J-A24015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTINE ANN CYGAN                            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

                        Appellant

                   v.

DAVID J. CYGAN

                                                    No. 525 WDA 2017


              Appeal from the Order Entered March 30, 2017
            In the Court of Common Pleas of Allegheny County
                 Family Court at No(s): FD 05-003412-002


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED OCTOBER 27, 2017

     Christine Ann Cygan (“Wife”) appeals from the March 30, 2017 order

entered in the Allegheny County Court of Common Pleas overruling her

exceptions to the Master’s recommendations and decreeing her divorced

from David J. Cygan (“Husband”). We affirm.

     The trial court summarized the history of this case as follows:

            The subject marriage was the second marriage for each
        party. The parties married on July 10, 2004, separated on
        June 17, 2014, and their union produced no children. At
        the time of their marriage, Wife had one child, who was in
        high school, while Husband had two children, who were
        either in college or soon to be commencing college.
        Husband, while divorced, had not yet commenced
        equitable distribution proceedings with his first wife. Those
        proceedings were pending in this Court . . . and were
        ultimately tried before a master in 2009.

            After their marriage, the parties lived together in
        Pittsburgh for eighteen months, following which Wife and
J-A24015-17


           her son moved to California. Wife testified that she moved
           to California to establish residency for her son’s college
           tuition purposes.     She further testified that Husband
           ultimately intended to move west and join them. Husband
           testified that Wife’s move was intended to be temporary,
           and that she was to return to Pittsburgh. Regardless, the
           parties lived across the country from one another for the
           duration of their ten year marriage. As the record reflects,
           this arrangement was not financially viable.

               During the course of the parties’ marriage, Husband
           paid his own household expenses, Wife’s household
           expenses,      alimony     pendente     lite  [(“APL”)]/child
           support/alimony to his first wife, monthly travel expenses
           for himself and [W]ife, college tuition for his two sons,
           Wife’s son’s living expenses and high school tuition, the
           parties’ credit card debt, and the parties 2009 $65,000 IRS
           debt.[1]    In order to meet these expenses, Husband
           liquidated and spent his pre-marital Fidelity account
           ($417,932), sold the timber on his pre-marital farm
           ($12,000-$14,000), and incurred a home equity [line of
           credit (“HELOC”)] on his farm ($177,226). Husband is
           now a 65-year-old hospital staff physician in poor health,
           with limited retirement assets and enormous debt.

Stmt. in lieu of Opinion Pursuant to Pa.R.A.P. 1925(a), 5/19/17, at 2-3

(“Stmt. in lieu of 1925(a)”) (internal footnotes omitted).

              The subject litigation originally commenced in 2005
           when [Wife] filed a Complaint for Support against
           [Husband]. Shortly thereafter[,] Husband filed a six-count
           Complaint in Divorce against Wife. Neither party pursued
           their claim until 2009, when Wife obtained an [APL]
           hearing date and Husband filed the requisite pleadings to
           pursue equitable distribution.        The parties again
           abandoned the pursuit of their claims until 2014, when an
____________________________________________


       1
         While Wife has a Master’s degree in fine arts (Performing
Arts/Literature) and previously worked for theatrical and talent agencies,
N.T., 6/30/16, at 28-29, she testified that she had no work history during
the marriage, id. at 28-29; Wife’s Br. at 36.



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         APL order was entered against Husband, and the matters
         of equitable distribution and related claims proceeded in
         the normal course.

             The parties were unable to reach a settlement and
         ultimately, a trial was scheduled before Master Chester
         Beatty, Esquire (“Master”) on the parties’ economic claims.
         The Master issued his August 26, 2016 Report and
         Recommendation following a hearing. Wife filed exceptions
         to the Master’s Recommendations, and this Court entered
         an order addressing those exceptions on February 2[8],
         2017. A decree in divorce was entered on March 30, 2017,
         and Wife filed a timely Notice of Appeal of this Court’s
         exceptions Order to the Superior Court on April 5, 2017.

            Pursuant to Pennsylvania Rule of Appellate Procedure
         1925(a), this Court’s Order of February 2[8], 2017, a copy
         of which is attached hereto, shall serve as this Court’s
         Opinion with respect to the above captioned Appeal filed
         by Wife.

Id. at 1-2.

      Wife raises the following issues on appeal:

         1. The Court committed an error of law and/or an abuse of
            discretion in failing to equitably divide the marital
            property between the parties.

         2. The [C]ourt erred by setting off the [sic] against the
            marital 401(k) fund all of Husband’s [HELOC] which was
            non-marital debt which the Husband incurred against
            Husband’s premarital home, said set off being in
            violation of 23 [Pa.C.S. § 3501(a.1)], in that a decrease
            in the value of non-marital property shall not be offset
            against any other marital property subject to equitable
            distribution.

         3. The [C]ourt committed an error of law and abuse of
            discretion by refusing to award alimony to Wife, when
            the alimony factors set forth in 23 [Pa.C.S. § 3701(b)]
            weigh heavily in favor of alimony, [W]ife is in poor
            health, has no work history during the marriage, and
            cannot apply for social security on [H]usband’s account
            until after she has been divorced for two years.


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           4. The Court erred as a matter of law and/or abused its
              discretion, when the court affirmed the master’s
              recommendation that alimony pendente lite terminates
              upon entry of the divorce decree, when alimony
              pendente lite continues for the duration of the
              litigation[.]

           5. The Court committed an error of law and abuse of
              discretion by holding that the IRS debt constituted
              marital debt when the evidence and testimony in the
              record and the admissions in Husband’s brief,
              established that Husband incurred the IRS debt as a
              result of Husband’s failure to remit the tax owed when
              Husband liquidated his premarital, pretax Fidelity
              retirement in order to pay his previous [w]ife, as the
              result of which, the IRS debt was non marital debt, and
              the record established that the IRS granted Wife
              innocent spouse status as the result.[2]

           6. The Court erred by denying Wife’s claim for counsel
              fees, despite the disparity in incomes, and Wife’s need.

Wife’s Br. at 8-9 (emphasis in original).

       “Our scope of review in equitable distribution matters is limited.

Awards of alimony, counsel fees, and property distribution are within the

sound discretion of the trial court and will not be disturbed absent an error

of law or abuse of discretion.”            Smith v. Smith, 749 A.2d 921, 924

(Pa.Super. 2000).

I.     Equitable Distribution

       Wife’s first, second, and fifth issues challenge the equitable distribution


____________________________________________


       2
        Wife’s fifth issue as stated does not comport with the argument she
makes, which is that, as a result of Husband attempting to classify the farm
as an orchard rather than a residence in their 2009 joint tax return, he
incurred in a $65,000 debt.



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award.      “In determining the propriety of an equitable distribution award,

courts must consider the distribution scheme as a whole. We measure the

circumstances of the case against the objective of effectuating economic

justice between the parties and achieving a just determination of their

property rights.”3 Morgante v. Morgante, 119 A.3d 382, 387 (Pa.Super.


____________________________________________


       3
           The relevant factors in an equitable distribution determination are:

            (1) The length of the marriage.

            (2) Any prior marriage of either party.

            (3) The age, health, station, amount and sources of
            income, vocational skills, employability, estate, liabilities
            and needs of each of the parties.

            (4) The contribution by one party to the education, training
            or increased earning power of the other party.

            (5) The opportunity of each party for future acquisitions of
            capital assets and income.

            (6) The sources of income of both parties, including, but
            not limited to, medical, retirement, insurance or other
            benefits.

            (7) The contribution or dissipation of each party in the
            acquisition, preservation, depreciation or appreciation of
            the marital property, including the contribution of a party
            as homemaker.

            (8) The value of the property set apart to each party.

            (9) The standard of living of the parties established during
            the marriage.

            (10) The economic circumstances of each party at the time
            the division of property is to become effective.
(Footnote Continued Next Page)


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2015) (quoting Biese v. Biese, 979 A.2d 892, 895 (Pa.Super. 2009)). “[A]

master’s report and recommendation, although only advisory, is to be given

the fullest consideration, particularly on the question of credibility of

witnesses, because the master has the opportunity to observe and assess

the behavior and demeanor of the parties.”        Moran v. Moran, 839 A.2d

1091, 1095 (Pa.Super. 2003).

      Section 3501(a) of the Divorce Code defines “marital property” as “all

property acquired by either party during the marriage and the increase in

value of any non[-]marital property acquired pursuant to paragraphs (1) and

(3) as measured and determined under subsection (a.1).”         23 Pa.C.S. §

3501(a).     Subsection 3501(a.1) sets forth the rules for measuring and

determining the increase in value of the parties’ non-marital property:

           The increase in value of any non[-]marital property
           acquired pursuant to subsection (a)(1) and (3) shall be
           measured from the date of marriage or later acquisition
           date to either the date of final separation or the date as
                       _______________________
(Footnote Continued)

           (10.1) The Federal, State and local tax ramifications
           associated with each asset to be divided, distributed or
           assigned, which ramifications need not be immediate and
           certain.

           (10.2) The expense of sale, transfer or liquidation
           associated with a particular asset, which expense need not
           be immediate and certain.

           (11) Whether the party will be serving as the custodian of
           any dependent minor children.

23 Pa.C.S. § 3502(a).



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         close to the hearing on equitable distribution as possible,
         whichever date results in a lesser increase. Any decrease
         in value of the non[-]marital property of a party shall be
         offset against any increase in value of the non[-]marital
         property of that party. However, a decrease in value of
         the non[-]marital property of a party shall not be offset
         against any increase in value of the non[-]marital property
         of the other party or against any other marital property
         subject to equitable division.

23 Pa.C.S. § 3501(a.1).

      Wife claims that the trial court erred in concluding that the HELOC

Husband obtained on his farm was a marital debt. She argues that Husband

did not produce the HELOC records and did not prove that he used the

HELOC for his current marriage.     Wife contends that, because there is no

evidence that the HELOC is marital debt, the trial court erred in (1) using its

value to decrease the value of Husband’s farm, and (2) using its value to

offset the increase in value of the Merrill Lynch 401(k) account (“401(k)”),

which is a marital asset.

      Husband obtained the HELOC in October 2005 while the parties were

married. N.T., 6/30/16, at 147-48. He testified that he obtained the HELOC

due to living expenses, which included his and Wife’s household expenses as

they lived separately, monthly travel expenses for himself and Wife, Wife’s

son’s living expenses and high school tuition, the parties’ credit card debt,

and the parties’ 2009 $65,000 IRS debt.          Id. at 206-07, 216.      While

Husband’s expenses also included Husband’s payments to his first wife and

college tuition for his two children from his first marriage, Wife did not prove

that the proceeds from the HELOC were used exclusively for non-marital


                                     -7-
J-A24015-17



purposes or what portion of the proceeds were used for non-marital

purposes.4 In fact, Wife testified that she did not know what Husband used

the loan to pay. Id. at 53. The trial court found that the HELOC “was taken

during the marriage and the proceeds were utilized, not to improve the

farm, but for living expenses.” Trial Ct. Order, 2/28/17, at 2 (unpaginated)

(“Feb. 28 Order”).      It further found “it equitable to treat the home equity

loan as a separate marital debt.” Id.

       We conclude that the trial court did not abuse its discretion in finding

that the HELOC on the farm is a marital debt as it was incurred during the

marriage and was used for marital expenses, see Litmans v. Litmans, 673

A.2d 382, 391 (Pa.Super. 1996) (“Between divorcing parties, debts which

accrue to them jointly prior to separation are marital debts.”), and in using

the HELOC to decrease the farm’s value.

       Further, Husband testified that he owned a 401(k) with a value of

$9,337 at the time of marriage and a value of $168,822 at the time of

separation.     N.T., 6/30/16, at 151-52.        The $159,485 increase in value,

which was accrued during the marriage, is marital property. See 23 Pa.C.S.

§ 3501(a).      Thus, because the farm and the 401(k) are Husband’s pre-

marital property, which respectively decreased and increased in value during
____________________________________________


       4
         Wife also argued that Husband used the HELOC proceeds to fund his
obligations to his first wife; however, Husband obtained the HELOC in 2005,
four years before the court’s order directing him to make certain payments
to his first wife.



                                           -8-
J-A24015-17



the marriage, the trial court did not abuse its discretion in finding that the

decrease in the farm’s value offset the increase in the 401(k)’s value. See

23 Pa.C.S. § 3501(a.1) (“Any decrease in value of the non[-]marital

property of a party shall be offset against any increase in value of the non[-

]marital property of that party.”).

       Wife also claims that the IRS debt is not marital. She claims that the

IRS debt was accrued because Husband’s accountant mischaracterized the

farm as an orchard, rather than a residence.5             She further notes the IRS

granted her innocent spouse status.

       The Master found that “[a]lthough the IRS relieved Wife from this

obligation . . . it is still a marital debt as it originated prior to the parties’

separation.”     Report and Recommendation of the Master, 8/26/16, at 6

(“Master’s Rec.”). The trial court agreed and concluded that “the fact that

the IRS has relieved Wife from paying this debt does not change its marital

classification.” Feb. 28 Order at 4. It further stated that, “Wife shared in

the increased income available when the tax was not paid, and likewise,

should share in the resulting debt.”           Id.   We agree and conclude that the

trial court did not abuse its discretion in finding that the IRS debt is a marital

debt. See Litmans, 673 A.2d at 391.


____________________________________________


       5
        As noted above, Wife describes the nature of the accounting as an
error differently in her statement of issues presented. See supra note 2
and accompanying text.



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II.   Alimony Pendente Lite

      Wife argues that the trial court erred in terminating her APL upon the

entry of the divorce decree because APL should continue throughout the

appeal process and any remand until a final order has been entered.

      We agree that APL ordinarily should continue through the appeal

process.   Schenk v. Schenk, 880 A.2d 633, 647 (Pa.Super. 2005).             The

docket reveals that Wife filed an emergency motion to reinstate APL pending

appeal, which the trial court granted. The trial court reinstated APL in the

amount of $5,137.95 plus $100.00 in arrears per month. Accordingly, Wife’s

claim is moot. See id. at 647 (“It is . . . upon this Court’s disposition of this

case and our affirmance of the divorce Decree that husband’s obligation

terminates.”); see also Prol v. Prol, 840 A.2d 333, 335-36 (Pa.Super.

2003) (holding that wife’s absolute right to appeal became final when this

Court affirmed divorce decree and wife was “not entitled to the continuation

of [APL] during the pendency of her discretionary appeals”).

III. Alimony

      “Alimony following a divorce is a secondary remedy and is available

only where economic justice and the reasonable needs of the parties cannot

be achieved by way of an equitable distribution award and development of

an appropriate employable skill.” Moran, 839 A.2d at 1097 (quoting Twilla

v. Twilla, 664 A.2d 1020, 1022 (Pa.Super. 1995)) (emphasis in original).

Further, “the purpose of alimony is not to reward one party and to punish


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the other, but rather to ensure that the reasonable needs of the person who

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

met.”       Id. at 1096 (quoting Twilla, 664 A.2d at 1022).          In determining

“whether alimony is necessary and to establish the appropriate nature,

amount, and duration of any alimony payments, the court is required to

consider all relevant factors, including the 17 factors that are expressly

mandated by statute.”6 Lawson v. Lawson, 940 A.2d 444, 447 (Pa.Super.

____________________________________________


        6
       Section 3701(b) of the Divorce Code sets forth the relevant factors in
an alimony determination:

             In determining whether alimony is necessary and in
             determining the nature, amount, duration and manner of
             payment of alimony, the court shall consider all relevant
             factors, including:

             (1) The relative earnings and earning capacities of the
             parties.

             (2) The ages and the physical, mental and emotional
             conditions of the parties.

             (3) The sources of income of both parties, including, but
             not limited to, medical, retirement, insurance or other
             benefits.

             (4) The expectancies and inheritances of the parties.

             (5) The duration of the marriage.

             (6) The contribution by one party to the education, training
             or increased earning power of the other party.

             (7) The extent to which the earning power, expenses or
             financial obligations of a party will be affected by reason of
             serving as the custodian of a minor child.
(Footnote Continued Next Page)


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J-A24015-17


2007) (emphasis in original).

      Wife claims that the alimony factors weigh heavily in her favor. Wife

argues that she has severe physical impairments, has no work history during

the marriage and no income, and cannot apply for social security on account
                       _______________________
(Footnote Continued)

          (8) The standard of living of the parties established during
          the marriage.

          (9) The relative education of the parties and the time
          necessary to acquire sufficient education or training to
          enable the party seeking alimony to find appropriate
          employment.

          (10) The relative assets and liabilities of the parties.

          (11) The property brought to the marriage by either party.

          (12) The contribution of a spouse as homemaker.

          (13) The relative needs of the parties.

          (14) The marital misconduct of either of the parties during
          the marriage. The marital misconduct of either of the
          parties from the date of final separation shall not be
          considered by the court in its determinations relative to
          alimony, except that the court shall consider the abuse of
          one party by the other party. As used in this paragraph,
          “abuse” shall have the meaning given to it under section
          6102 (relating to definitions).

          (15) The Federal, State and local tax ramifications of the
          alimony award.

          (16) Whether the party seeking alimony lacks sufficient
          property, including, but not limited to, property distributed
          under Chapter 35 (relating to property rights), to provide
          for the party’s reasonable needs.

          (17) Whether the party seeking alimony is incapable of
          self-support through appropriate employment.

23 Pa.C.S. § 3701(b).



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of Husband’s earnings until after she has been divorced for two years. Wife

further argues that the trial court’s conclusion that she failed to present

competent evidence that she was disabled or unable to work was erroneous.

      After considering the appropriate factors, the Master concluded:

             While this has been a ten[-]year marriage, the parties
         lived in separate households for eight of those years.
         Husband provided support to Wife for the eight years they
         were residing in separate households, and has been paying
         [APL] to Wife since [October 1,] 2014 which was three
         months after their stipulated date of separation.

            In light of the fact Husband is assuming all of the
         marital debt, and due to the fact that Husband has been
         providing support to Wife in one form or another for nearly
         ten years, alimony is not necessary. Additionally, Wife is
         receiving the bulk of the marital estate while Husband is
         receiving all of the marital debt. Admittedly, Husband is
         receiving a bulk of the liquid assets in the marital estate;
         however, since the liquid portion of the marital estate is
         comprised of the increases in Husband’s non-marital
         assets, it is not unreasonable to award those assets to
         him. Also, as previously indicated, the increases that
         occurred in Husband’s non-marital assets were not
         attributed to any of Wife’s efforts by way of contribution to
         the household or to Husband’s earning power, as the
         parties were residing in separate households for eighty
         percent of their marriage.

Master’s Rec. at 9.

      The trial court concluded:

         Husband did support two households for the majority of
         the marriage. This reality imposed a financial strain on
         Husband and had a negative impact on the value of the
         marital estate. At trial, Husband testified that his health
         was poor, and that he intended to retire at age 65 in
         January of 2017. Husband will still be required to pay the
         mortgage and [HELOC] on the farm, as well as the IRS
         debt. Wife, on the other hand, has no marital debt to pay
         and testified that she had only 3 more months on her car

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J-A24015-17


         loan. With her earning capacity and arrears payment (as
         set forth below) she can afford to pay her reasonable living
         expenses.

            The Master calculated the arrears owed to Wife at
         $17,948.10 as of 8/25/16. The Master recommended that
         . . . Husband pay $100 per month on the arrears. This
         Court will increase Husband’s arrears payment to
         $800/month, which will provide Wife with additional
         revenue for a period of close to two years.

Feb. 28 Order, at 3-4.

      The trial court further concluded “that in addition to the mortgage,

[HELOC], credit card debt, and IRS debt,” Husband still had to pay

$1,000.00 per month in alimony to his first wife. Stmt. in lieu of 1925(a) at

5.   Finally, the trial court found that Wife “failed to present competent

evidence that she is disabled or unable to work.” Id.

      Wife testified that she has not applied for social security disability.

N.T., 6/30/16, at 82. Further, she presented no evidence of disability other

than her and her sister’s testimony.     While Wife testified that due to her

physical limitations, it is unlikely that she can maintain full-time, minimum-

wage employment, id. at 30, she also testified that she could still get

employment as an actor posing as an attorney, mother, grandmother, office

professional, or other stationary role. Id. at 123. Wife further testified that

she had previously worked as a property manager, but has not sought

employment as a property manager or an assistant to a property manager.

Id. at 80-81. Wife chose to limit her search to acting jobs and sought no

additional certifications or trainings in other areas. Id. at 81-82.


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       As the trial court found, Wife has no marital debt other than her car

loan; as of February 2017, she had three monthly payments remaining on

the loan. Furthermore, she was awarded $13,992.97 of the marital estate;

has received $5,137.95 in APL per month since October 1, 2014, which the

Master increased to $6,691.10 effective May 3, 2016;7 and has been

receiving an additional $100.00 per month in arrears, which the trial court

increased to $800.00 to “provide Wife with additional revenue for a period

close to two years.”8 Feb. 28 Order, at 3-4. Finally, in two years from the

divorce decree, Wife can apply for social security on account of Husband’s

earnings.

       Our Supreme Court has stated that “the issue of physical impairment

and ability to earn an income is a factual one.”             O’Callaghan v.

O’Callaghan, 607 A.2d 735, 737 (Pa. 1992). Thus, the trial court is in a

better position to make that determination.        We conclude that the trial

court’s factual findings are supported by the record.



____________________________________________


       7
        Following Wife’s May 9, 2017 emergency motion to reinstate APL
pending appeal, the trial court ordered Husband to pay $5,037.95 in APL
plus $100.00 in arrears per month.
       8
        It appears that the trial court’s May 12, 2017 order, which decreased
arrear payments to $100.00 was a temporary measure due to Wife’s alimony
payments being reinstated, but that at the termination of this appeal the
arrear payments are to return to $800.00 per the trial court’s February 28,
2017 order.



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      Accordingly, because economic justice and the reasonable needs of the

parties were achieved by equitable distribution, see Moran, 839 A.2d at

1097, we conclude the trial court did not abuse its discretion in rejecting

Wife’s claim for alimony.

IV.   Counsel Fees

      Section 3702 of the Divorce Code provides that “the court may allow a

spouse . . . reasonable counsel fees and expenses.”        23 Pa.C.S. § 3702.

“The purpose of an award of counsel fees is to promote fair administration of

justice by enabling the dependent spouse to maintain or defend the divorce

action without being placed at a financial disadvantage; the parties must be

‘on par’ with one another.” McCoy v. McCoy, 888 A.2d 906, 909 (Pa.Super.

2005) (quoting Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa.Super.

2004)). “Counsel fees are awarded based on the facts of each case after a

review of all the relevant factors. These factors include the payor’s ability to

pay, the requesting party’s financial resources, the value of the services

rendered, and the property received in equitable distribution.” Id. (quoting

Teodorski, 857 A.2d at 201).

      Wife contends that the trial court should have granted her request for

counsel fees because her “financial situation is desperate,” Husband cost her

“substantial fees due to his serial cancellation of her medical insurance,” and

Husband failed to comply with discovery. Wife’s Br. at 46.




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      The Master found that both Husband and Wife had incurred counsel

fees and that because Wife had been receiving over $5,000.00 in APL, she

was able to pay her own counsel fees.       Master’s Rec. at 9.   The Master

further found that Husband had not caused any “unnecessary work to be

performed by Wife’s counsel.” Id. The trial court agreed with the Master

and denied Wife’s exception.    Feb. 28 Order at 4.    We find no abuse of

discretion.   See Spink v. Spink, 619 A.2d 277, 279 (Pa.Super. 1992)

(stating APL is granted “based on the need of one party to have equal

financial resources to pursue a divorce proceeding when, in theory, the other

party has major assets ‘which are the financial sinews of domestic warfare’”)

(quoting DeMasi v. DeMasi, 597 A.2d 101, 104 (Pa.Super. 1991)).

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2017




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