J-A07042-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

DAVID A. JONES,                          :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                  Appellant              :
                                         :
                    v.                   :
                                         :
ELAINE K. JONES,                         :
NOW KNOWN AS ELAINE K. BUCHANAN          :
                                         :    No. 1519 WDA 2016
                  Appellee

                 Appeal from the Order September 8, 2016
              in the Court of Common Pleas of Mercer County
                  Domestic Relations at No(s): 2011-3446

BEFORE:    OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED JUNE 21, 2017

     David A. Jones (Husband) appeals from the September 8, 2016 order,

wherein the trial court made no changes to the alimony and equitable

distribution scheme after remand from this Court. We affirm.

     Husband and Elaine K. Jones, now known as Elaine K. Buchanan,

(Wife), were married on June 29, 1974, and separated on September 18,

2011. Husband filed a complaint for divorce on October 20, 2011. Hearings

before a family law master were held in January of 2014, on the issues of

divorce, equitable distribution, alimony, and attorney fees and expenses.

Subsequently, the master issued a written report containing findings of fact

and conclusions of law.




*Retired Senior Judge assigned to the Superior Court.
J-A07042-17


      Both parties filed exceptions to the master’s report. On October 20,

2014, the trial court issued a memorandum opinion, granting in part and

denying in part both parties’ exceptions. Relevant to this appeal, the trial

court granted Husband’s exception requesting a credit against Wife’s

alimony equal to the amount he paid in alimony pendente lite (APL). Trial

Court Memorandum Opinion, 10/20/2014, at 8.1               Additionally, after

analyzing the factors set forth at 23 Pa.C.S. § 3701(b), the trial court denied

Husband’s exception contesting the award of alimony over a period of twelve

years, finding that the alimony award was equitable, and even though it may

prevent Husband from retiring in five years as he planned, other factors

justified the master’s award of long-term alimony. Id. at 5-7.

      Wife timely appealed to this Court. Husband did not file an appeal or a

cross-appeal.   On June 20, 2016, we issued a memorandum affirming in

part, vacating in part, and remanding for proceedings consistent with the

memorandum.       Jones v. Jones, 153 A.3d 1113 (Pa. Super. 2016)

(unpublished memorandum). Relevant to this appeal, we vacated the trial

court’s alimony order, holding that the trial court abused its discretion and

misapplied the law by crediting Wife’s receipt of APL against her award of

alimony. Id. at 10, 14. Because “our disposition of the alimony issue may

alter the trial court’s equitable distribution scheme,” we remanded “for



1
 The memorandum opinion is unnumbered, but we add page numbers for
ease of reference.

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J-A07042-17


additional proceedings and for entry of an order consistent with this

[m]emorandum.” Id. at 14.

      Notwithstanding the limited scope on remand, after conducting a

status conference, the trial court ordered the parties “to submit briefs

regarding the issue of whether the [m]aster’s alimony recommendation was

inequitable.”   Order, 8/1/2016, at 1.   Following the parties’ submission of

briefs, the trial court entered an order reaffirming its previous findings set

forth in paragraph 3(a) of the October 20, 2014 Memorandum Opinion and

finding the master’s alimony recommendation set forth in the master’s

report to be equitable notwithstanding the removal of the credit for prior APL

payments. Order, 9/20/2016, at 1.

      Husband timely filed an appeal of this order.2 Husband sets forth two

issues for our consideration.



2
  The trial court ordered Husband to file a concise statement pursuant to Pa.
R.A.P. 1925, and Husband complied. The trial court filed a Rule 1925
opinion, opining that Husband violated Rule 1925 by listing 18 issues and
citing to Mahonski v. Engel, 145 A.3d 175, 182 (Pa. Super. 2016). In
Mahonski, this Court affirmed the trial court’s dismissal of appellant’s
claims based upon the trial court’s finding that the appellant’s “voluminous
1925(b) statements failed to set forth non-redundant, nonfrivolous issues in
an appropriately concise matter” and were filed in bad faith. Id. Although a
number of Husband’s issues are redundant and should have been omitted
since they constitute subsidiary issues, see Pa.R.A.P. 1925(b)(4)(iv),
because the issues are coherent and the trial court did not make a finding
that Husband circumvented the process in bad faith, we will proceed with
our review. Mahonski, 145 A.3d at 180-82. We also note, pertinent to our
discussion later in this memorandum, that despite the number of Husband’s
issues, none of them relates to the limited issue on remand.


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J-A07042-17


  1. Did the trial court commit reversible error and abuse its
     discretion in simply accepting the [m]aster’s recommended
     award of post-divorce alimony of $662,400.00 payable over a
     period of [12] years?

  2. Did the trial court commit reversible error and abuse its
     discretion in failing to properly consider and apply all of the
     statutorily established criteria (in accordance with 23 Pa.C.S.[]
     § 3701(b)), thereby leading to an alimony award which was
     improper, inequitable and unfair?

Husband’s Brief at 4 (suggested answers omitted).

     As described above, the purpose of remand was for the trial court to

determine whether eliminating the credit from the alimony award altered the

equitable distribution scheme. Thus, our remand order was limited in scope.

     “[I]n remanding a case for rehearing, [the appellate court] may limit

the scope thereof to certain defined issues. This limitation restricts the

power of the court below to a determination of those issues.” Quaker State

Oil Ref. Co. v. Talbot, 185 A. 586, 588 (Pa. 1936).       “Where a case is

remanded for a specific and limited purpose, issues not encompassed within

the remand order may not be decided on remand.         A remand does not

permit a litigant a proverbial second bite at the apple.” Levy v. Senate of

Pennsylvania, 94 A.3d 436, 442 (Pa. Cmwlth. 2014) (internal citations and

quotation marks omitted). See also Agostinelli v. Edwards, 98 A.3d 695,

706 (Pa. Super. 2014) (requiring strict compliance with the mandate of the

appellate court on remand).




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      It is unclear from the record whether Husband initiated attempts to re-

litigate the equitability of the alimony award on remand as Wife suggests,

see Wife’s Brief at 5, or whether reexamination of the alimony award was

initiated sua sponte by the trial court. However, it is clear that the remand

order permitted the trial court to determine only whether the equitable

distribution scheme was altered, not to reexamine the alimony award.

Nevertheless, after reviewing briefs from the parties and its prior analysis of

the alimony award pursuant to 23 Pa.C.S. § 3701(b), the trial court

concluded that the alimony scheme was equitable notwithstanding the

removal of the credit equal to previously-paid APL and re-affirmed the award

of alimony.      The trial court did not make any changes to the equitable

distribution scheme.     See Rule 1925 Opinion, 11/9/2016, at 1; Order,

9/8/2016, at 1.

      On appeal, Husband seeks to pay alimony for a shorter duration to

permit him to retire. Husband’s Brief at 20. His first issue centers on his

argument that the twelve-year-alimony award is inequitable because the

trial court failed to consider his income, age, and desire to retire. Husband’s

Brief at 9-13.    His second issue is based upon his argument that the trial

court failed to weigh factors in 23 Pa. C.S. § 3701(b) in the manner Husband

would have liked.     Husband’s Brief at 14-19.   Husband never argues that

removing the credit for APL should have altered the equitable distribution

scheme, the sole issue on remand. Husband’s only argument regarding the


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removal of the APL credit essentially consists of his bald assertion that the

original imposition of the impermissible credit demonstrated that the trial

court believed the alimony award was inequitable, and therefore, that

entitled him to a do-over of the entire alimony award. See Husband’s Brief

at 17, 20.

      The trial court, however, imposed the impermissible credit to avoid

incentivizing Wife to prolong the divorce, not because it deemed the alimony

award   to   be   inequitable.   See   Trial   Court   Memorandum   Opinion,

10/20/2014, at 8. Since it had concluded previously that the alimony award

was equitable after applying the Section 3701(b) factors, the trial court

stated there was no need to change the alimony award because it was

independent of the credit for APL.     Rule 1925 Opinion, 11/9/2016, at 1.

Even if the trial court were permitted to expand the scope on remand,

Husband makes no specific argument as to why removing the credit

rendered the alimony award inequitable.

      In short, all of the issues Husband asserts on appeal are ones that he

asserted or could have asserted during the original action. Having decided

not to appeal the trial court’s October 20, 2014 order finding the alimony

scheme to be equitable, Husband cannot now attempt to re-litigate the

general equitability of the alimony award.     To hold otherwise would give

Husband an impermissible second bite at the apple.

      Order affirmed.


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J-A07042-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/21/2017




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