*1
Eiko MANTELL. Superior Pennsylvania. Court of 13,
Argued June 1988. May
Filed
N.A.,
(1977).
Pennsylvania
First
Bank
Before President and WIEAND and SOLE, DEL JJ.
CIRILLO, Judge, opinion President delivers the of the decree, of affirming alimony the divorce order, WIEAND, J., in equitable and the distribution which SOLE, J., DEL joins. concurring dissenting files a opinion.
WIEAND, J., he separate opinion, files which delivers fees, on the of majority reversing view issue counsel of the trial order of part awarding court’s out state CIRILLO, SOLE, J., joins. DEL fees, counsel opinion. dissenting files a Judge, President Judge: CIRILLO, President excep- rulings on challenging various appeal This is an Pleas of Cumber- of the Court of Common tions an order divorce, distributing mari- equitably granting County land We awarding alimony and counsel fees. property, tal of directing payment the order only portion vacate Texas counsel. fees to Mrs. Mantell’s counsel coun- in Mrs. Mantell’s native were married parties here, 1982, Mantell, appellant in 1964. In try, Japan, 201(d) Pennsylvania, action in a Section divorce instituted Mantell, re- Mrs. Appellee, resided. parties where both bro- marriage irretrievably that the was sponded, denying for separated years. had three parties ken or that the been relief, counsel including for economic also raised claims She where, 1983, he to Texas fees. Mr. Mantell later moved initially proceeded divorce action. That action filed another dis- eventually but judgment to a default divorce was subject matter missed the Texas court lack by jurisdiction. Mantell, in Pennsylvania,
In who remained 1985 Mrs. A of a master. appointment filed for successfully counsel, or his not attended Mr. Mantell hearing, report, recom- later. The master’s held several months and the mending granting divorce distribution Exceptions was filed October property, *4 parties followed. both in on argument exceptions heard these
The trial court for the matter to the master July of 1986 and remanded alimony claims for consideration of Mrs. Mantell’s lite, report master’s issues on which the pendente alimony requested that parties subsequently had silent. Both been remaining and hear the discharge the court the master issues. August in the court issued
Following hearing opinion order and which contained its October divorce, distributed granted of fact findings Both parties fees. alimony and and awarded the property correcting and, except relief post-trial filed for (the court had Mr. Mantell net income attributed weekly 28th its October bi-weekly figure), up a erroneously picked in This final order the case. as the reconfirmed order was followed. appeal for our review: raises five issues
Appellant after failing alimony in lower Did the court err 1. income, re- thereby net weekly correcting Mr. Mantell’s ducing byit half? marital including property in as the court err
2. Did County, Costilla realty distribution equitable subject Colorado? percentage designating court err in not Did the Mrs. Mantell is entitled? to which pension
Mr. Mantell’s Mrs. Mantell’s awarding fees for 4. Did the court err being unsupported on counsel, an award out-of-state such the record? discussing or addressing in not
5. Did the court err of Mr. argument disposing #4 above when Mantell’s 28, 1987 order? exceptions to the October Mantell’s issues, asks appellant first four of these respect With the trial court’s modify” “correct the error and that we explanation and remand for order; he that we reverse asks as to issue five. number it was an abuse argues
Mr. Mantell first when the alimony discretion not to reduce the award in weekly net finding realized error Mr. Mantell’s its an award supports He concedes that the evidence come. its discretion asserts that the court abused alimony, but opinion order and setting the amount. He reads the court’s disparity on the relying heavily 28th as most of October alimony for its parties income as the basis between statement, its made on unsatisfactory and finds to the other rele referring of his exception, consideration Code 102(a)(6)and 501 of the Divorce factors at vant §§ *5 support alimony originally of its decision to leave as awarded.
Mrs. points original finding Mantell out that court’s of fact Mr. Mantell’s income regarding annual used in figure correct and that the trial court’s discussion its opinion figures parties’ uses the correct for the incomes. notes, court, she as did the trial Additionally, one of at least fourteen factors only making considered the award. She also observes that the trial court was in using figures, correct annual income consideration of a weekly figure being net of Mr. reflective Mantell’s true ability pay alimony impact paying since the tax alimo- is not ny suggests reflected it. She therefore that the one error in stating weekly typographical income was more that, argues than substantive. Mrs. Mantell also since the trial court had the opportunity alimony fig- correct the ure, award, long supports so as the record there is no abuse of discretion.
The trial court took into consideration a number of award, factors in making alimony most Mrs. tellingly meager Mantell’s education and facility limited with the English language, parties’ respective assets and liabili- ties, prospects and their generation. future income award was not based on a of Mr. percentage Mantell’s income, and, therefore, Mr. argument Mantell’s that after the correction of weekly figure, the net income not chang- ing the dollar amount of the alimony award results an larger income, award of a much proportion of his is of no merit. The trial adequately addressed the facts of this case and the elements of in setting our Divorce Code the amount of alimony gave due consideration to Mr. Mantell’s It did not ability pay. abuse its discretion in refusing to alter the alimony amount because of its initial in stating error Mr. Mantell’s net weekly income. The record supports the award made and we will not disturb it. evidence, Mantell next contends that the specifi his cally testimony August at the hearing, showed that the property question, a number of undeveloped lots *6 son, having the Colorado, as for gift parties’ held was He purpose for that purchased specifically been contrary to the before was no evidence argues that there was, therefore, error to find that it the court and Mrs. Mantell equitable distribution. property subject argues names joint that the deeds were points out Mr. Mantell correct that ruling the trial court’s was presumption the proof his of to rebut did meet burden pointed court to the evidence of marital The trial property. 401(e) title, citing 28 P.S. which showing joint of record § by either property property acquired as “all defines marital it concluded that during marriage.” the party legisla- the the in accordance with property had distributed 102(a)(6) do economic 23 P.S. expressed tive intent § —to find trial court’s deci- parties. the We the justice between sion on this issue to be unassailable. deferred distri complains next that the
Mr. Mantell the court was pension method of valuation chosen bution the that Mr. Mantell’s improper. Because trial court found determine a coverture frac pension speculative too was tion, the to allocate the jurisdiction court elected to retain of Mantell concedes at the time retirement. Mr. benefits of is viable and distributing that this method the pension charges trial law, error the yet allowable under pension to fix a which the will court’s failure formula court, if argues truly it eventually be divided. He legal entanglement par these wished to end the between ties, percentage set a definite Mantell’s would have Mrs. He cites pension to Mantell is entitled. Brader which Braderman, (1985), 613 A.2d Pa.Super. man v. pen methods for sets out alternate distribution method sions and that immediate offset has observes advantage contemporaneous support as for this finality, position proposition. Mrs. endorses the trial court’s Mantell that it few definite facts many had too variables too it or the denomina before to calculate either the numerator necessary tor the coverture fraction to a determination proportion of retirement benefits attributable to submits,
marriage.
agree,
She
and we
that the trial court
properly
applied
law to the facts of this case. See
Flynn
Flynn,
(1985)
The evidence shows that it not possible know, as hearing date, either the numerator representing Mr. Mantell’s total time in the pension plan during the marriage (he still had the opportunity “buy time), back” some lost or the denominator representing the total time he partici- (he in the pated plan was still active no plans with retirement). Both of these numbers are setting essential to *7 the up coverture fraction. 526, King King, 481 A.2d (1984). Therefore, no matter how much the court might have wished to end the parties’ legal wrangling, it possible was not for it to determine a cover- ture fraction to be applied pension the for immediate valuation. We note that though even the report master’s fixed a numerator fraction1, for the it determined that the pension, because of the length service, unknown total could not be subject immediate Appellant’s distribution. argument is without merit that the immediate offset method of pension evaluation was not appropriate this case. The trial court was correct in so finding and in using the alternative jurisdiction “reserve method.” See Brader- man, supra.
Mr. Mantell’s final arguments on appeal challenge the $3,881.25 award of in counsel fees and charge that the trial court failed to address this argument, raised by exception. He claims that remand is for an necessary explanation on the record of the trial court’s action. Before turning to a consideration of those arguments,2 we note that what fol- numerator, 1. This assumed buy that Mr. Mantell would back his lost plan. time in the The adopt figure trial court' declined -to this as it judged improper it to be for the buy court to force Mr. Mantell to back the time. issue, addressing 2. In I would not decide whether the trial court’s proper order was payment insofar as it charged ordered by of fees out-of-state counsel in defense jurisdictionally of the defective Texas of the majority the of a represent view lows does not issue, majority the view As to this panel. of this members opinion, appended Judge separate Wieand’s is stated below. fees, Mrs. Mantell raised properly issue counsel
The
in,
to,
Pennsylvania
the
and counterclaim
her answer
was,
jurisdiction
properly
Pennsylvania’s
within
action
the master and
removed from
request
parties,
at the
of both
At
hearing.
the
August
court at the
addressed
the
earlier, Mrs. Mantell’s
years
some two
hearing
master’s
had, on
Man-
he
Mrs.
testified that
Pennsylvania counsel
behalf,
“for the limited
attorney
retained a Texas
tell’s
court in Texas
challenging
jurisdiction
purpose
divorce,” that
pending Pennsylvania
because
had,
amount
time,
“done a limited
Texas
attorney
there,”
he had had a
with
and that
discussion
work
master’s
prior
hearing
to the
attorney
Texas
two months
much he estimated
him that time how
and had “asked
at
he
owed,
me
felt that
was owed
and he told
that he
master,
these fees to be
in his
found
report,
$500.00.”
“maintaining the
and advised
reasonable
action,
here in
Mr. Mantell had sued as Plaintiff
Texas
after
legal
“all
Mantell’s
improper,” that
Mrs.
Pennsylvania, was
paid by
Texas action should be
expenses associated with the
and,
yet
was not
Mr. Mantell”
because
Texas action
*8
of the
resolved, that “the Court should retain jurisdiction
from
arising
costs
the
attorney’s
matter of future
fees and
v.
Young Young,
cited
action in Texas.” The trial court
298,
(1980),
418
415
for the factors to be
Pa.Super.
274
A.2d
awarding
spouses’
in
fees: the
attorney’s
ability
considered
need,
and the reasonableness
recipient’s
to
the
pay,
grant
authority
Pennsylvania
of
such relief is an
courts to
action.
light
Williams
open question
of this
divided decision in
in
court’s
However,
(1988).
Williams,
Mr.
Our
scope
of an
review
award
counsel fees in a
is
divorce action
limited
a determination of whether the
trial court committed an abuse of discretion. Campbell v.
Campbell,
357 Pa.Super.
(1986).
Although
401(b)
Section
of the Divorce Code allows a
fees,
to make an award of counsel
it does not
provide any guidance as to
how court shall determine
an
where such
would
appropriate.
guid-
be
This
law,
ance is
found
our case
which has
developed
two
directions. Although many
require
cases
the petitioning
*9
spouse that
demonstrate
he/she is in
actual need
in protecting
“par”
to achieve
in order
of fees
indicate
action, other cases
rights
the divorce
his/her
broader
a somewhat
guided by
may be
the trial court
that
counsel
to award
deciding
of considerations
spectrum
A.2d
Johnson, 365
fees.
Johnson
cited therein.
and cases
J., concurring),
(1987)(Beck,
consid-
should
the trial court
that
cases indicate
The latter
considerations.
factors, including equitable
all relevant
er
Id.
There
155-56,
Id., Pa.Superior Man- Mrs. record substantiate evidence of is sufficient connected with expenses with need of assistance tell’s ability pay Mr. Mantell’s litigation and Texas her entitle- challenged Indeed, Mantell has Mr. award. The trial fees. counsel of reasonable ment to an award Texas charges by made concluded, however, that the unreasonable, the duration given even were counsel amount of properly it reduced Although Texas action. agree I must with finding, light of this the award a rationale failed to state the trial court Mantell While entered. actually the amount support adequate further might, upon Mrs. Mantell the evidence submitted an factfinder, to establish be sufficient examination fee for the time a reasonable constitute amount would rendered, I conclude that must and the services expended that effect the trial finding to specific the absence of a Texas $3,881.25 charged by toward fees court’s award of I Accordingly, would an of discretion. counsel was abuse remand for further of counsel fees and the award vacate counsel fees. to determine reasonable proceedings counsel fees as WIEAND, J., except on the issue of joins, separate Opinion. in his stated SOLE, J., concurring dissenting
DEL files a opinion.
JUDGMENT WHEREOF, it ordered hereby ON CONSIDERATION divorce, this Court that the Decree adjudged by *10 equitable distribution order and order awarding are alimony affirmed; awarding order counsel fees is reversed. SOLE,
DEL Judge, concurring and dissenting: I Although agree with Judge President Cirillo’s disposi- tion issues raised by Appellant pertaining to alimony and equitable distribution of certain real I find property, it to necessary join Judge regard Wieand with to the Texas Further, counsel fee award. I dissent from that portion of Judge President Opinion Cirillo’s pen- addresses the sion award. that,
The trial court held because of particular uncertain- ties, it would not pension distribute the the at time of its ruling, but instead would elect to provide for a deferred distribution settlement. The courts and authors in this area recognized have deferred distribution as an alternative method to immediate offset as a means for effectuating v. Flynn Flynn, benefit settlements. Pa.Super. 76, 491 Troyan, Pension Evaluation (1985); A.2d 156 Eq- Distribution, uitable (1983). 10 Fam.L.R. 3001 While de- ferred is recognized option, distribution the court in this case set forth an incorrect formula for determining the ultimate award.
The trial court stated that
it was applying the formula
King
King,
detailed
court
King was
(1984).
In instant was found be The numerator “coverture fraction”. Appellee 5.917, participated years the number separation. until the date of marriage the date of plan from yet The to be determined denominator was as a Appellant’s years total number of represented it since However, when it the court erred plan. participant “Defendant’s share of equaled fraction stated that this % one fraction does determine The coverture pension.” fraction pension. share coverture spouse’s *11 figure resulting multiplied be the actual benefits. by but, of portion share the the Mrs. Mantell’s equal, will property. is marital pension which portion of the dividing the actual equitable The task matter for separate marital is a pension property which is is In some this task too done the court determine. cases . However, date, a the status. plan pay at latter when enters court, the at I a for the practice believe it would be better nonemployee- the assign equitable time of distribution amount to be received from whatever spouse percentage por- marital property is determined to the represent latter nonemployee- the pension. By predetermining tion of the share, step the trial court will one spouse’s percentage be At the ending parties legal entanglements. the further all remain for the court an time of retirement that will lengthen- for potential exercise mathematics. The simple minimized. I ing parties the will be the hostilities between use of the “deffered point hasten to out that the distribu- tion” method in matters should be a last resort pension pen- Trial seek immediate offset tactic. court’s should possible. whenever These sions and utilize actuarial values ending the salutary the methods would have benefit the nonem- parties’ litigation certainty and of providing (Concurring ployee-spouse. Flynn, supra Flynn See: Beck, at, 164). 491 A.2d Dissenting Opinion by J. percentage. The master in ease recommended such a He receive one-half suggested that wife be entitled to pay retirement is determined to be marital monthly case, I of this property. Under circumstances believe that such an fair award would be and equitable. According- I ly, believe the court should set forth percentage, such a by recommended the master. This figure 50% can later applied be to the coverture multiplied fraction Man- tell’s retirement monthly benefits to calculate the amount Mrs. Mantell shall receive each month. conclusion, I
In believe case should be remanded to the trial court pension correct award which will ultimately be received Mrs. Mantell. It is also my that the position should, trial court at the time when it sets forth the figures calculation, known for the pension deter- mine what percentage Mrs. Mantell is equitably entitled to enjoy portion for that pension which is eventually determined to property. be marital
WIEAND, Judge:
I agree with Judge that, President Cirillo except for the trial court's action, counsel fees in the Texas decree of divorce and order of distribution must af- be firmed. The award of counsel action, fees the Texas however, was improper must be vacated.
In Mantell, husband, Francis P. filed a divorce *12 action against wife, Mantell, his Eiko in Cumberland Coun- ty, Pennsylvania. While that action pending, the hus- band moved to Texas and there commenced a second di- vorce action. challenged Wife the jurisdiction of the Texas court, and that court eventually dismissed the divorce action there filed on grounds that it lacked subject jurisdic- matter tion. When a divorce decree was subsequently entered in Pennsylvania, the Cumberland court County made an award for wife counsel fees which she had incurred defending the action in Texas. This was unwarranted and improper.
The general rule is parties that the to litigation are responsible for their own counsel fees and costs unless provided otherwise by statutory agreement authority, the parties, or some recognized other exception. Chatham Communications, Inc. v. General Corp., Press 463 Pa. 292, 300-301, 837, 344 (1975); A.2d 842 Shapiro v. Maga ziner, 278, 280, 418 Pa. 890, 210 A.2d (1965). 892 Section
489
a
authorizes
Pennsylvania
401(b)
the Divorce Code1
in a divorce action.
counsel fees
reasonable
court
to award
a direct
result of the
fees must arise as
However,
such
gener-
the court. See
by
consideration
action under
divorce
McNulty,
363, 374, 500 A.2d
v.
ally: McNulty
Pa.Super.
347
Padezanin, 341
also: Padezanin v.
876,
(1985).
882
See
(counsel
(1985)
fees attributable
26,
This is particularly so where a second action for brought counsel fees is in a state different from principal which the action litigated. was The allowance of counsel fees the principal action must be determined by of the state in law which that action brought, when that issue determined, has been whether in contested- proceedings or because a made, claim therefor was not determination is final. It cannot relitigated be in collateral proceedings brought in another state.
There is neither statutory authorization nor princi ple of common permits law which a Pennsylvania divorce court to award counsel fees incurred a party prosecut or ing defending a separate action in another jurisdiction. For this Court to a adopt permitting rule “Pennsylvania courts to guess second the courts of another jurisdiction with respect to counsel fees incurred in litigation pursued in the courts of such other jurisdiction improvident, would be unwieldy, and unwise and would principles violate of res judicata.” Williams, Williams v. supra, Pa.Superior Ct. at 540 A.2d at (Concurring and Dissenting Opinion by Wieand, J.). good There is no reason for allow ing a cause of action to split be and a separate action maintained for counsel fees. Counsel fees must be recov ered, all, if at in the action such fees were incurred by party. if
Even counsel fees incurred in Texas could be action, recovered in this the wife-appellee failed to introduce evidence sufficient to sustain the court’s award. The only evidence offered support the wife-appellee’s claim was of a copy prepared by bill Texas counsel in the amount of $7,762.50. There was no testimony regarding the nature of *14 rendered, the time or the reasonableness spent, the services charges trial court deemed exces- charges. The and reduced the amount one-half. allowance of sive amount, however, arbitrary wholly unsup- by evidence. ported reasons, court’s order part
For these the trial wife-appellee made an to the for counsel fees separate in the action Texas must be and is incurred for another hear- reversed. The case will not be remanded second ing permit wife-appellee opportunity amount of fees incurred in the reasonable counsel prove such action.
CIRILLO, Judge, dissenting opinion. President files a CIRILLO, Judge, dissenting: President I with respectfully Judge opinion dissent Wieand’s separate of counsel fees as stated in respect my issue opinion.
v. SIKOV, WONCHECK, LAMPARSKI & a Professional
Corporation, Appellant. LAMPARSKI, Henry Don G. Executor the Estate of C. Jr., Deceased,
Lamparski, Appellant SIKOV, WONCHECK, LAMPARSKI & Corporation.
Professional Superior Pennsylvania. Court
Argued March 1989. May
Filed