McCleary, L. v. McCleary, R.
1457 WDA 2016
| Pa. Super. Ct. | Sep 27, 2017Background
- Laura J. McCleary (Wife) and Roger L. McCleary (Husband) married in 2005, separated in 2012; one minor child; 50/50 custody.
- Wife (younger, associate degree) had lower earnings and was laid off in 2014; master assigned her earning capacity of $1,275.26/month. Husband (older, high-school education) earned substantially more (~$3,958.62 net/month) and worked at Columbia Gas.
- After three hearings, the master recommended an equitable distribution giving Husband ~54% and Wife ~46% of marital equity, but assigned most marital debt (mortgage, home equity loan) to Husband.
- Wife sought counsel fees; master recommended denial because Wife had sufficient resources post-distribution and Husband was burdened by debt; master directed Husband to pay master/court reporter fees.
- Master found $2,000 in savings bonds jointly held by Wife and the minor son (gifts to son) and recommended cashing them and depositing into a PUTMA account for the son.
- Trial court largely adopted the master’s report, denied Wife’s exceptions, and entered the divorce decree; Wife appealed raising (1) counsel fees and (2) order to cash savings bonds.
Issues
| Issue | Plaintiff's Argument (Wife) | Defendant's Argument (Husband) | Held |
|---|---|---|---|
| Whether trial court abused its discretion by denying Wife's request for counsel fees | Wife: income disparity and insufficient liquid assets show need; Husband has superior ability to pay and liquid assets | Husband: burdened by almost all marital debt and already incurred fees; Wife has assets from distribution and could pay; master found some of Wife's expense claims not credible | Vacated in part and remanded — trial court erred by considering Wife’s domestic violence as a factor; counsel-fee request must be re-evaluated under Teodorski factors without considering marital misconduct |
| Whether trial court abused discretion by ordering savings bonds (jointly held by Wife and son) cashed and deposited into son’s PUTMA account | Wife: bonds may be son’s property under PUTMA and should not be cashed; criticized lack of findings re: financial impact | Husband: bonds were gifts to son, in his possession; cashing and depositing protects son’s interest and prevents disruption of equitable distribution | Affirmed — Wife failed to develop argument or present evidence; trial court’s direction to cash and deposit bonds into PUTMA account was within discretion |
Key Cases Cited
- Lee v. Lee, 978 A.2d 380 (Pa. Super. 2009) (standard of review for equitable distribution and factual findings)
- Anzalone v. Anzalone, 835 A.2d 773 (Pa. Super. 2003) (trial court’s broad equitable powers)
- Childress v. Bogosian, 12 A.3d 448 (Pa. Super. 2011) (review of equitable distribution as a whole under statutory factors)
- Teodorski v. Teodorski, 857 A.2d 194 (Pa. Super. 2004) (factors and need required for awarding counsel fees)
- Nemoto v. Nemoto, 620 A.2d 1216 (Pa. Super. 1993) (higher income alone does not automatically entitle spouse to counsel fees)
- Ganong v. Ganong, 513 A.2d 1024 (Pa. Super. 1986) (courts may consider post-distribution financial position when denying counsel fees)
- Litmans v. Litmans, 673 A.2d 382 (Pa. Super. 1996) (cash availability relevant to counsel fees)
- Perlberger v. Perlberger, 626 A.2d 1186 (Pa. Super. 1993) (similar principles on counsel fees)
- Verholek v. Verholek, 741 A.2d 792 (Pa. Super. 1999) (counsel fees when opposing party engages in vexatious conduct)
- Nagle v. Nagle, 799 A.2d 812 (Pa. Super. 2002) (preservation of issues via exceptions to master)
- Hoover v. Hoover, 431 A.2d 337 (Pa. Super. 1981) (purpose of counsel-fee awards is not punishment or reward)