J-A30027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID G. HAWK                            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                     Appellee            :
               v.                        :
                                         :
                                         :
TRACEY C. HAWK,                          :
                                         :
                     Appellant           :   No. 1749 WDA 2017


                     Appeal from the Order October 26, 2017
               in the Court of Common Pleas of Allegheny County
                    Family Court at No(s): FD 10-008168-016


DAVID G. HAWK                            :  IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                     Appellant           :
                                         :
                                         :
      v.                                 :
                                         :
                                         :
TRACEY C. HAWK                           :
                                         :
                     Appellee            : No. 1795 WDA 2017

                Appeal from the Order Entered October 26, 2017
               in the Court of Common Pleas of Allegheny County
                    Family Court at No(s): FD 10-008168-016

BEFORE:    SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED JUNE 25, 2019

     In these consolidated cross-appeals, Tracey Hawk (Wife) appeals the

order terminating her alimony upon the trial court’s finding that she

cohabitated.     David Hawk (Husband) appeals the trial court’s decisions to




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A30027-18



deny his claim for attorney’s fees and to limit Wife’s obligation to pay back a

number of alimony payments. Upon review, we affirm.

      The alimony agreement at issue in this appeal is the result of an

unusual set of facts.    Thus, we begin with a lengthy, albeit necessary,

recitation of the factual and procedural history of this case.

      Husband and Wife wed in 1983 and separated in 2009. They then

commenced divorce proceedings. On July 16, 2012, the parties entered into

a consent order settling their marital estate.       The parties explicitly left

unresolved Wife’s alimony claim:

         All other claims raised by the parties remain active and
         pending, and are still subject to final resolution, either
         through agreement of the parties or by court order,
         including but not limited to Wife’s claims for alimony and
         counsel fees.    Nothing in this consent order shall be
         construed to prohibit Wife from seeking alimony.

See Consent Order, 7/16/2012, at ¶ 11 (July 2012 consent order).

      Litigation lingered.   Wife’s alimony claim eventually went to a three-

day hearing before a master in the spring of 2014.         Husband raised the

defense of cohabitation, alleging that Wife was cohabiting with Todd

Staniland. At the time, Wife claimed there was no cohabitation. The Master

found no cohabitation and awarded Wife $3,470 per month in alimony until

2024 (when Wife turned 62 years old), at which time the alimony would be

reduced to $600 per month until it terminated in 2027. The Master qualified

the award by subjecting it to modification in the event of: “Wife’s remarriage

or cohabitation as defined under [Pennsylvania] statute and case law; a


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reduction in Husband’s income to less than $10,000 per month net;

Husband’s disability or death.”    Master’s Report and Recommendation,

5/2/2014, at 5.

     The parties filed exceptions and cross-exceptions with the trial court.

In an October 10, 2014 order (October 2014 order), the trial court largely

adopted the Master’s recommendation, but reduced the amount of alimony

from $3,740 to $2,640 to reflect Wife’s earning capacity.     See Order of

Court, 10/10/2014. The court also granted Husband’s exception concerning

alimony modification:

           ¶ 8. [Husband’s] Exception #10 is GRANTED.

              a. The following language is STRICKEN from the
                 Master’s Report and Recommendation: “This
                 alimony shall be modifiable in the following
                 circumstances: Wife’s remarriage or cohabitation
                 as defined under PA statute and case law; a
                 reduction in Husband’s income to less than
                 $10,000 per month net; Husband’s disability or
                 death.”

              b. The following language is ADDED to the Master’s
                 May 2, 2014 Report and Recommendation: “This
                 alimony shall be modifiable in accordance with the
                 provisions of 23 Pa.C.S[] § 3701, et. seq.”

Id. at ¶ 8. Husband appealed to this Court. Soon after, Husband filed two

separate petitions with the trial court, one to modify the award (on account




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J-A30027-18



of his changed financial circumstances) and one to terminate it (on account

of Wife’s cohabitation).1

        During the pendency of the appeal, the parties settled.       The parties

agreed, inter alia, that Wife would accept the trial court’s reduced alimony

figure and Husband would withdraw his appeal and his petitions to modify

and to terminate alimony.          The parties submitted a consent order, dated

April 2, 2015, to reflect this agreement. This April 2015 consent order

governs the case before us.

        Specifically, the April 2015 consent order stated: “Alimony will

continue in accordance with [the October 2014 order] as to amount,

duration, modification and          termination   provisions.”2   Consent Order,

4/2/2015. Thus, pursuant to the October 2014 order, the operating order

provided in pertinent part:

           “This alimony shall be modifiable in accordance with the provisions
            of 23 Pa.C.S.[] § 3701, et. seq.”

           “[Husband] shall pay [alimony] to [Wife] … through October 16,
            2027, at which time [Husband’s] alimony obligation shall
            terminate.”

See Order of Court, 10/10/2014, at ¶ 7(b)(ii), ¶ 8(b).

____________________________________________


1   In between the petitions, the court entered the parties’ divorce decree.

2 The April 2015 consent order contained a typographical error. The parties
referred to the October 2014 order as the October 16, 2014 Order. It is
clear from the record that the parties were referring to the October 10, 2014
Order.



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      Nearly two years later, in March 2017, Husband presented a motion to

terminate alimony. In addition to termination, Husband sought repayment

of alimony dating back to Wife’s cohabitation, as well as attorney’s fees.

Motion to Terminate, 3/17/2017.      Following a two-day hearing, the trial

court ruled that “Husband has met his burden of proof to establish that []

Wife is cohabit[ing] with [Staniland].   As such, [] Husband’s obligation to

pay [] Wife alimony pursuant to the terms of the [April 2015 consent order]

is hereby terminated. … Husband’s request for repayment of back alimony is

denied. [The parties’] cross claims for counsel fees are both denied.” Order

of Court, 10/26/2018.    Wife and Husband timely filed appeals and cross-

appeals. We address these appeals sequentially.

Wife’s Appeal

      Wife presents three issues for our review, which we have reordered for

ease of disposition.

   1. As a matter of law, the trial court erred in failing to hold that
      Husband was estopped under principles of res judicata and/or
      collateral estoppel from raising cohabitation as a basis for
      terminating alimony when the same issue had been previously
      litigated in 2014.

   2. As a matter of contract law, the trial court erred in failing to
      dismiss Husband’s petition for termination of alimony pursuant
      to the terms of the April 2, 2015 consent order which specifically
      incorporated the modification and termination provisions set
      forth in the [October 2014 order], and provided for termination
      of alimony only when Wife reaches 62 years of age.

   3. As a matter of law, the trial court erred in terminating Husband’s
      alimony obligation to Wife pursuant to 23 Pa.C.S. § 3706
      because Wife’s entitlement to alimony arose from a


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J-A30027-18


       comprehensive marital settlement agreement, [the July 2012
       consent order], which did not contain a specific provision for
       termination of alimony upon Wife’s cohabitation with another
       man.

Wife’s Brief at 5-6 (suggested answers and unnecessary capitalization

omitted).

       We address first Wife’s claim that Husband was precluded from

relitigating Wife’s cohabitation with Staniland as a basis for terminating

alimony. Wife’s Brief at 42-46. Specifically, Wife contends Husband “was

estopped under the principles of res judicata and/or collateral estoppel[3]

from raising cohabitation as a basis for terminating alimony when the same

issue had been previously litigated in 2014.” Id. at 42.




____________________________________________


3This Court has defined the doctrines of res judicata and collateral estoppel
as follows.

       Under the doctrine of res judicata, or claim preclusion, a final
       judgment on the merits by a court of competent jurisdiction will
       bar any future action on the same cause of action between the
       parties and their privies. The doctrine therefore forbids further
       litigation on all matters which might have been raised and
       decided in the former suit, as well as those which were actually
       raised therein. Similarly, [t]he doctrine of collateral estoppel or
       issue preclusion prevents a question of law or an issue of fact
       that has once been litigated and fully adjudicated in a court of
       competent jurisdiction from being relitigated in a subsequent
       suit.

Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 286 (Pa.
Super. 2016) (internal citations and quotation marks omitted).




                                           -6-
J-A30027-18


      By way of further background, in 2014, at a hearing before a master

to resolve Wife’s claims of alimony, Husband raised the defense of

cohabitation, alleging that Wife was cohabiting with Staniland. As set forth

supra, at the conclusion of the hearing, the Master found no cohabitation

and awarded Wife alimony. Both Husband and Wife filed exceptions with the

trial court. Ultimately, in the October 2014 order, the trial court, inter alia,

accepted the Master’s finding that Wife and Staniland were not cohabiting.

According to Wife, it is these prior findings by the Master and the trial court

that preclude Husband from relitigating a claim of cohabitation as it relates

to Wife and Staniland.

      The trial court disagreed, finding that the April 2015 consent order

permitted either party to petition for a change to the alimony agreement

upon a showing of changed circumstances.            See Trial Court Opinion,

2/2/2018, at 25 (“The [trial] court properly heard Husband’s motion[]

because he presented new evidence pertaining to new circumstances of

cohabitation[.]”) (unnecessary capitalization omitted).     Our review of the

April 2015 consent order and the applicable statute supports the trial court’s

determination.

      The April 2015 consent order incorporated specifically, via the October

2014 order, a provision to allow for modification pursuant to 23 Pa.C.S. §

3701 et. seq. Consequently, the consent order was subject to, inter alia, the

provisions set forth in 23 Pa.C.S. § 3701(e) (“An order entered pursuant to


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J-A30027-18


this section is subject to further order of the court upon changed

circumstances of either party of a substantial and continuing nature

whereupon      the    order    may    be       modified,   suspended,   terminated   or

reinstituted or a new order made.”). As such, either party was entitled to

file a motion upon the discovery of a substantial change in circumstances.

       In this case, Husband filed a motion to terminate alimony in March

2017, alleging that he had “new evidence to support a finding” that Wife and

Staniland were cohabiting. Motion to Terminate, 3/17/17, at ¶ 14. In light

of the foregoing, despite the trial court’s prior finding, Husband was

permitted to present new evidence to the trial court in support of his

contention that Wife was cohabiting. Therefore, this claim is without merit.4

       We now address Wife’s final two issues. The crux of these claims is

that the trial court erred and abused its discretion when it determined that

the terms of the April 2015 consent order authorized the termination of

alimony upon Wife’s cohabitation.               Although the initial source of Wife’s

alimony was an award from the trial court, the parties converted the award

to an agreement via the April 2015 consent order.                 The principles that

govern court-ordered awards and consent orders are different.                   Thus,

because the instant alimony obligation arose out of a consent order, rather
____________________________________________


4 Moreover, the acceptance of Wife’s argument would produce an absurd
result; such an interpretation would allow Wife, after a prior determination
that there was insufficient evidence to prove cohabitation, to begin
cohabiting with impunity.



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J-A30027-18


than a court-ordered award, it is governed by contract law. See Little v.

Little, 657 A.2d 12, 15 (Pa. Super. 1995).        Therefore, we review these

claims mindful of the following.

      “Our standard of review over questions of law is de novo and to the

extent necessary, the scope of our review is plenary as [the appellate] court

may review the entire record in making its decision.” Id. (citation omitted).

             In cases of a written contract, the intent of the parties is
      the writing itself. If left undefined, the words of a contract are to
      be given their ordinary meaning. When the terms of a contract
      are clear and unambiguous, the intent of the parties is to be
      ascertained from the document itself. When, however, an
      ambiguity exists, parol evidence is admissible to explain or
      clarify or resolve the ambiguity, irrespective of whether the
      ambiguity is patent, created by the language of the instrument,
      or latent, created by extrinsic or collateral circumstances. A
      contract is ambiguous if it is reasonably susceptible of different
      constructions and capable of being understood in more than one
      sense.

Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (citations omitted).

      First, Wife argues that the pertinent language in the October 2014

order that was adopted by the April 2015 consent order, “carefully

distinguishes between modification and termination of Husband’s alimony

obligation.” Wife’s Brief at 19.   Wife specifically notes that the use of the

term “termination” is used only to indicate exactly when the alimony will

cease, i.e., in October 2027. Id. at 19-20. Thus, Wife contends that the

consent order allows for modification only and not complete termination.

Id. at 22-23.




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J-A30027-18



        To support her interpretation, Wife cites the following provisions

adopted in the April 2015 consent order: “This alimony shall be modifiable

in accordance with the provisions of 23 Pa.C.S. § 3701, et. seq. … [Husband]

shall pay to [Wife] … through October 16, 2027, at which time [Husband’s]

alimony obligation shall terminate.” Order of Court, 10/10/2014, at ¶

7(b)(ii),    ¶   8(b).   Wife    distinguishes     the   terms   “modification”   and

“termination,” and argues that “to the extent [cohabitation] could be

reached through the ‘et seq.’ language, it still, at best, serves only as a basis

for modification of Husband’s alimony obligation, and not a wholesale

termination of his obligation.” Wife’s Brief at 23.

        Husband contends that in the April 2015 consent order, he and Wife

“were in essence adopting the statutory provisions set forth in … 23 Pa.C.S.

§ 3701, et seq., but more precisely 23 Pa.C.S. § 3706[5] (bar of alimony if

cohabitation exists)[,]” and therefore, termination upon cohabitation was

warranted. Husband’s Brief at 14.


____________________________________________


5   Section 3706 provides:

            “No 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 a
            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. § 3706.



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J-A30027-18



      Ultimately, the trial court concluded that the April 2015 consent order

permitted termination upon cohabitation.

            In the case sub judice[,] Wife clearly consented to a
      termination provision contingent upon cohabitation. On July 16,
      2012, the parties consented to an equitable distribution consent
      order. The agreement specifically preserved [Wife’s] alimony
      claims under ¶ 11. The [trial] court notes that Wife drafted the
      language of the [July 2012] consent order[.] On October 10,
      2014, the [trial c]ourt entered an order that contained an
      alimony modification provision under ¶ 8(b). This section
      provided that the order was subject to 23 Pa.C.S. § 3701 et seq.
      On April 2, 2015, the parties consented to an order that
      referenced and specifically incorporated the [October 2014
      consent order’s] modification provision. Cohabitation, therefore,
      was a modification condition sub judice in that alimony would be
      modified via termination pursuant to § 3706. The [trial] court
      further determined that Wife’s testimony showed that she
      understood that [c]ohabitation per § 3706 would terminate her
      alimony pursuant to the [April 2015] consent order.

             Since the April 2015 consent order incorporated a
      modification provision adhering to 23 Pa.C.S. § 3701 et seq., the
      [trial] court found that[] Husband could pursue a new
      termination petition under §3701(e).

Trial Court Opinion, 2/2/2018, at 27-28 (unnecessary capitalization and

citations omitted). We agree.

      Specifically, while cognizant of the language used in the April 2015

consent    order   and   in   agreement   with   Wife   that   “termination”   and

“modification” have distinct definitions, this Court finds that reasonable

minds could differ in what a “modification” of support could potentially

entail.   See Tuthill v. Tuthill, 763 A.2d 417, 420 (Pa. Super. 2000) (“A

contract will be found to be ambiguous only if it is fairly susceptible of



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J-A30027-18


different constructions and capable of being understood in more than one

sense.”).   Certainly, termination of alimony would modify an existing

alimony order.

     Moreover, even if one were to concede that the language is free of

ambiguity, we find the conduct of the parties reflects an understanding that

differs from the “unambiguous terms” of the consent order. As such, we find

the foregoing warrants further discovery into the intent of the parties. See

Kripp, supra. See also Mazurek v. Russell, 96 A.3d 372, 378 (Pa. Super.

2014) (“[A] court may examine the surrounding circumstances—i.e.,

extrinsic or parol evidence—to ascertain the intent of the parties and resolve

the ambiguity.”) (citation and quotation marks omitted).

     As noted supra, in its opinion to this Court, the trial court found that

the testimony from the hearing on Husband’s motion to terminate alimony

revealed that Wife’s understanding of the April 2015 consent order was that

her alimony would be terminated if she cohabited.

     Wife testified that she was not allowed to have a romantic
     relationship with [Todd] Staniland[, with whom Husband claimed
     Wife was cohabiting] or else her alimony from Husband would be
     terminated under the terms of the settlement agreement. When
     asked if she ever had sexual relations with Staniland, Wife
     testified that she did not because "[f]or one I don’t want that
     type of relationship and for two I can’t afford to have a
     relationship.”   When Wife’s counsel of record asked her to
     elaborate as to why she “couldn’t afford to have a romantic
     relationship[,]” Wife replied: “I know what the terms of my
     agreement with [Husband] are. I have followed them to the
     letter. I don’t want nor can I afford to be in that type of
     relationship.”


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J-A30027-18


            Wife’s eldest daughter, [Ashley], was also under the
      impression that a strict condition of Wife’s receipt of alimony was
      for Wife to not have a romantic relationship with Staniland.
      Ashley testified that she once hoped Wife would enter into a
      romantic relationship with Staniland. When asked if she ever
      conveyed this wish to Wife, Ashley replied:

            “Yeah, we’ve talked about that. [Wife] is extremely
            concerned all it [sic] the time, and actually stresses
            me out a lot, that her health care is upwards of
            $1,000 a month and she works a full-time job plus
            with whatever spousal support she gets from
            [Husband]. Like she would never enter into any type
            of relationship. She has absolutely no desire to ever
            be married again or have that type of pressure from
            a relationship, and especially with [Staniland]. It just
            never turned into anything like that.”

      In response to the immediate next question, when asked if Wife
      had ever talked to Ashley about her feelings toward Staniland,
      Ashley testified that:

            “[Wife] cares about [Staniland] and she has even
            said like, you know, she would never risk the
            agreement for anything because she needs her
            health care. She needs the money that was allocated
            to her. I mean, her [sic] and I have even talked
            about, and [Staniland] has even said, [‘]Well, I'll
            move out.[’]...”

Trial Court Opinion, 2/2/2018, at 8-9 (citations omitted).

      Here, it is clear from the record that Wife’s understanding of the

agreement was that she was disallowed from cohabiting, and if the trial

court found she was cohabiting, her alimony would be terminated. At the

hearing, Wife emphatically denied cohabiting. See Id. Now on appeal, Wife

is not raising an issue concerning the trial court’s cohabitation finding, but is

instead arguing that the language adopted by the April 2015 consent order




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J-A30027-18



supports her theory that her alimony can only be modified and is not subject

to termination prior to 2027.

       It is well-settled that the parties’ “interpretation is entitled to great, if

not controlling, influence, and will generally be adopted and followed by the

courts, particularly when the parties’ interpretation is made before any

controversy, or when the construction of one party is against his[/her]

interest.”     Z & L Lumber Co. of Atlasburg v. Nordquist, 502 A.2d 697,

701 (Pa. Super. 1985) (emphasis added).            See also Martin v. Capital

Cities Media, Inc., 511 A.2d 830, 840 (Pa. Super. 1986) (“The parties’ own

interpretation of a contract, as shown by their acts and declarations, will

ordinarily be adopted by the court.”) (quotation marks omitted). Based upon

the foregoing, we find the intention of both parties was to permit the

termination of alimony upon Wife’s cohabitation and therefore, the trial court

did not err when it found Wife’s cohabitation required the termination of

alimony. No relief is due.6


____________________________________________


6 Wife also contends that “[r]egardless of cohabitation, [she] has the right to
receive alimony until she reaches 62 because her entitlement to alimony
arose from the parties[’]” July 2012 consent order which “was a negotiated
and bargained-for agreement that integrated equitable distribution and
alimony claims.” Id. at 24-28 citing Woodings v. Woodings, 601 A.2d 854
(Pa. Super. 1992) (finding the parties’ settlement agreement disallowed the
termination of alimony despite the fact that the wife was cohabiting because
the agreement was a reflection of “trade-offs” made by the parties between
alimony and equitable distribution and the agreement contained specific
language that set forth that “the alimony provision [was] ‘unmodifiable’” ).

(Footnote Continued Next Page)


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Husband’s Appeal

      Husband presents the following two issues for our review:

             A. Did the trial court err, as a matter of law, in failing to
                order Wife to pay back the alimony received from the
                date Husband petitioned to terminate alimony?

             B. Did the trial court err, as a matter of law, in failing to
                award Husband attorney[’s] fees pursuant to 42
                Pa.C.S[] § 2503 and 23 Pa.C.S.[] §§ 4351, 4353?

Husband’s Brief at 6.

      We address first Husband’s retroactivity claim. While Husband initially

requested the repayment of back alimony that extended prior to the filing of

his motion, see Motion to Terminate, 3/17/2017, Husband’s sole argument

on appeal is that the trial court erred in failing to order the termination of

Wife’s alimony retroactive to the date Husband filed his motion. Husband’s

Brief at 25.7    In this case, in its October 26, 2017 order, the trial court


(Footnote Continued) _______________________

      Wife’s argument is without merit. Unlike in Woodings, the resolution
here of the parties’ equitable distribution was separate and apart from the
ultimate alimony award. This is evidenced by the specific language in the
July 2012 consent order, which set forth that the consent order was to
resolve equitable distribution only, and Wife’s alimony claims remained
outstanding. See Consent Order, 7/16/2012, at ¶ 11. Moreover, the April
2015 consent order permitted modification pursuant to the earlier October
2014 order, which indicated, inter alia, that the consent order would be
“modifiable in accordance with the provisions of 23 Pa.C.S. § 3701, et seq.”
Order of Court, 10/10/2014.

7 In his brief, Husband cites March 14, 2017 as the date he filed his petition
to terminate. See Husband’s Brief at 25 (“Husband established cohabitation
began, at the very least, as of the date of the filing of his [p]etition, known
as March 14, 2017.”). However, the timestamp on Husband’s petition lists
(Footnote Continued Next Page)


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J-A30027-18


terminated alimony “effective November 1, 2017.”             Order of Court,

10/26/2017. Thus, Husband is requesting the repayment of seven and one-

half months of alimony.

      The role of an appellate court in reviewing alimony orders is
      limited; we review only to determine whether there has been an
      error of law or abuse of discretion by the trial court. Absent an
      abuse of discretion or insufficient evidence to sustain the support
      order, this Court will not interfere with the broad discretion
      afforded the trial court.

Dalrymple v. Kilishek, 920 A.2d 1275, 1278 (Pa. Super. 2007).

      As set forth in more detail supra, the April 2015 consent order is

subject to, inter alia, the provisions set forth in 23 Pa.C.S. § 3701.      This

statute, in pertinent part, states:

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

23 Pa.C.S. § 3701(e).

      In denying Husband’s request for retroactivity, the trial court

      found that it would have been inequitable to award Husband
      replacement of back alimony. The [trial c]ourt further found that
      Wife was under financial hardship due to her leukemia treatment
      costs and low income. Wife is [55], makes nine dollars [] per
(Footnote Continued) _______________________

March 17, 2017, although an order attached to the petition is dated March
14, 2017. Irrespective of the foregoing, in light of our disposition, we need
not determine the exact date of filing.



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       hour, and does not have a college degree. Wife has $15,000.00
       in her savings account and owns a home worth $181,800.00.
       Wife and [the parties’ daughter] testified that Wife’s medical
       costs are [$900.00] per month. [Their daughter] testified that
       Wife’s medication is so expensive that Wife was forced to
       petition drug companies monthly for free samples. She further
       testified that Wife would “skip days of medication” and “split pills
       in half” to make her medication last.

             The [trial c]ourt found that Husband was not under
       financial hardship. Husband testified that he made “hundreds of
       thousands of dollars” in gross income during 2016 alone.
       Husband also owns a $520,000.00 home. His mortgage on the
       home has a $50,000.00 balance.

Trial Court Opinion, 2/2/2018, at 30-31.

       On appeal, Husband argues that the above-cited statute mandates

that an order related to the modification or termination of an existing

alimony order be applied retroactive to payments made since the filing of

the motion. Husband’s Brief at 27-28. (“[T]he [t]rial [c]ourt is obligated to

address the payments accruing after the filing of the [motion] since the

statute used ‘shall’ and not ‘may.’”).    The trial court disagreed, concluding

that

       [a] careful reading of th[e aforementioned] statute indicates that
       the [trial c]ourt is merely constrained to awarding replacement
       of back alimony for improperly received alimony after the
       petition’s filing and not before. Importantly however, § 3701(e)
       does not provide that the [trial c]ourt must award arrears for all
       times where alimony was improperly received. The [trial c]ourt,
       therefore, properly denied Husband’s request for replacement of
       back alimony.

Trial Court Opinion, 2/2/2018, at 31. We agree.




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       Specifically, we find no language in § 3701(e) that mandates

retroactivity. In light of the foregoing, because the trial court was permitted

but not required to apply the order retroactive to the date of filing, Husband

is not entitled to relief.8

       Lastly, Husband asks this Court to determine whether the trial court

abused its discretion by denying his request for attorney’s fees pursuant to

42 Pa.C.S. § 2503 (governing counsel fees for vexatious ligation) and 23

Pa.C.S. §§ 4351 and 4353 (governing counsel fees in support matters).

Husband’s Brief at 28-31.

       “Our standard of review of an award of [attorney’s] fees is well

settled: we will not disturb a trial court’s determination absent an abuse of

discretion.” A.L.-S. v. B.S., 117 A.3d 352, 361 (Pa. Super. 2015). “A trial

court has abused its discretion if it failed to follow proper legal procedures or

misapplied the law.” Id. Courtney v. Courtney, ____A.3d____, 2019 WL

850814, at *2 (Pa. Super. 2019).

       Initially, we note that 23 Pa.C.S. §§ 4351 and 4353 govern costs, fees,

and reporting requirements in child and spousal support matters. Because

____________________________________________


8 In concluding as such, we find no abuse of discretion in the trial court’s
decision to deny Husband’s request for retroactivity. Based upon its findings
with respect to incredible income disparity between the parties and Wife’s
health issues, the trial court was within its discretion to determine that
requiring Wife to repay seven and one-half months of alimony would be
inequitable.




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J-A30027-18


the instant matter pertains to alimony only, these statutes are inapplicable

and therefore, Husband’s reliance on them as a basis for relief is misplaced.

Thus, we review Husband’s claim pursuant to 42 Pa.C.S. § 2503. See In re

Estate of Mumma, 125 A.3d 1205, 1219 (Pa. Super. 2015) (“[P]ursuant to

42 Pa.C.S. § 2503, ‘reasonable counsel fees’ may be appropriate, among

other circumstances, based on ‘dilatory, obdurate or vexatious conduct

during the pendency of a matter’ or where ‘the conduct of another party in

commencing the matter or otherwise was arbitrary, vexatious or in bad

faith.’”).

       In its opinion to this Court, the trial court addressed this claim as

follows: “[t]he only § 2503 claim for attorney’s fees Husband could make

would be for sanctions against Wife or awarded counsel fees due to Wife’s

alleged vexatious litigation. The Court found that Husband had not proven

vexatious litigation by Wife and, therefore, did not award counsel fees to

Husband.” Trial Court Opinion, 2/2/2018, at 32.

       On appeal, Husband contends he is entitled to attorney’s fees pursuant

to § 2503 because

       [t]he [t]rial [c]ourt found that [] Wife tried to hide from Husband
       that Staniland was financially supporting both [] Wife and [] the
       parties’ biological daughter.       The [t]rial [c]ourt specifically
       opined[,] “text messages between [daughter] and Husband show
       that Wife attempted to hide from Husband that the fact that
       ‘Todd was paying for anything.’”




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Husband’s Brief at 29.            Husband asserts the foregoing conduct was

“obdurate and vexatious and the [t]rial [c]ourt was in error in not awarding

Husband attorney[’s] fees.” Id.

       Here,    presumably      because        Wife   did   not   initiate   the   instant

proceedings, the trial court determined that Husband’s sole claim under the

aforementioned statute that could entitle him to attorney’s fees is an

allegation that Wife engaged in vexatious conduct.                 Trial Court Opinion,

2/2/2018, at 32; see also 42 Pa.C.S. § 2503(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.”).

       In this case, after reviewing the applicable statute, the learned trial

court, who has presided over the parties’ divorce and related matters for

several years, including the instant motion, and who has an intimate

knowledge of this nearly decade-long dispute, determined that Husband

failed to meet his burden in proving that Wife’s behavior was vexatious.9

Accordingly, the trial court concluded the award of attorney’s fees was

improper in this case. We can find no abuse of discretion in the trial court’s

determination, and Husband’s assertions of trial court error have failed to

convince us otherwise.        See In re K.R., 200 A.3d 969, 978 (Pa. Super.

2018) (“A decision may be reversed for an abuse of discretion only upon
____________________________________________


9“Vexatious refers to conduct with ‘the sole purpose of causing annoyance.’”
Commonwealth v. Douris, 766 A.2d 1276, 1280 (Pa. Super. 2001).



                                          - 20 -
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demonstration of manifest unreasonableness, partiality, prejudice, bias, or

ill-will.”) (citation omitted).

      In light of the foregoing, we affirm the trial court’s order.

      Order affirmed.


      Judge Shogan joins this memorandum.


      Judge Kunselman files a dissenting memorandum.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2019




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