J-A28027-14



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF: ZOE M. WEINBERG, A                  IN THE SUPERIOR COURT OF
MINOR                                                PENNSYLVANIA



APPEAL OF: MATTHEW DAVID
WEINBERG
                                                  No. 1448 EDA 2014


                Appeal from the Order of February 18, 2014
           In the Court of Common Pleas of Montgomery County
                    Orphans’ Court at No.: 2013-X0876


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                       FILED DECEMBER 10, 2014

     Matthew David Weinberg (“Father”) appeals the February 18, 2014

order that confirmed the accounting of Zoe M. Weinberg’s (“Child”)

Pennsylvania Uniform Transfers to Minors Act (“UTMA”) account and

dismissed his objections thereto. We affirm.

     Father and Michelle Weinberg (“Mother”) separated in December 2008

and divorced in August 2012. They shared physical custody of Child, who

was born in December 2005. In 2006, Mother opened a savings account for

Child, which is the UTMA account at issue.

     On February 26, 2013, Father filed a petition for an accounting of

Child’s UTMA account and to remove Mother as the custodian of the
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account.1 Father alleged that Mother had removed money from the account

and used it for improper purposes. Father sought an accounting, asked to

be named the new custodian of the account, and requested counsel fees in

connection with the petition. In her answer to the petition, Mother denied

Father’s allegations and asserted that she only withdrew funds from the

account for the benefit of Child when Mother’s own funds were depleted.

Mother also asserted that she replenished the funds when she was able to do

so.

       On May 3, 2013, the orphans’ court ordered Mother to file an

accounting of her administration of the UTMA account.          Mother filed her

accounting.     Father objected.      On November 19, 2013, the orphans’ court

conducted a hearing on the accounting and Father’s objections.

       Following the hearing, on February 18, 2014, the court confirmed

Mother’s accounting.         The orphans’ court summarized the hearing and

procedural history as follows:

       The account covers the period from December 26, 2006 through
       July 2, 2013, and shows a balance of principal and income in the
       amount of $15,001.25, composed of cash.

       The account was filed pursuant to Section 5319 of the [Probate,
       Estates, and Fiduciaries] Code, as directed in this Court’s order
       dated May 3, 2013. The custodianship continues.

       All parties having or claiming any interest in the custodial
       property of whom the accountant has notice are stated to have

____________________________________________


1
      Father also sought an accounting of a second account. The order as it
relates to that account has not been appealed.



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     received written notice of the audit in conformity with the rules
     of court.

     The instant objections were filed by [Father]. The accountant is
     [Mother. Child] is now 8 years old. The parents separated in
     December of 2008 and spent four years litigating their divorce,
     support and custody issues. The battle now continues in this
     Court. In his objections, [Father] contends [Mother] spent the
     funds in their daughter’s account improperly.

     At the hearing, [Mother] testified that she and [Father] have
     joint legal and physical custody over [Child]. She listed various
     expenditures incurred by her in repairing and maintaining the
     marital residence after the couple separated and before its sale.
     She testified that [Father] paid support, initially, in varying
     amounts voluntarily and later pursuant to an agreed order
     entered in the Chester County Court of Common Pleas. [Father]
     is currently obligated to pay $686.00 per month in child support.

     [Mother] stated that she is a social worker for the School District
     of Jenkintown and earns approximately $28,000 per year.

     Regarding the account at issue, [Mother] stated that she funded
     it with $25.00 in 2006. She produced a spread sheet showing
     deposits to and withdrawals from the account.            She also
     produced a spread sheet showing hundreds of expenditures for
     clothes, toys, furniture, camp tuition, groceries, entertainment,
     gas, family therapy, etc., between 2006 and 2013.              The
     expenditures on the later spread sheet were cross-referenced on
     the spread sheet with deposits and withdrawals. The majority of
     the deposits were from [Mother’s] own funds; a few deposits
     represented gifts to [Child] from other family members.
     [Mother] explained that, even though she was using UTMA funds
     for [Child’s] benefit, she tried to replenish the account with her
     own money when she could. As an example, she withdrew
     $7,279 [] from her 401(k) pension account established at a
     former job and deposited most of it into the UTMA account.
     [Mother] opined that [Father] sought to compel her to file this
     account as a way to be relieved of his child support obligation.

     In response to questions from the Court, [Mother] clarified that
     the source of the deposits shown on the spread sheet was her
     own funds, except for one $12,000 gift from [Father’s] mother
     and some other family gifts over the years.

     During cross-examination, [Mother] acknowledged that the July
     23, 2012 consent order filed in Chester County obligated

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     [Father] to pay her $800 per month, in addition to the $686 for
     [Child], and that she has received these payments in a timely
     fashion. She stated that [Father] refused to pay for camp for
     [Child], even though the consent order directed him to do so.
     She denied that [Father] gave her any cash between the time
     they separated and when the support order went into effect.
     She stated that [Father] lent her money to pay real estate taxes
     during that period. Regarding a $7,000 withdrawal from the
     account on April 26, 2011, [Mother] described this as a “balance
     transfer” she received on a new credit card, the proceeds of
     which she withdrew immediately and deposited into her own
     checking account. [Mother] stated her legal bills for the divorce
     proceedings totaled approximately $50,000, which she charged
     on her credit cards. She estimated the legal cost for the current
     litigation to be $11,000.

     Counsel for [Mother] then cross-examined [Father].            This
     testimony established only that the couple fought             over
     everything, including visitation rights to the family dog.

     [Mother] rested and [Father] was called to testify by his counsel.
     He testified that most of [Child’s] preschool tuition was paid by
     his mother, not from the UTMA funds. He testified about a
     Quicken spread sheet he prepared relating to his checking
     account transactions for the period from January 3, 2009 to May
     2, 2012. The spreadsheet reflected transfers to and for the
     benefit of [Mother] and [Child], including payments for home
     maintenance, utilities, taxes, health care, clothes and school
     costs.    Also introduced was a sheet with a breakdown by
     category of these expenses totaling $152,217.73.

     [Mother] testified on rebuttal. She denied receiving the total
     amount alleged to have been paid by [Father] . . . .

Order and Memorandum, 2/18/2014, at 2-5 (citations to notes of testimony

omitted).

     Following   the   hearing,   the   orphans’   court   dismissed   Father’s

objections, denied his request to be appointed custodian, and denied both

parties’ requests for counsel fees.      On March 10, 2014, Father filed

exceptions to the February 18, 2014 order. On March 20, 2014, Mother filed


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cross-exceptions. On April 10, 2014, the orphans’ court dismissed both the

exceptions and cross-exceptions.

       On May 12, 2014, Father filed a notice of appeal. 2 The orphans’ court

did not order, and Father did not file, a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The court did not

file a Pa.R.A.P. 1925(a) opinion, and instead relied upon the memorandum

and accompanying February 18, 2014 order.

       Father raises four issues for our review:

       I.     Whether the auditing court erred in finding that Mother
              was permitted to invade [Child’s] UTMA account because
              Mother did not have the ability to use her own funds to
              support [Child].

       II.    Whether the auditing court erred in failing to grant Father’s
              petition for removal of [Mother] and return of the funds
              and in dismissing Father’s objections to the accounting in
              that the court’s findings were not supported by the
              evidence.

       III.   Whether the auditing court erred by failing to make a
              finding that the expenditures benefited [Child].

       IV.    Whether the auditing court erred [in] finding that Father
              was motivated to pursue this matter in part to harass
              Mother.

Father’s Brief at 4.

       Our standard of review is well settled:


____________________________________________


2
      May 10, 2014, the thirtieth day following the order becoming final, fell
on a Saturday. Therefore, Father’s May 12, 2014 notice of appeal, filed on
the following Monday, was timely.



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     As an appellate court we can modify an Orphans’ Court decree
     only if the findings upon which the decree rests are unsupported
     by competent or adequate evidence or if there has been an error
     of law, an abuse of discretion or a capricious disbelief of
     competent evidence. The test to be applied is not whether we,
     the reviewing court, would have reached the same result, but
     whether a judicial mind, after considering the evidence as a
     whole, could reasonably have reached the same conclusion.

In re Gumpher, 840 A.2d 318, 321 (Pa. Super. 2003).

     As    a   custodial    account,   Child’s   account   is   controlled   by   the

Pennsylvania UTMA.         That act establishes the duties of a custodian and

provides that a custodian’s standard of care is one “that would be observed

by a prudent person dealing with property of another.” 20 Pa.C.S.A. § 5312.

The Act also outlines the permissible uses of the minor’s property by the

custodian as follows:

     (a) Without court order. – A custodian may deliver or pay to
     the minor or expend for the minor’s benefit so much of the
     custodial property as the custodian considers advisable for the
     use and benefit of the minor, without court order and without
     regard to:

          (1) the duty or ability of the custodian personally or of any
          other person to support the minor; or

          (2) any other income or property of the minor which may
          be applicable or available for that purpose.

     (b) With court order. – On petition of an interested person or
     the minor if the minor has attained 14 years of age, the court
     may order the custodian to deliver or pay to the minor or expend
     for the minor’s benefit so much of the custodial property as the
     court considers advisable for the use and benefit of the minor.

     (c) Obligation of support not affected. – A delivery, payment
     or expenditure under this section is in addition to, not in
     substitution for, and does not affect any obligation of a person to
     support the minor.



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20 Pa.C.S.A. § 5314.

     In Sutliff, our Supreme Court observed that

        the ... legal obligation of parents is to provide for the
        reasonable expenses of raising the child. Indeed, parents
        have a duty to support their minor children even if it
        causes them some hardship. The cost of raising children is
        a function of several factors including custom, the
        children’s needs and the parents’ financial status. [The
        purpose of child support is] to provide for more than bare
        necessities. [The] Superior Court has consistently held
        that a parent’s support duty is not affected by a minor
        child’s own means or earning potential.

     Sutliff v. Sutliff, 528 A.2d 1318 1322 (Pa. 1987) (citations
     omitted). In Perlberger v. Perlberger, this Court noted “that
     the principles espoused by our Supreme Court [in Sutliff] are
     both instructive and applicable here, where wife, though not a
     support obligor, is subject to the general duty to support her
     children.” 626 A.2d 1186, 1201 (Pa. Super. 1993) (emphasis
     added). In Sternlicht, this Court held that

        [a] custodian abuses his discretion and acts improperly if
        he expends funds from [an UTMA] account for the purpose
        of fulfilling his support obligation in lieu of making the
        payments out of his own income and assets, where the
        parent has sufficient financial means to discharge it
        himself. [UTMA] accounts may not be used for support
        before the parents expend their own resources.

     Sternlicht v. Sternlicht, 822 A.2d 732, 741 (Pa. Super. 2003).
     The plural “parents” in the last sentence of that passage makes
     clear that the principle expressed applies not just to non-
     custodial support obligors, but to both parents, without regard to
     marital or custodial status. Thus, reading Sutliff, Sternlicht,
     and Perlberger together, we find that Section 5314’s provision
     that [UTMA] “use and benefit” expenditures are “in addition to,
     and not in substitution for, any parental support obligation”
     applies to the more amorphous “support obligations” of the
     custodial parent as well as those of the “support obligor.”

Gumpher, 840 A.2d at 324 (citations modified).




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      In his first challenge, Father contends that the orphans’ court erred by

allowing Mother to use UTMA funds for everyday support and by finding that

Mother did not have her own funds available for Child’s support.       Father

argues that, because another court in support proceedings found that

Mother had a certain earning capacity, the orphans’ court could not find that

Mother had a lower income available to her.     Father also alleges that the

evidence did not support the orphans’ court’s determinations. Father asserts

that Mother’s testimony regarding her lack of personal funds was not

credible. Father’s Brief at 10-16.

      Our decisional law is clear that UTMA funds cannot be used to meet a

parent’s child support obligation.   See Sutliff, 528 A.2d at 1324 (holding

that parent’s support obligation could not be satisfied through use of

children’s custodial accounts when father had sufficient personal funds to

meet children’s needs); Sternlicht, 822 A.2d at 740 (holding that father

could not use child’s UTMA funds to purchase a new house when there was

no evidence that house was for the use and benefit of child).       However,

when a parent cannot provide for the child through the parent’s assets, the

child’s funds may be used. See Gumpher, 840 A.2d at 324 (holding that

mother must demonstrate that her assets were exhausted before invading

child’s UTMA account); Sternlicht, 822 A.2d at 741 (remanding for inquiry

into whether father could pay child’s private school tuition from father’s

assets). Nothing in this case law indicates that the court must look beyond

Mother’s actual assets or consider Mother’s hypothetical earning capacity.


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      Here, Mother claimed that she did not have the funds that were

required to support Child. Notes of Testimony (“N.T.”), 11/19/2013, at 136,

162. The orphans’ court found that Mother only used Child’s funds when she

had no other means by which to pay Child’s expenses.         T.C.O. at 6.   The

court specifically credited Mother’s testimony. “Because the Orphans’ Court

sits as the fact-finder, it determines the credibility of the witnesses and, on

review, we will not reverse its credibility determinations absent an abuse of

that discretion.” In re Estate of Harper, 975 A.2d 1155, 1159 (Pa. Super.

2009).   Based upon that testimony, the orphans’ court determined that

Mother did not invade Child’s UTMA account unless her funds were

exhausted.    Our review of the record finds support for the court’s credibility

determinations. There was no abuse of discretion.

      In his second issue, Father also challenges the court’s credibility

determinations and fact-finding. Father asserts that Mother’s exhibits were

contradictory and that her lists of withdrawals from the UTMA account and

expenditures on behalf of Child were inconsistent. Father’s Brief at 17-19.

      Mother’s counsel provided argument and Mother was cross-examined

extensively regarding her expenditures for Child and the differences between

her list of withdrawals from the UTMA account and her list of expenditures

for Child’s benefit. N.T. at 85-106, 109-11. While there were discrepancies,

Mother provided explanations for them.       For example, some receipts had

deteriorated or were illegible and were not included in the list of

expenditures.    Mother also testified that some of the differences arose


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because she kept some cash on hand for incidentals, like tipping child care

employees and making cash payments for home repairs.                  Id. at 75, 103.

The orphans’ court found this testimony to be credible.           Because there is

record support for these findings, we find no abuse of discretion.

       Father next claims that the orphans’ court failed to make a specific

finding that Mother’s expenditures were for the use and benefit of Child.

Instead, Father claims that Mother used these funds for everyday living

expenses and for Mother’s benefit. Father’s Brief at 20-21.

       As noted above, UTMA “accounts may not be used for support before

the parents expend their own resources.”             Gumpher, 840 A.2d at 324

(quoting Sternlicht, 822 A.2d at 741). In Perlberger, 626 A.2d at 1200,

we considered whether a mother could invade her children’s custodial

accounts for various expenses such as lessons for the children, tutoring,

taxes, trips, entertainment, medical bills, child care, and food. Although we

ultimately remanded the case because of an incomplete record, we

nonetheless     held    that    the    determining   factors   were     whether   the

expenditures were for the children’s benefit and whether they were

reasonable.3 Id. at 1202.

       Here, the court did not make an explicit finding that the expenditures

were for the use and benefit of Child. However, there is no requirement that


____________________________________________


3
       We also noted that certain expenses, such as legal bills and the wife’s
individual therapy, were not for the benefit of the children. Id.



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the court use that “magic language.” Instead, the orphans’ court recognized

that prior decisional law allowed for the use of UTMA funds, even for

everyday expenses, when a parent had exhausted his or her own resources

and the funds were used reasonably for the child’s benefit. T.C.O. at 5-6.

By citing this law, the orphans’ court implicitly found that Mother’s use of the

funds was for Child’s benefit. The orphans’ court found Mother’s testimony

about the availability of her own resources and her use of the UTMA funds

credible.   Id. at 6.   Again, as the record supports these findings, the

orphans’ court did not abuse its discretion.

      Finally, Father argues that the orphans’ court erred in finding that he

was motivated partially to harass Mother. Father contends that the only way

the court could have reached this conclusion was to consider testimony from

Mother that Father successfully objected to as non-responsive or irrelevant.

Father asserts that he brought this action only to seek an accounting of

Child’s UTMA account. Father’s Brief at 21-23.

      Because both sides sought counsel fees, the court was required to

examine the parties’ intent and actions during the litigation. To impose fees

under 42 Pa.C.S.A. § 2503(7) or (9), the court must make a specific finding

of dilatory, obdurate, vexatious, or arbitrary conduct or bad faith. Yeager

v. Kavic, 765 A.2d 812, 815 (Pa. Super. 2000); see 42 Pa.C.S.A.

§ 2503(7), (9) (permitting an award of counsel fees for “dilatory, obdurate




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or vexatious conduct” during the pendency of a matter or for conduct in

commencing a matter that was “arbitrary, vexatious or in bad faith”).4

Further,    such    an   award     can    be   based   upon   a   court’s   credibility

determinations.      M.C. v. R.W., 580 A.2d 1124, 1127 (Pa. Super. 1990),

overruled on other grounds by G.B. v. M.M.B., 670 A.2d 714 (Pa. Super.

1996) (en banc).

       Father testified that he never asked Mother for an informal accounting

before filing the demand for one with the court.              N.T. at 188.     Father

admitted that he had access to the bank statements from both of Child’s

accounts prior to initiating this litigation. Further, Father admitted that he

sought an accounting for the second account even though the bank

statements showed an initial deposit and no subsequent withdrawals. Id. at

189.   Based in part upon this testimony, the orphans’ court found that “it

appears [Father] was motivated to pursue this matter in equal parts to

harass his ex-wife and to protect [Child’s] assets.” T.C.O. at 6. However,

this finding played no role in the final order. While the court questioned the

purity of Father’s motives, it did not award counsel fees or otherwise

sanction Father because it did not find that Father acted solely with frivolous

or vexatious intent. Id. The court’s conclusion regarding Father’s intent is



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4
       Father sought counsel fees pursuant to 42 Pa.C.S.A. § 2503(7) in his
petition for an accounting, and Mother sought counsel fees pursuant to 42
Pa.C.S.A. §§ 2503(7) and (9) in her answer and counterclaim.



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not at odds with the record and it had no discernable impact upon the final

order. We find no abuse of discretion.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2014




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