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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

DORIS PULLETT                           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
CHARLES PULLETT,                        :          No. 3260 EDA 2016
                                        :
                        Appellant       :


           Appeal from the Order Entered September 19, 2016,
           in the Court of Common Pleas of Philadelphia County
          Family Court Division at No. June Term, 2006, No. 8419


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MARCH 08, 2018

      Charles Pullett (“Husband”) appeals the order of the Court of Common

Pleas of Philadelphia County that decreed that he and Doris Pullett (“Wife”)

were divorced and ordered him to pay Wife $48,405.38, which represented

Wife’s share of equitable distribution; to pay Wife’s present counsel

$10,481.25 for counsel fees, costs, and expenses; to pay alimony to Wife in

the amount of $1,000 per month for four years or until the death of either

party, or upon the remarriage or cohabitation of Wife; and to obtain a life

insurance policy designating Wife as beneficiary for a period terminating with

the fulfillment of his alimony obligations. After careful review, we affirm in

part, vacate in part, and remand in part.

      The trial court recounted the following facts and procedural history:
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          [T]he parties were married on December 30, 1989.
          They had three children, two of whom are currently in
          their 30’s and one of whom is in his 20’s. Husband
          alone contributed financially to the family, working
          continuously as a truck driver for various solid waste
          hauling entities. For the first half of 2006, Husband’s
          gross pay was $37,548.13. Wife remained at home,
          raising the children and running the household.
          During the marriage, Husband had two retirement
          accounts: 1) a 401(k); and 2) an IRA annuity. In
          2007, Husband received funds from a union
          settlement, the majority of which the parties agree to
          be marital property. In addition, the parties had a
          checking account and a savings account. All financial
          correspondence was sent to Husband’s mother’s home
          and not to the marital residence; Wife was not privy
          to the ongoing financial status of the accounts. The
          parties never owned the marital residence, but rented
          the entire time they lived together as a family. Nor
          did they own any other real property.

                Husband testified that the standard of living
          during the marriage consisted of the family living
          together and his taking care of them. The family went
          on a vacation while Husband worked. There never
          was more than $5000 in savings. Wife testified that
          Husband “paid the bills” and that she and the children
          went on one family vacation.

                 Husband testified the parties continued to live
          together as long as they did as a married couple
          because he felt that he had obligations to Wife. Wife
          testified that during the marriage Husband went out
          “a lot” and that he was “seeing someone else.” Wife
          also testified the [sic] Husband was verbally abusive
          and at times was physically abusive.

                After separation, Wife obtained employment as
          a care assistant at a senior living facility, where she
          remained so employed until she was laid off in
          February 2016. At the time of termination, Wife
          earned approximately $30,577 per year.           Wife’s
          maximum        entitlement       to     unemployment
          compensation benefits for the period Feb. 14, 2016


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              through February 11, 2017 is $8,259. Wife had
              received post-separation support from Husband of
              $1,420 per month (Wife and one child) and currently
              receives $1050 per month (Wife only). Wife has a
              post-separation 401(k) account, whose value she
              approximated to be $1000, in which she was not fully
              vested at the time of the trial.

                    The documentary and testimonial evidence
              established the following values for the four primary
              marital assets: 1) Husband’s 401(k) account valued
              at $23,105.63 as of 7/1/07, the closest date to the
              time of separation supplied by Husband, 2) Husband’s
              IRA account valued at $45,000 as of 3/31/06, 3) union
              settlement of $11,410 (pre-tax), and 4) Wells Fargo
              checking account balance of approximately $3,000.

                      The salient procedural events in the course of
              this litigation, as gleaned from the docket report, are
              as follows:

                    June 7, 2006 – Complaint in divorce filed
                    by Wife.
                    July 14, 2006 – Answer and counterclaim
                    filed by Husband.
                    ....
                    June 12, 2012 – Order approving grounds
                    for divorce.
                    ....
                    June 15, 2015 – Master’s report filed.
                    ....
                    July 6, 2015 – Husband’s praecipe for trial
                    de novo.
                    ....
                    Sept. 19, 2016 – Trial de novo conducted
                    and Order filed.
                    Oct. 18, 2016 – Husband’s notice of
                    appeal and Rule 1925(b) statement filed.

                   In his concise statement of errors complained of
              on appeal, filed pursuant to Pa.R.A.P. 1925(b),
              Husband raises 17 discrete issues.[1]

1   Husband raises only four of those issues in his brief before this court.


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Trial court opinion, 1/10/17 at 1-4 (footnote and citations to the record

omitted). The trial court issued a divorce decree in the first paragraph of the

September 19, 2016 order.       The trial court entered an amended divorce

decree on November 9, 2017.2

      Appellant raises the following issues for this court’s review:

            1.    Whether the trial court erred as a matter of law
                  or abused its discretion in not applying deferred
                  distribution of the retirement benefits through a
                  qualified domestic relations order (QDRO)[3] --
                  pursuant to 3501(c)(1) of the Divorce Code --
                  or alternatively, to calculate the IRS penalty and
                  taxes Husband would have to pay for premature
                  withdrawal of retirement benefits[?]

            2.    Whether the trial court erred as a matter of law
                  or abused its discretion in not giving Husband
                  credit for paying alimony pendente lite
                  [(“APL”)] for over 10 years, but instead ordered
                  him to continue paying alimony for another
                  four (4) years, which constitutes 14 years total
                  of support to Wife for a 16-year marriage,

2This court initially quashed Husband’s appeal on October 25, 2017. Husband
moved for reconsideration. On December 7, 2017, this court granted panel
reconsideration.

3           A QDRO is an order “which creates or recognizes the
            rights of an alternate payee to receive all or a portion
            of the benefits payable to a participant under the plan.
            To be ‘qualified,’ the order must contain certain
            required information and may not alter the amount or
            form of plan benefits.” Berrington v. Berrington,
            534 Pa. 393, 633 A.2d 589, 591 n. 3 (1993) (citation
            omitted). The actual qualifying of the domestic
            relations order is done by the employer’s pension
            administrator.

Smith v. Smith, 938 A.2d 246, 248 n.3 (Pa. 2007).


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                  despite the fact that Wife had been gainfully
                  employed full time for almost ten years
                  subsequent to the parties’ separation[?]

            3.    Whether the trial court erred in ordering
                  Husband to pay alimony on a fixed basis,
                  regardless of any potential future changes in
                  income, earning capacity, health condition, or
                  disability -- in direct violation of 23 Pa.C.S.[A.]
                  § 3701(e)[?]

            4.    Whether the trial court erred as a matter of law
                  or abused its discretion in ordering Husband to
                  pay Wife $10,481.25 for counsel fees, even
                  though it was undisputed that Wife had worked
                  for over nine years after the parties’ separation
                  and received support from Husband in the
                  amount of $1,050 monthly under the statutory
                  formula for APL (40% of the difference in the
                  parties’ respective net incomes), which
                  equalized the incomes between the parties and
                  placed the parties in equal financial positions[?]

Appellant’s brief at 2-3.

      Initially, Husband contends that the trial court erred as a matter of law

when it failed to apply deferred distribution of appellant’s retirement benefits

through a QDRO pursuant to Section 3501(c)(1) of the Divorce Code,

23 Pa.C.S.A. § 3501(c)(1) or alternatively, to calculate the Internal Revenue

Service penalty and taxes for premature withdrawal of retirement benefits.

                   [O]ur standard for reviewing awards of equitable
            distribution is well settled. The trial court has broad
            discretion in fashioning such awards, and we will
            overturn an award only for an abuse of that discretion.
            Isralsky v. Isralsky, 824 A.2d 1178 (Pa.Super.
            2003). To assess whether the trial court abused its
            discretion, we must determine whether the trial court
            misapplied the law or failed to follow proper legal
            procedure.       Id.      Further, we measure the


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            circumstances of the case against the objective of
            effectuating economic justice between the parties and
            achieving a just determination of their property rights.
            Id.

Hayward v. Hayward, 868 A.2d 554, 557-558 (Pa.Super. 2005).

      Husband argues that the trial court awarded Wife 60% of the total

retirement benefits of $68,106, which equaled $40,864, to be transferred to

Wife. Husband asserts that this amount should have been distributed through

a QDRO from his retirement account into Wife’s retirement account. Husband

asserts that he cannot withdraw $40,864 without paying the IRS penalty and

income tax of a 20% mandatory withholding tax and a 10% early withdrawal

penalty.   In order to pay Wife in cash, Husband states that he could only

receive $28,605 after paying the penalty and tax to the Internal Revenue

Service.

      The trial court established that the value of Husband’s 401(k) account

on July 1, 2007, which was the closest date to the time of separation supplied

by Husband, was $23,105.63.        (See trial court opinion, 1/10/17 at 5.)

However, as the trial court points out, Husband testified that he had already

withdrawn all the funds from the 401(k) account.         (Notes of testimony,

9/19/16 at 89-91.) As there was no 401(k) account from which to draw funds,

the transfer could not have been effectuated via a QDRO.

      As to Husband’s IRA account which was valued at $45,000 as of

March 31, 2006, the trial court asserted that Husband waived this issue

because he neither asked for a QDRO at trial nor provided the figures upon


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which a penalty for early withdrawal could be calculated.       A review of the

record confirms that Husband did not raise this issue before the trial court.

Consequently, it is waived. Issues not timely raised before the trial court are

waived on appeal.    Pa.R.A.P. 302(a); Tecce v. Hally, 106 A.3d 728, 732

(Pa.Super. 2014), appeal denied, 125 A.3d 778 (Pa. 2015).

      Husband next contends that the trial court abused its discretion when it

failed to give Husband credit for paying APL for more than 10 years, but

instead ordered him to continue paying alimony4 for another four years, which

constituted 14 years of total support to Wife for a 16-year marriage, despite

the fact that Wife had been gainfully employed post-separation.

                  Our standard of review regarding
                  questions pertaining to the award of
                  alimony is whether the trial court abused
                  its discretion.     We previously have
                  explained that “[t]he purpose of alimony
                  is not to reward one party and to punish
                  the other, but rather to ensure that the
                  reasonable needs of the person who is
                  unable to support himself or herself
                  through appropriate employment, are
                  met.” Alimony “is based upon reasonable
                  needs in accordance with the lifestyle and
                  standard of living established by the
                  parties during the marriage, as well as the
                  payor’s ability to pay.”        Moreover,
                  “[a]limony following a divorce is a
                  secondary remedy and is available only
                  where     economic    justice   and     the
                  reasonable needs of the parties cannot be

4 Alimony is paid, if at all, after the parties are divorced. 23 Pa.C.S.A.
§ 3701(a). APL is paid during the pendency of the divorce so that both parties
have equal ability to pursue the divorce proceeding. See 23 Pa.C.S.A. § 3702;
Litmans v. Litmans, 673 A.2d 382 (Pa.Super. 1996).


                                     -7-
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                  achieved by way of an equitable
                  distribution award and development of an
                  appropriate employable skill.”

            Moran v. Moran, 839 A.2d 1091, 1096-97 (Pa.Super.
            2003) (citations omitted) (emphasis in original).

                  In determining whether alimony is
                  necessary, and in determining the nature,
                  amount, duration and manner of payment
                  of alimony, the court must consider
                  numerous factors including the parties’
                  earnings and earning capacities, income
                  sources, mental and physical conditions,
                  contributions to the earning power of the
                  other, educations, standard of living
                  during the marriage, the contribution of a
                  spouse as homemaker and the duration of
                  the marriage.

            Anderson v. Anderson, 822 A.2d 824, 830-31
            (Pa.Super. 2003) (citations omitted). See also
            23 Pa.C.S.A. § 3701.

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

      Husband argues that it is grossly unfair that he must continue to support

Wife after Wife prolonged the divorce process for the clear purpose of

collecting alimony pendente lite.     Husband asserts that nothing prevents

Wife from working as a truck driver and earning the same amount as he does.

He asserts that the only difference is that he is willing to work overtime at an

undesirable job and she is not. He also argues that Wife has a post-marital

401(k) plan.

      The trial court addressed this issue:

                 This Court has considered all of these factors in
            determining that four more years of alimony at the


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            rate of $1000 a month is an appropriate award to
            Wife. The Court considers the following factors to be
            of particular significance in this matter: 1) the relative
            earnings and earning capacities of the parties
            (Husband’s $66,000[5] annual salary; Wife’s
            maximum $8,632 unemployment compensation
            benefits for period 2/14/16—2/11/17); 2) the ages
            and the physical, mental and emotional conditions of
            the parties; 3) the sources of income of both parties,
            including, but not limited to, medical, retirement,
            insurance or other benefits; 4) the duration of the
            marriage; 5) the standard of living of the parties
            established during the marriage; 6) the relative
            education of the parties and the time necessary to
            acquire sufficient education or training to enable the
            party    seeking      alimony     to  find   appropriate
            employment; 7) the relative assets and liabilities of
            the parties; 8) the contribution of Wife as
            homemaker; 9) the relative needs of the parties;
            10) the marital misconduct of Husband during the
            marriage; 11) [w]hether the party seeking alimony
            lacks sufficient property, including, but not limited to,
            property distributed under Chapter 35 (relating to
            property rights), to provide for the party’s reasonable
            needs; and (12) Wife’s capability to support herself
            through appropriate employment.

                  Additionally, Husband is not obligated to pay for
            Wife’s medical insurance and Wife, presumably, will
            be required to obtain a policy of her own. The Court
            gave great weight to the disparity of the earnings of
            the parties. Husband currently earns approximately
            $66,000 a year, while the Wife receives APL [] of
            $1050 per month and $332 a week in unemployment
            compensation benefits (maximum benefit of $8,632
            for the period 2/14/16—2/11/17).

Trial court opinion, 1/10/17 at 11-13.




5 The trial court mentioned an income amount of $37,548.13 in its factual
summary. This number represents Husband’s income for the first half of 2006.
Wife filed a divorce complaint in June 2006.


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       First, with respect to the award of alimony, it is clear the trial court

reviewed the relevant statutory factors for alimony.              See 23 Pa.C.S.A.

§ 3701(b). Second, although Husband referred to Wife’s post-marital 401(k),

Wife testified that the account was valued at approximately $1,000. (Notes

of testimony, 9/19/16 at 227.) In and of itself, this amount would not be

sufficient to cause the trial court’s award to constitute an abuse of discretion.

Third, although Husband asserts that Wife prolonged the duration of the

litigation,   the   trial   court   explicitly   found,   “[c]ontrary   to   Husband’s

representation, Wife has not ‘protracted and prolonged’ this divorce

proceeding, as evidenced by the docket entries.” (Trial court opinion, 1/10/17

at 10.) Fourth, while Husband focuses on the APL he paid during the pendency

of the divorce, the purposes of APL and alimony are different. APL is paid

during the course of divorce proceedings so that both parties have equal ability

to pursue the divorce proceeding.            See 23 Pa.C.S.A. § 3702.         “Alimony

following a divorce is a secondary remedy and is available only where

economic justice and the reasonable needs of the parties cannot be achieved

by way of an equitable distribution award and development of an appropriate

employable skill.” Moran, 839 A.2d at 1097, quoting Twilla v. Twilla, 664

A.2d 1020, 1022 (Pa.Super. 1995) (emphasis in original). Given the different

purposes for APL and alimony, the fact that Husband paid APL during the

course of the divorce proceedings does not preclude the award of alimony




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following a divorce. This court does not find that the trial court abused its

discretion when it fashioned its award of alimony.

      Husband next contends that the trial court erred when it ordered him to

pay alimony non-modifiable in amount or duration and only terminable upon

the death of either party or Wife’s remarriage or cohabitation in direct violation

of Section 3701(e) of the Divorce Code, 23 Pa.C.S.A. § 3701(e).

      Section 3701(e) provides:

            (e)   Modification and termination.--An order
                  entered pursuant to this section is subject to
                  further order of the court upon changed
                  circumstances of either party of a substantial
                  and continuing nature whereupon the order may
                  be modified, suspended, terminated or
                  reinstituted or a new order made. Any further
                  order shall apply only to payments accruing
                  subsequent to the petition for the requested
                  relief.   Remarriage of the party receiving
                  alimony shall terminate the award of alimony.

23 Pa.C.S.A. § 3701.

      The order to which Husband refers states in pertinent part the following:

            3.    Husband shall pay alimony to Wife in the
                  amount of $1,000 per month for a period of
                  4 years (48 months) effective the date of this
                  decree and order. Said alimony shall terminate
                  upon the expiration of the aforesaid 4 year
                  period, upon the death of either party, or upon
                  the remarriage or cohabitation of Wife,
                  whichever first occurs. Otherwise, said alimony
                  shall be non-modifiable in amount and duration.
                  A separate domestic relations order is being
                  entered contemporaneously herewith.

Order, 9/19/16 at 1-2, ¶ 3 (capitalization and bolding omitted).



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      In its opinion, the trial court stated, “[t]his issue is without merit as

nothing in the Court’s order precludes Husband from seeking modification,

suspension, termination, or reinstitution of the order should either party

experience changed circumstances of a substantial and continuing nature.”

(Trial court opinion, 1/10/17 at 14.)

      Husband correctly asserts that under the plain language of the statute,

changed circumstances of a substantial and continuing nature by either party

may lead to a modification, suspension, termination, reinstitution, or a new

order. However, under the order fashioned by the trial court, the possible

modification is limited to a termination of alimony upon the death of either

party or the remarriage or cohabitation of Wife. Further, although the order

states   that   a   separate   domestic   relations   order   would   be   entered

contemporaneously, the docket entries and record of this case do not indicate

that such an order was entered. To add to the confusion, the trial court states

in its opinion that nothing in the order prevents Husband from seeking

modification if either party experiences changed circumstances of a

substantial and continuing nature. The order clearly does not state that.

      The trial court erred or abused its discretion when it issued an order that

was not in conformity with Section 3701 of the Divorce Code.           This court

vacates paragraph 3 of the September 19, 2016 order and remands to the

trial court for the insertion of language concerning modification of the alimony




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award that conforms with Section 3701 of the Divorce Code and the trial

court’s opinion.

      Husband next contends that the trial court abused its discretion when it

ordered Husband to pay Wife $10,481.25 for counsel fees, even though it was

undisputed that Wife had worked for almost ten years post-separation and

received support from Husband under the statutory formula for APL which

equalized the incomes between the parties and placed the parties in equal

financial positions.

                   Our standard of review of the award of
                   counsel fees pursuant to the Domestic
                   Relations Code is for an abuse of
                   discretion. See Bowser v. Blom, 569 Pa.
                   609, 807 A.2d 830, 834 (Pa. 2002). An
                   abuse of discretion is “[n]ot merely an
                   error of judgment, but if in reaching a
                   conclusion[,] the law is overridden or
                   misapplied, or the judgment exercised is
                   manifestly unreasonable, or the result of
                   partiality, prejudice, bias or ill-will, as
                   shown by the evidence of record.” Id.
                   (citations omitted).      “[R]eview of the
                   grant of counsel fees is limited . . . and we
                   will reverse only upon a showing of plain
                   error.” Isralsky v. Isralsky, 824 A.2d
                   1178, 1192 (Pa.Super. 2003) (citation
                   omitted).

            Kraisinger v. Kraisinger,          34   A.3d   168,    175
            (Pa.Super. 2011).

Habjan v. Habjan, 73 A.3d 630, 642 (Pa.Super. 2013).

      Husband argues that because he paid APL since the time of separation

and Wife worked outside the home post-separation, their incomes were



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comparable. He also asserts that she protracted the litigation in order to reap

additional APL. As stated above, the trial court did not accept this contention

that Wife unnecessarily extended the litigation. Husband asserts that forcing

him to pay Wife’s counsel fees after ten years of paying APL and after Wife

took steps to prevent the divorce from being finalized is a gross injustice, an

abuse of discretion, and a misapplication of the law.

      The trial court explained its decision with respect to attorney fees:

            The purpose of an award of counsel fees is to promote
            fair administration of justice by enabling the
            dependent spouse to maintain or defend the divorce
            action without being placed at a financial
            disadvantage; the parties must be “on par” with one
            another. Counsel fees are awarded based on the facts
            of each case after a review of all the relevant factors.
            These factors include the payor’s ability to pay, the
            requesting party’s financial resources, the value of the
            services rendered, and the property received in
            equitable distribution.

                  This Court considered Husband’s ability to pay
            ($66,000 annual salary), Wife’s current financial
            resources      ($8,259      maximum      unemployment
            compensation benefits for period 2/14/16—2/11/17),
            the value of the services rendered by Wife’s counsel,
            and the property received in equitable distribution in
            exercising its discretion in awarding Wife counsel fees.
            As previously noted, Husband has the ability to pay
            Wife’s counsel fees, while Wife is currently
            unemployed. Contrary to Husband’s representation,
            Wife has not “protracted and prolonged” this divorce
            proceeding, as evidenced by the docket entries.
            Husband has made no showing that the hourly rate
            ($350) charged by Wife’s counsel was outside the
            range of experienced divorce attorneys practicing in
            the Philadelphia area. This issue is without merit.

Trial court opinion, 1/10/17 at 10 (citations omitted).


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      A review of the record supports the trial court’s conclusion that Husband

earns substantially more than Wife earns and that Husband has the ability to

pay Wife’s counsel fees.     Further, it is not for us to determine if the rate

charged by Wife’s counsel was exorbitant.      Additionally, although Husband

asserts that he paid APL for ten years, Wife testified that Husband came back

to court to have the amount reduced, and at the time, Wife could not afford

to pay counsel to challenge the action. (Notes of testimony, 9/19/16 at 208.)

Husband’s counsel stipulated that spousal support was suspended in 2007.

(Id. at 147.) In 2012, such support was reinstated. (Id. at 151.) The trial

court considered the relevant factors when it awarded attorney fees. The trial

court did not abuse its discretion when it did so.

      Order affirmed in part, vacated in part, and remanded in part.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 3/8/18




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