J-S02024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUSAN DIANE WHITESIDE-WASCAVAGE, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWARD J. WASCAVAGE, III,

Appellant No. 339 EDA 2014

Appeal from the Order Entered December 17, 2013

In the Court of Common Pleas of Delaware County

Domestic Relations at No(s): 10-003345

BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.: FILED APRIL 13, 2015

Edward J. Wascavage, III (“Husband”) appeals from the order entered 

on December 17, 2013. We quash in part and affirm as modified. 

The relevant factual background and procedural history of this case is 

as follows. In 2002, Husband married Susan Whiteside-Wascavage (“Wife”). 

In January 2005, D.W. (“Child”), the only child of Husband and Wife, was 

born. In March 2010, Husband and Wife separated. 

On March 24, 2010, Wife filed a complaint in divorce, which also 

sought alimony and child support. On February 28, 2011, Wife filed a 

petition seeking alimony pendente lite (“APL”). On August 2, 2011, the trial 

court appointed Denis K. Bieler (“Bieler”) to conduct a forensic accounting to 

determine the incomes of Husband and Wife. The parties were ordered to 
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equally share the cost of this forensic accounting, which was capped at a 

combined total of $5,000.00. 

Originally, the parties were granted joint physical custody of Child. On 

March 7, 2013, the trial court1 granted Wife primary physical custody of 

Child during the school year. The parties received joint physical custody of 

Child during the summer. During the course of the litigation, the trial court 

authorized Bieler to exceed the original $5,000.00 cap on his fees; however, 

the trial court did not set a new cap. A three-day trial regarding child 

support and APL was held in May and June of 2013. The trial court 

thereafter ordered post-trial briefing. On August 19, 2013, the trial court 

entered an order providing for child support and APL. That order required 

Husband to pay 80% of Bieler’s $25,000.00 fee instead of the previously 

ordered 50%. The trial court also awarded Wife attorney’s fees. On August 

29, 2013, Husband moved for reconsideration. On September 13, 2013, the 

trial court granted Husband’s motion for reconsideration. On December 17, 

2013, the trial court reinstated and clarified its August 19, 2013 child 

support and APL order. This timely appeal followed.2 

 

1 The Court of Common Pleas of Delaware County does not utilize a “one 

family, one judge” rule. The trial judge that handled the child custody 

matter was different than the trial judge who handled the divorce 

proceeding. 

2 On January 29, 2014, the trial court ordered Husband to file a concise 

statement of errors complained of on appeal (“concise statement”). See

Pa.R.A.P. 1925(b). On February 18, 2014, Husband filed his concise 

(Footnote Continued Next Page)
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Husband presents nine issues for our review:

1. Has the [trial] court evidenced partiality, bias[,] or ill-will 

against Husband such that its determinations must be set aside 

as an abuse of discretion?

2. Did the [trial] court abuse its discretion in establishing the 

income and earning capacit[ies] attributable to the respective 

parties and in setting the [APL]/support obligations?

3. Did the [trial] court abuse its discretion in not reducing 

Husband’s support obligation for substantial shared custody 

pursuant to Pa.R.C.P.1910.16-4(c)?

4. Did the [trial] court err in setting the support obligation for a 

time period before May 12, 2010 under the terms of the support 

guidelines applicable to situations on or after that date?

5. Did the [trial] court abuse its discretion in disparately 

allocating responsibility for the costs of the forensic accounting 

expert upon Husband?

6. Did the [trial] court abuse its discretion in awarding counsel 

fees against Husband?

7. Did the [trial] court abuse its discretion in refusing to allow 

new counsel an opportunity to supplement the record either with 

evidence or even an offer of proof?

8. Did the court err in awarding Wife [APL]?

9. Did the [trial] court err in awarding Wife attorney’s fees?

Husband’s Brief at 17-18. 

(Footnote Continued) _______________________

statement. On March 28, 2014, the trial court issued its Rule 1925(a) 

opinion. All issues raised on appeal were included in Husband’s concise 

statement.
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In his first issue, Husband argues that the trial court was biased.3 This 

argument is waived. “It is axiomatic that, to preserve an objection for 

appeal, the objection must be raised before the trial court.” Tecce v. Hally, 

106 A.3d 728, 732 (Pa. Super. 2014), citing Pa.R.A.P. 302(a) (other citation 

omitted); see Campbell v. Dep't of Transp., Bureau of Driver 

Licensing, 86 A.3d 344, 349 (Pa. Cmwlth. 2014), quoting In re Lokuta, 11 

A.3d 427, 437 (Pa. 2011), (“a party seeking recusal or disqualification must 

raise that issue at the earliest opportunity or be barred from obtaining 

appellate review of the question.”). Husband’s arguments relating to bias 

are based upon actions taken by the trial court in open court over six 

months prior to the entry of the order challenged on appeal.4 Husband did 

not seek recusal or disqualification in the trial court. Accordingly, Husband’s 

first issue on appeal is waived.

In his second issue on appeal, Husband contends that the trial court

erred in determining the parties’ incomes/earning capacities. He also 

 

3 Husband makes related bias arguments throughout his brief. We address 

all of those issues while disposing of Husband’s first issue on appeal. 

4 This distinguishes this case from those in which the trial court evidences 

bias or ill-will for the first time in the order being appealed from. In those 

cases, we may set aside the determination as an abuse of discretion without 

requiring the appellant to have previously raised the issue in the trial court. 

Cf. HYK Const. Co. v. Smithfield Tp., 8 A.3d 1009, 1021 (Pa. Cmwlth. 

2010), appeal denied, 21 A.3d 1195 (Pa. 2011) (citations omitted) (“Any 

claims of unfairness or bias should be raised first before the hearing tribunal 

. . . and then ultimately on appeal, otherwise such claims may be deemed 

waived.). 
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contends that the trial court erred in setting the child support and APL 

obligations. “When evaluating a support order, this Court may only reverse 

the trial court’s determination where the order cannot be sustained on any 

valid ground. We will not interfere with the broad discretion afforded the 

trial court absent an abuse of [] discretion or insufficient evidence to sustain 

the support order.” W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa. Super. 2014).

Husband’s main argument against the trial court’s income/earnings 

capacity calculations is that Bieler, the forensic auditor, impermissibly used a 

financial status audit to determine Husband’s income. Generally, a financial 

status audit looks at an individual’s expenditures in an attempt to ascertain 

the individual’s income. See Cynthia Blum, The Flat Tax: A Panacea for 

Privacy Concerns?, 54 Am. U. L. Rev. 1241, 1249 n.24 (2005). This auditing 

technique was used frequently by the Internal Revenue Service in the mid1990’s to identify taxpayers who were underreporting their income. See id. 

This audit procedure was controversial and, therefore, Congress eventually 

limited the use of financial status audits to cases in which the IRS has a 

reasonable belief that there is underreported income. See 26 U.S.C. 

§ 7602(e). 

A trial court possesses wide discretion in determining the parties’ 

incomes and/or earning capacities. See Bulgarelli v. Bulgarelli, 934 A.2d 

107, 115 (Pa. Super. 2007). In this case, the trial court chose to use the 

most accurate method available to it – a forensic accounting. Bieler testified 
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that Husband refused to turn over the necessary documentation for him to 

precisely calculate Husband’s income. E.g., N.T., 5/31/13, at 55. 

Husband’s refusal to fully comply with the court-ordered forensic accounting 

left Bieler with few options to arrive at an accurate income figure for 

Husband. Bieler chose to use the same technique employed by the Internal 

Revenue Service in such situations – a financial status audit. Bieler used the 

information available to arrive at his income estimations. The trial court 

relied on Bieler’s figures when arriving at its income figures. Husband 

contends that the trial court’s reliance on this financial status audit is not 

supported by any prior court decision in Pennsylvania. Husband does not 

cite to any cases, however, in which a litigant willfully refused to cooperate 

with a court-ordered forensic accounting meant to determine his income. 

We therefore conclude that the trial court’s reliance on the financial status 

audit was not an abuse of discretion given Husband’s failure to cooperate 

with Bieler. 

Husband next argues that even if the trial court were permitted to use 

a financial status audit to determine his income, it was required to do the 

same with respect to Wife. Husband does not cite any authority for the 

proposition that a trial court is required to use the same methodology to 

calculate both parties’ incomes and/or earnings capacities. In this case, the 

forensic auditor had a sound reason for conducting a financial status audit of 

Husband but not of Wife. In particular, the trial court found that Husband 
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conducted a cash only business and was unable to produce the necessary 

receipts. Findings of Fact and Conclusions of Law, 8/19/13, at 2. On the 

other hand, there was no evidence that Wife was engaged in a cash only 

business. This fact alone justified the trial court’s reliance on a financial 

status audit. Cf. DeMasi v. DeMasi, 530 A.2d 871, 878 (Pa. Super. 1987), 

appeal denied, 539 A.2d 811 (Pa. 1988) (internal quotation marks and 

citation omitted) (“where supporting spouse is self-employed, net income, as 

it appears on income tax forms, is not infallible measure of real wealth”). 

Furthermore, Husband had approximately eight times the monthly income of 

Wife. Therefore, a financial status audit was more appropriate for Husband. 

Accordingly, we conclude that the trial court did not abuse its discretion in 

relying upon Bieler’s financial status audit of Husband while declining to 

employ that accounting methodology with respect to Wife. 

Husband argues that the trial court erred by not crediting him for 

expenditures related to health insurance premiums Husband paid for Wife 

and Child. This argument is without merit. The order appealed from states, 

“[s]ince Husband does pay out of pocket expenses related to the health care 

coverage, Husband is entitled to a credit for the provision of health 

insurance.” Findings of Fact and Conclusions of Law, 8/19/13, at 7. To the 

extent that Husband argues the amount of the credit was improperly 

calculated, that argument is waived as he fails to cite to any portion of the 

record or make any argument regarding the amount of the credit to which 
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he was entitled. See Pa.R.A.P. 2119(a); Commonwealth v. Orie Melvin, 

103 A.3d 1, 39 (Pa. Super. 2014) (citation omitted) (“waiver results when 

appellant fails to properly develop issue on appeal”).

To the extent that Husband challenges the trial court’s award of APL, 

we lack jurisdiction to consider that issue. See Green v. Green, 783 A.2d 

788, 791 n.1 (Pa. Super. 2001) (APL claims are interlocutory); Malanchuk 

v. Sivchuk, 106 A.3d 789, 792 (Pa. Super. 2014) (en banc) (citation 

omitted) (“Generally, only appeals from final orders are eligible for appellate 

review.”). Thus, we quash the portions of this appeal which challenge the 

trial court’s award of APL.

In his third issue, Husband contends that the trial court erred by not 

reducing his child support obligation for the time period during which the 

parties enjoyed 50/50 physical custody of Child. The child support 

guidelines provide that, “[w]hen the children spend 40% or more of their 

time during the year with the obligor, a rebuttable presumption arises that 

the obligor is entitled to a reduction in the basic support obligation to reflect 

this time.” Pa.R.C.P. 1910.16-4(c)(1). The trial court found that, although 

the child custody order provided for 50/50 shared physical custody, Husband 

had physical custody of Child less than 40% of the time. Husband argues 

that there is no support in the record for this factual finding. We disagree.

Husband’s sole citation to the record in his brief is to his own 

testimony. Husband testified that he had custody of Child 50% of the time. 
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See N.T., 6/13/13, at 384. The trial court found this testimony not to be 

credible. See Findings of Fact and Conclusions of Law, 8/19/13, at 3 

(emphasis in original) (The trial court “did not credit the testimony of 

Husband.”). “We will not disturb the trial court’s credibility 

determinations[.]” In re M.T., 101 A.3d 1163, 1177 (Pa. Super. 2014) (en 

banc). The trial court had significant evidence that Husband had custody of 

Child less than 40% of the time. For example, the trial court handling the 

child custody matter found that “[Husband’s] employment necessitates 

travel throughout the United States to various car shows. [Husband’s] 

travel often requires changes in the custody schedule and the forfeiture of 

portions of [Husband’s] custodial time with Child.” Findings of Fact 

and Conclusions of Law, 3/10/13, at 6 (paragraph numbers omitted; 

emphasis added).5 Furthermore, Wife testified that she often took custody 

of Child while Husband was at car shows. E.g., N.T., 6/13/13, at 20. From 

this evidence, the trial court reasonably concluded that Father did not have 

custody of child for at least 40% of the time when he was entitled to 50/50 

shared physical custody. Therefore, the trial court did not abuse its 

discretion by declining to adjust Father’s child support obligation pursuant to 

Pennsylvania Rule of Civil Procedure 1910.16-4(c)(1).

 

5 Husband entered this document into evidence at the trial held in the child 

support matter. See Husband’s Exhibit 24. 
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In his fourth issue on appeal, Husband contends that the trial court 

erred by using the wrong set of support guidelines when calculating the 

support owed from March 24, 2010 through May 11, 2010. Whether the trial 

court used the correct support guidelines is a pure question of law. 

Therefore, our standard of review is de novo and our scope of review is 

plenary. See Commonwealth v. Thompson, 106 A.3d 742, 763 (Pa. 

Super. 2014) (citation omitted). The trial court used the support guidelines 

that went into effect on May 12, 2010 for the time period from March 24, 

2010 through May 11, 2010. The trial court acknowledged this error in its 

Rule 1925(a) opinion. This error amounted to Husband overpaying his 

support obligation by a total of $48.60. We therefore modify the trial court’s 

order to reflect that the total amount of child support due from March 24, 

2010 through May 11, 2010 was $872.00/month instead of $903.00/month. 

See United Police Soc’y of Mt. Lebanon v. Mt. Lebanon Comm’n, 104 

A.3d 1251, 1265 (Pa. 2014) (“An appellate court may [] modify . . . any 

order brought before it[.]”), quoting 42 Pa.C.S.A. § 706.

In his fifth issue on appeal, Husband argues that the trial court erred 

by requiring him to pay 80% of Bieler’s fee. As noted in our factual 

recitation, when the trial court appointed Bieler, it ordered the parties to 

split the fee equally. That order also limited the amount of Bieler’s fee to 

$5,000.00. As noted above, during the course of his forensic accounting 

Bieler encountered uncooperative parties. Bieler therefore requested, and 
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received, permission from the trial court to expend more than the $5,000.00 

originally approved. At the conclusion of his service to the court, Bieler 

submitted an invoice for approximately $50,000.00 – nearly ten times the 

original amount authorized. The trial court determined that fee was 

excessive and ordered that Bieler be paid a total of $25,000.00. It further 

ordered that Husband pay $20,000.00 and Wife pay $5,000.00. We review 

a trial court’s allocation of expert fees for an abuse of discretion. See 

Pavex, Inc. v. York Fed. Sav. & Loan Ass’n, 716 A.2d 640, 647 (Pa. 

Super. 1998).

We discern no abuse of discretion in the trial court’s allocation of 

Bieler’s fee. As shown in the support calculations, Husband’s monthly 

income is approximately eight times as much as Wife’s income. Therefore, 

an allocation of 80/20 has Wife paying for a higher percentage of the fee 

than her share of the parties’ combined income. Furthermore, the trial court 

found that Bieler’s increased fee was mostly due to Husband’s refusal to 

provide the requested documentation. See Trial Court Opinion, 3/28/14, at 

15. This finding is supported by the record. E.g., N.T., 5/31/13, at 53. As 

Husband was most culpable for the increase in Bieler’s fee, it was reasonable 

for the trial court to allocate seven-eighths of the increased cost (the same 

proportion as the parties’ incomes). Accordingly, the trial court did not 

abuse its discretion by ordering Husband to pay 80% of Bieler’s fee. 
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In his sixth issue on appeal, Husband argues that the trial court 

abused its discretion by awarding wife $5,000.00 in attorney’s fees. A trial 

court may award attorney’s fees to an individual that is awarded child 

support. See 23 Pa.C.S.A. § 4351(a). “In child support matters reviewing 

an award of attorney’s fees, our standard of appellate review is for an abuse 

of discretion.” Krebs v. Krebs, 975 A.2d 1178, 1180 (Pa. Super. 2009) 

(citation omitted). 

In this case, the trial court awarded attorney’s fees to Wife because of 

Husband’s conduct in concealing portions of his income from Wife, Bieler, 

and the trial court. The trial court noted that Wife and her counsel 

repeatedly attempted to request documents from Husband to no avail. See

Trial Court Opinion, 3/28/14, at 23-24. The trial court further found that its 

interim fee award of $3,000.00 was insufficient and, therefore, a further fee 

award at the conclusion of the child support proceedings was necessary. 

See id. at 24-25. 

As our Supreme Court has stated, “unreasonable or obstreperous 

conduct on the part of the obligor in a child support action would warrant an 

award of counsel fees to the obligee.” Bowser v. Blom, 807 A.2d 830, 836 

(Pa. 2002). In Bowser, our Supreme Court noted that there is a significant 

difference between an obligor parent who mounts a “fair and reasonable 

defense in a child support action” and unreasonable or obstreperous 

conduct. Id. In Krebs, this Court held that the obligee spouse was entitled 
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to an attorney’s fee award three times higher than the amount originally 

awarded by the trial court. This Court reached that determination because 

Krebs was not “a case where [the obligor] merely defended the action in 

good faith; rather [Krebs was] a case where [the obligor] fraudulently 

concealed increases to his income . . . in order to avoid paying additional 

child support.” Krebs, 975 A.2d at 1181. 

As we noted when discussing the trial court’s ability to order a forensic 

accounting and its allocation of Bieler’s fees, Husband’s conduct in this case 

was both unreasonable and obstreperous. Husband began this conduct early 

in the child support proceedings by refusing to comply with document 

requests filed by Wife and continued this conduct even after the trial court 

ordered him to cooperate with Bieler. Furthermore, based upon the relative 

incomes of Husband and Wife, it would have been difficult for Wife to 

continue this child support action but for an award of counsel fees. 

Accordingly, we conclude that the trial court did not abuse its discretion in 

awarding Wife $5,000.00 in attorney’s fees, an amount we agree is 

reasonable for compensating Wife for Husband’s conduct. 

In his seventh issue, Husband argues that the trial court abused its 

discretion by declining to permit him to offer additional evidence at the 

hearing on his motion to reconsider. We review a trial court’s denial of a 

motion to reopen the record for an abuse of discretion. See Bingaman v. 

Bingaman, 980 A.2d 155, 157 (Pa. Super. 2009) (citation omitted). In his 
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supplemental motion for reconsideration, Husband requested that he be 

permitted to reopen the record for a sole reason – he had obtained new 

counsel. As noted by the lengthy pre-trial proceedings, three-day trial, and 

post-trial briefing, significant resources had been expended by the trial court 

and all parties to this litigation. There is no indication in the record that 

Husband’s proposed new evidence was unavailable for trial. Therefore, the 

trial court reasonably concluded that granting the motion to reopen would 

unfairly prejudice Wife by forcing her to expend more resources because of 

Husband’s change of counsel. Furthermore, allowing the record to be 

reopened solely because Husband obtained new counsel would encourage 

losing parties to obtain new counsel on a motion to reconsider because they 

would then get the proverbial “second bite at the apple.” We refuse to 

encourage such a practice. Accordingly, we conclude that the trial court did 

not abuse its discretion in denying Husband’s motion to reopen the record. 

In his eighth issue on appeal, Husband argues that the trial court erred 

in awarding Wife APL. As noted above, we lack jurisdiction over this claim 

and quash this appeal as it relates to Husband’s APL claims. 

Husband’s ninth issue on appeal is the same as his sixth issue on 

appeal. In sum, we quash Husband’s appeal as it relates to the trial court’s 

APL determination. We affirm the child support order as modified (reducing 

Husband’s overall child support obligation for 2010 by $48.60). 
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Appeal quashed in part. Order affirmed as modified. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015