*1 er benefits could be used to it pay support SSI child removes claim”,6 from trial court’s of a characterization “frivolous deem it appropriate hearing we to remand for a to decide whether (non-appearance) ap- conduct counsel pellant was in bad faith. Id. If such is the on finding remand, the award counsel fees can reinstated. Howev- er, if the finding is to no contrary, such award is to be imposed. stated,
For the reasons herein order appealed is af- in part, firmed reversed in part procedien- and remanded for a do.
Order part part; affirmed jurisdiction reversed relinquished.
v.
Norman PERLBERGER. PERLBERGER, Norman Messody PERLBERGER, Appellant.
Superior Pennsylvania. Court of
Argued Oct. 1992.
Filed June prong 6. This is the entering second of the trial dual court’s reasons for fees, attorney’s an award of being the first the absence of counsel from hearing. supra, See note accompanying text. *7 Johnson, appellant. R. for Geoffrey Philadelphia, Perlberger, per. in pro Norman CIRILLO, KELLY, TAMILIA and JJ. Before CIRILLO, Judge. Perlberger appeals from consolidated Messody
Appellant County Montgomery Pleas of of the of Common orders Court divorce, ordering in distribu- equitable entering a final decree that Norman Perlber- property, requiring marital tion of the (husband) alimony, denying and and ger support child pay and regarding the divorce various post-trial wife’s motions in part, in and vacate and remand issues. We affirm economic part. Three on November 1971. parties were married 20, Karen, Jennifer, age marriage: of the
children were born Laura, age age Temple Law Perlberger graduate is a 1972
Norman judicial clerkship with Honorable Following a School. Hoffman, for firm of husband worked the law Sydney J. Rome). Rome, (Blank, be- Blank, McCauley & He Comisky in left the in firm 1979. 1988 husband came a partner (P Haft practice, Perlberger in his own & open firm order to H). law Thereafter, sole owner of the husband became the & (PLA). PLA has Law Associates Perlberger firm known as County primarily and handles asbestos Montgomery in offices Perlberger Norman cases and domestic relations cases. law, in recognized expert products as an domestic relations law, liability litigation. and asbestos In 1969 Messody Perlberger was born French Morocco. Messody Perlberger she to the is a emigrated United States. and holds a master and a doctorate college graduate degree employment history French Literature. is limited to Wife’s teaching while her husband was in law school. part-time Wife 1977, choosing has not worked outside the home since instead raising managing dedicate herself to her three children and the household. 4, 1987, mar- May. years parties
On sixteen after the were ried, husband left home to another marital live with 6, 1987, May woman. husband filed a com- On consolidated divorce, plaint requesting a divorce under both the fault and Code,1 no-fault provisions equitable the Divorce an order distribution of the marital a confirmation of property,2 shared children,3 physical legal custody and a confirmation voluntary child support.4 later, four Approximately years and one-half on October 1991, the Honorable Albert R. Subers entered a divorc- decree ing the from parties marriage. the bonds The court also distributing entered an order the marital property and *8 issues, disposing remaining of the economic including counsel fees, support, distribution, child alimony. At the time old, husband was 46 42 years years and wife was old. its order, petition denied husband’s for bifurcation.5 201(a), (c), Code, (d). §§ §§ 1. 23 Pa.S. The Divorce 23 P.S. 101— 19, 1990, repealed by was Act of December P.L. No. 2,§ and reenacted as Part IV of the Domestic Relations See 23 Code. (Purdon Supp.1991). §§ Pa.C.S. 3101-3707 §§ 2. 23 Pa.C.S. 3501-3508. §§
3. 23 Pa.C.S. 5301-5314. §§
4. 23 Pa.C.S. 4301-4354. Granting purpose bifurcation at this time would have served no since 5. simultaneously disposed the court of both the marital and economic are, however, perplexed why issues. We as to bifurcation was not granted proceedings. earlier in the motion Husband's to bifurcate was 26, 1990; April year despite filed on it was not resolved for a and a half
254 estate as follows:6 the marital The court’s order distributed TO WIFE: Mulberry Elkins simple Lane
1. Fee title 320 A Park P $240,000.00 Value $109,000.00 Mortgage Less
$130,389.00 Mulberry Lane 2. Contents of 320 20,000.00 Furnishings $ 50,000.00 Art $ work 70,000.00
$ (50%) Lynch Fifty of the Merrill CMA percent 3. 58,627.00 Account $ 8,500.00 4. Volvo $ Automobile —1987 16,000.00 IRA $ 5. Wife’s (50%) Fifty proceeds sale of percent 6. of net (5) ($321,950. five Dorchestor Condominiums 50%) $115,975.00 x (50%) Fifty proceeds net of sale of percent 7. Avenue, Margate, Atlantic NJ 9600 50%) 38,700.00 ($77,400 x $ _ $438,191.00
TOTAL TO HUSBAND: 11,509.00
1. Husband’s IRA $ (50%) Lynch Fifty CMA percent 2. the Merrill 7 58,627.00 Account $ apart statutory period. parties lived for the See the fact that the had Wolk, (1983); Syno Syno, Pa.Super. Wolkv. A.2d 1359 A.2d Blank, Sharing from the Rome Profit 6. Husband's final distribution $243,652.35 part was at and was included as of the marital Plan valued amount offset property. The trial court determined that this was joint prior to tax liabilities on tax returns filed marital debt and income separation. Lynch We the trial court distributed one-half Merrill note that $117,254.00) (valued party, incorrectly but to each CMA Account $50,627.00, opinion that was awarded instead stated in its the husband $58,627.00. error, well as We have this mathematical corrected *9 award, which, consequently, was also incor- the total of the husband’s $234,702.00, court had totalled the husband’s award rect. The trial $8,000.00 $242,702.00. was when fact it more — (50%) Fifty percent proceeds 3. of net of sale of (5) $115,975.00 five Condominiums Dorchestor (50%) Fifty percent proceeds of 4. of net sale of Avenue, 38,700.00 Margate, NJ Atlantic $ 10,000.00 5. Judicate Stock $ 6,246.00 Ryan 6. Home Stock $ 1,645.00 DDI 7. Stock $ $242,702.00 TOTAL earning capacity found that wife had an $30,000.00 per year, pay alimony order husband wife per period years.8 the amount of week for a of ten $585.00 Husband pay support was also ordered to child for three children in the amount of per week from November $701.00 1, 1991, 1987 to 1991. August Beginning September pay support husband was ordered to for two children in the per amount of week. Husband was also ordered to $640.00 pay college expenses for oldest child. The divorce was 3301(d) granted pursuant to section of the Divorce Code. 23 3301(d). Pa.C.S. post-trial alleging fifty points
Wife filed motions of error on part of the trial court. Following argument, Judge oral post-trial Subers denied the motions. appeal, On wife raises the following ten issues:9 child, order, youngest grade
8. The at the second time of the should completing year high alimony payments her senior school when order, therefore, alimony cease. The allows wife to choose not to work youngest completes primary outside the home while the child her secondary alimony payments period school education. The over a $30,420.00 ($585.00 52), year equal x approximating one wife’s annual earning capacity. See infra. Despite complexity litigation, of this we find it somewhat remark- appellant fifty separate alleged part able that found errors on the of appeal, appellant brought alleged trial court. On has forth ten of those appellant insights errors. We refer and her counsel to the Ruggero Appeals Honorable J. Aldisert of the United States Court of the Third Circuit: appellant’s points, When I read an brief that contains ten or twelve presumption any say arises that there is no merit to I do not of them. presumption, presumption that it is an irrebuttable but is a *10 256 fault grant in refusing
1. the trial court err Did to wife? divorce in the value of hus- excluding
2. the trial court err Did marital firm from the estate? band’s law discovery regard- in wife denying 3. Did the trial court err law firm? ing husband’s in the monies concluding
4. the trial court err Did traced into the from Provident Bank accounts were Lynch Merrill CMA account? exercising jurisdiction trial over
5. Did the
court err in
accounts?
petition to restore the PUGMA
its
in
wife
ordering
6.
trial court abuse
discretion
Did the
accounts?
funds
the PUGMA
restore
wife
concluding
trial
err
failed
7. Did the
court
lite?
request alimony pendente
in its
8.
trial court abuse its discretion
determina-
Did the
alimony?
child
and
spousal support,
support
tions of
discovery
precluding
9.
the trial court err
wife’s
Did
earning
based on com-
capacity
and
of husband’s
evidence
completed
received from
asbestos cases?
pensation
trial
err
wife counsel fees?
denying
10. Did the
by
An
introduced
Antho-
jointly
Representative
amendment
County
Jo-
ny
Montgomery
Representative
J. Scirica of
Philadelphia County
Rocks of
formed
basis
seph M.
is
as “no-fault” divorce.10
commonly
what
known
Section
Appellate advocacy
appellate advocacy.
the effectiveness of
reduces
effectiveness,
loquaciousness.
by
is measured
Hart,
(3d Cir.1982) (quoting
287 n. 1
United States v.
693 F.2d
Aldisert,
Appellate
Competence and
Bar: Professional
Professional
Appellate
Responsibility
Eye
Judge,
View
the Jaundiced
One
from
—A
(1982)).
Hughes
Corporation,
Cap.U.L.Rev.
458
See also
v. GAF
the Perlbergers provides were for a no-fault divorce if parties the have lived separate apart and for the statutory period and the marriage is irretrievably broken:
(d) Irretrievable breakdown.— (1) The may grant court a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging parties that the have lived separate apart and for a period of at two years least and that the marriage irretrievably is broken and the defendant either:
(i) deny Does not allegations the set forth the affidavit. provide 25, the divorce rate or for September “divorce on demand.'' 1979, argued excluding HJ1831L. He that provision the unilateral from House Bill 640 would in the following: result place, In the first it will only grounds leave us with two for divorce: mutual consent and the grounds. old traditional fault Now under consent, parties mutual since both have to evidencing file an affidavit consent, their it is axiomatic that both will not do that or neither will they do that until have worked out their economic differences. If that, they they can go do will ground. ahead with the mutual consent they agree If cannot on question settlement and on the custody support and child and prop- visitation and distribution of erty post-divorce alimony, and they agree, if they cannot then have options ... two go available to them. One is to out of state and obtain a proceed divorce there and the other is to under the tradition- grounds.... al fault 25, 1979, September 1831L, HJ 1831R. eventually The amendment Code, 1980, 2, 63, 26, 201, was April included in the § Divorce P.L. No. subsequently and was statutory period during amended to reduce the parties which the separate apart, must live years and from three to two years. February § P.L. No. (ü) in the allegations more of the set forth one or Denies hearing, deter- but, and affidavit after notice a apart and for parties separate have lived mines that years marriage least two and that of at period irretrievably broken. 3301(d). §
23 Pa.C.S.
sought
upon
a divorce based
complaint,
In husband’s
he
3301(c)
(d),
grounds.
well as
fault
upon
and
both sections
pursuant
parties
a no-fault divorce
granted
The court
had
3301(d),
§
upon
finding
parties
based
a
Pa.C.S.
statutory period
for
and that the
separate
apart
lived
counterclaim,
Id.
In her
marriage
irretrievably broken.
was
claims, a
her economic
divorce
sought,
had
addition to
wife
See
grounds, namely adultery
indignities.
on fault
based
(6).11
3301(a)(2),
argues
now
that the court
23 Pa.C.S.
Wife
based on fault.
granting
in not
her
divorce
erred
divorce,
grounds
no-fault
legislature
added the
When
traditional
fault
it
the Divorce
retain the
intended
Code
Restifo,
grounds for divorce. See Restifo
*12
stated its
legislature
expressly
injured judged it the other has: spouse whenever is
(2) adultery. Committed ( n ) injured spouse as indignities the innocent and Offered such to spouse's life burdensome. render that condition intolerable and 3301(a)(2), (6). § 23 Pa.C.S. mary consideration to the than family welfare rather vindication of private rights punishment the the of matri- children; wrongs; mitigate monial harm to parties the and family disintegration seek the causes of available utilize resources; justice and to effectuate economic parties. between 3102(a)(l)-(6). §§ 23 Pa.C.S. purpose
The of enacting provisions no-fault divorce to provide legal was for the dissolution of a marriage manner which would keep pace contemporary social realities. legislate Our lawmakers were reluctant divorce and, debate,12 reform twenty years after of the 1980 Divorce Code13 was enacted. sanctity marriage
The of and the pre- dominant desire to serve that union theory was in the prior embedded the Law;14 Divorce law remained virtually unchanged since first enacted in 1785 and recodified 1815.15 The law ac- knowledged the strength family the unit necessity and the ensuring however, its preservation. Too frequently, application of law preserved family unit in only, form (JSGC) 12. The Joint by State Government Commission was created 1, 1937, 2460, 8, 1959, July Act of P.L. as amended December P.L. appointed 1740. The JSGC a task force to determine if there existed a 1961, Pennsylvania’s need for reform in divorce laws. In task force report submitted a on drafting needed reform and undertook the of a proposed Marriage Report, pp. and Divorce Code. See JSGC vi-vii. Statutes, 1980, 2, 13. Title 23 of by April Purdon’s as enacted Act P.L. 63, 26, § seq., No. days, et effective in 90 was amended Act 1990, 1240, 206, Dec. P.L. days. No. effective in 90 The text has been seq. § consolidated at 23 Pa.C.S. 3101 et entitled Domestic Relations. Part IV is entitled the Divorce The Code. 1990 amend- substantively ments disposition have not rights affected marriage. after termination 2, 1929, May 14. Act of Repealed. P.L. 23 P.S. April 10. 26, § P.L. No. 801. preamble to The Divorce Act of 1815 stated: Whereas, precepts divine religion of the Christian ... and the *13 state, object parties entering of marriage require into the that it lives; joint should during yet continue parties their where of one the is legal incapacity under natural or guilty ... or is of acts inconsis- society give tent with the sacred ... contract should relief to the injured party. innocent and 6. Sm.L. 286. 260 sought it greater than the loss pain arguably consequential
its v. in Dukmen dissenting opinion Judge prevent. Spaeth’s to (1980), Dukmen, is Pa.Super. telling: the making is flawed in not Law
Perhaps the Divorce loving a the cessation of in a divorce action decisive factor function, It is howev- the our relationship parties. between held Thus, consistently er, this court has apply to the law. Law, to live inability together that under the Divorce divorce, (citations omit- ground a does constitute ted). Further, held “that equally consistently have we fault, at so that nearly equally parties where both are innocent injured said to be the and clearly neither can to on the ground will a divorce neither spouse, grant law they them where to but will leave indignities person, of Simons, Pa.Super. Simons put themselves.” 105, 108 656, 176 A.2d
Id.,
537,
The breakdown, see 23 Pa.C.S. of irretrievable provision no-fault advantage take 3301(d), dependent spouse allowed a to resort having of the law without protections the economic legislature provided grounds. a on fault seeking divorce good benefits for reason: with the economic this section divorce, searing “the raw avoid, a contested possible, where likened to war- guerrilla commentators have battle that some fare.” 25, 1979, (Comments Representative Scirica September HJ1832L provision from no-fault on HB640.). to delete the unilateral the amendment debates, posed that the no-fault During legislative the idea was Pennsylvanians, and that provision sufficient for consent was mutual breakdown) (irretrievable only provision would the unilateral no-fault 25, 1979, society. September decay of HJ1834R contribute to Vroon, (Comments County). Representative Representative Chester County pointed out: Pitts of Chester "|T]he why people a mind as to enter reason that comes to final divorce, other than the economics contest matter, hardheartedness, simply spite ... September 1979 HJ1835R. *14 in her a granting erred not the trial court In arguing indig- adultery upon either based grounds, on fault divorce alleged for husband’s nities, recompense seeks wife apparently or the however, rights misconduct; private “the vindication in proscribed wrongs” expressly is of matrimonial punishment intent. See findings and legislative the Divorce Code’s 3102(a)(3). from are unable to discern Frankly, § we Pa.C.S. benefit she seeks or what exactly what relief argument (cid:127)wife’s court offers this a fault divorce.17 Wife obtain from might she had since husband than the court erred no other argument separation. during parties’ committing adultery admitted of the economic benefits is entitled to the Wife alimony, Code, distribution and including equitable Divorce ground the no-fault upon the divorce was based though even Furthermore, misconduct marital breakdown. of irretrievable an order of determining court in by considered may 3502(a) part: in relevant states distribution. Section equitable annulment, (a) for divorce or rule. —In an action General shall, party, equitably of either upon request the court otherwise, marital divide, in kind or assign, distribute or mairital regard without parties between the ... misconduct added). 3502(a) to ali- respect § With (emphasis
23 Pa.C.S. provides Divorce Code mony, section 3701 of the misconduct, along with all other consider marital may in legislature attempted to account for human nature 17. The has policy Commonwealth’s eschews vindication Divorce Code. The wrongs. punishment 23 Pa.C.S. private rights and for marital however, 3102(a)(3). purposes, policy is difficult to practical § this For proceed- party delay or control the implement; to some extent one can lightly, nor exited but if one ings. Marriage should be neither entered bond, party the other often party does desire to be free from the marital lopsided back-up, settle- opportunity, legal and the to exact a has the party, equipped with a engage delay One ment or in endless tactics. arsenal, hostage his or her economic legal hold the other can demands, provi- essentially extorting settlement. The no-fault a divorce justice system adversarial and a detour around the sions were added as conflict, discord, mounting system delay, the side-effects of that — fees, heightened children are involved. This legal which are when all of policy, antithesis of what the Commonwealth's and the is counter to the accomplish enacting reform. legislators hoped to divorce had necessary factors, alimony whether determining relevant amount, nature, and manner duration determining 3701(b)(14). However, “marital 23 Pa.C.S. payment. the date parties of either misconduct of final from in its determi- considered the court shall not be separation added). any alimony.” (emphasis Id. nations relative *15 support. and child event, alimony both wife received to one of a fault divorce though granting Even alimony party, to the other an award may preclude party Hus in the circumstances here. inapplicable is principle Keller, Keller v. 275 support. See sought has not band therefore, (1980). conclude, 573, 49 We 419 A.2d Pa.Super. a on no-fault granting err in divorce did not the trial grounds.
I. excluding Next, that the trial court erred wife contends The firm from the marital estate. of husband’s law the value Perlberger firm known as that the law court determined trial 1988, Associates, approxi- in June of was established Law P.C. separated. had The parties months after the mately thirteen inventory contingent over a substantial firm had carried law cases, from husband’s cases, asbestos-related included fee firm, Blank, trial court excluded Rome. The law prior marital estate. of PLA from the value and maintained with PLA was created argues that Wife part- alleges that husband’s Specifically, she marital assets. Blank, and that Rome was a marital asset nership interest capital Line, start-up provided which his Provident Credit Blank, partners. Rome for all PLA, was established for of a marital asset the utilization argues, she Consequently, that asset asset establishes of a post-separation formation that husband Additionally, wife claims property. as marital firm, law fledgling to sustain the property marital borrowed repaid. never been that these monies have either acquired by “all property is property” “Marital 3501(a). § ...” 23 Pa.C.S. marriage, party during
263
rebuttable,
property
property
of marital
presumption
preponderance
separate
may be established
Sutliff, 518
Pa.
3501(b);
§
evidence. See
23 Pa.C.S.
Sutliff v.
Braderman, 339
v.
Braderman
(1988);
378,
It
is the
marriage and wheth-
acquired during
right has been
Flynn
marital estate.
inclusion into the
warrants its
equity
er
If
Flynn,
estate, the allocation
in the marital
is deemed includable
asset
intent
legislative
with the
must be consistent
of that
interest
23 Pa.C.S.
parties.
justice between
to effectuate economic
3102(a)(6).
*16
or separate
property
interest
is marital
Whether
is a
of the marital estate
of distribution
purposes
property
v.
trial court. Ruth
discretion of the
within the sound
matter
(1983).
Ruth,
282,
An
Here, that husband’s wife contends his funds from was established with proprietorship, a sole Blank, funds Rome as well as from interest partnership is a A interest partnership accounts. from marital borrowed Buckl, 521, 542 Buckl v. Pa.Super. 373 interest. See property v. Trust Co. Phila. also Provident see (1988); A.2d 65 264 (1939); Brew-
Rankin,
Northampton
214
5 A.2d
333 Pa.
(1940).
583
Lande,
Pa.Super.
Corp. v.
ery
Blank, Rome,
from
distribution
final partnership
Husband’s
firm,
amount-
indebtedness
less
capital
his
contribution
this
not
$243,652.35.
dispute
The
do
parties
ed to
v.
McCabe
a marital asset.
See
interest was
partnership
Buckl,
(1990);
This
McCabe,
supra.
Q: Mr. Haft? Yes____ month. We losing money firm was each
A: of ’88 and December November made some settlements *17 time to it takes some paid still not because were which where point cash flow was at a Our settlements. process $300,000, been drawn line, already had which was our credit $250,000 $275,000. and We between down to somewhere with Consti- exhausting our credit line brink of were at the we make reaching payroll a which We were tution Bank. in enough money month, we didn’t have and because twice 265 account, $50,- my I invaded own payroll, pension withdrew account, $40,000 my 000 from contributed of it to pension firm to had to payroll, pay penalties meet all premature that transfer because it was a withdrawal from I pension Larry co-signed account---- Haft and had the loan with Constitution Bank because we both were As a of position shareholders.... result the financial ’89, that firm in Larry very March of was uncomfort- [Haft] able continuing with be at risk. He didn’t know what the firm future was.... $50,000
Wife contends that this withdrawal was never reim- bursed to the marital estate. in Husband’s statement his brief Blank, proceeds that the from the Rome account “were consid- ered and dealt by way the lower court” does little of response or illumination on this issue.
Although originated the withdrawal from a fund com Blank, prised partnership husband’s distribution from Bold, Rome, asset, a marital Bold v. 358 516 A.2d Pa.Super. (1986), sparse 741 we are unable to conclude from the argu ment and reference wife’s brief that the trial court abused its discretion its final distribution In assessing order. scheme, propriety of a marital distribution our stan court, dard of review is whether the trial by misapplication legal the law or failure to follow its proper procedure, abused Johnson, discretion. Johnson v. 365 A.2d Pa.Super. 529 (1987). found; An “abuse of discretion” is not it lightly by convincing must be established clear and evidence. Sergi (1986). 588, 591, v. Sergi, Pa.Super. 506 A.2d “Specifically, case, we measure the circumstances therefrom, the conclusions drawn the trial court against 3502(a) § of 23 provisions objectives [Pa.C.S. and the avowed ] Code, is, of the Divorce ‘effectuate economic justice parties just between the ... and insure a fair and determina 3102(a)(6) tion of their property rights.’ 23 [Pa.C.S. ].” Hutnik, 263, 266-7, Hutnick v.
266 of and the
Following parties’ arguments a review the us, the as well as consideration of circumstances record before case, the this we conclude that trial court’s equities and of the property divide marital equitably exhaustive efforts not justice parties between the did amount effect economic Johnson, Sergi, supra; supra. an of abuse discretion. Cf. (1989) Adelstein, 436 Pa.Super. v. 381 553 A.2d Adelstein ef in of business due to post-separation value (appreciation court in determin may forts of one be considered the party award). distribution ing equitable contingent fee cases Wife also contends that of marital estate part should included as have been Blank, from at Rome. originated because husband’s work they claim court’s en upon The trial court dismissed this based this Beasley, Pa.Super. 518 A.2d Beasley banc decision (1986), Pa. alloc. den. 516 A.2d law, controlling continually noted wife despite pressed this issue before the trial court. not may this court held that fees be Beasley, contingent a present goodwill value or of law
considered to establish equitable for of distribution in a divorce practice purpose proceeding, may they purpose nor be considered for of they establishing alimony for awards since are unas- a basis earnings. Beasley, 359 certainable at 555. fees, degree similarity of
Contingent
having
while
expectation
vesting
the same
of
which
do
have
pensions,
for
greater certainty
fixing
establishing
value and
permits
course,
Of
in those cases wherein the
present worth.
appraisal
a clear
paid
performed,
is
for services
professional
can
uncompensated
progress
of
work
of
value
upon
property
a determination
marital
made
which
can be based. This can be ascer-
division
records,
do not
through bookkeeping
tained
which
involve
files----
Unquestionably,
evaluation
confidential
as a special category
cannot be carved out
lawyers
present
who are immune from evaluation as to
professionals
value,
permit
inquiry
into confidential
files
but
purpose
evaluating contingent
potential earnings
fees as
chilling
would have a
effect on
inappropriate....
[and]
which far
the need
relationship
outweighs
[the confidential]
*19
for
appraise
[purposes
those files
of marital distribution].
Id. at
41, 42,
555,
The trial having considered all of these properly contingent excluded the fee cases from the marital Ruth, supra. estate. We find no abuse of discretion. II.
Wife next trial argues improperly precluded discovery her from PLA the books and records of and that this her from prevented properly valuing husband’s law firm.
The 1988 amendments to the Divorce Code18 liberalized in discovery proceedings. Discovery divorce under § 18. Feb. P.L. No. 3. longer is no limited of the Divorce provisions
amended amendment, adopted without discus- interrogatories.19 Senate, discovery or allows the House sion debate Pennsylvania civil under the provided for all other actions “as scope 3505. The Rules Procedure.” Pa.C.S. of Civil in Pennsylva- is now defined proceedings divorce discovery however, nia of Civil Procedure 4003.1.20 Rule 3505(c) Pennsylvania, section Supreme Court order of 1920.91(2) note thereto. Pa.R.C.P. was See suspended.21 marriage in divorce or annulment of Discovery actions Rule of Civil Procedure 1920.- prescribed by Pennsylvania now limiting discovery orders that the trial court’s argues Wife PLA. valuing from She contends precluded properly her discovery PLA’s “books Beasley expressly allows disposes previous issue records.” Our determination *20 did not equity this The trial court determined that claim. assets, PLA the Flynn, the inclusion of into marital warrant the court not we determined that trial did supra, and have Ruth, Thus, regard. supra. in this we abuse its discretion issue further.22 need not address this amendments, discovery right as of was 19. the 1988 obtainable Prior to provided: interrogatories. The rules court limited to relevant of Discovery 1920.22. Pa.R.C.P. (b), (a) provided by discovery Except as there shall be no subdivision or for or a claim which has been in an action of divorce annulment by joined Code permitted under the Divorce unless as authorized special order court. of (b) alimony a made for or the determination and When claim is may rights, any party upon any of serve other distribution delay interroga- to trial party of course within such time as not to limited those claims. tories added). 1920.22(a), (b) (emphasis Pa.R.C.P. OPIN- 20. 4003.1 SCOPE OF DISCOVERY GENERALLY. RULE IONS CONTENTIONS. AND (a) Subject 4003.2 inclusive and provisions to the Rules to 4003.5 matter, any may discovery regarding party obtain Rule subject involved in the privileged, which is relevant matter action, pending ... Pa.R.C.P. 4003.1. 7, 1989, February July 21. effective 1989. that trial note that our review of the record indicates We do pleadings discovery; stream and the for liberal allowed extraordinary testimony this case are a testament to the volumes of parties both in this case. Husband amount of information amassed
III. issue, argues In her fourth wife that trial court concluding monies from Provident erred that certain Accounts, 450-336-8, Bank # and # were accounts 869-311-0 Lynch agrees traced to the Merrill Account. Wife with the prop trial determination that these funds were marital court’s erty, disagrees finding but with the that the value was traced therefore, contends, Lynch the Merrill Account. Wife rightful she was her distribution. denied found The court that the amount the two Provident Bank accounts, $117,254.00, Lynch was traced the Merrill Ac- count; order, party in the distribution each was one- awarded amount, $58,627.00. half of that The record indicates funds from the two Provident from marital originated accounts Blank, distribution, Rome property, and were thereafter traced Merrill Lynch to the Account. The findings court’s are supported the record. Campbell, by credible evidence Barnhart, supra. We, therefore, find no abuse discretion. supra. deposed May April was on 1989. On an 1990 he filed income statement, expense inventory appraisement as well as an of all subpoena marital and non-marital assets and liabilities. Pursuant tecum, documents, produce duces husband was ordered to various including, hourly average alia: weekly pay inter husband's rate and benefits, bonuses, inception; including expense since PLA’s husband's vehicles, accounts, cards, travel; agree- credit entertainment and all Blank, severance; regarding ments with Rome list or documents re- Rome; flecting monthly payments copies to Blank from IRS letters *21 deficiencies, taxes, regarding penalties, any and interest on returns [1990]; accounts; present brokerage from 1981 to statements and brokerage period statements for investments held for the 1986 to stock, [1990]; securities, bonds, present mortgages statements of and investments; statements, cards; other including credit card credit PLA money individually statements for other markets and all accounts held (husband’s paramour) or with present Diane Strausser from 1986 [1990]; copies individually any of all bank or statements held person, including deposits, present other checks and from 1986 to Haft, deposed Esq., prior also Larry [1990]. Wife and shareholder PLA; Robinson, PLA; employee Lois the financial administrator of Strausser, administrator; Jones, CPA,
Diane PLA’s office and Daniel husband’s individual and firm accountant. 270
IV. claim, argues wife the trial In her next petition husband’s jurisdiction over the exercising erred ac accounts. The children’s funds to the children’s restore Uniform opened pursuant Pennsylvania to the counts were § 20 5301 et accounts]. Act Pa.C.S. [PUGMA Minors Gift seq. jurisdic- court has exclusive orphan’s argues that
Wife Judge and therefore Subers over the PUGMA accounts tion she had to reimburse certain monies ordered wife improperly accounts. the PUGMA withdrawn from part: provides in relevant 3104 of the Divorce Code Section jurisdiction. § Bases of (a) jurisdic- have original courts shall Jurisdiction. —The determine, conjunc- ... shall in cases of divorce and tion ..., the following any granting decree divorce tion with and matters, pleadings, appropriate if in the issue raised thereto, may and retain or with reference decrees orders jurisdiction thereof: continuing
[*] [*] # v [*] # (3) paid shall be for the support or assistance which Any ...; marriage children of the any benefit of [*] [*] [*] [*] [*] [*] (5) marriage and di- pertaining matters to the Any other expeditiously may ... which determined fairly vorce in such action. an disposed 3104(a)(3) The Divorce Code establishes & 23 Pa.C.S. marriage, for the dissolution of comprehensive scheme “a resolution of related of marital distribution Reese, v. 525- claims.” Reese economic Bacchetta, (1986) v. Bacchetta (quoting 506 A.2d added) (1982) 227, 235, (emphasis Pa. (footnote omitted)); 411 Pa.Su Geraghty Geraghty, see also (1991) (determination 53, 59-60, 1261, 1263 A.2d per. ancillary to a divorce claims which are any economic similar conjunction following entry with or must be made action *22 decree). of a The use of here is divorce the PUGMA funds clearly related to the divorce and associated economic claims “fairly disposed and could expeditiously” 3104(a)(5). action. underlying 23 Pa.C.S. Sutliff Cf. (court 393, 402, (1987) Pa. A.2d Sutliff relating common claim pleas jurisdiction lacked over Uni form to Minors Act funds appeal pending, Gift because was 1701). citing Pa.R.A.P. The common pleas properly court of ancillary jurisdiction. exercised
V. argues Wife also that the trial abused court its discretion $52,750.00 wife to ordering restore to the accounts. PUGMA Perlbergers separated, trial found that after the $76,000.0023 wife approximately withdrew from these ac- counts, using the funds follows: lessons, lessons, piano Chemistry Tennis Math & tutoring 6,000.00 $ Payment of children’s taxes 1,000.00 $ pool expenses 1,500.00 Swimming $ 4,500.00 Family trips $ D.C.) (Washington, 30,000.00 expenses Condominium $ (vacation NJ) Margate, home — Entertainment 6,000.00 $ Legal 5,000.00 Representation Custody Matters $ 2,550.00 Medical bills $ Medicine 500.00 $ 5,000.00 Child Care $ 5,000.00 Food $ (wife) Therapy 750.00 $ $52,750 accounts, Wife was ordered to restore to the children’s the amount which the court spent determined had been on law, nonessentials. its conclusions of the court stated that “Wife improperly depleted children’s Pa. Uniform Gift to We are certain how the trial wife court determined that had $76,000.00; approximately expenses only withdrawn total listed $67,800.00. parties recognized discrepancy, Neither this nor did $8,000.00 they point out the error in the court’s distribution order to husband. *23 for non-necessities such by funds expending Accounts
Minor’s ... ... child care expenses ... trips condominium family representation ... legal ... pool expenses entertainment therapy.” ... and wife’s ... child care matters custody utilized the incorrect the trial court Wife contends that to order reimbursement it whether standard when assessed a the was expense of whether a determination upon based the standard is whether contends the correct necessity. Wife upon the minor and relies for the expenses were benefit 5305(b) to Minors Pennsylvania the Uniform Gift section Act:
(b) minor for expendi- over to the pay The custodian shall of or minor’s so much him for the benefit by expend ture or the deems advisable property as custodian all the custodial maintenance, and the education support, the benefit of for manner, times, the minor, and to at the time or discretion, custodian, suitable deems that the his extent order, with or without without court and with or proper, to any person of himself or of other to the regard duty so, minor, to and with ability or his do support of the any property income or to other regard without may any or available for such minor, applicable which purpose. 5305(b). §
20 Pa.C.S.
by parent pursuant
a child
a
Assets transferred to
belong
Act
to the
Uniform
to Minors
Pennsylvania
Gift
Flory
Flory,
completed gift.
of a
See
child as a result
The minor is vested
527 A.2d
5305(a).
Sutliff,
§
In
title. 20 Pa.C.S.
full and indefeasible
that, unlike a trust
Pennsylvania Supreme
explained
Court
property
a
purpose,
used for
stated
PUGMA
which must be
for the
be used
custodians
proceeds may generally
is,
“It
Id. at
528 A.2d
of the child.
support
property
however,
duty
to use the [P]UGMA
custodian’s
5305(b).
have stated
We
child’s
Pa.C.S.
benefit.
not use
benefit
may
[P]UGMA
a custodian
that
himself, ...
a
use
suggested
may
custodian
it to
added).
fulfill,
support obligation.”
an
Id.
existing
(emphasis
a
Sutlijf,
plurality
Supreme
Pennsylvania
Court
held that
parent’s
a
is
support obligation
independent
a
and,
so,
minor’s
reasonably
assets
where
or she
can
he
do
parent must support
the child without
to PUGMA
regard
assets. Sutliff, 515 Pa. at
Although
at 1324.
Sutlijf
support obligor’s
addressed the issue
use of
PUGMA assets to fund a
of his
portion
support obligation, we
find
our
principles espoused by
Supreme Court are
here,
wife,
applicable
both instructive and
though
where
not a
obligor,
subject
support
duty
the general
support
her
*24
Mexal,
children.
v.
See Com.
201 Pa.Super.
Sutliff parent’s dial assets “to fulfill a support obligation where the parent has sufficient to discharge means it Id. himself.” at 398, 528 not, A.2d at 1320. It however, does bar absolutely a custodian’s use of the funds in support obligation, relation to a court ordered or otherwise. Pennsylvania Supreme Court set forth the as a following guide for the trial courts determining the effect of a PUGMA assets on support obli gation: it
Whether is require reasonable to a [parent] supply all part of the support require regard [the] children without to their own means is a threshold question. It involves income, balancing parent’s assets, earning power needs against If children’s needs. the court determines that the parent reasonably can provide for their at needs an level, appropriate obligation is paramount and the children’s means should not be considered. The inquiry should thereafter deal only with the children’s reasonable
274 seeking for children
requirements, possible exception a higher education. added). (emphasis A.2d at 1324
Sutliff, Pa. at custodian, set duties of a respect to the With Sutliff following principles: forth may more analo-
Indeed, properly a custodian’s duties discretionary with the broadest to those of a trustee gous [However, if a lacks the resources parent e]ven powers____ needs, no court should his children’s fully provide much of the right pay him or her the unbridled grant he or she sees from funds as [P]UGMA children’s support fit. added). summary,
Id. (emphasis A.2d at 1324 unbridled discretion use custodian has broad but not minor; parental for the custodial assets benefit assets, to custodial how regard without obligation support ever, required Additionally, parent paramount. remains provide his or her children luxuries to personal to sacrifice Dana, Conway 456 Pa. A.2d needs. with their their re “appropriately expend must parents Both Id. turning to the custodial funds.” before sources utilized custodial funds maintains that she Wife *25 for the benefit of expenditures that her were faith belief good of this is that her argument The substance the children. benefit, whether is in the children’s judgment as to what intellectual, emotional, social, or should not be sec physical, twenty devoted the past Wife has ond-guessed. agree. We children; is the on what her caring expert she to for her years factor, however, is determining The needs are. children’s A.2d Sutliff, 515 Pa. at reasonableness. of a child for the benefit as a reasonable need qualifies What upon of fact luxury a is a based question qualifies and what status presented. economic particular circumstances the are accustomed relevant lifestyle to which the children inquiry. to this and critical Perlberger
Mrs. of reputable attorney was the wife a a marriage, considerable income. During husband’s income increased and the Perlbergers accumulated substantial assets. Neither party spared expenses providing for their home, children. When husband left the marital wife was spousal limited to support payment per week and $565.00 week, child support payments of per approximately $701.00 $60,000 per year to run her household and care for her Though children. sympathetic position, a wife and her children were accustomed a to comfortable and secure life style. explained specific Wife on the record the uses to which put. may PUGMA funds were She not have frugal been during action, of this pendency but she is not necessarily required to alter See Commonwealth lifestyle. her children’s Goichman, ex rel. Goichman v.
When children adjust are attempting collapse to the parent’s attempt their family, major adjustments to limit other areas may provide children’s lives a measure of stability. During Perlbergers’ separation and divorce proceedings, may children in fact have from benefitted trips Washington, relatives, D.C. to visit or vacations and summers with friends at the beach If house. economically feasible, whatever aspects the children’s lives that can stable, remain should. The uses to put which wife the custodi- al assets she may extravagant borrowed to one of conserva- taste, tive means but we cannot from sparse conclude record on this issue wife’s actions were neither reasonable nor for the benefit of the children.
We dispute do not that certain expenditures were an inva- sion clearly custodial assets and were not used for the i.e., benefit, children’s legal wife’s therapy or fees.24 Nonethe- less, we in agreement are argument with wife’s that the trial court imposed its in ordering own standard reimbursement Further, the accounts. on point presented each we only are apparently disagrees 24. Husband entirely expen- with the breakdown of $52,500 ditures. his brief he states: “It is asserted that at least went pay $5,000 Sprague clearly [wife’s]retainer at the office and went to *26 Gold-Bikin, Lynne Esquire.” and the to use funds testimony as the the wife’s with were expenses that certain summary conclusions court’s trial non-essentials. $80,000.00 the which "with concerned particularly
We are for expenses and condominium mortgage pay to the was used The vacation Margate, Jersey.25 New home the vacation the paid that she Wife testified property. marital home was home maintain the vacation to expenses mortgage, fees that dispute Husband does not separation. during parties’ the wife proceedings divorce separation and parties’ during for the vacation expenses fees and mortgage, maintained awarded Further, order the court in its distribution home. sale. proceeds party each 50% searching review problematic; our here is also The record the trial court and given record us to the of the references little, very certainly not on this matter reveal the parties We determine this matter. judiciously enough efficiently expended appropriately to discern whether wife are unable resorting to the custodial funds. before her resources own Sutliff, supra. A record must made with Conway, supra; to the respect Determinations respect to these matters. the children’s benefit expenditures reasonableness documented, in mind the correct stan keeping also be must law on this issue. and the limited case under the statute dards We, therefore, vacate Sutliff, supra. 5305(b); 20 Pa.C.S. to reim requiring order wife Judge Suber’s portion hearing remand for a accounts. We the PUGMA burse proceed the trial court this issue and instruct confined to set forth above.26 and standards according principles to the VI. claim, the court erred argues that
In her next wife alimony lite. pendente request did not determining she paid mortgage on vacation home testified that he 25. Husband separation. months after of 1987—for six until November Perlberger timely disposition matter would benefit of this 26. The otherwise, children, admittedly financially are reluctant and we up parties, in the litigation It is to the prolong in this case. children, expedite of this matter. the resolution interests of the
277
litigation,”
lite is
and
Alimony pendente
“pending
maintenance
during
proceeding.
the
of a divorce
payable only
pendency
is
Heilbron,
297,
(1893);
158
v.
Heilbron v.
Pa.
VII. Next, wife argues the erred its award spousal alimony, support and child support.
Alimony
Alimony based needs in upon reasonable accor lifestyle dance with the living and standard of established parties during marriage, payor’s ability well as the spousal 27. We note that the support difference between the amount Here, alimony pendente usually lite is minimal or nonexistent. spousal support trial court entered a order retroactive to the date 10, 1987, and, 21, 1991, requested, November on October an entered alimony along entry award with the of the divorce decree. This was spousal not a support bifurcated action where the conversion of alimony pendente necessary supra; was Krakovsky, lite relevant. Purdue, supra. McCabe, A.2d 558 Pa.Super. McCabe v. pay. A.2d 453 (1988); Dyer, Dyer nature, alimony, duration of amount and determining the court shall consider: parties; of the earning earnings capacities
the relative and emotional conditions mental ages physical, and the parties, both sources of income of parties; medical, retirement, to, insurance limited but not including, benefits; and inheritances expectancies or other *28 by marriage; the contribution of the parties; the duration earning education, training or increased party one the earning to which the the extent power party; of the other of will be obligations party or a power, financial expenses a minor the custodian of serving of as by affected reason parties the child; living by of established the standard parties of relative education the during marriage; the the education or necessary acquire sufficient and the time seeking alimony appro- to find training party to enable the of and liabilities the relative assets priate employment; by either brought marriage to the parties; homemaker; spouse of a party; the contribution parties; the marital misconduct needs relative marriage during (post-separation parties either of excluded); tax ramifications specifically misconduct party lacks award; requesting whether alimony equitable from the including property property, sufficient award, provide party’s for the reasonable distribution needs. 3701(b)(l)-(14). first the court argues Wife
23 Pa.C.S. earning capacity an determining possessed that she erred finding this based $30,000.00 year. The trial court made per expert. Dr. a vocational testimony Sally Kneipp, upon the vocational evaluation comprehensive Dr. a Kneipp performed opinion, Perlberger In Dr. Mrs. Kneipp’s Perlberger. Mrs. and her educational was, of this evaluation on the basis high a school uni- immediately employable as background, example Dr. cited as an Kneipp versity level French teacher. Acade- for French teacher at Germantown position an a open my Washington, Pennsylvania. position in Fort That paid $31,500.00 approximately per year. The trial court found this The found testimony credible. not credible the testimo of wife’s ny experts respect deteriorating eyesight, her therefore, concluding, argument that wife’s that she in fact had no will earning capacity usurp was unfounded. We duty the trial court’s as factfinder. The record contains We, therefore, credible evidence to are support finding. this Barnhart, See see also bound this determination. supra; Campbell, supra. trial alimony period
The court’s order extends for a of ten above, supra, see years. As we stated note the youngest child, in order, second grade at the time of the should completing her year high alimony senior school when order, therefore, payments cease. The alimony allows towife not to choose work outside the home youngest while the child completes primary her secondary school education. alimony payments over period equal $30,420.00 of one year ($585.00 x 52), approximating the court’s determination of earning wife’s annual capacity.
Wife also argues
intentionally
that husband
his
reduced
in
income
order to reduce the amount of the award. Follow-
ing
parties’
firm,
separation, husband left a prestigious law
earning approximately $300,000 per year,
to launch his own
law firm. At
of hearing,
the time
the court determined that
earning
$165,000
husband was
approximately
per year.
traditionally
Courts
view with suspicion any sudden
in
reduction
A party
income.
cannot reduce
in an
earnings
v.
to
attempt
support
reduce
Snively
Snively,
payments.
Weiser,
Weiser
Pa.Super.
(1976),
husband,
patent attorney
half. The trial ordered $150 children. of his wife and three support for the per week court, argued counsel success to this wife’s appeal On held: payment. in We fully weekly support for an increase in an income employment in resulted change [Husband’s] a as a than one half. It is also fact that reduction of more he the draw and his law firm could control partner [his] new may accurately not reflect his weekly income of $340 feel the award earnings. It is for these reasons that we his certainly has the to establish right Most he inadequate. life family whose expense own but not at his business $40,000.00 per income which style year he created based on he while to meet new conditions changed now must be high usual standard. enjoy continues to his here are A.2d at 290. circumstances Id. at Blank, Rome facts Husband left similar Weiser. open his firm. As after own law separation thirteen months firm, was his husband’s income establishing a result of own one-half. by approximately reduced Weiser, However, here, presented unlike that the record that husband “did leave supports finding the trial court’s reducing his income so that purpose his with a partnership had motives less but rather that he valid pay support, he could Furthermore, firm.” leaving establishing for his own law Weiser, case, variety presents in contrast the instant from the which cannot severed additional considerations husband’s We have considered the alimony determination. $33,000 year, approximately per child support obligation $24,000 provide approximately per obligation husband’s obli- college expenses,28 child’s husband’s year for the oldest $300,000 his totalling life insurance gation to maintain age twenty-three, each child reaches children until *30 of of the marital estate. well as the award wife two-thirds sufficiently earning capacities in parties’ The the disparity to his children. obligations financial three by offset husband’s marriage daughter prior he from a for whom 28. Husband also has pays college expenses.
281 3701(b)(7). See 23 no Finding Pa.C.S. clear abuse discre- in tion the will defer to trial alimony, award we court’s Ruth, (1983). order. Ruth v. 316 462 1351 Pa.Super. A.2d Spousal Support & Child Support
Wife claims
trial court abused its discretion
its
awards of
As in
spousal support
support.
and child
claim,
alimony
we are bound
trial court’s award of child
by
support
support
suggest
and
unless the circumstances
spousal
Goodman,
See
v.
Goodman
an abuse of
discretion.
Pa.Su
(1988)
(spousal support); Ritter
per.
VIII. argues preclud Wife also that the trial court erred ing discovery earning of and capacity evidence of husband’s based on from compensation completed derived asbestos sought cases. Wife that she argues through obtain discov cases, ery i.e., on information husband’s settled asbestos defendant, amount of each settlement as each the number defendants, the injury, age, employment history smoking plaintiff, and other informa history relevant requested tion. The wife this information in to project order remaining inventory his earning husband’s capacity “from added). cases.” Appellant’s brief, p. (emphasis based on the Beasley request trial court denied this ruling. Wife contends this was error because none of the
282 type the of confidential informa- sought she was information lan- Beasley. following on the by She relies precluded tion guage: likely the risky attempt to evaluate is
It
tenuous
such,
be
as
no value can
on
fees and
contingent
return
of
distribution.
purposes
equitable
on
for
them
placed
in this
However,
respect,
is flexible and
the Divorce Code
can
reflected
such cases
capacity
producing
the income
compensation
completed
on
basis of
estimated
and,
therefore,
be sufficient
record should
cases
attorney
spec-
without
capacity
earning
project
might be derived from
return that
ulating on the nebulous
contingent
fee cases.
examining active
39,
IX.
claim,
In her final
wife argues that the trial court
in
erred
denying counsel fees. We will reverse a determina
tion of counsel fees and costs only for an abuse of discretion.
Williamson,
Williamson v.
402 Pa.Super.
Wife’s law, wasting the court’s involving an settled suit of issue of The trial court as those the client. resources as well attorneys’ billing of comprehensive review performed attorneys or three sheets, two finding presence duplication of work “excessive.” hearings and the particular continually counsel raised The court found that wife’s also contingent despite cases of PLA’s fee issue of valuation court, sum, the matter. The found law on controlling “grossly excessive.” fees $44,955 $288,000 in plus billed for fees firm alone has [One] costs____ bills, reviewing they it obvious actually per- of services are void sufficient indications many did telephone calls cases formed. Conferences called, research subject person or the indicate either the researched, being preparation what was does not show subject not show the matter memoranda of law does law____ grossly excessive fees are [T]he memoranda *33 the amount of the work you compare against them when rendered, of the services the the character performed, involved, importance the difficulty of the problems in money property amount of value of litigation, the a reasonable fee ability pay of the client to question, and for services rendered. on the facts of each
Counsel fees are awarded based
These factors
a review of all the relevant factors.
case after
requesting party’s
to
ability
pay,
include the payor’s
rendered,
resources,
and the
value of the services
financial
Bold,
equitable
in
distribution. See Bold v.
received
property
487,
(1990), remanding
Pa.Super.
552
374
524 Pa.
574 A.2d
(1988)
317,
grounds; Lawrence v.
A.2d 1374
on other
542
(1985);
Lawrence,
57,
A.2d 154
Dech v.
Pa.Super.
347
500
Jack,
Dech,
(1985);
17,
A.2d 41
Jack v.
253
492
Pa.Super.
342
Adelstein,
(1978);
538,
supra
285 one and a half after returning year for not to work explanation divorce, court, nonetheless, to consider the proceeded abilities parties’ earnings respective and their disparity fees) Ganong appellee partial and awarded counsel pay (1986) (three-to- A.2d 1024 Ganong, Pa.Super. 513 trial disparity parties’ require one incomes did fees). counsel court award wife cases, will each financial considerations party’s most appro- fees is
ultimately dictate whether an award
counsel
Diamond,
101, 519
Diamond v.
priate. See
Pa.Super.
Nuttall,
163-64,
see also
(1987);
Pa.Super.
A.2d 1012
Lawrence v.
J.,
(Beck,
concurring).
Here, factors, all of the relevant considered award, including support payments wife’s distribution years for four one-half while the husband had made continued, already paid the fact that wife had her litigation $175,000.00, testimony that wife’s attorneys and the fact from in order her money pay she had borrowed friends court, however, attorneys placed partic was not credible. The discrepancies ular on the counsel’s statement of emphasis case, present account. Under the circumstances in this we do denying not find the court’s order counsel fees to be an abuse Williamson, Gioia, supra; supra. of discretion. *34 conclusion, order a Judge entering we affirm Subers’s the marital vacate distributing property. final decree and We portion pertaining that of the order wife’s withdrawal and vacate and on that issue in PUGMA funds we remand this opinion. accordance with part; part.
Affirmed vacated and remanded Jurisdic- tion relinquished.
KELLY, J., and concurring dissenting opinion. filed a
KELLY, Judge, concurring dissenting: and However, in majority’s much agree I with of the discussion. I find justice parties, to effectuate economic between the order therefore, I would arguments, merit in several of and Wife’s least relief. grant partial appellate that court restricted particularly I am concerned trial to a more which would have led pre-trial discovery Wife’s The court earning capacity.- of Husband’s depiction accurate could alimony considering whether Husband ordered without award, failed to higher a trial court have afforded living. The court also did consider Wife’s former standard standard adequately parties’ prior not consider the children’s court’s order living. I would reverse the trial Accordingly, child alimony, spousal it support, to the extent relates to support.
I is sufficient evidence of record also believe that there replenish hold need not her children’s this Court to that Wife reverse court’s order accounts. I would the trial gift Finally, fees. denying Wife counsel
Discovery Earning Capacity to Husband’s . her permitting trial court erred argues Wife discovery determining would have aided in to conduct which Perlberger new sole proprietorship, the value Husband’s on Wife maintains that of the cases many Law Associates. has been are asbes- Perlberger which Law Associates retained can ex-partnership tos cases which be traced Husband’s Rome, I Blank, McCauley, agree asset. Comisky & marital cases, completed open review but not was entitled to Wife cases, project earning capacity. in order to Husband’s With cases, completed asbestos Wife power investigate Hus- regard have further enlightened could future earning capacity. band’s marital is the date of
“Although identified at property the value at the date separation, determined Butler, 530, 539, distribution.” Butler v. Adelstein, Adelstein (1993), 381 Pa.Su- citing A.2d
287
(1989)
378,
v. Sutliff,518 Pa.
221,
436
553 A.2d
per.
Sutliff
(1988).
property,
includes all
534
Marital
statute, acquired during the
excepted by
specifically
unless
3501(a).
in
A
interest
marriage.
partnership
23 Pa.C.S.A.
Buckl,
See Buckl v.
property.
a
firm is marital
professional
(1988) (en bane)
521,
(plurality).
mary factor
to be considered
McCabe
partnership agreement.
in a law firm is the
interest
McCabe,
McCabe,
525 Pa.
Id. at
If the nature of the economic
will is
alienable;
it cannot
spouse,
it is not
hence
professional
equita-
included in the
actually
may
be realized and
Ullom,
[McCabe,
v.
supra;
ble distribution.
Ullom
Cf.
(1989);
Beasley,
Beasley
A.2d 555
*36
DeMasi,
19,
Pa.Super.
Id. 396 In to all other relevant partnership agreement, addition partner’s ability actual to remove information such as work in other value must be considered. See id. progress or (“there may A.2d ... difficulties in at 578 at 1318 value good a credible for the determining alienable/realizable will; may vary are surmountable whether these difficulties cases.”). Butler, peculiar particular supra with the facts Cf. separation, marital identified time (although property distribution). later, at the the value is ascertained time of case, therefore, guided by instant we are Husband’s the' and other relevant occurrences after partnership agreement separation which are relevant to value of date interest. The balance of Husband’s partnership Husband’s Rome, account, Blank, & capital Comisky when he left McCau- $243,652.35. trial ley, court found that such amount was Thus, joint parties satisfy obligation. was used tax longer was no marital available for amount distribution.1 v. 359 518 A.2d upon Beasley Beasley,
Relying denied, (1987), (1986), Pa. A.2d 90 allocatur the trial court also concluded none of value de- proprietorship, perhaps Husband’s sole whose existence Blank, Rome, pended Comisky cases taken from & upon as marital McCauley, prop- would be evaluated or considered have erty. argues permitted that she should been Wife (1986) Duff, (joint liability tax See 510 Pa. Duff properly). in be considered calculation marital inspect fledgling at least the records of the firm’s completed in order to a value on all of the cases project cases derived I from Husband’s former to the extent partnership. agree such could projected upon value be relied to determine Hus- band’s future earning capacity. Blank, partnership
The value of Husband’s interest at Rome, Comisky McCauley & consisted of more than that capital available his account. Pursuant to an understanding firm, permitted with that Husband was take to his firm new over one thousand yet asbestos cases which had not as been Thus, McCabe, settled. unlike the situation in the supra, case, instant Husband actually was able to remove work course, progress and realize value therefrom. any expense Of considered, which pay Husband had to should be but the value of those cases which ignored followed Husband cannot be in a divorce proceeding to determine future earning capacity. *37 Beasley Beasley,
Does supra preclude any at attempt evaluating the worth of those one thousand asbestos cases determine earning future I capacity? believe not.
The en Superior banc Court has held that cases which produce upon income based contingency may fees not be included as marital for purposes of marital distribu- tion because a calculation of the contingency would be too speculative. 38-39, However, Id. at at A.2d the explained court that the value of completed contingency cases could projection base a of the earning future of capacity the spouse who would receive income from the completion the pending cases.
[T]he Divorce Code is in respect, flexible and this income producing capacity by reflected such cases can be estimated on the compensation basis of for completed cases and, therefore, that record should be sufficient to project earning capacity of the attorney without speculating on the nebulous return might that be derived from examining active contingent fee cases. alimony, Permanent as sup- modifiable, port, expectations and should the vary either downward, upward adjustments can be made sup- For and reasonable manner. in an expeditious earning been capacity has recently alimony, port, and may an be which award upon one the considerations based.
Id.
Alimony, Spousal Support, and Child her an awarding trial court erred argues Wife that and child spousal support, inadequate alimony, amount wrongfully trial court attrib- suggests that the support. Wife Although $30,000.00 year capacity. per earning uted her expert accuracy as to the questions I have serious capaci- has an earning such which concluded Wife opinion I entitled to believe recognize that the trial court was ty, *38 Moreover, is without the to reverse power this Court version. of record. finding which was based on evidence the trial court’s (1992). 176, 607 O’Callaghan, 530 Pa. A.2d 735 O’Callaghan trial court’s failure consider cites as erroneous the Wife also mar- living during of and children’s standard the Wife’s count, I agree appellate would award riage. On this relief. Beasley certainly makes the settled asbestos cases
2. The discussion of
3505;
§
See
Pa.
discoverable.
23 Pa.C.S.A.
relevant and therefore
R.CÍV.P. 4003.1.
award,
In fashioning an alimony
the trial court must consid-
3701(b).
er
§
the several factors
enumerated
23 Pa.C.S.A.
awarded,
determination of the amount to be
whether
lite,
alimony
alimony pendente
rests
the sound
discretion of the trial court. Absent
an abuse
discretion, an appellate court will not disturb the trial
court’s
determinations,
award.
the context of such
proper employment
judicial
discretion includes the
mandate to apply the Divorce Code in
compassionate
and reasonable manner to effectuate
overriding goal
of achieving
justice
economic
between the parties.
Schneeman,
65,
Schneeman v.
77,
420 Pa.Super.
615 A.2d
(1992) (footnote omitted) (citations omitted).
In determining whether alimony is
and in
necessary,
deter-
nature,
mining
amount,
duration and manner of pay-
ment of alimony, the court must consider numerous factors
including
parties’
earnings and
in-
earning capacities,
sources,
come
conditions,
mental
physical
contributions
to the earning power
other, educations,
standard of
living during the marriage, the contribution of a spouse as
homemaker and the duration of the marriage.
Edelstein,
Edelstein v.
536, 540,
399 Pa.Super.
582 A.2d
(1990),
denied,
allocatur
528 Pa.
An important factor to consider in determining alimony is
the standard
living
to which the parties grew accustomed
during
course,
their marriage. Of
is no
“[t]here
absolute
obligation on
part
of a supporting spouse to see that the
dependent spouse’s life style remains
from
unchanged
enjoyed during
Fexa,
the marriage.” Fexa v.
supra 396
Pa.Super.
duty is “to maintain his family’s standard living at a level
292 separation.” in station life before the
consistent with their
523,
764,
555, 489 A.2d
780
Sutliff,
v.
Pa.Super.
339
Sutliff
(1987). Thus,
393,
affirmed, 515 Pa.
(1985),
Likewise, not a court should regard support, to child lifestyle while supporting extravagant a parent’s countenance support. than with less reasonable he leaves his children children an to share with their obligation do have [P]arents Conway [v. achievement. See of their financial the benefit (“station (1974) Dana, 324, 536, 538, ] 456 318 A.2d 325 Pa. parents’ in determining in parties” life of the is relevant children). . Thus, par- their where the support to capacity for may proper it be a permit, perfectly incomes ents’ recreation, for enter- recognize expenditures that certain tainment, items are reasonable and other nonessential Spingo- v. Spingola interest of the children. See in the best (1978) (“Where la, 737, 958, 580 P.2d 964 91 N.M. station income, financial circumstances and surrounding ability part an on his father demonstrates life of the his above their advantages children furnish additional advantages needs, provide court should such actual trial reason.”). within 470-71, Witsberger, 505 Pa. 480 A.2d
Melzer v. Francis, v. See also Francis 395- Pa.Super. ex rel. quoting Commonwealth (1986), 517 A.2d Church, 166, 172, 1358, 1361 Stump (“Reasonable (1984) limited to the bare expenses are life, reasonably to articles that are necessities but extend of the child and suitable maintenance necessary proper in life ... and the fortune of his social station view ”). Musmanno his Justice parents.... him and possessed by colorfully observed: has more a mother and children need at the amount arriving below seemed to properly, the Court
order live over their they were assured roof long belief that so table, on heads, food adequate sufficient raiment and This obligations support. met his had husband-father *40 can If husband-father one. an erroneous reasoning is living, of it standard caviar-champagne for himself a afford content with wife should be legal, nor that the justice, not is and brood. menu for herself tent and bread-and-butter a income, as much a is living, of commensurate Dignity for survival. the bare essentials necessity as Gitman, 387, 394, 428 Pa. ex rel. Gitman Commonwealth (1967) (plurality). trial court that the opinion trial court reveals Review of the living pur- for standard previous Wife’s did not consider This was error. Pa.C.S.A. alimony. computing poses 3701(b)(8). correctly based the award the trial court While children, younger raise her home and stay on need Wife’s assigned alimony with Wife’s merely equated earning capacity.
Moreover, highlight the court’s limited discussion view, inadequate. living, my children’s standard too much attention to her giving for court criticizes Wife money by wastes suggests court even Wife children. The taxi, inability to with a due to Wife’s up daughter her picking year girl a sixteen old require The court would night. drive at In night. at license so she could drive to obtain a driver’s view, be able to save on taxi cab the Wife would then court’s However, to consider that the court failed expenses. policy automobile insurance teenaged of a driver to an addition if costly, a Mercedes and Volvo would which covers prohibitively expensive. children were their separated,
Before Husband and Wife wanted to do so. After they whenever buy able to clothes Jennifer, that her testified daughter, the oldest separation, for Jennifer’s first buy afford to her clothes mother could not family at 37. The August N.T. year college. $30,000.00 month. per income of had an available previously alimony The court’s order 1990 at 6-7. N.T. June approx- for and the children leave available Wife support child of that amount. imately one-fifth earning to have an Meanwhile, was determined Husband above, I a $165,000.00 opined As have per year. capacity of asbes- completed into Husband’s investigation thorough more accurate, earning higher in more result tos files would addition, paramour firm his pays law Husband’s capacity. $17,000.00 $40,800.00 daughter benefits and her year plus per 180-81. Husband 1990 at August N.T. per year. See also earns paramour Husband’s these salaries. determines for the work that she does consulting per hour $50.00 Hus- Although 1990 at 120. August firm’s clients. N.T. firm, paramour his law his outlays through band makes these Id. living expenses. his ninety-five percent pays ninety at 136-37. *41 conclusion, I would conclude trial'court’s
Contrary to the $325,000.00, never fell below earning capacity that Husband’s Blank, Rome, Comisky & at partner income as previous his $165,000.00, I attribution of To the trial court’s McCauley. $40,800.00 daugh- of and her salary paramour’s would add his economic $17,000.00, Husband realized of because salary ter’s If a more accurate through funds them. by circling benefit allowed, were I believe asbestos files completed picture of one that Husband’s store would have realized the court earning in Husband cases could result thousand unsettled $100,000.00 already what was year above per an extra least that Husband’s factors lead me to conclude These considered. $325,000.00 efforts to despite his capacity remained earning earning capacity in is room Husband’s contrary.3 There the children at least a semblance for Wife and to effectuate living. standard prior their only in awarding trial court erred Wife
I hold that the would week only per children $30,000.00 year and the per $701.00 for per support week for three children and support $640.00 I also college. had started since the eldest two children week per award of spousal support $565.00 believe that Wife’s that Husband majority accepts the trial court’s statement 3. While the income, intentionally I from the record reduce his conclude did not factor, capacity, see 23 Pa.C.S.A. Husband’s more relevant 3701(b)(1), never decreased. may alimony support was erroneous. While awards diminish the high, they drastically standard appear some as while diminish- which Husband left living family ing his. Act Accounts
Pennsylvania to Minors Gift Uniform jurisdic- had pleas court of no argues Wife that the common in her the funds replenish tion to decide whether she should pursuant to the which were established children’s accounts to Minors Act Wife Pennsylvania [PUGMA]. Uniform Gift in requiring her to further the trial court erred asserts from accounts. she had withdrawn those pay back funds which holding and remand asks this Court reverse that Wife agree I that the trial Orphans’ for determination. Court erred, necessary. disagree I that a remand court but had majority’s that the trial court agree analysis I with the regard- the merits of Wife’s contentions jurisdiction to decide Moreover, correctly majority accounts. ing PUGMA determining whether a held that the standard to be used assets is than depleted PUGMA lower wrongfully custodian employed. the trial the standard which sets the relevant standard: specifically PUMGA forth (b) minor pay expendi- shall over to the custodian so him for the minor’s benefit much of or expend ture advisable all the the custodian deems custodial *42 maintenance, and of the for the education benefit support, times, minor, manner, in at the time or and to the extent the custodian, discretion, in his deems suitable and that the order, or regard with or without court with without proper, duty person support himself or of to the any to the of other so, minor, ability regard or to do and with or without to his minor, may other of the which any property income for applicable any purpose. or available such 5305(b). standard, § this the custo- 20 Pa.C.S.A. Pursuant to the minor’s funds given expending dian is broad discretion 393, Sutliff, See Sutliff minor. 515 Pa. for the benefit of the (1987) citing 20 Pa.C.S.A. (plurality), (custodian 5305(b) to use for child’s duty § has benefit). of Therefore, trial court’s use an inconsistent the ie., standard, expenditures the were for “non-necessi- whether items,” ties,” Law No. or for “non-essential Conclusion of Trial Court was erroneous. Opinion standard, the majority agree proper both and I on While the remedy. majority to the disagree appropriate we to stan- according proper remands a redetermination view, case.4 my necessary a remand is not this dard. I legal legal draw the conclusions question, This is a would already parties of record which the have upon based the facts on use developed propriety the issue Wife’s PUGMA funds. record, not conclude, upon
I need would based that Wife described how her use replenish PUGMA accounts. Wife Moreover, her she was of the funds benefited children. re- to those Husband compelled resort accounts because fund for his recre- any fused to summer activities children’s any our attention to evidence ation. Husband has directed Therefore, testimony.5 only of record to refute Wife’s issue, for the bene- remaining expenditures whether were children, a legal fit of her one. custodian, Wife, 20 Pa.C.S.A.
Giving deference see 5305(b), statutory § I did not her would find Wife abuse expenditures helped how discretion. She testified each minor in the education or benefit of her children. See 5305(b). Pa.C.S.A. their accounts
During marriage, parties gift established become when for their children. The funds would available February old. eighteen years the children turned N.T. $6,000.00 of the account on spent 1991 at 365. Wife PUGMA Indeed, only litigation perpetuate will this involved 4. remand spend again place disadvantage having to as much Wife at a twice money on Husband does. counsel than $52,- brief, appellate Wife In his Husband asserts that used at least pay attorney’s See 500.00 in PUGMA funds her divorce retainer. However, any fails to evidence Husband's Brief at 26. Husband cite support contention. *43 piano chemistry tennis and lessons and math and for tutoring Id. at 396-98. The children had incurred her children. $1,000.00 liability, tax and that was satisfied with PUGMA Id. at 398. funds. had insufficient funds to personally Wife pay opening swimming pool, for the of the so she borrowed Id. open from her children to it for their summer enjoyment. at 399.
Wife took her children to D.C. times to Washington three depression they suffering breakup avoid the were all from the $4,500.00 family. of their borrowed from them for trans- She Id. portation, trips. hotels and meals for the three And a portion carrying also of the of the Jersey [New condominium. two, Shore] For the last three summers the children were home with nothing to do because [Husband] pay any refused to for programs only for them. The place they’re actually where happy the shore....
Id. at 399-400. Therefore, $30,000.00 she used of the PUGMA pay fees, funds to for mortgage, condominium mainte- nance and utilities for approximately years. two also Wife disbursed from those transportation accounts the costs of shore, amusements, concerts, and from the dining, shows, $6,000.00. See id. at 401-02. Wife also used which totalled $5,000.00 to pay legal fees in an attempt to create for her children a more stable visitation schedule from their father. Id. at 402.6
Wife was spend forced to money children’s on more of id. at 403-04, their expenses, including the children’s visits to psychiatrist family. Id. at occasioned of the breakup 404. Contrary to Wife’s expectations,7 Husband did not reim- burse the children for these costs. Id. Wife also had to just attend psychological therapy to maintain her balance as a counsel, 6. With agreement assistance Wife entered into an children, whereby accept parties’ Husband he would visitation with the weekend, every period other Agreed Tempo- for a of three See months. rary Prejudice, para. Order Without March 1989 at Agreed Temporary Prejudice, 7. See Order Without March ("Father para. agrees solely responsible psychiatric to be for the expenses during [temporary children with Dr. Schecter this three period reasonably appropriate.”). as are month] *44 298 to God to my duty to these children and
good mother. “It was them; they to that to able deal with get therapy some and at mother.” Id. 405. depressed full and not a parent have a at Id. 406- of the went medical care. Finally, money some spent establishes that foregoing testimony Wife The their and benefit. While the for education money children’s necessities, use on more than bare Wife’s spent funds were lifestyle approximate her those funds enabled children was left they accustomed. When Wife to which had become bored, money to enter- depressed children and had little entitled, custodian, them, allocate the tain she was I would happiness well-being. their money children’s reaching in situation from PUGMA not bind the custodian this custodians, the General By divesting discretion funds. unreasonable restraint. Assembly did not intimate such due analysis change does not to Wife’s statements My money from the PUMGA repay she intended to derived Order, 28, (noting 1988 stated July accounts. See Wife’s trusts”); N.T. funds “children’s Feb- intention to return from 25, question before us 1991 396. The determinative ruary not. must return the funds. She need is whether Wife Counsel Fees her granted maintains the court should have Wife agree. I attorney’s fees. is ensure that an award of counsel fees purpose
The maintain will be able to financially dependent spouse divorce, action for as well as to effectuate against defend an Schubert, 284, 398 justice. Pa.Super. v. economic Schubert (1990). proceeding 1351 fees a divorce 580 A.2d Counsel automatically; spouse must petitioning not awarded are justified. v. an Kohl show actual need before such award (1989).... Kohl, 367, 564 222 The Pa.Super. 387 A.2d fees, costs, expenses an for counsel amount of award is within the discretion a divorce action awarded subject to an abuse of discretion standard trial court and is
299
Williamson,
Williamson v.
276,
appeal.
Pa.Super.
on
402
(1991).
Butler v.
530,
Pa.Super.
423
A.2d
*45
(1937). “Rather,
In the instant present attorneys Wife’s have billed $283,000.00 $45,000.00 in legal fees and almost in costs.8 The record indicates she was to pay approximately able $175,000.00 of this amount.
Husband also retained a law firm which has billed large a money. appeal, sum of Before this Husband had incurred $150,000.00 in legal fees. In addition to having representation by hired counsel all of the relevant court proceedings, experienced lawyer Husband himself is an divorce in the Montgomery County legal community. More importantly, $28,000.00 may 8. The trial court states that Wife still owe over previous counsel. Hence, from appearance entered his as co-counsel. Husband co-counsel, entered as when Husband November litigation, the benefit of two throughout Husband had of one. I add that attorneys. paid He for services attorney appeal. is of record this Husband Husband’s trial court should have considered I believe the First, himself. it indicates representation free litigant for was not unreason- counsellors a presence two attorneys, As had two Wife should have able. Husband two, her firm often sent and occasion- penalized been because three, Secondly, the court should attorneys hearings. ally no cost out-of-pocket that Husband suffered have considered being charged while representation, for his own Wife on attorney who has worked her case. every services of $150,000.00 Therefore, do not attorneys’ fees Husband’s had; he only than Wife any representation reflect less of paid less for it.
Moreover, can attorney’s some of fees costs Wife’s which Husband insisted on For litigating. attributed to issues he contention thát Wife was not entitled example, pressed the counsel defend- support payments. legal thoroughly Wife’s *46 won this issue. The trial court should have eventually ed and reason- attorney’s much of Wife’s fees were considered that or preju- related to issues she had defend risk ably which rights. punished her should not be dicing legal Husband proceeding, in a but nor should Wife. raising issues divorce emphasized attorney’s fees were While the court that Wife’s excessive,9 compared it never those fees to the sometimes notes, may ‘discrepancies majority "the consider 9. As the court ” 285, Majority Opinion quoting statement account.' counsel's Gioia, v. Gioia true, “discrepan- reported case this the trial court in this no While merely two The court chose isolated incidents where or cies.'' trial day. attorneys on the trial worked on Wife’s case same court three legal accounting fees because "[c]onfer- was not satisfied many telephone or cases did not indicate either the ences calls called, person being does was subject or the research not show what researched, preparation of law does not show the of memoranda Opinion at subject of law." Trial Court 21. matter of memorandum Further, value of representation. Husband’s total the court sufficiently did not address the necessity reasonableness all of Wife’s fees. attorney’s considered,
When these are factors Wife is entitled to an fees. I not attorney’s Although award would disturb the finding trial court’s of fact that able to afford Wife was legal already paid, fees which were I hold that the would considering erred capacity aggressively Husband’s represent spend his own interests and Wife’s much of need fees which in defending she did her interests and those of I their children. would hold that the court erred in not awarding Wife the amount of counsel which had fees been less already billed that which she has paid. reasons,
For the I above dissent.
Appeal of Simon X. WENG. Superior Pennsylvania. Court of April
Submitted 1993.
Filed June My attorneys’ review of litigation the exhibits on Wife’s fees and costs many charges indicates that do indicate was who called and are *47 reasonably specific. generally otherwise See N.T. March 1991 at 171 require exhibits entered into evidence. I would not counsel spend specific more in order billable hours to render more statements expenses.