J-S36009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TANIA SHADLE                                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SCOTT SHADLE

                            Appellant                No. 1204 WDA 2014


                      Appeal from the Order June 24, 2014
               In the Court of Common Pleas of Venango County
                    Civil Division at No(s): Civ No 1608-2011


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                              FILED JULY 21, 2015

        Appellant, Scott Shadle (“Husband”), appeals from the reconsidered

order in equitable distribution entered June 24, 2014. Husband argues that

the trial court erred in distributing the marital estate, awarding an excessive

period of alimony, and in awarding counsel fees to appellee, Tania Shadle

(“Wife”). After an extensive review of the record, we affirm in all respects

save the finding of contempt, which we reverse.

        Husband and Wife were married in 1992, and the trial court found that

they separated on November 22, 2011, after having three children together.

At the time of the final divorce hearing, the following facts were established.

Husband was 49 years old; Wife was 44. Husband had a college degree in
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S36009-15


metallurgical engineering; Wife had a high school diploma. She had worked

as a receptionist prior to becoming a stay-at-home mother in 1995.

        Shortly thereafter, Husband became a licensed, registered engineer

and began offering his professional engineering services. During the course

of the marriage, Husband’s professional practice thrived. Husband’s average

annual earnings reached approximately $100,000 during the period of 2009-

2011.    The parties accumulated several assets, including a mortgage free

marital residence.

        Wife filed a complaint in divorce on December 22, 2011, alleging an

irretrievable breakdown in the marriage.       During the pendency of this

proceeding, Wife was diagnosed with stage II breast cancer, and was

undergoing further testing. On November 14, 2013, the trial court entered

an order of equitable distribution, to which Husband timely moved for

reconsideration. Thereafter, on December 18, 2013, the trial court entered

a decree granting divorce, and granted reconsideration of its order in

equitable distribution.   After receiving further testimony, the trial court

entered a reconsidered order on June 24, 2014.        Husband then filed this

timely appeal.

        On appeal, Husband raises five issues for our review. Husband’s first

three issues raise challenges to the trial court’s weighting of the equities in

distributing the marital estate. Our standard of review in equitable

distribution matters is as follows.


                                      -2-
J-S36009-15


            It is well established that absent an abuse of discretion
            on the part of the trial court, we will not reverse an award
            of equitable distribution. [In addition,] [w]hen reviewing
            the record of the proceedings, we are guided by the fact
            that trial courts have broad equitable powers to
            effectuate [economic] justice and we will find an abuse of
            discretion only if the trial court misapplied the laws or
            failed to follow proper legal procedures. [Further,] [t]he
            finder of fact is free to believe all, part, or none of the
            evidence and the Superior Court will not disturb the
            credibility determinations of the court below.

Anzalone v. Anzalone, 835 A.2d 773, 780 (Pa. Super. 2003) (citation

omitted).

      There is no simple formula by which to divide marital property; the

method of distribution derives from the facts of the individual case. See

Gaydos v. Gaydos, 693 A.2d 1368, 1376 (Pa. Super. 1997). In fashioning

an equitable distribution award, the trial court must consider, at a minimum,

the eleven factors set forth in 23 Pa.C.S.A. § 3502, Equitable division of

marital property, (a) General rule. “The courts attempt to split property

equitably, instead of equally, taking into consideration such factors as length

of marriage, the contributions of both spouses, ages and health of each

spouse.” Taper v. Taper, 939 A.2d 969, 974 (Pa. Super. 2007) (citation

omitted).

      First, Husband contends that the trial court erred in awarding Wife an

excessive portion of the marital estate. According to Husband’s calculations,

Wife received 90% of the marital estate.          See Appellant’s Brief, at 27.




                                       -3-
J-S36009-15


Husband argues that the trial court failed to consider the appropriate factors,

and therefore reached an unjust distribution of the estate.

        The trial court acknowledges that Wife received “the lion’s share” of

the estate.    Trial Court Opinion, 9/24/14, at 8.       However, the trial court

points to Wife’s lack of education, marketable skills, and health as factors

indicating that Wife does not have a significant opportunity to acquire assets

and income in the future. See id., at 3. In contrast, the trial court found

that    Husband   had   a   significant    opportunity   for   future    income   and

accumulation of assets. See id. The trial court also noted that Wife’s health

issues negatively impacted her ability to obtain future income or assets prior

to retirement age. See id., at 3-4. “The award of the net marital assets to

the wife [was] based on the totality of all circumstances as contemplated in

§ 3502 of the Divorce Code.” Id., at 9.

        The trial court was also troubled with Husband’s priorities. See id., at

8.     During the pendency of this action, Husband paid for a new Toyota

Tundra for his employee for a purchase price of approximately $35,000.

See N.T., Hearing, 5/15/13, at 66-69. Husband paid $10,000 up front and

financed the rest of the purchase price.         See id., at 69.        The employee

primarily used this vehicle to commute to work from his home. See N.T.,

Hearing, 5/20/13, at 15.      In contrast, Husband accrued arrearages in his

alimony pendente lite (“APL”) obligations.       See N.T., Hearing, 5/15/13, at

65.


                                          -4-
J-S36009-15


      After reviewing the certified record, we are convinced that the trial

court’s factual findings are well supported. Furthermore, we conclude that

the trial court’s reasoning does not constitute an abuse of discretion.

Regardless of the financial condition of Husband’s professional business, he

has a far greater capacity for future earnings than Wife does. The lopsided

award in distribution reflects this fundamental fact. We therefore conclude

that Husband’s first issue on appeal merits no relief.

      In his second issue, Husband contends that the trial court erred in

failing to award him one-half of the rental value of the marital home during

the pendency of the divorce while Wife had exclusive possession. The award

of a rental credit under these situations is discretionary, not mandatory.

See Trembach v. Trembach, 615 A.2d 33, 37 (Pa. Super. 1992).            Once

again, the trial court relied upon the relative current economic status of the

parties, among other considerations, in determining that an award of rental

value to Husband was not consistent with effectuating economic justice

between the parties. Based upon the previous discussion of Husband’s and

Wife’s future economic activities, we cannot conclude that the trial court

abused its discretion on this issue. Consequently, Husband’s second issue

on appeal merits no relief.

      Husband argues in his third issue that the trial court erred in awarding

Wife fifteen years of post-divorce alimony from Husband.     Our standard of

review pertaining to an award of alimony is as follows.


                                     -5-
J-S36009-15


         The role of an appellate court in reviewing alimony orders
         is limited; we review only to determine whether there has
         been an error of law or abuse of discretion by the trial
         court. Absent an abuse of discretion or insufficient
         evidence to sustain the support order, this Court will not
         interfere with the broad discretion afforded the trial court.

Smith v. Smith, 904 A.2d 15, 20 (Pa. Super. 2006) (citation omitted). An

award of alimony aims to “ensure that the reasonable needs of the person

who is unable to support himself or herself through appropriate employment,

are met.” Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004)

(citation omitted). “Alimony is based upon reasonable needs in accordance

with the lifestyle and standard of living established by the parties during the

marriage, as well as the payor’s ability to pay.” Id. (internal quotations

omitted). Pursuant to the Divorce Code, when determining the nature,

amount, duration and manner of payment of alimony, the court must

consider all relevant factors, including those statutorily prescribed at 23

Pa.C.S.A. § 3701, Alimony, (b) Relevant Factors (1)-(17). See Smith, 904

A.2d at 20; Isralsky v. Isralsky, 824 A.2d 1178, 1188 (Pa. Super. 2003).

      Husband references the lopsided distribution of marital assets, arguing

that the award of an extensive period of alimony in addition constitutes a

punitive action by the trial court. Initially, we note that by Husband’s own

calculations, Wife’s share of the marital estate was $77,500.             See

Appellant’s Brief, at 27. While this is not an insignificant sum of money, it

pales in comparison to Husband’s prior earnings which averaged $100,000

annually over the period 2009-2011. Furthermore, as discussed above, the

                                     -6-
J-S36009-15


trial court found that Wife had limited opportunities for accumulating assets

and income during the remainder of her possible time in the workforce.

While the period of alimony of 15 years is lengthy, the monthly payment is

below the guidelines.      After reviewing these circumstances, we cannot

conclude that the trial court’s award of alimony constitutes an abuse of

discretion.

      In his final two issues, Husband asserts that the trial court erred in

assessing attorney’s fees in favor of Wife in separate amounts of $3,500 and

$2,500.   The $3,500 payment was included in the equitable distribution

order, while the $2,500 payment was awarded as a sanction pursuant to a

finding of contempt. As each payment was awarded for separate purposes,

we address them separately.

      Husband concedes that the trial court had the authority to award

counsel fees to Wife in the equitable distribution order.    See Appellant’s

Brief, at 32-33.   He argues that under the circumstances of the case, the

award was an abuse of discretion. Specifically, Husband contends that since

Wife received 90% of the marital estate, none of the debt, and that he

previously paid Wife $3,500 in interim counsel fees, the award was

manifestly unreasonable.     For the same reasons that we affirm the trial

court’s equitable distribution scheme in general, we affirm the award of

$3,500 in counsel fees. While Wife received 90% of the marital estate, that

sum constitutes only $77,500, the bulk of which is represented by the


                                    -7-
J-S36009-15


marital home. Further, the trial court found, and this finding is supported by

the   record,   that   Wife   had   minimal   prospects   for   income    or   asset

accumulation due to her education, experience and health.          The award of

counsel fees is consonant with an attempt to permit Wife to meet her basic

future needs.

      In contrast, we conclude that the finding of contempt is not supported

by the record currently before us. “As each court is the exclusive judge of

contempts against its process, we will reverse an order of contempt only

upon a showing of a plain abuse of discretion.” In re Contempt of Cullen,

849 A.2d 1207, 1210 (Pa. Super. 2004) (citation omitted).                We further

explained in In re Contempt of Cullen the following.

      To be punished for contempt, a party must not only have
      violated a court order, but that order must have been definite,
      clear, and specific—leaving no doubt or uncertainty in the mind
      of the contemnor of the prohibited conduct. Because the order
      forming the basis for civil contempt must be strictly construed,
      any ambiguities or omissions in the order must be construed in
      favor of the defendant. In such cases, a contradictory order or
      an order whose specific terms have not been violated will not
      serve as the basis for a finding of contempt. To sustain a finding
      of civil contempt, the complainant must prove certain distinct
      elements: (1) that the contemnor had notice of the specific order
      or decree which he is alleged to have disobeyed; (2) that the act
      constituting the contemnor’s violation was volitional; and (3)
      that the contemnor acted with wrongful intent. A person may not
      be held in contempt of court for failing to obey an order that is
      too vague or that cannot be enforced.

Id., at 1210-1211 (internal citations, quotation marks, and emphasis

omitted).




                                       -8-
J-S36009-15


      Here, the trial court found Husband in contempt for not paying APL to

Wife for several months. The original order establishing Husband’s liability

for APL provided that Husband would pay $1,212 per month to Wife. The

order further required Husband to “continue to pay the monthly premiums

for health insurance and to keep [Wife] on [Husband’s] health insurance.”

Order, 3/23/12, at 1. Husband, however, was awarded a credit for all such

insurance premiums.     See id., at 1-2.   The order does not reference any

obligation for real estate taxes.

      Husband subsequently petitioned the trial court for a reduction of the

APL payment, asserting that due to a downturn in his business, he was no

longer able to afford the amount initially awarded.         See Petition for

Modification, 10/26/12. In response, the trial court subsequently amended

the APL award, through agreement of the parties, reducing Husband’s

liability to $682 per month. All other provisions of the original order were

retained in full effect. See Order, 1/24/13, at 2.

      Wife subsequently filed two contempt petitions against Husband,

alleging that he had failed to pay his monthly APL obligations. No answer

was filed to these petitions, and no hearings were held. On November 18,

2013, after the order in equitable distribution had been entered, Wife filed a

petition for contempt and special relief, alleging that Husband had failed to

honor his APL obligations for the 4 most recent months, and that, further,




                                     -9-
J-S36009-15


he had failed to pay the real estate taxes on the marital residence in

accordance with the APL order.

     Husband filed a response to this petition asserting that he did not owe

Wife any further APL due to the outstanding credit he was due for health

insurance premiums. Furthermore, Husband alleged that neither of the APL

orders imposed an obligation upon him to pay the real estate taxes on the

marital residence. As such, Husband contended that he could not be found

in contempt of the APL orders.

     The hearing on Wife’s contempt petition was consolidated with the

hearings held by the trial court during reconsideration of the equitable

distribution award.   The trial court did not enter a separate order finding

Husband in contempt, but rather included the contempt finding in its

reconsidered equitable distribution award.

     In the reconsidered order, the trial court found “that [Husband] has

repeatedly and significantly violated this Court’s order as he has not made

payments as directed for a significant period of time, … [and] he has not

paid the taxes on the marital residence[.]”    Order, 6/24/14, at 3.    As a

sanction, the trial court awarded Wife $2,500 in attorney’s fees. See id.

     Interestingly, the trial court proceeded to add the $2,500 to the

outstanding APL balance, and applied this new balance against the credits

Husband was due for insurance premiums and repairs made to the marital




                                   - 10 -
J-S36009-15


residence while Wife was in exclusive possession. This calculation resulted

in an outstanding credit—in Husband’s favor. See id.

      Under these circumstances, we cannot conclude that Husband willfully

violated the APL order. First, the APL order explicitly provided him with a

credit for insurance payments, and the trial court provided other credits for

the repairs to the marital home. According to a calculation performed after

the entry of the decree in divorce, and which included the addition of the

$2,500 sanction, Husband was still entitled to a credit.     In other words,

during the pendency of the divorce, Wife received a benefit in excess of the

amount awarded by the APL order.         Thus, the trial court’s finding that

Husband willfully violated the APL order is unsupported by the record before

us.

      Furthermore, the trial court does not identify where Husband was

ordered to pay the real estate taxes on the marital residence.            Our

independent review of the record has revealed only that the trial court

ordered Husband to pay the outstanding balance on the real estate taxes in

the November 14, 2013 equitable distribution order, which was the same

order that was under reconsideration by the trial court. Accordingly, we find

no support in the record for the trial court’s finding that Husband willfully

violated the APL order by failing to pay the real estate taxes. We therefore

reverse the finding of contempt.

      Order affirmed in part and reversed in part. Jurisdiction relinquished.


                                    - 11 -
J-S36009-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015




                          - 12 -
