J-A16016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37



ALBERT DETILLO AND TAMARA DETILLO,              IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellees

                       v.

ELIZABETH HUZDOVICH,

                            Appellant                No. 941 WDA 2015


                   Appeal from the Order Dated May 14, 2015
               In the Court of Common Pleas of Allegheny County
                    Family Court at No(s): FD94-006674-008


ALBERT DETILLO AND TAMARA DETILLO,              IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

                       v.

ELIZABETH HUZDOVICH, F/K/A
ELIZABETH DETILLO,

APPEAL OF: TAMARA DETILLO,

                            Appellant                No. 993 WDA 2015


                      Appeal from the Order May 14, 2015
               In the Court of Common Pleas of Allegheny County
                    Family Court at No(s): FD-94-006674-008


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




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A16016-16



MEMORANDUM BY SHOGAN, J.:                      FILED DECEMBER 20, 2016

      Appellant Elizabeth Huzdovich, formerly Elizabeth Detillo (“Wife”),

brought this appeal from the May 14, 2015 equitable distribution order

directing her to convey her rights to certain real property located in Mercer

County, Pennsylvania, to Appellees Albert Detillo (“Husband”) and Husband’s

spouse, Tamara Detillo (“Tamara”) upon Husband’s payment of $10,000.00

to Wife.   Tamara filed a cross-appeal concerning her rights to the same

property. After careful review, we affirm.

      The trial court outlined the relevant factual and procedural history as

follows:
            Husband and Wife married in 1964. The parties acquired 3
      parcels of real estate in Mercer County (hereinafter “the Farm”)
      during the marriage. Husband left Wife in 1988. Wife moved
      from the Farm by 1991, which sat empty and deteriorating until
      Husband returned to live there in 1995.

            Husband filed a Divorce Complaint in June of 1994. Wife
      raised claims for equitable distribution, alimony, APL and counsel
      fees. A divorce decree was entered in August of 1995. The
      Court retained jurisdiction over Wife’s pending claims, including
      equitable distribution. Husband identified those claims on his
      Praecipe to Transmit the Record.

            Both parties have been remarried for over 14 years. Their
      children are grown. Both Husband and Wife are retired and both
      suffer from significant health issues.

            For seventeen years, Wife did not pursue the claims she
      raised in the divorce action.      Likewise, Husband did not
      challenge the monthly alimony pendent lite (APL) he continued
      to pay until 2014, amounting to approximately $80,640.00.

            Sometime in 2012, Husband sent Wife a Marital
      Settlement Agreement which she did not execute. Instead, on
      June 22, 2012, Wife filed her Inventory and Marital Asset

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J-A16016-16


     Summary and a Praecipe for Husband to do the same. Husband
     did so. He also filed a Motion to Dismiss based on the Doctrine
     of Laches, predicated on Wife’s significant delay in pursuing her
     claims. I held a hearing on that motion on January 28, 2014. At
     that preliminary stage, I ruled that laches did not bar Wife from
     presenting her claims.

             On November 16, 2012, Husband’s new wife, Tamara[,]
     was joined as an indispensable party to the litigation because
     her property rights would necessarily be affected by the
     litigation’s outcome. The three parties engaged in protracted
     and contested discovery. Ultimately a trial was held March 18
     and 19, 2015.

           The essential issues at trial were Wife’s claims for
     equitable distribution and attorney fees, as well as Husband’s
     defenses to the same and his request for a credit for previously
     paid APL. The property to be distributed was the Farm, the
     value of farm equipment which Wife had previously auctioned,
     and the possible gas and mineral rights. Both parties presented
     appraisals regarding the value of the Farm at date of separation,
     date of divorce, and as of 2013.

           Neither party’s appraisal contained a valuation of gas or
     other mineral rights. There is no current drilling on the property.
     I took judicial notice of the fact that there is shale drilling in
     Mercer County.      Husband testified he has no intentions of
     exploring that option, although he did explore the possibility at
     one time.

           After consideration of the factors set forth in the Divorce
     Code at 23 Pa.C.S.A. §3502, I determined that a 50/50 split of
     the marital estate was appropriate. I valued the Farm as of the
     date of divorce based on the equities of the case, as well as the
     Doctrine of Laches, which I found applicable, and distributed it to
     Husband. I assigned the value of the farm equipment auctioned
     by [Wife] to her.

           I assigned no value to the mineral rights as neither party
     provided valuations of same. I found it speculative, to assume
     that there is natural gas to be had or that any future lease would
     be profitable. I found it would be prejudicial to Husband and
     Tamara to force drilling, which is contrary to their expressed


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       wishes, due to Wife’s belated assertion of her interest in the
       Farm.

             I provided Husband a credit for APL payments made after
       Wife’s remarriage. As noted above, Husband had paid APL to
       Wife for over 20 years, even after her remarriage in 2001. I
       denied any claims for attorney fees and alimony. Once the
       property was valued and Husband’s credit was applied, Husband
       was ordered to pay an equalization payment to Wife of
       $10,757.00.

              On June 10, 2015, Wife filed a Motion for Clarification and
       Reconsideration. I denied the majority of her requests but
       expressly granted reconsideration regarding oil and gas rights.
       My Order on Reconsideration modified the May 12, 2015 Order
       as follows:

              “If and only if and to the extent that Mr. and
              Mrs. Detillo pursue oil and gas rights, Mrs. Huzdovich
              is hereby granted a 1/3 interest in said profits.
              Mrs. Huzdovich’s interest is extinguished on transfer
              of the property in an arm’s length sale to a bona fide
              third party purchaser or on her death.”

             Wife appealed at 941 WDA 2015 on June 16, 2015.
       Tamara cross-appealed at 993 WDA 2015. On July 1, 2015,
       Husband filed a Motion to Quash Wife’s appeal, which was denied
       by the Superior Court.[1]

Trial Court Opinion, 9/21/15, at 1–4.

                         941 WDA 2015 – Wife’s Appeal

       Wife raises the following issues on appeal:

       A. Did the Lower Court erroneously fail to follow established
       precedent that requires that real estate be valued, for purposes
____________________________________________


1
   On August 12, 2015, a per curiam panel of this Court denied Husband’s
motion to quash without prejudice to his right to raise the issue on the
merits. The timeliness of Wife’s appeal, the subject of that motion, is
discussed infra.



                                           -4-
J-A16016-16


      of equitable distribution, as of the date of trial and erroneously
      applied the doctrine of laches as justification for using the date
      of the divorce for purposes of valuing the parties’ real property?

      B. Did the Lower Court erroneously apply the doctrine of laches
      to credit [Husband], for purposes of equitable distribution, with
      the alimony pendente lite (APL) he paid from August 19, 2001 to
      the time of trial in the amount of $41,440.00?

      C. In deciding A and B above did the lower court ignore the
      import of the legal principle of “the law of the case” by using the
      principle of laches to justify its rulings on both the real property
      and APL issues, thereby ignoring its prior refusal to [Husband’s
      and Tamara’s] request to dismiss [Wife’s] claims for economic
      relief on the basis of her having committed laches?

      D. Did the Lower Court fail to recognize and protect [Wife’s]
      interest in the oil and gas rights associated with the real estate?

      E. Did the Lower Court fail to credit Wife with items of farm
      equipment (i.e. a Case IH 686 Tractor and Brush Hog) left on the
      property in 1991 for the benefit of Husband by the Wife to offset
      the items of equipment sold by Wife at auction?

      F. Did the Lower Court erroneously credit [Husband] with
      expenditures made to prepare the real estate for farming
      operations by [Husband] that neither enhanced the value of the
      real estate nor contributed to the farm making a profit?

      G. Did the Lower Court err in denying [Wife’s] Motion For
      Reconsideration and Clarification of the foregoing assignment of
      errors listed in A through F inclusive even though the Court
      addressed gas and oil rights to a limited extent in its order of
      court dated June 10, 2015?

Wife’s Brief at 10–11.

      We consider first whether Wife’s appeal was timely. Husband filed a

motion to quash the appeal filed on June 16, 2015, claiming that it was filed

more than thirty days after judgment was entered on May 14, 2015.

Facially, Husband is correct; however, our law is clear that the time for filing


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an appeal does not commence until “(1) the order has been entered on the

appropriate docket, and (2) a notation appears in the docket that proper

notice has been given concerning the entry of the order.”              Jara v.

Rexworks Inc., 718 A.2d 788, 791 (Pa. Super. 1988). It is inconsequential

that the parties had actual notice of the order, and it does not matter when

the parties received actual notice. Vertical Resources, Inc. v. Bramlett,

837 A.2d 1193, 1199 (Pa. Super. 2003).             The notice required under

Pa.R.C.P. 2362 must be provided and docketed before an order is considered

“entered.” Jara, 718 A.2d at 791.

       In Frazier v. City of Philadelphia, 735 A.2d 113 (Pa. 1999), the

Pennsylvania Supreme Court determined that:

       Rule of Appellate Procedure 301(a) provides that “[n]o order of a
       court shall be appealable until it has been entered upon the
       appropriate docket in the lower court.”       Further, Rule of
       Appellate Procedure 108(b) designates the date of entry of an
       order, for purposes of appeal, as follows:

              (b) Civil orders. The date of entry of an order in a
              matter subject to the Pennsylvania Rules of Civil
              Procedure shall be the day on which the clerk makes
              the notation in the docket that notice of entry of the
              order has been given as required by Pa.R.Civ.P.
              236(b).

____________________________________________


2
   Pennsylvania Rule of Civil Procedure 236(a)(2) mandates that “[t]he
prothonotary shall immediately give written notice of the entry of
any . . . order or judgment to each party’s attorney of record or, if
unrepresented, to each party. The notice shall include a copy of the order,
decree, or judgment.” Pa.R.C.P. 236(a)(2).



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J-A16016-16


      Pa.R.A.P. 108(b). As previously noted, Rule of Civil Procedure
      236(b) describes the prothonotary’s obligation to “note in the
      docket the giving of the notice and, when a judgment by
      confession is entered, the mailing of the required notice and
      documents.”

             Thus, pursuant to the express terms of the rules, an order
      is not appealable until it is entered on the docket with the
      required notation that appropriate notice has been given. That
      the parties may have received notice of the order does not alter
      the formal date of its entry and the associated commencement
      of the period allowed for appeal for purposes of the rules. The
      procedural requirements reflected in the rules serve to promote
      clarity, certainty and ease of determination, so that an appellate
      court will immediately know whether an appeal was perfected in
      a timely manner, thus eliminating the need for a case-by-case
      factual determination.

Frazier, 735 A.2d at 115 (citations omitted).

      In the instant matter, even though it is apparent that Wife had actual

notice of the trial court’s order, the record does not reflect that proper Rule

236 notice was sent to the parties. Technically, then, the appeal period has

not been triggered in this case.      Nonetheless, in the interest of judicial

economy, we regard “as done that which ought to have been done” and

proceed accordingly.      See Vertical Resources, 837 A.2d at 1199

(explaining that it is a waste of judicial resources to remand a matter for the

sole purpose of requiring that Rule 236 notice be provided to perfect a notice

of appeal). Thus, we deem Wife’s appeal timely.

      Wife first argues that the trial court’s earlier ruling on February 5,

2014, denying Husband’s motion to dismiss based upon the doctrine of

laches, was the law of the case that precluded the trial court from later

applying the principles of laches to justify its rulings on the real property and

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J-A16016-16


alimony pendente lite issues.      Wife, however, did not include this issue in

her   Pa.R.A.P.   1925(b)   statement;       therefore,   it   is   waived.      See

Pa.R.A.P.1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b)

s]tatement . . . are waived”); see also McKeeman v. CoreStates Bank,

N.A., 751 A.2d 655, 658 (Pa. Super. 2000) (“An appellant’s failure to

include an issue in his [Rule] 1925(b) statement waives that issue for

purposes of appellate review.”).

      Even if not waived, Wife would not be entitled to relief. We have held

that the law of the case doctrine does not apply in certain procedural

postures.

      Where the motions differ in kind, as preliminary objections differ
      from motions for judgment on the pleadings, which differ from
      motions for summary judgment, a judge ruling on a later motion
      is not precluded from granting relief although another judge has
      denied an earlier motion. However, a later motion should not be
      entertained or granted when a motion of the same kind has
      previously been denied, unless intervening changes in the facts
      or the law clearly warrant a new look at the question.

Parker v. Freilich, 803 A.2d 738, 745 (Pa. Super. 2002) (quoting Riccio v.

American Republic Ins. Co., 705 A.2d 422, 425 (Pa. 1997)).

      When the trial court herein adjudicated Husband’s motion to dismiss

Wife’s equitable distribution claims, it was compelled to view the evidence

favorably to Wife.   See Gaboury v. Gaboury, 988 A.2d 672, 675 (Pa.

Super. 2009) (courts must consider the evidence in the light most favorable

to the non-moving party when deciding a motion to dismiss).                   After a

hearing on the motion and review of the parties’ legal submissions, the trial

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court “ruled that laches was not applicable as a matter of law. . . .” Trial

Court Opinion, 9/21/15, at 5.       However, after the trial on the economic

claims, the trial court determined that laches operated to limit Wife’s

entitlement to the assets of the marital estate. The trial court explained the

reason for its application of the doctrine after trial, as follows:

               Husband first raised the doctrine of laches as an
         affirmative defense in 2012. The issue was extensively briefed
         and argued by the parties. I found that Wife’s delay of over
         seventeen years demonstrated a lack of due diligence, meeting
         the first condition. I found laches did not wholly bar Wife’s
         claims from being presented. Husband acknowledged that
         equitable distribution was unresolved by listing the unresolved
         issues in his Praecipe to Transmit the Record in 1995, by paying
         APL for 17 years, and by sending a Marital Settlement
         Agreement in 2012. I, therefore, found that the second prong of
         the test was not met, as a matter of law. I found there was no
         prejudice to Husband in allowing Wife’s claims to go forward
         when he had specifically acknowledged them.

               Although, at the pleading stage, I ruled that laches was
         not applicable as a matter of law, once the evidence of the case
         was presented, I made the decision to apply the doctrine based
         on those facts. I found the second prong of the test for the
         applicability of the doctrine of laches was, in fact, met, as
         Husband was able to demonstrate, through the factual evidence,
         that Wife’s failure to act for 17 years “worked a prejudice” to
         him, and to Tamara.

Id. at 4–5.

         The trial court acted well within its discretion when it re-evaluated

whether laches should apply after considering all the evidence presented at

trial.   First, at the motion to dismiss stage, the trial court ruled that the

doctrine of laches did not bar Wife’s claim outright.            Its decision on

application of laches after trial was different in that it applied the doctrine

                                       -9-
J-A16016-16


only to effectuate an equitable distribution of the marital estate. Second, at

the motion to dismiss stage, the trial court was required to view the

evidence favorably to Wife. That same preference was not afforded to Wife’s

evidence presented at trial.

      Finally, we observe that one of the rules encompassed within the “law

of the case” doctrine is the coordinate jurisdiction rule.      Simply stated,

“judges of coordinate jurisdiction should not overrule each other’s decisions.”

Zane v. Friends Hospital, 836 A.2d 25, 29 (Pa. 2003).            In the matter

before us, the coordinate jurisdiction rule was not implicated or violated

because the same judge decided both the motion to dismiss and the ultimate

resolution of the economic claims. Thus, Wife’s law of the case argument is

not legally cognizable.

      Wife next contends that the trial court erred when it valued the real

property as of the date of the divorce and reasoned this decision on

principles of laches.     Whether laches applies is a question of law.   United

National Insurance Co. v. J.H. France Refractories Co., 668 A.2d 120,

124 n.4 (Pa. 1995).       “Our standard of review over questions of law is de

novo and to the extent necessary, the scope of our review is plenary as [the

appellate] court may review the entire record in making its decision.”

Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa. Super. 2005) (quotation

marks and citation omitted).       However, we are bound by the trial court’s




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credibility determinations. Id. at 1257–1258 (citing Wade v. Huston, 877

A.2d 464 (Pa. Super. 2005)).

      In Fulton v. Fulton, 106 A.3d 127 (Pa. Super. 2014), we outlined the

parameters of the doctrine of laches, as follows:

            Laches bars relief when the complaining party is
            guilty of want of due diligence in failing to promptly
            institute the action to the prejudice of another.
            Thus, in order to prevail on an assertion of laches,
            respondents must establish: a) a delay arising from
            petitioner’s failure to exercise due diligence; and, b)
            prejudice to the respondents resulting from the
            delay. Moreover, the question of laches is factual
            and is determined by examining the circumstances of
            each case.

      Estate of Scharlach, 809 A.2d at 382–383 (quoting Sprague,
      550 A.2d at 187–188). Moreover,

            [t]he party asserting laches as a defense must
            present evidence demonstrating prejudice from the
            lapse of time.         Such evidence may include
            establishing that a witness has died or become
            unavailable, that substantiating records were lost or
            destroyed, or that the defendant has changed his
            position in anticipation that the opposing party has
            waived his claims.

      Commonwealth ex rel. Baldwin v. Richard, 561 Pa. 489, 751
      A.2d 647, 651 (2000) (internal citations omitted).

Fulton, 106 A.3d at 131.

      We observe at the outset that the trial court did not conclude that

laches barred Wife from obtaining any relief in this matter. Rather, the trial

court explained that it deemed the doctrine of laches applicable in

determining the date of valuation of the subject real property, reasoning:




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           In the seventeen years during which Wife failed to assert
     any interest in the marital estate, Husband married Tamara and
     began to improve the Farm.            According to their credible
     testimony, they graded and plowed the land and planted crops
     to vastly improve the soil. They diverted water to make the land
     and buildings usable, repaired and built structures on the land,
     and in other ways made the previously undeveloped land
     suitable for agricultural farming, as it is used by them today.

           Husband and Tamara made significant repairs and
     improvements to the house and other buildings on the property
     as well. To do so, they took out significant mortgages and loans
     which they have paid back and/or refinanced over the years.
     Husband and Tamara have paid all taxes and other expenses on
     the Farm throughout the years; Wife has not contributed. Wife
     did not express any interest in ownership of the Farm any time
     the parties communicated over the years.

            While I found Wife retained an equitable interest in the
     marital real estate, she forfeited any right to the increased value
     of the Farm because the doctrine of laches was invoked.
     Husband and Tamara would not have incurred the significant
     debt they did nor worked on the Farm as they did were it not
     that for their reasonable belief that Wife would not pursue
     equitable distribution of the Farm and attempt valuation at date
     of distribution.

           Rather than valuing the Farm at the date of distribution as
     is customarily favored, I valued it at the time of the parties’
     divorce, finding Wife was not entitled to the increase in value
     because of the applicability of the doctrine of laches. Wife
     argues this violates “established precedent that requires that
     real estate be valued, for purposes of equitable distribution, as
     of the date of trial.”

           There is a preference for valuing marital assets at or near
     the time of distribution, but courts have recognized there may
     be circumstances where it is more appropriate to value marital
     assets as of the date of separation. See, Smith v. Smith, 653
     A.2d 1259, 1270 (Pa. Super. 1995). The Divorce Code does not
     specify the time at which marital assets must be valued, leaving
     the date of valuation to the trial court’s discretion. As the
     Superior Court has stated: “[W]e do not attempt ... to establish
     a valuation to be used in every situation. To recognize a specific
     valuation date as a matter of law would deprive the trial court of


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      the necessary discretion required to effectuate economic
      justice.” Diamond v. Diamond, 519 A.2d 1012, 1017 (Pa. Super.
      1987). Wife herself acknowledged that land may be valued “at
      different times along a time line.” In this case, I found the
      earlier valuation effectuated economic justice, because laches
      was applicable to prevent prejudice to Husband and Tamara,
      who had reasonably relied on Wife’s inaction as evidence that
      she had no interest in pursuing the Farm.

            In Doppler v Doppler, 574 A.2d 1101 (Pa. Super. 1990),
      the Superior Court addressed a case similar to this one in many
      ways.     In Doppler, the husband waited 20 years before
      attempting to complete a partition action begun after the parties
      divorced. The court stated that because he had waited so long,
      his ex-wife was lulled into believing he had relinquished any
      rights to the property. The court stated: “[l]t would work to her
      prejudice to allow Mr. Doppler to benefit from the increase in the
      property’s value during his twenty years of inaction.” Doppler at
      1106.

            Here, it was incumbent on Wife to move her claim for
      equitable distribution forward.    She did not do so for an
      unreasonable period of time. Her inaction caused Husband to
      believe she had abandoned her claim and so he, and Tamara,
      bore the costs of maintaining and improving the property. To
      allow Wife to assert a claim to the present value would work a
      great prejudice to Husband and Tamara. Accordingly, I applied
      the doctrine of laches and valued the Farm at the time of the
      parties’ divorce.

Trial Court Opinion, 9/21/15, at 5–7 (footnote and record references

omitted).

      While the question of whether laches applies is a purely legal one, we

also are mindful that:

            [o]ur 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.


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

Smith v. Smith, 904 A.2d 15, 18 (Pa. Super. 2006) (quoting Hayward v.

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

       Wife contends that the trial court failed to follow established precedent

when it valued the property as of the parties’ divorce date3 and that its

reliance on Doppler v. Doppler, 574 A.2d 1101 (Pa. Super. 1990), as

opposed to our decision in Downey v. Downey, 582 A.2d 674 (Pa. Super.

1980), constitutes reversible error. We disagree on both points.

       We have addressed the date of valuation issue on prior occasions. In

Sergi v. Sergi, 506 A.2d 928, 931–932 (Pa. Super. 1986), we identified

various factors to consider in choosing valuation dates.     We observed that

using date-of-separation valuations could result in a distribution relying upon

outdated information or could disregard appreciation or depreciation of

assets.   However, we also noted that date-of-distribution valuations would

fail to account for assets that were consumed during the pendency of the

divorce and would allow a party to avoid including a marital asset in

distribution. Ultimately, we concluded that “we do not attempt at this time
____________________________________________


3
   We note that the parties separated in 1988 but were not divorced until
1995. The trial court utilized the date of divorce in its valuation calculation,
as opposed to the earlier date of separation.



                                          - 14 -
J-A16016-16


to establish a valuation to be used in every situation. To recognize a specific

valuation date as a matter of law would deprive the trial court of the

necessary discretion required to effectuate economic justice.” Id. at 932.

      Since Sergi, we have upheld trial court decisions that have used date-

of-distribution valuations, as well as those employing date-of-separation

valuations; these affirmances relied upon the fact that the trial court

provided a sufficient rationale for its decision.   See, e.g., Diamond, 519

A.2d at 1017 (using date of separation for land that was improved by the

husband’s post-separation efforts); Bold v. Bold, 516 A.2d 741, 745 (Pa.

Super. 1986) (using date of distribution when new appraisal was more

credible and there was no evidence of waste or dissipation).

      The discretion accorded courts in choosing the valuation date was

somewhat diminished by the Pennsylvania Supreme Court in Sutliff v.

Sutliff, 543 A.2d 534 (Pa. 1988), wherein the Court noted a preference for

using the date of distribution.        Id. at 536–537.         We have since

acknowledged the date-of-distribution preference, but have noted that there

remains factual situations, such as when one spouse consumes or dissipates

an asset or when one party during separation has control of the fate of an

asset, where date of separation values may be more appropriate. Smith v.

Smith, 653 A.2d 1259, 1270-1271 (Pa. Super. 1995); see also Nagle v.

Nagle, 799 A.2d 812, 820 (Pa. Super. 2002) (observing that the Sutliff

Court recognized that the separation valuation date could be appropriate in


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situations where one spouse consumes or disposes of a marital asset after

separation).

      Based upon this case law, we reject Wife’s contention that the trial

court erred in fixing valuation at the date of the divorce.    Here, the trial

court aptly recognized that it must determine the date of valuation within

the context of the primary goal of working economic justice between the

parties. The trial court found that a date-of-distribution value would result

in a windfall to Wife and disregard Husband’s and Tamara’s financial and

physical investment in the property.      We cannot say that the trial court

abused its discretion in doing so.

      We also reject Wife’s position that Downey, and not Doppler,

controls whether the doctrine of laches applies herein.      In Doppler, the

husband and the wife divorced in 1964.        That same year, the husband

instituted a partition action to divide the parties’ marital property.   It was

agreed that the wife would receive title to the real estate upon her payment

of one-half of the equity value of their former residence to the husband. The

wife satisfied her obligation, but the husband failed to appear at the

settlement conference and took no action on the partition proceeding for

twenty years. Then, in 1984, the husband brought a second partition action

concerning the same marital property. Doppler, 574 A.2d at 1102–1103.

      In reversing the trial court’s order fashioning partition, we concluded

that the husband was equitably estopped from pursuing the 1984 partition


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action because he did not meet the obligations imposed by the 1964

partition agreement and because he permitted the wife to maintain the

property as if she were the sole owner.       We also determined that the

husband “was guilty of extraordinary laches” reasoning that his failure to

litigate his original action “lulled Mrs. Doppler into believing he had

relinquished any further claims to the property.”     Doppler, 574 A.2d at

1106. Noting that the wife paid the mortgage and taxes and maintained the

property without the husband’s contribution, we concluded that “it would

work to [the wife’s] prejudice to allow Mr. Doppler to benefit from the

increase in the property’s value during his twenty years of inaction.”   Id.

Finally, and analogous to the matter herein, we posited that the wife’s lack

of diligence in pursuing the partition action did not mean that she was

“similarly guilty of laches. . . . [I]t was not incumbent upon her, as it was

on Mr. Doppler, to prosecute the partition action with diligence.” Id.

      Six months after the Doppler decision, we came to an opposite

conclusion on a laches issue.     In Downey, the husband and the wife

separated in 1969. After the husband left the marital home, he paid some

of the utility bills and taxes on the property, but did not significantly

contribute to the maintenance of the marital property. In contrast, the wife

continued to reside in the marital home, paid taxes on the property, and

maintained the property. The husband eventually filed for divorce in 1982,

and equitable distribution proceedings ensued.     Discovery on the parties’


                                    - 17 -
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economic claims continued for seven years. After hearings, the trial court

awarded the marital residence to the wife but directed that she pay the

husband sixty percent of the value of the property plus interest. Downey,

582 A.2d at 677–678.     On appeal to this Court, the wife argued that the

doctrine of laches barred the husband from benefitting from the post-1969

increase in value of the property. We rejected this argument because the

wife did not sustain “her burden with respect to the element of prejudice in

this case” as “she, just as easily as [the husband] could have initiated

divorce proceedings in order to secure a division of property and protect her

interests.” Id. at 680 (citation omitted).

      The Downey Court distinguished Doppler as follows:

      The case before us presents a different situation than Doppler.
      In Doppler, a partition proceeding was filed with the court and
      the parties had agreed upon a settlement.           In this case,
      however, no proceeding was ever initiated with the court. More
      importantly, we are unable to discover any authority which
      requires married parties to file divorce or partition proceedings
      where they prefer to live separate and apart but continue to hold
      their property as husband and wife. For these reasons, we
      believe the doctrine of laches should not be applied so as to
      preclude appellee from receiving the post-separation share of
      the marital property.

Downey, 582 A.2d at 684 n.7.

      We agree with Husband that “the instant matter is much more

analogous to Doppler than Downey.”           Husband’s Brief at 22.       As in

Doppler, a significant time, seventeen years, elapsed between the entry of

the divorce decree and Wife’s resurrection of her equitable distribution claim.

Second, because Wife initiated the equitable distribution claim, it was

                                    - 18 -
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incumbent upon her, not Husband, to diligently litigate the claim. For that

same reason, Husband, the party against whom the claim was filed, cannot

be accused similarly of laches.          The resulting prejudice to Husband from

Wife’s inaction also parallels the prejudice in Doppler. The trial court found

that Husband testified credibly that he and Tamara developed the property

into a usable farm, made significant improvements to the buildings on the

property that required extensive financing, and paid all the taxes and

expenses attached to the property. In contrast, the trial court observed that

Wife made no contribution to the property and did not express any interest

in the property in conversations with Husband through the years. Thus, the

trial court did not err in determining that Doppler was the correct precedent

in this matter.4

       We summarize our conclusions on the laches issue as follows: 1) the

legal question of the propriety of application of the laches doctrine in this

matter is answered affirmatively—Husband established delay arising from

Wife’s failure to diligently pursue her claim and prejudice resulting from the

delay; 2) the trial court did not abuse its discretion in setting the property

valuation date as the date of the divorce; and 3) the trial court did not apply
____________________________________________


4
    Wife also contends that the trial court erred in relying upon Bonds v.
Bonds, 689 A.2d 275 (Pa. Super. 1997), in rendering its decision. This
assertion overstates the significance the trial court placed on this case. The
trial court opinion cited Bonds only for the general principle that laches
arises when one party’s delay in pursuing a claim prejudices the rights of
another party. Id. at 728; Trial Court Opinion, 9/21/15, at 4.



                                          - 19 -
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inapposite decisional law.    We further conclude that the trial court’s

application of the doctrine of laches thoughtfully effectuated “economic

justice between the parties and achiev[ed] a just determination of their

property rights.” Smith, 904 A.2d at 18. Accordingly, Wife is not entitled to

relief on this claim.

       Wife also argues that the trial court erroneously applied the doctrine

of laches to credit Husband with alimony pendent lite (“APL”) payments in

the amount of $41,440.00. The trial court offered the following rationale to

justify the APL credit to Husband:

            Wife complains that I applied the doctrine of laches to
      credit Husband for the $41,440.00 he paid to Wife in APL since
      her remarriage in August of 2001. APL exists to put the parties
      on equal footing throughout the litigation. APL normally is
      extinguished at the entry of a divorce decree, at which time it
      can convert to alimony if appropriate. Alimony customarily ends
      at remarriage.

              Wife did nothing to advance her claims. Instead, she
      continued to deposit Husband’s check every month for fourteen
      years after remarrying.      She testified she used the APL
      payments to fund her retirement account, and requested
      reimbursement of the attorney fees she incurred in this
      litigation.

            Husband testified he was told by the court that he had to
      continue to pay Wife. I found Husband’s testimony credible as
      to his belief that he had no choice. That Husband may have
      been foolish does not negate the fact that his APL payments to
      Wife should have ended long before they did. The parties were
      together for 24 years and Husband paid APL for 20 years. I
      exercised my equitable powers to effectuate fairness here by
      providing him a credit for the years he continued to pay APL
      after Wife had remarried.

Trial Court Opinion, 9/21/15, at 8 (record references omitted).


                                     - 20 -
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     We review APL awards under an abuse of discretion standard.

Childress v. Bogosian, 12 A.3d 448, 463 (Pa. Super. 2011) (citing

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

Moreover, we have described the purpose of an APL award as follows:

           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. APL
           “is designed to help the dependent spouse maintain
           the standard of living enjoyed while living with the
           independent spouse.” Litmans v. Litmans, 449
           Pa.Super. 209, 673 A.2d 382, 389 (1996). Also, and
           perhaps more importantly, “APL is 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.” Id. at 388. 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, 408 Pa.Super. 414, 597 A.2d 101, 104–105
           (1991). Alimony, in contrast, is terminated upon
           remarriage or cohabitation. Id. at 104–105; see
           also 23 Pa.C.S.A. § 3706. Since, however, the
           purpose of APL is to provide the dependent spouse
           equal standing during the course of the divorce
           proceeding, it does not come with the “sanction” of
           Section 3706. DeMasi, at 104–105. “APL 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 DeMasi, at 105.

     Schenk v. Schenk, 880 A.2d 633, 644–45 (Pa. Super. 2005).

     Additionally,

           “In ruling on a claim for alimony pendente lite, the
           court should consider the following factors: the


                                  - 21 -
J-A16016-16


           ability of the other party to pay; the separate estate
           and income of the petitioning party; and the
           character, situation, and surroundings of the
           parties.” Litmans v. Litmans, 449 Pa.Super. 209,
           673 A.2d 382, 389 (1996). “An award of alimony
           pendente lite may be modified or vacated by a
           change in circumstances.... It is the burden of the
           party seeking to modify an order of support to show
           by competent evidence that a change of
           circumstances justifies a modification.” Id. at 388.

     Busse [v. Busse, 921 A.2d 1248, 1255 (Pa. Super. 2007)].

Childress, 12 A.3d at 463 (footnote omitted).

     Wife mounts five challenges to the trial court’s APL credit to Husband:

1) Wife asserts that her remarriage should not have triggered the

termination of APL payments; 2) the trial court erred in applying laches

principles in awarding the APL credit; 3) Husband did not meet his burden to

demonstrate a change in circumstances justifying modification of APL; 4) by

terminating the APL award, the trial court deprived Wife of use of the funds

during this litigation; and 5) Wife questions the trial court’s language in

terminating the APL award “immediately” in its May 12, 2015 equitable

distribution order. Order, 5/12/15, at 8. Wife asserts that the “only logical

conclusion is that APL terminated on May 12, 2015 with no provision for

retroactivity. Yet, the court inexplicably then gave Husband a $41,400.00

credit” without any inquiry or evidence of a change of circumstances

justifying modification of APL.   Wife’s Brief at 35–36.     None of Wife’s

arguments has merit.




                                   - 22 -
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      First, while our case law informs that APL is not dependent on the

status of the party as being a spouse or being remarried, see DeMasi, 597

A.2d at 104–105, we do not read the trial court opinion as designating Wife’s

2001 remarriage as the sole reason for terminating APL.           It appears,

instead, that the trial court utilized the remarriage date as a demarcation

when laches would operate to diminish Wife’s stake in the marital estate.

Additionally, the court considered the evidence that Wife was in a better

financial position than Husband when constructing its equitable distribution

order. Findings of Fact and Order of Court, 5/12/15, at 7.

      Next, we have already rejected Wife’s argument that the trial court

erred in applying the doctrine of laches.   The same reasoning undermines

Wife’s argument that laches could not operate to justify the APL payment

credit to Husband.

      Regarding Husband’s failure to meet his burden to demonstrate a

change in circumstances warranting modification of APL, we note that the

certified record does not indicate that Husband filed a motion for

modification.   Accordingly, it was not incumbent upon him to demonstrate

changed circumstances. In any event, the evidence produced at the hearing

clearly demonstrated that Wife’s situation had changed.      Not only had she

remarried, but her financial position was superior to Husband’s. Findings of

Fact and Order of Court, 5/12/15, at 7.     Additionally, testimony from her

current husband, James Huzdovich, revealed that Wife had access to


                                   - 23 -
J-A16016-16


significant sums deposited in their joint checking account. N.T., 3/18/15, at

273.

       Wife also asserts that the trial court’s decision to terminate APL

deprived her of use of the funds during this litigation. Wife hardly has the

clean hands necessary to advocate this position. See Terraciano v. Com.,

Dep't of Transp., Bureau of Driver Licensing, 753 A.2d 233, 237-238

(Pa. 2000) (the party seeking equity “must do so with clean hands”)

(citation omitted). Wife did not litigate her equitable distribution claim for

seventeen years, and she accepted APL payments from Husband for fourteen

years after her remarriage. During this period, the stated purpose of APL, to

provide the dependent spouse equal standing during the course of the

divorce proceedings, was clearly frustrated. Wife cannot come forward now

and complain that she is currently deprived of funds to pursue her claims

when she accepted funds earmarked for that purpose for the seventeen

years that the litigation was idle due to her lack of diligence.

       We likewise dismiss Wife’s final argument that the terminology

employed in the trial court’s order terminating APL was inconsistent with its

credit award to Husband.       The language in the court’s order is readily

understood as relieving Husband of his APL payment responsibility as of the

date of the order.     The trial court’s decision to credit Husband for the

payments made after Wife’s remarriage was a separate consideration,

reasoned by its obligation to effectuate economic justice between the


                                     - 24 -
J-A16016-16


parties. Accordingly, the trial court did not abuse its discretion in awarding

Husband credit for APL payments made after Wife’s remarriage.

      Wife also faults the trial court for not crediting her with the monetary

value of items of farm equipment she left on the property in 1991, while at

the same time crediting Husband with the costs he incurred in preparing the

property for farming when these improvements did not enhance the value of

the property. The trial court resolved this issue as follows:

            Wife asserts I erred by crediting Husband with
      expenditures made to prepare the real estate for farming
      operations “that did nothing to enhance the value of the real
      estate” and “despite the fact that [Husband] admitted that the
      Farm has never made a profit.”

            I found Husband’s testimony regarding the work and
      money it took to improve the property into a working farm to be
      credible.   The profitability of the farming operation or lack
      thereof does not mean that Husband did not increase the value
      of the land. I placed no monetary value on Husband’s labor, nor
      was he given any direct “credit” for the improvements. Instead, I
      limited the value to which Wife was entitled to the Farm’s value
      at divorce.      Wife agreed she was not entitled to the
      improvements. (TR. 1/28 p. 14).

            Wife also asserts it was error to assign Wife $10,504.50 for
      the auction of farm equipment as she realized, after cost of sale,
      only $9,555.05. Upon review of the record and Wife’s exhibits, I
      find that Wife is correct in this regard and Husband’s
      equalization payment should be increased by $949.45.

            Wife also asserts it was error not give her credit for the
      value of two pieces of farm equipment which she left on the
      Farm in 1991. As there was no way to ascertain the condition of
      the equipment or its value, this was not error.

Trial Court Opinion, 9/21/15, at 8–9.




                                    - 25 -
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      Wife disagrees with the trial court’s statement that the value of the

subject farm equipment, a tractor and a brush hog, could not be

ascertained, countering that the evidence demonstrated that Husband and

Tamara continued to use the equipment until 2008.              Husband’s and

Tamara’s use of the equipment, however, is not competent evidence of its

value. Thus, there was no abuse of discretion in the trial court’s decision to

deny Wife a credit in this regard.    Further, Wife mischaracterizes the trial

court’s consideration of Husband’s improvements to the property. The trial

court did not, as Wife claims, separately credit Husband for enhancements to

the value of the property.    Rather, it considered the improvements in its

laches analysis wherein it concluded that “[t]o allow Wife to assert a claim to

the present value [of the property] would work a great prejudice to Husband

and Tamara.” Trial Court Opinion, 9/21/15, at 7. We have already decided

that the trial court properly factored in the doctrine of laches in fashioning

its equitable distribution order. Wife cannot demonstrate that the trial court

abused its discretion or committed an error of law by valuing the property as

of the date of divorce before many of the improvements were made.

      Wife’s remaining issues concern the trial court’s disposition of Wife’s

assertion of a claim to the oil and gas rights on the Farm. Regarding these

mineral rights, the trial court explained:

            I assigned no value to the mineral rights as neither party
      provided valuations of same. I found it speculative, to assume
      that there is natural gas to be had or that any future lease would
      be profitable. I found it would be prejudicial to Husband and

                                     - 26 -
J-A16016-16


     Tamara to force drilling, which is contrary to their expressed
     wishes, due to Wife’s belated assertion of her interest in the
     Farm.

                                   * * *

            On June 10, 2015, Wife filed a Motion for Clarification and
     Reconsideration. I denied the majority of her requests but
     expressly granted reconsideration regarding oil and gas rights.
     My Order on Reconsideration modified the May 12, 2015 Order
     as follows:

           If and only if and to the extent that [Husband and
           Tamara] pursue oil and gas rights, [Wife] is hereby
           granted a 1/3 interest in said profits.        [Wife’s]
           interest is extinguished on transfer of the property in
           an arm’s length sale to a bona fide third party
           purchaser or on her death.

                                   * * *

            [T]he doctrine of laches is applicable to Wife’s belated
     assertion of rights in oil and gas rights associated with the real
     estate. Husband and Tamara credibly testified they have no
     interest in drilling on their property and that doing so would
     jeopardize their farming operation. I found it would work a great
     prejudice to Husband and Tamara to allow Wife to force them to
     drill on land on which they live and which she has ignored for
     seventeen years.

            My June 10, 2015 Order, provides that, if in fact, Husband
     and Tamara do permit drilling and any profits are realized, Wife
     is entitled to one third of those profits. I found Husband and
     Tamara credible on this issue, however, I do not think they are
     motivated by money and profits and thus believe them when
     they say they do not intend to drill.       I understand Wife’s
     skepticism regarding this issue, especially since Wife and
     Husband explored the idea of exploiting mineral rights on the
     land in the past. This protects Wife should Husband decide to
     drill.

Trial Court Opinion, 9/21/15, at 3–4, 7–8 (record references omitted).

     On appeal, Wife contends there was evidence produced at trial that the

trial court should have considered concerning the value of the oil and gas

                                   - 27 -
J-A16016-16


rights on the property. She also restates her position that laches should not

have factored into the trial court’s analysis that precluded any benefit

inuring to Wife from the mineral rights. Finally, Wife takes issue with the

trial court’s June 10, 2015 order granting partial reconsideration, arguing

that the order did not in fact grant her any additional rights in the oil and

gas rights.

      Wife’s contention that the testimony presented at trial provided the

trial court with evidence from which it could value the oil and gas rights is

unsupported.    First, Richard English, Wife’s expert real estate appraiser,

noted in his written appraisal that the property “was encumbered by an ‘oil

and gas lease’” but stated that he “will not provide an opinion on the value

of the ‘lease’ as that is beyond the ‘scope of the work’” and his expertise.

Wife’s Pretrial Statement, 3/9/15, Appraisal Report at 11. When questioned

at trial about oil and gas activity in Mercer County, i.e., whether people were

buying or taking leases for gas development, Mr. English responded: “No.

That’s pretty well died off.”    N.T., 3/19/15, at 56.       Thus, the evidence

produced by Wife at trial concerning oil and gas value consisted of her

expert’s   admissions   that   valuation   of   these   rights   was   beyond   his

competence and his observation that oil and gas activity in Mercer County

was no longer robust. Given the dearth of evidence produced by Wife, the

trial court acted well within its discretion when it declined to speculate as to




                                     - 28 -
J-A16016-16


the value of the oil and gas rights, and in ultimately assigning no value to

the mineral rights.

         Wife’s additional argument that the trial court abused its discretion by

precluding her from presenting testimony from Ron Mutha, who researched

oil and gas leases on properties adjoining the property, also fails. Husband

objected to this witness because he had late notice that Mr. Mutha would

testify about leases, and he did not have the opportunity to review the

supporting documentary evidence—leases, maps, and drawings—prior to

trial.    N.T., 3/19/15, at 110.      The court sustained the objection after

Husband agreed to stipulate that there was oil and gas activity in the area

surrounding the property. Id. at 113. Wife does not offer any challenge to

the trial court’s legal rationale for excluding Mr. Mutha’s testimony; we, in

turn, conclude that the court’s ruling in this regard was legally sustainable.

         Wife next seeks to revisit her claim that the doctrine of laches should

not have affected the trial court’s valuation of the marital property, in this

instance, the trial court’s refusal to consider the value of the oil and gas

rights. We continue to reject Wife’s attempt to have us conclude that her

argument is meritorious and that the trial court erred in applying the

doctrine of laches in this matter.

         Wife’s final argument is that the trial court’s June 10, 2015, order

granting partial reconsideration “in reality, gives [Wife] no reconsideration.”

Wife’s Brief at 41.     A reasonable interpretation of Wife’s statement is that


                                       - 29 -
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she is requesting review of the trial court’s denial of her motion to

reconsider, a decision that is not reviewable on appeal. See Cheathem v.

Temple University Hospital, 743 A.2d 518, 521 (Pa. Super. 1999)

(“Pennsylvania case law is absolutely clear that the refusal of a trial court to

reconsider, rehear, or permit reargument of a final decree is not reviewable

on appeal.”) (citation omitted).        Furthermore, even interpreting Wife’s

argument as decrying the nature of the relief provided in the trial court’s

reconsideration order, we find no merit in this assertion.        As noted, upon

reconsideration of Wife’s contention that the trial court failed to recognize

and protect her interest in the Farm’s oil and gas rights, the trial court

ordered that if Husband and Tamara pursued oil and gas rights, Wife would

be entitled to one-third interest in any profits. The order also provided that

Wife’s “interest is extinguished on transfer of the property in an arm’s length

sale to a bona fide third party purchaser or on her death.” Order, 6/10/15.

Wife submits that the order establishes nothing more than illusory rights as

to any future oil and gas revenues and suggests it puts her at the mercy of

Husband’s and Tamara’s decision to negotiate oil and gas rights.

      We have already discussed Wife’s failure to propound any evidence

regarding the value of the mineral rights, thus, the blame lies squarely on

her for the trial court’s alleged creation of illusory rights. Additionally, we

credit the trial court for its recognition that Wife is entitled to a share of the

profits if there is a later decision to lease the mineral rights, as it reflects the


                                      - 30 -
J-A16016-16


trial court’s thoughtful attempt to “effectuating economic justice between the

parties and achieving a just determination of their property rights.” Smith

904 A.2d at 118.

      For the above-stated reasons, we conclude that the trial court correctly

applied the doctrine of laches in fashioning its equitable distribution order

and that its final order represented a legally sound and well-reasoned

assessment of the parties’ respective rights to the marital property.

Accordingly, the issues raised in Wife’s appeal are without merit.

                       993 WDA 2015 – Tamara’s Appeal

      Tamara has also filed an appeal from the trial court’s order, asserting

that the trial court erred by failing to apply either principles of equitable

estoppel or laches to foreclose Wife from pursuing her equitable distribution

claim. The trial court adjudicated Tamara’s cross-appeal as follows:

             The doctrine of equitable estoppel arises when a party, “by
      acts or representations, intentionally or through culpable
      negligence, induces another to believe that certain facts exist
      and that party relies and acts on such belief to his or her
      prejudice if the former is permitted to deny the existence of such
      facts.” Appeal of McNelly, 553 A.2d 472, 477 (Pa. Cmmwlth.
      1989). “Equitable estoppel prevents one from doing an act
      differently from the manner in which another was induced by
      word or deed to expect.” One who asserts equitable estoppel
      must prove the elements by clear, precise and unequivocal
      language. Bonds, supra, at 278.

            I found equitable estoppel did not apply to completely bar
      Wife’s claims for equitable distribution from being asserted in
      this case because Husband was aware of the existence of certain
      facts and could have expected Wife’s actions to a limited degree.
      In this case, not only did Husband list Wife’s claims as still
      pending in 1995, he again acknowledged the claims in 2012 by

                                    - 31 -
J-A16016-16


      submitting a Marital Settlement Agreement to Wife to resolve
      them. The only thing he could not have expected due to Wife’s
      delay was her assertion of an interest in [the] present value of
      the Farm or in mineral rights.

            Likewise, I did not find that Wife’s inaction was enough to
      completely bar her claims from being asserted based on the
      doctrine of laches, as set forth above. As described in detail
      above, the value I placed on the marital property was as I
      determined it likely would have been had Wife moved her case
      forward appropriately seventeen years prior.

            Because I essentially applied the doctrine of laches to the
      resolution of the claims, economic justice was effectuated
      between all the parties. Tamara’s cross-appeal should fail.

Trial Court Opinion, 9/21/15, at 9–10.

      Tamara asserts appellate review of three issues:

            I. Whether the Court erred in continuing proceedings for
      equitable distribution after 17 years when the doctrine of
      equitable estoppel should have barred [Wife] from pursuing
      equitable distribution.

            II. Whether the Court erred in not applying the elements of
      laches to [Wife’s] claims for equitable distribution, as there was
      a substantial delay in [Wife’s] bringing of the action, [Wife] was
      the cause of the delay and [Husband and Tamara] have been
      prejudiced because of the delay.

            III. Whether the Court erred in failing to quantify and
      protect the equity interests of [Tamara].

Tamara’s Brief at 3.

      As our Supreme Court has outlined:

      The doctrine of equitable estoppel:

            prevents one from doing an act differently than the
            manner in which another was induced by word or
            deed to expect.   A doctrine sounding in equity,
            equitable estoppel recognizes that an informal
            promise implied by one’s words, deeds or


                                    - 32 -
J-A16016-16


            representations which leads another to rely
            justifiably thereon to his own injury or
            detriment, may be enforced in equity.

Shedden v. Anadarko E. & P. Co., L.P., 136 A.3d 485, 492 (Pa. 2016)

(quoting Novelty Knitting Mills, 457 A.2d 502, 503 (Pa. 1983) (emphasis

in original)). Whether equitable estoppel exists in a given case is a question

of law. Stonehedge Square Ltd. P'ship v. Movie Merchants, Inc., 685

A.2d 1019, 1023–1024 (Pa. Super. 1996) (citing Nesbitt v. Erie Coach

Company, 204 A.2d 473, 476 (Pa. 1964)). Additionally, the party asserting

estoppel must establish by unequivocal evidence:

      (1) that the party against whom the doctrine is sought to be
      asserted intentionally or negligently misrepresented a material
      fact, knowing or with reason to know that the other party would
      justifiably rely on the misrepresentation, (2) that the other party
      acted to his or her detriment by justifiably relying on the
      misrepresentation, and (3) that there was no duty of inquiry on
      the party seeking to assert estoppel.

Stonehedge, 685 A.2d at 1023–1024 (Pa. Super. 1996) (quoting Homart

Development Co. v. Sgrenci, 662 A.2d 1092, 1099–1100 (Pa. Super.

1995) (en banc)).

      We do not agree with Tamara that equitable estoppel completely

barred Wife from pursuing her rights to the marital property. Wife did not

voice any misrepresentation concerning her property rights.       Additionally,

Tamara’s assertion that Wife’s silence provided grounds for equitable

estoppel is not defensible.   The two cases that Tamara cites in support,

Chapman v. Chapman, 59 Pa. 214, 219 (Pa. 1868) and Liberty Property



                                    - 33 -
J-A16016-16


Trust v. Day-Timers, Inc., 815 A.2d 1045 (Pa. Super. 2003), are

distinguishable.     In Chapman, the Pennsylvania Supreme Court described

the type of silence which would justify application of the equitable estoppel

doctrine: “Silence will postpone a title when one should speak out, when,

knowing his own right, one suffers his silence to lull to rest, instead of

warning of danger; when, to use the language of the books, silence becomes

a fraud.” Chapman, 59 Pa. at 219. Clearly, Wife’s silence in this matter

cannot be considered tantamount to fraud.

         In    Liberty   Property,   a    lessor   purchased      property    from    its

predecessor-in-interest.       After     the   sale,   lessees,   asserting   an     oral

modification to the rent schedule, refused to pay rent in accordance with

lease.        Lessor sued for breach of contract and declaratory relief and

judgment was entered in favor of the lessees.            We reversed, holding that

lessees were equitably estopped from asserting the effect of the oral

modification because: (1) lessor was not on notice of the modification, and

(2) by denying oral modifications to the lease, lessees negligently induced

lessor into believing that the lease was in effect as written. Id. at 1052. In

reaching this conclusion, we pointed out that it was error for the trial court

to consider the lessees’ silence about the rent modification because, in fact,

the lessees were “not silent about the modification.                  Rather, [they]

explicitly declared that no oral modifications existed.”            Id. (emphasis in




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original). Thus, contrary to Tamara’s representation, Liberty Property did

not conclude that silence can reason application of equitable estoppel.

      Furthermore, we agree with the trial court that Wife’s actions could

have been anticipated to some degree. As such, Tamara, who testified that

she knew in 1999 that Wife’s name remained on a deed for a portion of the

real property, see N.T., 3/19/15 at 101, cannot meet the Stonehedge

Square requirement that, as the party seeking estoppel, she has no duty of

inquiry. Stonehedge Square, 685 A.2d at 1024.

      Tamara also contends that the trial court erred in concluding that the

doctrine of laches did not bar Wife’s equitable distribution claims in toto.

Tamara’s argument is premised on the holding in Doppler, and we have

previously endorsed the trial court’s reliance on this case. However, when

we determined that the trial court was correct in utilizing Doppler to justify

application of the laches doctrine, we did so within the context of the trial

court’s decision to value the marital property as of the date of divorce as

opposed to the date of distribution.     We concluded that the trial court’s

valuation effectuated economic justice between Wife and Husband in that it

denied Wife any benefit from improvements that Husband and Tamara made

to the property after the divorce decree was entered.         To now accept

Tamara’s position that the equities demand that Wife cannot pursue her

equitable distribution claim to any degree would overrule our prior analysis

on this matter. This we decline to do.


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      Finally, Tamara faults the trial court’s analysis of her property

interests, claiming that the trial court failed to quantify and protect her

specific rights.   Tamara objects to the fact that the trial court focused its

attention on Husband’s reaction to Wife’s inactivity but did not discuss

efforts expended by Tamara regarding improvements to the property or

Tamara’s reliance on Wife’s seventeen-year delay in pursuing this litigation.

Tamara fails to cite any legal authority for the proposition that the trial court

was required to conduct a completely separate analysis as to her rights, and

we discern no error in the trial court’s discussion of Tamara’s rights.

Additionally, Tamara’s description of the trial court’s opinion is inaccurate.

On several occasions, the trial court referenced both Husband’s and

Tamara’s efforts concerning improvements to the property and the financial

obligations incurred by both in effectuating these enhancements. Trial Court

Opinion, 9/21/15, at 5–7.      Accordingly, we conclude that the trial court

adequately discussed and correctly decided the extent of Tamara’s property

rights.   For these reasons, Tamara’s cross-appeal has not raised any

meritorious claims.

      Order affirmed.

      Judge Olson joins the Memorandum.

      Judge Strassburger files a Concurring & Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2016




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