J-S83017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHELLE L. DUCKWORTH-                   :   IN THE SUPERIOR COURT OF
FULCINITI                                :        PENNSYLVANIA
                                         :
                   Appellant             :
                                         :
                                         :
             v.                          :
                                         :
                                         :   No. 2437 EDA 2017
JOHN B. FULCINITI

                Appeal from the Order Dated June 29, 2017
   In the Court of Common Pleas of Northampton County Civil Division at
                      No(s): C-48-CV-2013-008151


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.:                            FILED MARCH 09, 2018

      Appellant, Michelle L. Duckworth-Fulciniti (Wife), appeals from the

equitable distribution order entered on June 29, 2017. We affirm.

      The trial court summarized the facts and procedural history of this

case as follows:

      On August 15, 2013, [Wife] filed a [c]omplaint in [d]ivorce
      against [] John B. Fulciniti (Husband), alleging that the parties
      were married on May 15, 1999, and that their marriage was
      irretrievably broken. Wife requested, therein, in addition to a
      divorce decree, an equitable distribution of the marital estate,
      alimony pendente lite, counsel fees, post-divorce alimony, and
      primary physical custody of the parties’ two minor children. On
      that same date, Wife also filed a [p]etition for [s]pecial [r]elief
      seeking exclusive possession of the marital home. The docket
      does not reflect that said petition was ever heard. On February
      20, 2015, in connection with another petition, the parties
      entered into an agreement on the record whereby Wife’s
      exclusive possession of the marital home was confirmed [(as
      Wife was in exclusive possession of the marital home pursuant to
      a protection from abuse order (PFA))].        Wife has received
J-S83017-17


     alimony pendente lite during the pendency of this action. The
     most recent [d]omestic [r]elations [o]rder, dated April 11, 2017,
     provides that Wife is to receive $1,203.00 per month for alimony
     pendente lite, in addition to $1,573.00 per month as child
     support for the parties’ two children. Wife has sole legal and
     physical custody of the parties’ two children at this time,
     pursuant to an [o]rder of [c]ourt dated September 13, 2016.

     An [o]rder was entered on June 2, 2015, appointing Steven N.
     Goudsouzian as Special Master. Related to the issue of equitable
     distribution, the parties were directed to and did request a ruling
     on the issue of the applicability of their prenuptial agreement to
     Husband’s retirement benefits.        On February 19, 2016, an
     [o]rder was entered declaring that Husband’s retirement benefits
     are subject to the parties’ prenuptial agreement and that same
     shall be part of the marital estate. A hearing was held before
     the Master on July 28, 2016 for equitable distribution. As the
     hearing could not be concluded that day, same was reconvened
     for further proceedings on November 30, 2016. The Master’s
     [r]eport was filed on March 1, 2017, to which both parties filed
     timely exceptions.

Trial Court Opinion, 6/29/2017, at 1-2 (footnote incorporated).

     Relevant   to   this   appeal,   Wife   took   exception   to   the   Master’s

recommendation that the marital home be listed for immediate sale with the

proceeds to be divided between the parties.           Wife argued that she be

afforded the opportunity to retain the marital home.        Wife further argued

that the Master erred by denying her claim for alimony because she was

cohabitating with her boyfriend. Finally, Wife averred that the Master erred

by failing to award her requested attorney’s fees totaling nearly $42,000.00.




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       The trial court denied Wife relief on the aforementioned claims by

opinion entered on June 29, 2017.1 This timely appeal resulted.2

       On appeal, Wife raises the following issues for our review:

       [1.]   Did the trial court commit an error of law or abuse [its]
              discretion by ordering that the parties’ marital home
              immediately be listed for sale without affording [Wife] the
              opportunity to retain the home?

       [2.]   Did the trial court commit an error of law or abuse [its]
              discretion by ordering that [] Husband’s retirement
              benefits would be divided equally as opposed to awarding
              a greater percentage of the benefits to Wife?3
____________________________________________


1 The trial court did sustain several of Wife’s other exceptions, but Husband
has not cross-appealed those determinations. The trial court also granted
two exceptions raised by Husband, but Wife does not challenge those
decisions.

2  On July 27, 2017, Wife filed a timely notice of appeal. On July 31, 2017,
the trial court ordered Wife to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Wife complied timely and, on
August 15, 2017, the trial court entered a statement pursuant to Pa.R.A.P.
1925(a) that it was relying upon its earlier decision entered on June 29,
2017 as its rationale for denying Wife relief. On August 18, 2017, this Court
entered a per curiam order directing Wife to show cause why the equitable
distribution order was final because it was unclear if a divorce decree had
been entered.       Wife responded and attached a copy of the parties’
September 21, 2017 divorce decree. Although the divorce decree was
entered subsequent to the instant appeal, the June 29, 2017 equitable
distribution order is now final and appealable. See Busse v. Busse, 921
A.2d     1248,    1253     n.2   (Pa.   Super.     2007)  (citation   omitted)
(“[a]lthough [o]rders of       property distribution are   not      appealable
until entry of a final divorce [d]ecree, case law holds that an award
of equitable distribution is appealable where a divorce [d]ecree is entered
while an appeal is pending.”).

3 “Although Wife had indicated that the [t]rial [c]ourt erred by failing to
provide Wife with a disparate distribution of Husband’s [r]etirement
(Footnote Continued Next Page)


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      [3.]   Did the trial court commit an error of law or abuse [its]
             discretion by denying [Wife’s] claim for attorney’s fees?

      [4.]   Did the trial court commit an error of law or abuse [its]
             discretion by denying [Wife’s] claim for alimony?

Wife’s Brief at 5-6 (complete capitalization and suggested answers omitted).

      We will examine Wife’s fourth issue first, because it touches upon

Wife’s first issue, as well. Wife claims that the trial court erred as a matter

of law or abused its discretion in denying her claim for alimony by “finding

that Wife was cohabitating with a boyfriend, Matthew Leluga.” Wife’s Brief

at 17. Wife contends that she presented evidence that Leluga owns his own

home in Allentown, Pennsylvania.           Id.   She claims that Leluga does not

reside at the marital home, but spends “about ten (10) to twelve (12) nights

per month at the home,” and “utilized the address in order to keep his child

enrolled in the Nazareth School District.” Id. at 17-18. Wife contends that

the trial court erred by considering Nazareth School District enrollment

forms, and a sanitation bill addressed to Leluga at the marital residence,

indicating Leluga and his son were living at Husband’s and Wife’s home. Id.

at 18-19. Wife claims that, “Leluga contributes nothing to the maintenance

of the household” and “Leluga’s use of Wife’s home was [nothing] other than


(Footnote Continued) _______________________

[b]enefits, Wife hereby withdraws [this] issue as the same was treated in
accordance with the [p]arties’ [p]re-[n]uptial [a]greement that directed an
[e]qual [d]ivision.” Wife’s Brief at 9; see also id. at 31 (“Wife withdraws her
issue on [a]ppeal requesting a disparate distribution of Husband’s retirement
assets[.]”). Because Wife has withdrawn this issue, we need not address it.



                                          -4-
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a temporary arrangement borne out of necessity to permit his son to

continue to attend [s]chool in the Nazareth School District.” Id. at 20-21.

Wife avers that absent a finding of cohabitation, she would have been

entitled to alimony because:    (1) Husband’s earning capacity significantly

exceeded her own; (2) Wife is disabled and cannot pursue gainful

employment; (3) Wife is sole custodian of the parties’ minor children; (4)

Husband engaged in misconduct and Wife sought protective orders for

herself and the parties’ two children, and; (5) Wife served as caregiver

throughout the 16-year duration of the parties’ marriage. Id. at 23-29.

     In reviewing equitable distribution orders,

     our standard of review is limited. It is well established that
     absent an abuse of discretion on the part of the trial court, we
     will not reverse an award of equitable distribution. In addition,
     when reviewing the record of the proceedings, we are guided by
     the fact that trial courts have broad equitable powers to
     effectuate economic justice and we will find an abuse of
     discretion only if the trial court misapplied the laws or failed to
     follow proper legal procedures. Further, the finder of fact is free
     to believe all, part, or none of the evidence and the Superior
     Court will not disturb the credibility determinations of the court
     below.

     We do not evaluate the propriety of the distribution order upon
     our agreement with the court's actions nor do we find a basis for
     reversal in the court's application of a single factor. Rather, we
     look at the distribution as a whole, in light of the court's overall
     application of the 23 Pa.C.S.A. § 3502(a) factors for
     consideration in awarding equitable distribution. If we fail to find
     an abuse of discretion, the order must stand.

Harvey v. Harvey, 167 A.3d 6, 16–17 (Pa. Super. 2017) (case citations

and brackets omitted).



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      Moreover,

      [o]ur standard of review regarding questions pertaining to
      the award of alimony is whether the trial court abused its
      discretion. We previously have explained that the 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, 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.

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

citations and quotations omitted; emphasis in original).

      Under 23 Pa.C.S.A. § 3706, “[n]o petitioner is entitled to receive an

award of alimony where the petitioner, subsequent to the divorce pursuant

to which alimony is being sought, has entered into cohabitation with a

person of the opposite sex who is not a member of the family of the

petitioner within the degrees of consanguinity.” 23 Pa.C.S.A. § 3706.       We

have elaborated further by holding that cohabitation, for purposes of barring

alimony, occurs when:

      two persons of the opposite sex reside together in the manner of
      husband and wife, mutually assuming those rights and duties
      usually attendant upon the marriage relationship. Cohabitation
      may be shown by evidence of financial, social, and sexual
      interdependence, by a sharing of the same residence, and by
      other means. An occasional sexual liaison, however, does not
      constitute cohabitation.



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Lobaugh v. Lobaugh, 753 A.2d 834, 836 (Pa. Super. 2000) (citation and

ellipsis omitted).

      Here, the trial court determined:

      [A]ll credible evidence leads [it] to conclude that Mr. Leluga is
      residing with Wife in the [marital] property, along with his son
      [M.]. At the time of the hearing, Wife and Mr. Leluga ha[d] been
      in a relationship for over a year. Mr. Leluga testified that he and
      his son resided with Wife for approximately 10-12 nights per
      month, for the purpose of permitting [M.] to attend school in the
      Nazareth School District. His testimony that he only stayed with
      Wife on the nights before [M.’s] school days while [M.] was in
      custody on a 50/50 basis, and that he did not stay alone with
      Wife on the nights when [M.] was with his mother, was not
      credible. While Mr. Leluga maintains an address in Allentown
      where he used to reside with his now-former wife, he testified
      that he intends to sell that property. In addition to using the
      [marital residence] address for school registration purposes, Mr.
      Leluga [listed the marital residence as his address] in his divorce
      settlement agreement dated September 2015 and [updated his]
      driver[’s] license [through the Pennsylvania Department of
      Transportation] in August 2015. Mr. Leluga’s name also appears
      as the responsible party on the garbage bill for the [marital
      residence]. Considering all of this together, [the trial court]
      believe[d] that the Master did not err in concluding that Wife is
      cohabiting with Mr. Leluga and that, as a result, she is not
      entitled to post-divorce alimony.

Trial Court Opinion, 6/29/2017, at 13-14 (record citations omitted).

      Based upon our deferential standard of review and a review of the

certified record, we discern no abuse of discretion or error of law in denying

Wife alimony based upon her cohabitation with Leluga.        Here, there was

clear evidence that Wife and Leluga shared the same residence and

maintained a relationship for well over a year.      This was simply not an

instance of an occasional sexual liaison.   Moreover, there was evidence of


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financial and social interdependence between Wife and Leluga. Leluga uses

the marital residence as the basis for his son’s attendance at a local school

and he has taken on the financial responsibility for the garbage bill at the

marital property.   Wife and Leluga spend significant time together each

month in the marital residence caring for Leluga’s son. Moreover, the trial

court found Leluga’s claim that he did not spend the night with Wife at the

marital residence on days when Leluga’s son was not present, was not

credible. We will not upset these determinations. Furthermore, Leluga took

steps to change his driver’s license from his Allentown address to the marital

address and he intends to sell the Allentown property. These actions show

more than a casual relationship and show Leluga’s intent to cohabitate at the

marital property with Wife.   Thus, we discern no abuse of discretion or error

of law in denying Wife’s request for alimony.

      Next, Wife avers that the trial court committed an error of law or

abused its discretion in ordering the immediate sale of the marital home.

Wife’s Brief at 14-17.   Wife argues that the trial court’s decision did not

afford her an opportunity to retain Husband’s interest in the marital home.

Id. at 14. She claims that if the trial court and the Master “believed that

Wife was financially incapable of retaining the [m]arital [h]ome, then [she]

should not have [been] ordered [] to make all timely [m]ortgage, [t]ax[,]

and [i]nsurance [p]remium payments” pending sale. Id. at 15. Wife claims

that these two directives are contradictory.    Id. at 14.   Next, Wife argues

that the trial court’s decision to deny her alimony has also impacted her

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ability to refinance. Id. at 15. Wife further suggests that, “no evidence was

presented to conclude that [] Wife could not [r]efinance” and [i]f necessary,

Wife could have relied upon resources (such as help from family) to retain

the interest in the [m]arital [h]ome.”      Id. at 15.   She claims that “the

[p]arties’ minor children reside solely with Wife in the [m]artial [h]ome” and

the trial court’s adoption of the Master’s decision to sell the residence “would

require the children to leave the only [h]ome they have known and further

disrupt their lives.” Id. at 15-16.

      The statute governing equitable division of marital property states as

follows:

      Upon the request of either party in an action for divorce or
      annulment, the court shall equitably divide, distribute or assign,
      in kind or otherwise, the marital property between the parties
      without regard to marital misconduct in such percentages and in
      such manner as the court deems just after considering all
      relevant factors. The court may consider each marital asset or
      group of assets independently and apply a different percentage
      to each marital asset or group of assets.

23 Pa.C.S.A. § 3502(a).      Moreover, “[t]he court may award, during the

pendency of the action or otherwise, to one or both of the parties the right

to reside in the marital residence.” 23 Pa.C.S.A. § 3502(c).

      The court looks at eleven factors relevant to the equitable distribution

of martial property:

      the length of the marriage; any prior marriages; age, health,
      skills, and employability of the parties; sources of income and
      needs of the parties; contributions of one party to the increased
      earning power of the other party; opportunity of each party for
      future acquisitions of assets or income; contribution or

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       dissipation of each party to the acquisition, depreciation or
       appreciation of marital property, value of each party's separate
       property, standard of living established during the marriage;
       economic circumstances of each party and whether the party will
       be serving as custodian of any dependent children.

       The weight to be given to these statutory factors depends on the
       facts of each case and is within the court's discretion. We will
       not reweigh them. We look at the distribution as a whole, in light
       of a trial court's overall application of the factors enumerated at
       23 Pa.C.S.A. § 3502(a). In addition[,] we note the trial court
       has the authority to divide the award as the equities presented
       in the particular case may require.

Busse v. Busse, 921 A.2d 1248, 1259–1260 (Pa. Super. 2007) (internal

case    citations    and    quotations      omitted),   citing   23   Pa.C.S.A.

§ 3502(a)(1)-(11).

       This Court further recognized that

       the methods by which divorcing parties effectuate economic
       justice are familiar and well settled. The process of equitable
       distribution is an exercise in marshalling, valuing and dividing
       the marital pot in a fair manner. Not every piece of property can
       or should be split in half. Sometimes one spouse is entitled to
       more property than is the other. In some instances, the sale of
       property must occur so that each spouse can receive his or her
       rightful amount. In other instances, a spouse may be allocated a
       specific item of property and the other spouse will receive cash
       or a credit for his or her share in that same item.

Moran v. Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003) (citation

omitted).

       In this case, the trial court determined:

       Wife is, and was throughout the marriage, unemployed. Wife
       has a disabling injury related to a premarital vehicle accident,
       and receives Social Security disability income in the approximate
       amount of $1,217.00 per month. [] Wife also receives child
       support in the amount of $1,573.00 per month. [] Wife will not


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       be receiving post-divorce alimony. Wife has no other income,
       nor does she have an intention to seek gainful employment.

       The fair market value of the marital home is $456,000.00. The
       parties purchased the property in 2009 for $551,111.41. As of
       July 2016, the principal balance on the mortgage was
       $410,426.00. Wife is, simply, without the financial means to
       refinance the property to purchase Husband’s interest therein.
       Given her other expenses, including necessary expenditures for
       food and utilities, her monthly car payment in the amount of
       $765.00 for a luxury vehicle, and the expenses inherent in
       raising two children, it is beyond cavil that Wife’s monthly
       income of $2,790.00 will not allow her to make payments on a
       mortgage loan with a principal balance in excess of $400,000.00.
       Furthermore, when Wife attempted to secure financing at the
       instruction of the Master, she was, at best, given an indication
       that she could reapply after one year. Accordingly, the home
       must be sold to a third party.

       With respect to the proceeds of the sale, we find that the
       prenuptial agreement controls the disposition thereof.[4]        As
       provided in ¶ 4(c) of the prenuptial agreement, any marital
       property that is titled “shall belong to the party whose name is
       on the title regardless of the source of funds utilized to purchase
       or maintain the property.” Accordingly, because the marital
       home is titled equally in the names of both parties, the proceeds
       of the sale thereof are to be equally divided by the parties. In
       the same vein, whereas the ownership of real property
       inherently risks loss as well as gain, because the property is
       titled equally between the parties [the trial court found] that any
       loss from the sale of the property must be equally borne by the
       parties as well.

Trial Court Opinion, 6/29/2017, at 4-5.

       Upon review, we discern no abuse of discretion or error of law in

ordering the marital home to be sold. Here, the trial court carefully weighed

____________________________________________


4 Wife does not challenge the trial court’s determination that the prenuptial
agreement controls the disposition of the sale of the marital residence.



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the eleven factors set forth at Section 3502(a) and determined that Wife was

without the financial resources to maintain the marital residence by herself.

Having already determined that the denial of Wife’s claim for alimony was

proper, we summarily reject her argument that if she were entitled to

alimony she could refinance the home.        We further note that Wife was

receiving $1,203.00 in alimony pendente lite and given possession of the

marital residence while the equitable distribution was pending pursuant to

23 Pa.C.S.A. § 3502(c). Thus, Wife was receiving additional income in the

form of alimony leading up to equitable distribution, which she will no longer

receive.   Hence, while it may have been financially feasible for Wife to

maintain the marital residence while the parties were separated, this would

no longer be economically viable once the equitable distribution scheme was

established to effectuate economic justice.    Moreover, to the extent that

Wife baldly argues she could obtain funds from family members, she did not

present any such evidence to the Master or the trial court.         Under 42

Pa.C.S.A. § 3602(a)(5), the trial court may consider “[t]he opportunity of

each party for future acquisitions of assets or income.”        42 Pa.C.S.A.

§ 3602(a)(5).    It was therefore Wife’s responsibility to show that she had

access to additional funds when submitting her claims for equitable

distribution.   Moreover, at the time of the equitable distribution hearing,

there was evidence that Wife could not immediately secure financing for the

marital home and that she could reapply to refinance the mortgage in

another year. Thus, we reject Wife’s claim that there was no evidence to

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conclude that she could not refinance the martial property on her own.

Accordingly, based upon all of the foregoing we discern no abuse of

discretion by the trial court in ordering the sale of the marital property.

      Finally, Wife claims that the trial court erred as a matter of law or

abused its discretion in denying her request for attorney’s fees. Wife’s Brief

at 29-30. In sum, she avers:

      Wife has incurred significant [a]ttorney’s [f]ees in this [a]ction.
      Wife presented [] an [i]nvoice [] indicating that at the time of
      the July 28, 2016 [h]earing, Wife owed $41,967.95 in
      [a]ttorney’s [f]ees. Although some of these [a]ttorney’s [f]ees
      were incurred because of [c]ustody and PFA matters, much [of
      this sum was] incurred because of the [d]ivorce [a]ction and the
      unreasonable actions of Husband.

      Wife is without the means to afford her [a]ttorney[’]s fees given
      her disability, her lack of substantial income and her
      responsibility to care for the [p]arties’ minor children. Husband,
      on the other hand, presented no evidence regarding his legal
      costs. It is apparent that Husband is capable of affording his
      legal costs without any financial distress. Accordingly, it is
      requested that the [t]rial [c]ourt’s [o]rder denying Wife’s claim
      for [a]ttorney’s [f]ees be reversed.

Id. at 30.

      We review the determination of counsel fees in a divorce action for an

abuse of discretion.     Busse, 921 A.2d at 1258.          We have previously

recognized:

      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.



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      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.

      Counsel fees are awarded only upon a showing of need. In most
      cases, each party's financial considerations will ultimately dictate
      whether an award of counsel fees is appropriate. Also pertinent
      to our review is that, in determining whether the court has
      abused its discretion, we do not usurp the court's duty as fact
      finder.

Id. (internal citations and quotations omitted).

      Initially, the Master determined that there was no evidence of record

to support an award of counsel fees to Wife, but otherwise denied Wife’s

request opining that, “[b]oth parties have incurred a significant amount of

attorney[’s] fees and have no one to blame but themselves” and “[w]hile the

level of fault may be different, both parties are on par in defending their

action for divorce.” Master’s Report, 3/1/2017, at 21. Upon further review,

the trial court noted that, “[t]here is, clearly, a disparity between the

earnings and earning capacities of the parties.”           Trial Court Opinion,

6/29/2017, at 11.    The trial court also recognized that Wife was disabled

prior to the marriage, had never worked during the course of the marriage,

and was unlikely to earn a sustaining future income. Id. Whereas, Husband

is a union plumber earning approximately $80,000.00 in gross income per

year. Id. Nevertheless, the trial court denied Wife’s request for attorney’s

fees, pronouncing:

      [Despite a clear disparity in earning capacity,] it is also clear that
      Wife has not attempted to live within her means. Despite her

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     modest income, Wife has seen fit to remain in a home with a[n
     outstanding principal] mortgage [balance of] over $400,000.00
     and to purchase a vehicle with a monthly payment in excess of
     $750[.00] since the parties’ separation. During this time, Wife
     has been receiving alimony pendente lite, one of the purposes of
     which is to enable a dependent spouse to maintain the divorce
     action.   Rather than using these funds for their intended
     purpose, Wife has been using them to maintain a lifestyle that is
     unreasonable for someone of her financial means. Husband
     should not be required to further subsidize this choice.
     Accordingly, [the trial court did] not find it appropriate to award
     Wife any amount for counsel fees[.]

Id. at 11-12.

     We agree. We begin our analysis by noting that Wife concedes that of

the approximately $41,000.00 in submitted attorney’s fees, at least some of

those fees were for the child custody and PFA actions which are unrelated to

the divorce action. Upon review of the certified record, we were unable to

locate Wife’s invoice for attorney’s fees, submitted as Exhibit 22 at the

Master’s    hearing.    It     is   an appellant's responsibility to ensure that

the certified record contains all the items necessary to review her claims.

Commonwealth v. Monarch, 165 A.3d 945, 949 (Pa. Super. 2017)

(internal citations omitted). “When a claim is dependent on materials not

provided in the certified record, that claim is considered waived.”         Id.

(citation omitted). Without the invoice for attorney’s fees, we are unable to

confirm the amount of reasonable fees solely related to Wife’s divorce

action. We further note that the prenuptial agreement, which has been the

subject of dispute as set forth above in resolving issues pertaining to the

marital home, provides that:



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      The parties desire and agree that should either party contest this
      [a]greement for any reason whatsoever, and litigation ensues as
      a result thereof, then in that event the party who contests this
      [a]greement shall pay the non-contesting part[y’s] reasonable
      legal fees, including, but not necessarily limited to, reasonable
      [a]ttorney’s fees, and court costs.

Husband’s Brief Supporting Validity of Pre-Nuptial Agreement, 1/7/2015,

Exhibit A, at 6, ¶ 8. Thus, Wife would not be eligible to receive attorney’s

fees for any challenges to the prenuptial agreement. Upon review, and as

set forth above, portions of the divorce proceedings were dedicated to

litigating the prenuptial agreement regarding the sale of the marital

residence. However, again, without the invoice for Wife’s attorney’s fees, it

is impossible to ascertain what percentage of the submitted fees were spent

litigating the prenuptial agreement.    For all of the foregoing reasons, we

could find this claim waived.

      Regardless, assuming arguendo Wife did not waive her argument, we

would agree with the trial court’s assessment and discern no abuse of

discretion or error of law in denying Wife’s request for attorney’s fees. The

trial court recognized that there was a disparity in earning capacity between

Husband and Wife, but concluded that Wife failed to demonstrate a need for

her counsel fees, specifically examining Wife’s ability to pay and her financial

resources.    In particular, the trial court cited Wife’s post-separation

acquisition of a luxury automobile (with a $750.00 monthly payment) as one

reason to deny counsel fees. The trial court also determined that Wife had

been receiving alimony pendente lite for the four years prior to the divorce.

Thus, the trial court made a factual determination that Wife had squandered

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her available assets and was living well beyond her means. Wife does not

challenge these findings on appeal and we will not upset them.   As such,

Wife’s final issue was waived, but otherwise without merit.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:3/9/18




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