J-S23030-14

                              2014 PA Super 190

DONG YUAN CHEN                                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JEFFAR SAIDI

                         Appellant                    No. 2405 EDA 2013


                Appeal from the Order Entered July 26, 2013
           In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): 04-09396


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and WECHT, J.

OPINION BY LAZARUS, J.:                          FILED SEPTEMBER 02, 2014

      Jeffar Saidi (Husband) appeals from the order entered in the Court of



property and awarding counsel fees to Dong Yuan Chen (Wife).           After our

review, we affirm in part and reverse in part.

      The trial court set forth the facts underlying this appeal as follows:

      This action began with the commencement of a Complaint in
      Divorce on May 5, 2004 and has a nine-year history with the
      filing of petitions in support, custody, contempt, and appeals.
      For purposes of this instant appeal, on February 6, 2013, a

      Distribution, Alimony, Counsel Fees and Costs was entered which
      recommended that judgment be entered in favor of [Wife] and
      against [Husband] in the amount of $30,382.50 ($5,000 of

      Judgment Upon Equitable Distribution, Alimony, Counsel Fees
      and Costs, 2/6/13, p. 10). This award represented counsel fees
      to [Wife] and one-                          are. Id. at 9-10.
      Thereafter, on February 8, 2013, [Husband] filed timely

      (Support Exceptions, 2/8/13).
J-S23030-14


      On June 14, 2013, [the trial] court issued an order ruling that
                                   , Agreed Order legally binds the

      said Agreed Order was non-modifiable by [the trial] court.
      Subsequently, [the trial] court issued its above-mentioned July
      25, 2013 Order and Decree in Divorce. In response to these
      orders filed on July 25, 2013, [Husband] filed a Motion for
      Reconsideration on August 2, 2013 arguing that [he had the


      [Wife] was improper.    In response, [the trial court] issued an

      August 19, 2013 which denied said motion. However, [the trial
      court concluded] the parties were still bound to the terms of the


Trial Court Opinion, 10/17/2013, at 1-2.

      Husband filed a notice of appeal on August 19, 2013 and a concise

statement of errors complained of on appeal on August 30, 2013. He raises

the following three issues:

         1) Did the trial court err as a matter of law or abuse its
         discretion when it determined that Husband, pursuant to
         the August 22, 2011 Agreed Order, had waived his right to
         take exceptions to the Equitable Distribution
         Report dated February 6, 2013?

         2) Did the trial court err or abuse its discretion when it
         awarded counsel fees to be paid by Husband pursuant to
         section 5339 of the Child Custody Act, 23 Pa.C.S. § 5339?

         3) Did the Master in Equitable Distribution disregard
         Section 3501(a.1) of the Divorce Code, 23 Pa.C.S. §
         3501(a.1), by failing to consider the substantial decrease
         in residential real estate values and instead used the 2004

         increase in value of the marital residence during the
         duration of the marriage which lasted less than five (5)
         years?

Brief of Appellant, at 3.


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          We note initially that the trial court issued two separate
          orders on July 25, 2013: the first, a divorce decree, and
          the sec
          custody and granting Wife counsel fees. Although it was
          not clear which July 25, 2013 order Husband appealed, his
          Rule 1925(b) statement of errors complained of on appeal
          indicated he was challenging both orders.1

       In his first issue, Husband argues the trial court erred in determining

that pursuant to the August 22, 2011 Agreed Order, Husband had waived his



       The relevant portion of the August 22, 2011 Agreed Order states:


       Claim back to Master is GRANTED.
       binding upon the parties and shall be issued with a 236
       Notice entered as a Judgment Lien. The Proceedings shall be
       on the Record with [Husband] responsible to pay all Court
       Reporter fees. All financial records are admissible as business
       records without authentication.

       3. [Husband] maintains his appellate rights to the Superior Court
       for legal issues.

       4. [Husband] waives his right to stay enforcement of the Masters
       Order pending appeal.

Agreed Order, 8/22/11 (emphasis added).



____________________________________________


1
                              eal from separate judgments is not acceptable
                                Gen. Elec. Credit Corp. v. Aetna Cas. &
Sur. Co., 263 A.2d 448, 452 (Pa. 1970); see also Pa.R.A.P. 341, Note;
Pa.R.A.P. 512, Note. Although Wife has objected to Husband filing one
appeal from two separate final orders, the trial court has addressed the
issues pertaining to each order. Under these circumstances, we do not find
                                                         See TCPF Ltd.
Partnership v. Skatell, 976 A.2d 571 (Pa. Super. 2009).



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J-S23030-14




                                                                         y.

Thereafter, on June 23, 2011, Husband filed a motion to remand the matter

for a de novo hearing. In that motion to remand, Husband averred that the



and, accordingly, the parties presented no testimony at the hearing.   The



and he did not understand that stipulating to certain facts would preclude

him from testifying.2

       The Honorable Carolyn Tornetta Carluccio granted the motion to




the parties and entered as a judgment lien. See Order, supra. Thereafter,

a second hearing before the Master was conducted on December 17, 2012.



and cannot be enforced. First, we point out that Husband cites to no case

law or authority to support his argument that the August 22, 2011 Agreed




____________________________________________


2

did not understand the effect of stipulating to certain facts seem to point
more toward his communications and relationship with counsel than to
                                       on that the parties share equally in
the marital property.



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J-S23030-14



Order is unenforceable. He does not argue that he was denied a hearing,

nor does he claim that his consent to this order was obtained through fraud.

      Second, we perceive no violation of public policy.   The trial judge, the

Hon

agreement to arbitrate. Generally, procedures that permit parties to agree

to resolve disputes outside the court system, whether through arbitration,

mediation, or as here, agreeing to be

are favored remedies.    Miller v. Miller, 620 A.2d 1161 (Pa. Super. 1993).

In Miller, this Court held that an arbitration award regarding custody was

not void as against public policy, but it was not binding on a court of

competent jurisdiction in the event the award were challenged by one of the

parties as not being in the best interests of the child. Id. at 1164. Here,



did not concern the

      The court further cited to section 3105 of the Divorce Code, which

provides:

      In the absence of a specific provision to the contrary appearing
      in the agreement, a provision regarding the disposition of
      existing property rights and interests between the parties,
      alimony, alimony pendente lite, counsel fees or expenses shall
      not be subject to modification by the court.

23 Pa.C.S. § 3105(c).

      There is no specific provision in the Agreed Order of August 22, 2011

providin

Order was incorporated into the final decree in divorce.    See Karkaria v.

                                    -5-
J-S23030-14



Karkaria

in an order or judgment will not later be                                  cf. Miller,

supra (parties who have agreed to arbitrate should be bound by that

decision).



agreement.      Husband cannot claim that he was denied a hearing, nor does

he claim that fraud, misconduct, or corruption caused an unfair award. We

agree with the trial court that absent a provision to the contrary, the

agreement is not subject to modification.

       In his second issue, Husband argues that the trial court erred or

abused its discretion in awarding Wife counsel fees. Our standard of review

of an award of counsel fees is we

determination absent an abuse of discretion. Verholek v. Verholek, 741

A.2d 792, 795 (Pa. Super. 1999).          A trial court has abused its discretion if it

failed to follow proper legal procedures or misapplied the law. Id. See also

Thunberg v. Strause

review in cases involving counsel fees is limited to determining whether trial

court abused its discretion).

       Here, the court relied on section 5339 of the Child Custody Act3 as the

basis for the award.          No case law exists regarding interpretation or

____________________________________________


3
 23 Pa.C.S. § 5339. Section 5339 of the Child Custody Act was enacted in
2010 and took effect on January 24, 2011.
(Footnote Continued Next Page)


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J-S23030-14



construction of this statute.         The statute was adopted as proposed, with

legislative remarks on the overall goal of the new custody law, but without

legislative comment with respect to counsel fees.4         Section 5339 provides

the authority for the award of counsel fees and costs in custody matters, not



                                                     Id.   Section 5339 states:

      Under this chapter, a court may award reasonable interim or
      final counsel fees, costs and expenses to a party if the court
      finds that the conduct of another party was obdurate, vexatious,
      repetitive or in bad faith.

23 Pa.C.S. § 5339 (emphasis added). This language is essentially identical

to the language in sections 2503(7) and (9) of the Judicial Code, 42 Pa.C.S.

§ 2503, which allows an award of counsel fees under the following

circumstances:

      (7) Any participant who is awarded counsel fees as a sanction
      against another participant for dilatory, obdurate or vexatious
      conduct during the pendency of a matter.

      (9) Any participant who is awarded counsel fees because the
      conduct of another party in commencing the matter or otherwise
      was arbitrary, vexatious or in bad faith.

42 Pa.C.S. §§ 2503(7), (9).


                       _______________________
(Footnote Continued)


4
 http://www.legis.state.pa.us/cfdocs/billinfo.   See Pa. House Legislative
Journal, June 9, 2010, at 788-
enacted into law, [HB 1639] will . . . improve the functioning of family court




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J-S23030-14



     The distinction between section 5339 of the Domestic Relations Code

and section 2503 of the Judicial Code is simply the addition of the word



serious concern since Pennsylvania liberally allows custody modification

                                     Changing Child Custody Law- The Best

Interests of Our Children Demand Our Best Efforts, Pennsylvania Law

Weekly, 2009 December 14.



of statutes is to ascertain and effectuate the intention of the General

              Carrozza v. Greenbaum, 916 A.2d 553, 564 (Pa. 2007)

(quoting 1 Pa.C.S. § 1921(a)). We must also presume that the legislature

did not intend any language of a statute to exist as mere surplusage.

Burdick v. Erie Ins. Group, 946 A.2d 1106 (Pa. Super. 2008).

     Because this is a matter of first impression, we are inclined to look to

case law interpreting section 2503 for guidance in determining whether



Wife. A suit is vexatious, such as would support an award of counsel fees, if

it is brought without legal or factual grounds and if the action served the

sole purpose of causing annoyance.     In re the Barnes Foundation, 74



that protracts litigation may nonetheless not rise to the level of obdurate,



West's Pa. Prac., Family Law § 13:2 (7th ed.) (citing Gardner v. Gardner,

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J-S23030-14



538 A.2d 4 (Pa. Super. 1988)).           Section 2503(9) serves not to punish all

those who initiate legal actions that are not ultimately successful, or which

may seek to develop novel theories in the law, as such a rule would have a

chilling effect on the right to bring suit for real legal harms suffered. Rather,

the statute focuses attention on the conduct of the party from whom counsel

                                                                        Thunberg

v. Strause, supra.



                                                         5
on a definition from Merriam-




counsel fees under the new custody statute to deter repetitive filings that

may affect the best interest of a child and require that the child constantly
                                                             6
                                                                 Id. at 7. The best

interest of a child is the foundation of the child custody law, and that

includes section 5339. However, although repetition alone may be grounds

for imposition of counsel fees, we conclude that the circumstances here do

____________________________________________


5
    http://www.merriam-webster.com/dictionary.
6
  We note that this case is not a Family Fast Track appeal. The appeal is
from the order entering a decree in divorce and resolving the economic
claims of the parties. See Pa.R.A.P. 102. This Court entered an order on
September 4, 2013 directing the Prothonotary to remove the Family Fast
Track designation.



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J-S23030-14



not warrant an award.       The trial court correctly points out that great

emphasis must be placed on the best interest of the child based on a



intellectual, moral, and spiritual well-being.   See Wheeler v. Mazur, 793

A.2d 929, 933 (Pa. Super. 2002). However, the trial court failed to explain

in its opinion how the filing of seven petitions to modify custody in the span

of a seven-year proceeding legitimately affected the well-being of the child

or how the filings in any way altered the status quo.

      The various petitions, filed typically at least one year apart from each

other, involved a range of issues. The first petition for modification was filed

on February 7, 2007, seeking primary custody.        The second petition was

filed on February 19, 2008, seeking a modification of the school-holiday and

summer-break schedule. In the third petition, filed on May 26, 2009, Father

sought to amend the school-year custody schedule, seeking custody every

other Friday night.   In his fourth petition, filed on April 26, 2010, Father

requested an increase in the summer shared custody schedule, from two

weeks of summer vacation time to four weeks. The fifth petition was filed

on April 5, 2011, seeking modification of the school-year schedule.         The

sixth petition was filed on December 5, 2011 seeking to travel internationally

with the child. Lastly, the seventh petition was filed on July 5, 2012, and in

that petition, Father sought, again, to modify the school-year schedule.    We

                                                                            see




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J-S23030-14



Agreed Order, 4/23/2008, filed May 8, 2008, and his fourth petition, filed

April 26, 2010, was granted in part.7

        Given the fact that Husband filed the seven petitions over as many

years, and in light of the fact that each petition sought distinct relief

pertaining to a variety of legitimate issues that typically arise in a custody




say that each of the petitions was without relative merit. Additionally, there
                                                                              8


____________________________________________


7
  This order reads: AND NOW, this 15th day of July, 2010, after Hearing in
the above captioned matters, it is hereby ORDERED and DECREED that

DENIED in part. Father shall have custody of minor child on Mondays from
4:00 p.m. through Fridays at 9:00 a.m. Mother shall have custody of minor

Exceptions in Support filed 5/13/2010 is referred to DRO for determining of
whether or not [Defendant] is entitled to receive direct credit for expense
payments at the same time as the pending scheduled recalculation in
September.
8
    A childhood marked by custody and equitable distribution disputes is never

ongoing conflict is harmful to children of divorce and, therefore, it is not in
                     ests, and that one way to discourage the conflict is to
hold parties accountable through the award of counsel fees.              Again,
however, we are not presented with any specific information as to how these
petitions for modification affected the child in this case. Moreover, we
emphasize that the majority of the conflict in this litigation pertained to the


intractable p                                                             See

(Footnote Continued Next Page)


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J-S23030-14




section 5339 was unwarranted and an abuse of discretion in this case.

Verholek, supra. Thus, we reverse the award of counsel fees.

        Finally, Husband argues the marital residence should have been valued

as of the date of distribution (2013) instead of the date of separation

(2004), and that using the 2004 date disregarded the substantial decrease

in the value of real estate. This issue is waived.

        In his Rule 1925(b) statement of errors complained of on appeal, filed




Report on equitable distribution,

Wife.    Thereafter, Husband filed a supplemental Rule 1925(b) statement,

raising the claim that the court erred in the valuation of the marital

residence. However, Husband did not seek permission to file a supplemental

Rule 1925(b) statement, nor did the court grant an extension to file a

supplemental statement. Consequently, the trial court did not address this

claim in its opinion.

        Rule 1925(b) provides, in relevant part:

        The judge shall allow the appellant at least 21 days from the

        of the Statement. Upon application of the appellant and for good
                       _______________________
(Footnote Continued)

husband was vexatious and obdurate is not before us and need not be
addressed.



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J-S23030-14


        cause shown, the judge may enlarge the time period initially
        specified or permit an amended or supplemental Statement to be
        filed. Good cause includes, but is not limited to, delay in the
        production of a transcript necessary to develop the Statement so
        long as the delay is not attributable to a lack of diligence in
        ordering or paying for such transcript by the party or counsel on
        appeal. In extraordinary circumstances, the judge may allow for
        the filing of a Statement or amended or supplemental Statement
        nunc pro tunc.

Pa.R.A.P. 1925(b)(2) (emphasis added).

        Because Husband filed a supplemental Rule 1925(b) statement without

seeking permission from the trial court, we are precluded from reviewing the

issue on appeal. See Commonwealth v. Woods, 909 A.2d 372, 378 (Pa.

Super. 2006) (holding appellants must file separate petition seeking leave of

court to file untimely supplemental statement); see also Commonwealth

v. Hill, 16 A.3d 484, 493 (Pa. 2011) (rule governing statements of matters

complained of on appeal sets out simple bright-line rule, which obligates

appellant to file and serve statement, when so ordered; any issues not

raised in statement will be deemed waived); Tucker v. R.M. Tours, 977

A.2d 1170, 1173 (Pa. 2009) (Rule 1925(b) ensures trial judge writing

opinion the opportunity to identify and focus only on issues appellant plans

to raise on appeal and, thus, facilitates meaningful appellate review by



        Order affirmed in part and reversed in part.            Case remanded to the

trial   court   for   an   order   consistent     with   this   decision.   Jurisdiction

relinquished.



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J-S23030-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/2/2014




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