Super.
1959). Also, spousal support is of Indefinite duration, while APL Is llmited in duration to the time that a
proceeding "may with due diligence be prosecuted to conclusion. Be/shy v. Be/shy, supra.

                                                      13
need must be high.              Financial    need cannot             be automatically presumed

simply because one spouse earns more than another.                               However, financial

need cannot be always              foreclosed      simply       because     a spouse with lower

Income       cuts back expenses           in order to make his/her ends meet.                         The

standard       of living      developed     by the parties            during the marriage,                the

degree      to which       either spouse      has Independent              assets     available,          the

extent to which either party receives                    help in paying          expenses,      and the

nature of the income discrepancy                between         the parties are all factors that

can ·and rrrust be considered· in assesslnq --mni:-nclai 'need.                             In · short,     a

determination of financial need is of necessity                       a moving target that must
be evaluated          based    upon the unique            facts      and circumstances          of each

particular case.

          Once a threshold determination                of financial need is made, then the

support      guideline     calculations     must        be undertaken.            Under      Pa.A.C.P.

1910.16-1 (b), a formula           identical to spousal support must be employed.

This formula necessarily           considers the incomes of each party and whether

any child support is also owed.

          Applying     the spousal      support formula              to an APL case does                  not

totally end the analysis.            In Colonna v. Colonna, 855 A.2d 648 (Pa.

2004), the Pennsylvanla             Supreme        Court       addressed     a    support     guideline

question      by concluding:            "[W]here        the    incomes     of the     parties       differ

significantly,       we believe that it is an abuse of discretion for the trial court

to fail     to consider       whether     deviating           from   the   support    guidelines           Is


                                                   14
  appropriate    ... "   Id. at 652.    Rule 191 O. 16·5(b) of the guidell nes sets forth

  numerous factors that a court must consider in determining whether to

  deviate from the guideline formula amount. Those factors are:

  (1)    Unusual needs and unusual fixed obligations.

  (2)    The support obligations of the parties.

  (3)    Other income in the household.

  (4)    Ages of children.

  (5)"   Assets of parties .
                ...                                                                                         '   ..
· · ·(6}·- ·1v1erdical 'expenses not covered by Insurance."

  (7)    Standard of living of the parties.

  (8)     In an APL case, the             duration of the marr1age              during which the

          parties resided together.

  (9)    Any other appropriate factors. 4
          Sifting through everything outlined above, we hold today that the

  following analytical paradigm must be employed whenever a spouse seeks

  APL:

  (1)     Is a divorce action pending?               Because APL Is ancillary to divorce,

          no award can be ordered in the absence of a pending divorce action.

  (2)     Does the dependent spouse have a financial                        need for APL?          The

         question of financial           need must of necessity be fact-specific                    and

          based upon the exigencies of each unique case.

  4
    In a case involving APL, we believe that an appropriate "other factor" would be whether the assets
  possessed by the parties will later be attached or divided during equitable distribution. After all, we
  question the fairness of granting or denying APL because one spouse may temporarily possess an asset
  that wilt later be divided between both.


                                                    15
             (3)     What      do the        spousal     support    guidelines                require      based     upon   the

                      Income     of both parties?
             (4)      Is   a    deviation        from     the      spousal          support              guideline     amount

                      appropriate based upon the factors set forth in Pa. R. C. P. 1910.16-

                      5(b)?

             It Is the above analytical paradigm                   that we will apply to the facts of this

             case.


                        B.          Factual Analysls                           ·.   .
~- ..... '         ... - .. . .,,..,..,                                  . ~            '..   .. ~

                               (1)      Pending Divorce Action

                      WIFE filed a Divorce              Complalnt on June 25, 2013.                             That Divorce

             Complaint was never withdrawn.                     Litigation regarding the parties' divorce

             is now pending.                Thus, APL Is a remedy              available to WIFE under the

             Pennsylvania Divorce Code.

                               (2)      Financial Need

                      Stripped of superfluity,                HUSBAND     posits the following argument:

             "Wife Is able to pay her current expenses with her income.                                      Therefore, she

             has no financial need/                 We categorically reject this simplistlc argument.

             A determination of financial need must of necessity analyze far more than

             whether an obllgee spouse has unpaid bills and expenses.

                      HUSBAND           earns almost double the Income                               of WIFE.      In terms of

             dollars and cents, HUSBAND takes home almost $3.000.00 per month in

             net     income          more    than      does    WIFE.      This                is     a   significant   income

             discrepancy that cannot be ignored.


                                                                   16
        During    the        marriage,      the   parties   enjoyed     an upper   middle      class

lifestyle.    It is certainly        true that when two spouses separate, neither will

be able to enjoy the same lifestyle separately that both were able to enjoy

together.     Still,    a    spouse who earns less than her husband should not be

expected     to   endure         a   standard of living that Is degraded           considerably

below what was previously enjoyed                      during the marriage.        In this case,

WIFE has had to "start over" in an apartment.                         She testified that she has

been forced to purchase                   furniture and other items from a thrift store ln

order to set uµ hei household.                    She J s no longer ab la to eat out or enjoy·

recreational activities as she did prior to separation.                    In short, WIFE has a

need for additional finances In order to raise her lifestyle to a level closer

to what she enjoyed pre-separation.

        Just as important, we are not blind to the fact that when pursuing or

defendlng litigation, money and flnanclal resources can equal                           leverage -

and we are talking about much more than simply being able to afford

lawyers1 fees and costs.                   When a litigant      is in a precarious financial

situation     and           is   living     paycheck-to-paycheck,          there   is     a    huge

temptation/incentive             for that party to settle promptly.          Knowledge        of this

fact affords the opposing party with a negotiating advantage that can be

critical.    On the other hand, when both parties can enter litigation on a

relatively   equal financial playing field, neither has an unfair advantage

over the other.         In this case, the fact that HUSBAND earns tar more than

WIFE places him in a vastly superior                         economic position.         Seel e.g.


                                                     17
DeMasi v.DeMas/1 597 A.2d 101 (Pa.Super. 1991) (assets and income are

the 11fi nancial sinews of domestic warfare!'         Id. at 104).   l ndependent of

anything else, this type of vastly superior economic position is precisely

why APL was developed at common law and by statute.

      As noted above, the bar to establishing financlal need has never

been impossible. or even difficult to hurdle.           See, Kuehnle v. Kuehnle,

157 A. 2d 218 (Pa.Super.         1931)   ("It    Is not necessary    that [wife] 'be

financially destitute before an [APL] order Is made."           Id. at 219).   While

we wouid ·oa···rEductant to award Ai-1L simply· uscause          vr1e spouse eatns

only percentage points less than the other, neither are we blind to the

day-to-day and litigation advantages that $3,000.00 per month can afford

to a party.   In this case, we agree with the Special Master that WIFE has

established financial need for APL.             Therefore, we will move forward to

apply the rules governing the Pennsylvania Support Guidelines.

              (3)   Guidelines   Support Amount

      The Special Master determined that the support guidelines result In

an award of APL totaling $1,178.00              per month.   Neither HUSBAND     nor

WIFE have challenged the Special Master's determination                of income or

her calculation of APL using the spousal support guidelines.            Accordingly,

we will adopt the calculation of the DRM that the guidelines require that

HUSBAND pay $1, 178.00 per month to Wl FE.




                                         18
                    14)    Deviation

           The      Special     Master     did    not   consider     deviation     from    the   support

    guidelines      as a possibility,       nor did she analyze            or discuss any of the

    support deviation          factors.         Because      we believe that analysis of APL

    should gene rally at least contemplate                    the possibility      of deviation,     we

    would prefer to undertake a deviation analysis.                        Unfortunately,        we are

    significantly     hindered in our ability to do so by virtue of the fact that

    HUSBAND choose not to testify at the APL hearing.

· · ... - In a   prO' se 'document filed· on            October. 29, 2014; 'HUSBAND asserted

    that his monthly expenses greatly exceeds                        his income       and ul can no

    longer afford to be represented and maintain any type of a lifestyle I am

    accustomed to."            Unfortunately,       we cannot consider HUSBAND)s                   post-

 hearing protestations of poverty.                  HUSBAND was afforded the opportunity

 to provide testimony and documentation at the APL hearing that occurred

 on     August       26,      2014.       For    whatever      misguided         reason,    HUSBAND

voluntarily chose not to present anything.                         As a practical matter, we are

 unable to undertake a meaningful deviation analysis as a resu It. 6

          In absence of testimony and evidence from HUSBAND relative to his

. financial situation, we are unable to deviate from the formula calculation




6
  We are well aware that HUSBAND has retained possession of the marital home. We suspect that
expenses relating to the marital home could well exceed the $765.00 per month that WIFE spends in rent
for her apartment. (See Exh. 2). This is certainly a factor that we would have considered when
determining whether to deviate from the guidelines. Unfortunately, we cannot consider this or any other
aspect of HUSBAND's financial condition because he stubbornly refused to provide Information regarding
that condition.


                                                        19
of     APL    requlred       by       the     Pennsylvania          Spousal     Support     Guidelines.

Accord    lngly, no devlation from the guidelines wi 11 be directed.


Ill.     CONCLUSION

         On    the     initial    legal       question       of    whether     financial    need    Is    a

prerequisite      to    an award            of APL, we        agree    with HUSBAND          that some

showing of financial need is a predicate to an award of APL.                               However, we

categorlcally        reject HUSBAND's              positron that myopically focuses upon

whether WIFE has unpaid expenses. Evaluating financial need requires a
                              .                 .  .

global       assessment          of    both     spouses'          income,     expenses,    assets    and

standard of living.          APL has always been Intended to prevent one spouse

from gaining financial leverage over the other during the pendency of a

divorce       proceeding,         and       financial    need must be assessed with                  this

purpose In mind.

         In this case, there is a huge disparity of income between HUSBAND

and WIFE.        Moreover, WIFE has established to our satisfaction that her

current financial situation is tenuous, and that her standard of living has

diminished significantly since separation.                          We conclude that absent APL,

HUSBAND would be in a far better position to litigate the parties' divorce

than would WIFE.                 Accordingly, we agree with the Special Master that

WIFE has established financial need.

        Because we conclude that WIFE has established financial need, we

agree    with the Special Master's decision                         to apply the spousal support

formula set forth in the Support Guidelines.                             Although we would          have


                                                        20
preferred to undertake    a deviation analysis under Pa.R.C.P.   1910.16-5(b),

we were    essentially prevented    from doing   so by virtue of HUSBAND's

dee is ion not to testify or provide documentary evidence.     Accordingly, we

will adopt the Special      Master's guideline· formula cal cu la ti on and wlll

.affirm her decision   to award WIFE $1, 178.00 per month in APL.     An Order

to accomplish this wlll be entered today's date.




                                        21
