J-A15037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JAMES F. DUFFY                        :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                      Appellant        :
                                       :
                                       :
              v.                       :
                                       :
                                       :
 MONIQUE A. DUFFY                      :   No. 3070 EDA 2018

            Appeal from the Order Entered September 13, 2018
   In the Court of Common Pleas of Montgomery County Civil Division at
                           No(s): 2007-26322


BEFORE:     BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                    FILED SEPTEMBER 04, 2019


     James F. Duffy (Appellant) appeals, pro se, from the decree entered

September 13, 2018 that divorced him and Monique A. Duffy (Wife) from the

bonds of matrimony and distributed the marital assets and debts of the

parties. We affirm.

     The facts underlying this appeal, taken from the trial court opinion

(TCO), are as follows:

     The parties have engaged in substantial litigation as a result of
     the termination of their marital relationship in all areas of the
     Family Court: child custody, child support, divorce and no less
     than ten (10) Protection From Abuse (PFA) proceedings.1
        1[T]he undersigned expended the equivalent of at least nine
        (9) days of protracted proceedings with the parties in 2016
        and 2017.

     Initially, Father filed a Complaint for Custody in 2007.   A
     Complaint in Divorce was filed by Wife on July 13, 2011. The

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A15037-19


     Complaint was withdrawn via a Praecipe to Withdraw Complaint
     filed on February 9, 2012. The Complaint was then reinstated via
     a July 2, 2012 Stipulation (the aforementioned Stipulation
     provided that “the Complaint in Divorce should be reinstated and
     effective as though the Complaint was filed on March 20, 2012,
     the date of the parties’ separation”).

     The overall delay in the resolution of this matter provided
     significant concern on the part of the undersigned in that, by the
     time of the 2017 protracted hearing on equitable distribution, a
     time period of over ten (10) years has elapsed since the first
     Family Court filing in 2007 (and over five (5) years from the date
     of the parties’ separation in 2012).2
       2  The divorce matter was delayed by Father’s bankruptcy
       filings, numerous support exceptions and two (2) Superior
       Court appeals. …

     Systemic of the litigious nature of this case, the distribution of
     property in this matter required, preliminarily, a determination as
     to the validity of two (2) agreements between the parties: a Pre-
     Nuptial Agreement dated December 29, 2005 (executed one (1)
     day prior to the date of marriage) and a Post Nuptial Agreement
     dated June 26, 2006 (executed six (6) months after the date of
     marriage).

     The parties initially litigated the legitimacy of these two (2)
     Agreements before the Equitable Distribution Conciliator. This
     resulted in a very thorough three (3) page, single spaced, Report
     dated December 29, 2016 in which both Agreements were upheld
     as being valid.

     Upon appearance before the undersigned at a Short List
     proceeding on June 21, 2017, to address the scheduling of a
     protracted hearing on Husband’s Exceptions, the Court obtained a
     stipulation from the parties to accept the Conciliator’s conclusion
     as to the validity of both Agreements.

     Section 1., page 1, of the Pre-Nuptial Agreement contains the
     following language:

       “All property wholly owned by either party prior to marriage
       shall remain that Party’s property.     All property wholly
       acquired by either Party during the marriage shall remain
       that Party’s property. No event shall change this term, and
       both Parties agree not to contest same.”

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J-A15037-19


     Notably, there was no waiver in the Pre-Nuptial Agreement as to
     the increase in value of pre-marital property during the marriage
     (a clause that is so often included in many pre-nuptial
     agreements). Accordingly, the statutory provisions of the Divorce
     Code relating to measuring and determining the increase in value
     of non-marital property, as set forth in 23 Pa.C.S. § 3501 (a.1),
     shall apply.

     Husband’s main business interest, Protica, Inc., was started prior
     to the parties’ marriage and, therefore, was covered by the Pre-
     Nuptial Agreement. As a result, only the increase in value of the
     business during the marriage is marital and capable of being
     subject to the equitable distribution process. However, Wife
     agreed to waive any and all interest, including any increase in
     value, in Protica, Inc. at the June 21, 2017 Short List proceeding.
     In return, all assets and debts associated with Protica are to
     remain Husband’s sole and separate property with indemnification
     to Wife with respect to same. Since Husband testified that he still
     owes over One Million ($1,000,000) Dollars to Citibank per his
     bankruptcy reorganization plan, this particular indemnification
     may carry considerable value. On the other hand, Husband
     retained intellectual property associated with products he
     developed at Protica, Inc.3
       3Complicating the issues in this matter is the fact that Protica
       was valued at $10,000,000 in the Pre-Nuptial Agreement and
       Husband sold a 15% share of Protica for $1,000,000 in
       December 2012, several months after the parties’ separation.
       At the hearing, Husband testified that there have been no
       payments to the investor on her investment.

     Husband’s other business, Duffy Real Estate, was formed during
     the marriage as a holding company for Protica’s manufacturing
     facility in Whitehall, Pennsylvania. The transactions Husband
     facilitated between Protica and Duffy Real Estate are complex and
     consist of substantial funds into the millions of dollars. Some
     occur close in time to the date of the parties’ separation, thereby
     raising suspicion. Wife argues that Duffy Real Estate was not
     covered in the Pre-Nuptial Agreement and that some of the
     transactions and the sale of the aforementioned real estate in
     Whitehall have, or will, ultimately inure to Husband’s financial
     benefit. Husband argues that he surrendered ownership of the
     real property to a third party corporate entity, E-Capital, due to a
     default on loan payments and that he will not receive any funds


                                    -3-
J-A15037-19


       when the property is sold to another third party (to which he
       claims he has no interest).

       In the case of the former marital residence, each party set forth
       arguments for the inclusion or exclusion from the marital estate.
       While it was acquired jointly in 2007, during the parties’ marriage,
       it was later conveyed to Wife solely in June 2013 as part of a re-
       financing. Therefore, technically, only the increase in value of the
       property between the date of acquisition and the present would
       be marital property subject to equitable distribution. On the other
       hand, Husband argues it should be his separate property pursuant
       to a statement signed by Wife in 2008 acknowledging that it was
       acquired with Protica, Inc. proceeds.

       At the Court’s Short List proceeding on June 21, 2017, the Court
       conducted an extensive review of the assets, debts and credits in
       the within matter, on the record, in an effort to reach stipulations
       as to the values of assets and debts and to outline the specific
       issues in dispute in preparation for the protracted hearing. An
       Order was entered to this effect on that date.

       A one (1) day protracted hearing was then conducted on
       September 21, 2017. Following testimony on that day, an
       additional trial day was scheduled for November 20, 2017
       specifically for the purpose of providing Husband with additional
       time in which to clarify the purchase terms of the Whitehall
       property and to verify credit card debt in his name only.

TCO at 1-4.      On September 13, 2018, the trial court issued an equitable

distribution opinion and decree.         On October 11, 2018, Appellant filed this

timely direct appeal.1

       Appellant presents the following issue(s) for our review:

    1. Did the trial court abuse its discretion in dismissing material
       evidence related to the agreements between the parties, as well
       as evidence related to vehicles, the house, credit cards and other
       assets and liabilities, which the Plaintiff provided to this court?
____________________________________________


1Appellant timely filed his statement of errors complained of on appeal on
November 14, 2018. The trial court entered its opinion on January 23, 2019.
We note that Appellee did not file a brief.


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J-A15037-19




   2. Did the trial court abuse its discretion in failing to uphold a court
      order dated November 7, 2012, as well as the pre-nuptial and
      post-nuptial statements and agreements by and between the
      parties?

   3. Did the trial court abuse its discretion by inappropriately applying
      an 80/20 split of the marital assets in defendant’s favor?

   4. Did the trial court abuse its discretion in ordering payment of
      counsel fees based on demonstrably false and misleading
      information?

Appellant’s Brief at 8-9 (renumbered for ease of discussion).

      “Our standard of review in assessing the propriety of a marital property

distribution is whether the trial court abused its discretion by a misapplication

of the law or failure to follow proper legal procedure.” Mundy v. Mundy, 151

A.3d 230, 235–36 (Pa. Super. 2016) (citation omitted). An abuse of discretion

is not found lightly, but only upon a showing of clear and convincing evidence.

Id. at 236 (citation omitted).

      Our scope of review in equitable distribution matters is limited.
      Awards of alimony, counsel fees, and property distribution are
      within the sound discretion of the trial court and will not be
      disturbed absent an error of law or abuse of discretion.

Cook v. Cook, 186 A.3d 1015, 1019 (Pa. Super. 2018) (citation omitted).

      In his first appellate issue, Appellant contends that the trial court abused

its discretion by failing to account for “material evidence” when devising its

equitable distribution scheme. Appellant’s Brief at 8. Before reviewing the

issue on its merits, we must first determine whether Appellant preserved this

issue for appellate review under Pa.R.A.P. 1925(b).

                                      -5-
J-A15037-19


      In Commonwealth v. Lord, [] 719 A.2d 306 ([Pa.] 1998), the
      Pennsylvania Supreme Court held that issues not included in a
      Pa.R.A.P.1925(b) statement are deemed waived on appeal. The
      absence of a trial court opinion poses a substantial impediment to
      meaningful and effective appellate review. Pa.R.A.P. 1925 is
      intended to aid trial judges in identifying and focusing upon those
      issues which the parties plan to raise on appeal. Rule 1925 is thus
      a crucial component of the appellate process.

Commonwealth v. Lemon, 804 A.2d 34, 36–37 (Pa. Super. 2002) (internal

citations omitted); see also Lord, 719 A.2d at 308.

      When the trial court has to guess what issues an appellant is
      appealing, that is not enough for meaningful review. When an
      appellant fails adequately to identify in a concise manner the
      issues sought to be pursued on appeal, the trial court is impeded
      in its preparation of a legal analysis which is pertinent to those
      issues. In other words, a Concise Statement which is too vague
      to allow the court to identify the issues raised on appeal is the
      functional equivalent of no Concise Statement at all.

Lemon, 804 A.2d at 37 (internal citations and quotations omitted).

      Pa.R.A.P. 1925(b) exists primarily to require the appellant to identify

with certainty each of the issues to be addressed on appeal. Id at 37. “An

appellant must have an opportunity to frame his/her own issues which will

guide the trial court’s subsequent opinion.” Id. at 38. It is not up to the trial

court to frame the issues for an appellant, either by “guessing or anticipating.”

Id.   “When an appellant fails to identify in a vague Pa.R.A.P. 1925(b)

statement the specific issue he/she wants to raise on appeal, the issue is

waived, even if the trial court guesses correctly and addresses the issue in its

Pa.R.A.P. 1925(a) opinion.” Id.




                                      -6-
J-A15037-19


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

Appellant identified his first appellate issue as follows: “[T]he trial court

abused its discretion in dismissing material evidence related to the

agreements between the parties, as well as evidence related to vehicles, the

house, credit cards and other assets and liabilities.” Appellant’s 11/14/2018

Rule 1925(b) Statement, 11/14/18, ¶ 2. The trial court addressed the issue

of waiver pertaining to Appellant’s first issue as follows:

      [Husband’s issue] fail[s] to cite with any degree of specificity the
      material evidence that was purportedly precluded or dismissed, or
      in the least, the specific asset or liability affected in the [c]ourt’s
      ultimate distribution to provide clarity to the [c]ourt in addressing
      this issue on appeal. Instead, Husband broadly indicates that said
      evidence related to “… the vehicles, house, credit cards and other
      assets and liabilities…”. Theoretically, this could apply to a narrow
      list or the entire distribution scheme. In either case, the Court is
      wholly without the ability to read Husband’s mind in its analysis
      on these points (See 11/14/18 Concise Statement, ¶ 1).

      Accordingly, [this issue] should [] be deemed waived for
      vagueness, as Husband fails to identify the issue with sufficient
      specificity.

TCO at 8-9 (footnote omitted).

      We agree with the trial court’s determination that Appellant did not

preserve for appellate review the first issue in his 1925(b) statement. In his

appellate brief, under this first issue, Appellant included five separate

arguments for the following: the house, cars, jewelry, second mortgage and

house appraisal. Appellant did not include the second mortgage, jewelry and

the house appraisal, three of the subsections in his brief, in his 1925(b)




                                       -7-
J-A15037-19


statement.2 While Appellant asserted that the trial court disregarded evidence

related to the house and vehicles in his 1925(b) statement, he did not identify

what evidence related to the house and vehicles that the trial court

purportedly disregarded.3 Furthermore, while Appellant stated in his 1925(b)

____________________________________________


2 We note that, of the five separate items discussed in Appellant’s brief,
Appellant did not include the second mortgage, jewelry and house appraisal
within the statement of questions involved portion of his brief. Therefore, the
arguments pertaining to these items are waived for this separate basis.
Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”) See also
Krebs v. United Refining Co. of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006); see also In re L.V., 209 A.3d 399 (Pa. Super. 2019).

3 Additionally, even if we did not find the entire issue waived for vagueness,
we would find the trial court that it did not abuse its discretion in including the
house and cars in the marital estate. In its 1925(a) opinion, the trial court
states, “the Court very specifically addressed the vehicles (Point 2) and the
house (Point 1) [in its Equitable Distribution Opinion and Decree]. . . . In
reaching the distribution scheme [] the undersigned relied upon the testimony
and evidence presented by both parties, and in doing so, determined the
aforementioned scheme best achieved economic justice.” TCO at 8-9. In its
Equitable Distribution Opinion and Decree, the court discussed the house and
cars as follows:

       The residence was purchased by the parties during the marriage
       in 2007 for $700,000. Despite this fact, both parties argued that
       it should be excluded from the marital estate. . . . Wife asserts
       that the transfer [of the house to her name in 2013 in order to
       pursue a mortgage refinance process] results in [the house] being
       her separate property pursuant to the terms of the Pre-Nuptial
       Agreement as “transferred property.” . . . Husband alleges that
       the property is non-marital based on a July 30, 2008 statement
       signed by Wife (“H-5”) acknowledging that the marital residence
       was purchased from Protica profits and, since Protica was listed
       as being non-marital in the Pre-Nuptial Agreement, the residence
       is therefore “non-marital.” . . . Notably, modifications to the Pre-
       Nuptial Agreement require both signatures (Husband did not sign



                                           -8-
J-A15037-19


statement that the trial court ignored evidence pertaining to his “agreements,”

he did not specify which of the “agreements” between Appellant and Wife to

which his argument related, let alone the specific provision in those



____________________________________________


       “H-5”) and, further, “H-5” does not state that Husband owns the
       residence. . . . Wife’s argument is dismissed as the refinancing
       was essentially an administrative transaction, to enable her loan
       to go through, and was without prejudice to Husband’s arguments
       later. . . . The court finds as a matter of law that the martial
       residence is marital property.

       The parties agreed in the June 21, 2017 Order that there were
       two (2) vehicles that were marital property which Husband sold
       post-separation. At the hearing, the parties further stipulated that
       Husband received proceeds in the amount of $13,526.00.12
              12At the protracted Hearing, Husband attempted to
              reverse the agreement reached at the June 2017
              Short List proceeding, wherein it was agreed that the
              vehicles were marital, by virtue of the same Exhibit
              “H-5” referred to with regard to the marital residence.

Equitable Distribution Opinion and Decree, 9/13/18 at 13-15.

      Credibility is properly evaluated by the fact-finder and not by a
reviewing court:

       [I]t is within the province of the trial court to weigh the evidence
       and decide credibility and this Court will not reverse those
       determinations so long as they are supported by the evidence.

Morgante v. Morgante, 119 A.3d 382, 387 (Pa. Super. 2015) (internal
citations omitted). The determination of whether an asset is part of the
marital estate is a matter within the sound discretion of the trial court.
Gilliland v. Gilliland, 751 A.2d 1169, 1171 (Pa. Super. 2000) (internal
citation omitted). We are also mindful that, “[i]n determining the value of
marital property, the court is free to accept all, part or none of the evidence
as to the true and correct value of the property.” Mundy, 151 A.3d at 236
(internal citation omitted). Even if the issue were not waived, we would agree
with the trial court’s assessment of these items in its Equitable Distribution
Opinion and Decree.

                                           -9-
J-A15037-19


agreements.    Accordingly, because we conclude that Appellant’s 1925(b)

statement is so vague as to be the functional equivalent of no 1925(b)

statement at all, we find this first issue waived. See Lemon, 804 A.2d at 36–

37; see also Commonwealth v. Williams, 204 A.3d 489, 495 (Pa. Super.

2019).    Finally, while Appellant raised the issue of the trial court’s

consideration of evidence relating to the “credit cards” in his 1925(b)

statement, no argument pertaining to the credit cards was included in his

brief. Therefore, this issue is abandoned. See Wirth v. Commonwealth,

95 A.3d 822, 837 (Pa. 2014).

      Appellant next argues that the trial court abused its discretion in failing

to uphold a court order dated November 7, 2012, as well as the pre-nuptial

and post-nuptial statements and agreements by and between the parties.

Appellant argues that the trial court erred in failing to uphold the November

7, 2012 order, which stated that Appellant shall pay to Wife $50,000.00 as

interim distribution, by not including the payment in its equitable distribution

scheme.

      We conclude that Appellant likewise waives this argument due to the

vague presentation of this issue in the 1925(b) statement.             Appellant

presented this issue in his 1925(b) statement as follows:

      By abusing its discretion in failing to uphold a court Order dated
      November 8, 2012, as well as the Pre-Nuptial and Post-Nuptial
      Statements and Agreements by and between the parties.




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J-A15037-19


Rule 1925(b) Statement, 11/14/18, ¶ 4. The trial court discussed this issue

in its opinion as follows:

       The [c]ourt must, once again, preliminarily note the vagueness of
       Husband’s issue raised herein. . . . Husband once more fails to
       even loosely specify how the [c]ourt allegedly failed to uphold the
       Court Order of November 8, 2012, and the Pre- and Post-Nuptial
       Agreements.

       The [c]ourt is left to conjecture as to the crux of Husband’s issue
       once more.

TCO at 11.       We agree with the trial court that this issue is waived for

vagueness. To the extent that Appellant’s issue pertains to the pre- and post-

nuptial agreements, Appellant, again, did not specify in his Rule 1925(b)

statement what he was challenging with regard to the pre- and post- nuptial

statements, nor what he was specifically challenging with regard to the

November 7, 2012 order.           Although the trial court correctly guessed that

Appellant was challenging the $50,000 interim distribution payment, the fact

that the trial court guessed correctly does not save a vague issue from

waiver.4 See Lemon, 804 A.2d at 36–37.

____________________________________________


4 Additionally, even if Appellant preserved this issue for review, we would
conclude that the trial court did not abuse its discretion by excluding the
interim payment from its equitable distribution scheme. The trial court
explained in its opinion that it did not include the $50,000 payment in the
equitable distribution scheme because the origin of the money was not clear
on the record. TCO at 11-12. Since there was no documentation provided as
to the source of the payment, the trial court determined that it would not
factor the payment into its equitable distribution scheme.         Id.    The
determination of whether an asset is part of the marital estate is a matter
within the sound discretion of the trial court, and the trial court is free to



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J-A15037-19


       Appellant next argues that the trial court abused its discretion by

inappropriately applying an 80/20 split of the marital assets in Wife’s favor.

Appellant argues that the trial court’s “decision to apply an 80/20 split is

heavily based on custody of the parties[,]” and points out that the parties

shared custody of their children equally for the first five and a half years of

separation. Appellant’s Brief at 49-50.

       When distributing marital property, the trial court has “the authority to

divide the award as the equities presented in the particular case may require.”

Drake v. Drake, 725 A.2d 717, 727 (Pa. 1999); Cook, 186 A.3d at 1019.

“Equitable distribution does not presume an equal division of marital property

and the goal of economic justice will often dictate otherwise.”      Schenk v.

Schenk, 880 A.2d 633, 639 (Pa. Super. 2005) (citation omitted). [Appellate

courts] “look at the distribution as a whole, in light of a trial court’s overall

application of the factors enumerated at” Section 3502(a) of the Domestic

Relations Code, 23 Pa.C.S. § 3502(a).5 Id. (citation omitted). The weight to

____________________________________________


believe all or none of the testimony presented to it and to make credibility
determinations. Gilliland, 751 A.2d at 1171; see Morgante, 119 A.3d at
387; Mundy, 151 A.3d at 236.

5Pursuant to Section 3502(a), when fashioning equitable distribution
awards, the trial court must consider:
  (1) The length of the marriage.
  (2) Any prior marriage of either party.
  (3) The age, health, station, amount and sources of income,
         vocational skills, employability, estate, liabilities and needs of
         each of the parties.



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be given to these statutory factors depends on the facts of each case and is

within the court’s discretion. Mercatell v. Mercatell, 854 A.2d 609, 611 (Pa.

Super. 2004) (internal citation omitted).

       The trial court addressed the distribution of the marital estate as follows:

       Here, the [c]ourt accessed the parties through a very detailed
       review of their assets and liabilities combined with their respective
       testimony regarding the marital estate, and thoroughly addressed
       every statutory factor enumerated at § 3502(a). In doing so, the
       [c]ourt placed a reasonable emphasis on the following: (i) the
       parties’ amount and source of income, (ii) each party’s
       opportunity for future acquisitions of capital assets and income,
       (iii) each party’s contributions or dissipation of marital property,


____________________________________________


   (4)   The contribution by one party to the education, training or
         increased earning power of the other party.
   (5) The opportunity of each party for future acquisitions of capital
         assets and income
   (6) The sources of income of both parties, including, but not limited
         to, medical, retirement, insurance or other benefits.
   (7) The contribution or dissipation of each party in the acquisition,
         preservation, depreciation or appreciation of the marital
         property, including the contribution of a party as homemaker.
   (8) The value the property set apart to each party.
   (9) The standard of living of the parties established during the
         marriage.
   (10) The economic circumstances of the parties at the time the
         division of property is to become effective.
   (10.1) The Federal, State and local tax ramifications associated
         with each asset to be divided, distributed or assigned, which
         ramifications need not be immediate and certain.
   (10.2) The expense of sale, transfer or liquidation associated with
         a particular asset, which expense need not be immediate and
         certain.
   (11) Whether the party will be serving as the custodian of any
         dependent minor children.

23 Pa.C.S. § 3502(a)(1-11).


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J-A15037-19


        and (iv) which party would be serving as the primary custodian of
        the minor children.

        The [c]ourt found the parties to have a great disparity in their
        earnings/earning capacity, Husband’s net monthly income is
        Thirteen Thousand, Eight Hundred and Ninety-one ($13,891)
        Dollars as compared to Wife’s net income of Four Thousand,
        Thirty-Six ($4,036) Dollars. Moreover, Husband is self-employed
        and primarily runs two businesses: Duffy Real Estate and Protica,
        Inc. which, combined with his business acumen and past earning
        history, presents him with more opportunities to generate
        substantial income and to more easily acquire capital assets.
        Wife, on the other hand, retained only the marital residence,
        which was primarily for the children’s benefit as she is the primary
        custodian, and is employed by PRA Health Services as a
        consultant. As such, she does not have the same opportunities
        for income growth or acquisition of capital assets.

        The [c]ourt further found credible Wife’s testimony regarding
        Husband’s dissipation, or in the least, his “creative manipulation”
        of assets she believed were marital, for the purpose of avoiding
        equitable distribution. . . . Accordingly, the [c]ourt acted within
        its discretion when it accessed the § 3502(a) statutory factors
        based on the evidence presented and determined the equities
        required an 80/20 split in favor of Wife.

TCO at 20-21.

        Upon our thorough review of the record, we conclude that the trial court

did not abuse its discretion in distributing the marital property. The court

addressed each factor in Section 3502(a) (1)-(11) in its Equitable Distribution

Opinion and Decree. Equitable Distribution Opinion and Order, 9/13/2018, at

5-13.    Additionally, the court addressed Appellant’s concern regarding the

custody arrangement in its Equitable Distribution Opinion stating:

        The children have resided at the former marital residence for
        nearly their entire lives. From 2012 through 2017, they resided
        there 50% of the time when the parties had joint physical custody.
        Prior to 2012, and since the August 31, 2017 Order [of custody],
        it has been their primary residence.

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J-A15037-19



Id. at 13. Clearly, the trial court was aware of the fact that the parties shared

joint custody of their children prior to the August 31, 2017 order, and we find

it did not abuse its discretion in determining the weight of this factor. See

Mercatell, 854 A.2d at 611.

      As his last issue, Appellant argues that the trial court abused its

discretion in ordering payment of counsel fees based on demonstrably false

and misleading information. Appellant argues that the trial court was wrong

to blame him for delays in the divorce proceedings and Wife caused significant

delays. Appellant argues that the court erred in awarding Wife $10,000 in

attorney’s fees because Wife only incurred $3,560 in attorney’s fees directly

related to his delay. Additionally, he argues that the post-nuptial agreement

bars any award of attorney’s fees.

      “In proper cases, upon petition, the court may allow a spouse . . .

reasonable counsel fees and expenses.” 23 Pa.C.S. § 3702.

      We will reverse a determination of counsel fees and costs only for
      an abuse of discretion. 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.

      Counsel fees are awarded only upon a showing of need. In most
      cases, each party’s financial considerations will ultimately dictate

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J-A15037-19


     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.

Brubaker v. Brubaker, 201 A.3d 180, 191 (Pa. Super. 2018) (citation

omitted).

     The trial court addresses the issue of counsel fees as follows:

     [T]he court acted within its discretion in ordering Husband’s
     payment of Wife’s counsel fees, as the record strongly supports
     the Court’s finding that Husband, while acting pro se, frustrated
     the divorce process at almost every turn. Wife’s counsel was
     placed in the burdensome position of prolonged litigation due to
     Husband’s failure or refusal, over the course of several years, to
     provide relevant financial information. This finding by the Court
     was further supported by the certified fees of Wife’s counsel solely
     in connection with equitable distribution, which stretched all the
     way back to 2012 and amounted to a total sum of Thirty Six
     Thousand, One Hundred, Thirty-Nine Dollars and Twenty-Five
     Cents ($36,139.25). The undersigned’s perception of the parties’
     dynamic, as noted in the Opinion subject to the within appeal, is
     further illustrative of Husband’s behavior: “[m]uch of Husband’s
     approach to financial disclosure, in both the child support and
     equitable distribution proceedings, has resembled the proverbial
     ‘cat and mouse’ exercise.” (See Trial Court Opinion, 9/12/2018,
     Section IV. Attorney’s Fees and Costs).

     Notwithstanding the veritable mountain of evidence of Husband’s
     vexatious behavior, the [c]ourt reasonably awarded only Ten
     Thousand ($10,000) Dollars in counsel fees to Wife (notably, not
     even one-third of the counsel fees incurred by her). In arriving at
     this amount, Court determined that Husband clearly had the
     ability to pay, as evidenced by the parties’ agreement that
     Husband’s net monthly income is Thirteen Thousand, Eight
     Hundred and Ninety-One ($13,891) Dollars, as compared to Wife’s
     net monthly income of Four Thousand, Thirty-Six ($4,036)
     Dollars. (See Agreed Support Order, 10/26/2017). Moreover,
     Wife did not receive spousal support on APL, due to the terms of
     the Pre-Nuptial Agreement, throughout many years of a complex
     and litigious divorce which could have assisted her towards the
     payment of her legal fees. Wife also has primary physical custody


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      of the parties’ two children, of whom most of her expendable
      monthly income is dedicated toward.

      Husband also clearly possesses the business acumen and earning
      capacity to compensate this payment to Wife. This position is
      further reinforced by Husband’s retention of his businesses, Duffy
      Real Estate and Protica, Inc., which provide him with the
      opportunities for future acquisition of capital assets and income.
      On the other hand, Wife has retained only the marital residence,
      primarily for the children’s benefit. While Wife’s income will likely
      remain the same, which is sufficient to support herself and the
      children for now, her salary and assets will not allow her the same
      opportunities as Husband in terms of acquiring capital assets in
      the foreseeable future. Accordingly, based on the overwhelming
      evidence demonstrating Husband’s litigious behavior over the
      course of several years and the parties’ disproportionate financial
      resources, the Court acted within its discretion in awarding Wife
      counsel fees in the amount of Ten Thousand ($10,000) Dollars.

TCO at 14-16. The trial court did not abuse its discretion in awarding $10,000

in attorney’s fees to Wife. The trial court considered the factors outlined in

Brubaker above, Appellant’s vexatious conduct through the long history of

the proceedings below, and the relative financial situations of the parties. The

trial court had the opportunity to assess the parties during numerous hearings

since January 2016. The record supports the trial court’s findings regarding

an award for Wife’s counsel fees.

      Additionally, Appellant’s argument that the post-nuptial agreement

precludes an award of counsel fees has no merit.        Appellant points to the

following language as supporting his assertion:

      In the event Husband and Wife separate or divorce, Wife agrees
      to obtain gainful employment, and Husband will not be required
      to provide any financial support to Wife, with the exception of
      reasonable financial support for any children born from the union
      between Husband and Wife.

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Post-Nuptial Agreement, 6/26/06, ¶ 2.          However, this language does not

address the potential award of counsel fees in a later proceeding, and simply

addresses the future provision of financial support. Furthermore, Appellant

cites no authority holding that such broad language in the post-nuptial

agreement would preclude an award of attorney’s fees in a divorce proceeding.

      Under the factual circumstances present in this case, we find no error in

the court’s order awarding Wife $10,000 in attorney’s fees, in light of Wife’s

expenditure of more than $30,000 in fees to litigate all the facets of the

divorce action. See, e.g., Isralsky v. Isralsky, 824 A.2d 1178, 1192 (Pa.

Super. 2003) (finding record supported award of counsel fees to wife of

$20,000 based, in part, on husband’s vexatious conduct during litigation).

Accordingly, we affirm the trial court’s order in this regard, and, for all of the

foregoing reasons, we affirm the order of the trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/19




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