J-A09006-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.M.

Appellant

v.

M.M.

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 834 WDA 2019

Appeal from the Order Entered June 28, 2019

In the Court of Common Pleas of Allegheny County Family Court at

No(s): FD-15-005302-001

BEFORE: SHOGAN, J., MURRAY, J., and STRASSBURGER, J.* MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 16, 2020

Appellant, J.M. (“Wife”), appeals pro se from the trial court’s equitable

distribution, child support, and alimony order dated January 31, 2019, as well

as other interlocutory orders made final by the entry of the divorce decree on

June 28, 2019.1, 2 After careful review, we affirm in part, vacate in part, and

remand for the limited purpose of recalculation of the child support order. ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 With some exceptions, issues in divorce are reviewable after entry of the

divorce decree and the resolution of all economic issues. Fried v. Fried, 501

A.2d 211, 215–216 (Pa. 1985). We have corrected the caption to reflect that

the entry of the divorce decree is the final appealable order.

2 Wife has filed numerous appeals from interlocutory orders throughout this

litigation. The appeals filed at 1141 WDA 2017 and 1142 WDA 2017 were

quashed upon application by M.M. (“Husband”) on September 8, 2017. On

March 13, 2019, this Court quashed the appeal filed at 190 WDA 2019 sua

sponte.
J-A09006-20

- 2 -

The trial court recounted the factual and procedural history as follows:

[Wife] and [Husband] married in 2004 and separated in

2015. They are the parents of three children. Husband filed a

Complaint in Divorce in January 2016, including a count related to

equitable distribution. Wife responded a few weeks later by filing

her own petition raising claims including [alimony pendente lite], alimony, child support, and equitable distribution. The parties

engaged in protracted litigation of these issues before one of the

____________________________________________ Relevant to the instant appeal, Wife initially filed five separate notices

of appeal docketed at 834 WDA 2019 (May 31, 2019 order denying Wife’s

petition for contempt), 835 WDA 2019 (May 20, 2019 order denying

reconsideration of order authorizing Husband as sole agent to sell the marital

home), 1002 WDA 2019 (January 31, 2019 order on Wife’s exceptions to the

Master’s Report and Recommendation), 1003 WDA 2019 (order denying

reconsideration of Wife’s petition for relief of certain discovery matters), and

1004 WDA 2019 (July 12, 2017 order dismissing Wife’s exceptions to Master’s

Report and Recommendation related to child support and contempt). On July

24, 2019, this Court denied Wife’s request to consolidate the appeals and we

dismissed the appeals at 835 WDA 2019, 1002 WDA 2019, 1003 WDA 2019,

and 1004 WDA 2019 as duplicative and unnecessary. We further directed that

all properly preserved issues may be raised in the appeal at 834 WDA 2019.

Order, 7/24/19, at unnumbered 1.

Ironically, Wife failed to file an appeal from the entry of the divorce

decree, which is the appealable order in this matter. We will not, however,

quash the appeal because of this procedural misstep. The decree of divorce

was entered in this case on June 28, 2019. Within thirty days, on July 3,

2019, Wife re-filed notices of appeal from the trial court’s January 31, 2019

order on Wife’s exceptions, the July 21, 2017 order concerning discovery, and

the July 12, 2017 order dismissing exceptions to the Master’s report and

recommendation. Although a pre-divorce order of equitable distribution is an

interlocutory order, this Court may review the order once “it has been

rendered final by the entry of a decree in divorce.” Campbell v. Campbell, 516 A.2d 363, 366 (Pa. Super. 1986) (en banc); see also Busse v. Busse, 921 A.2d 1248, 1253 n.2 (Pa. Super. 2007) (same). “The Rules of Appellate

Procedure were adopted to insure the orderly and efficient administration of

justice at the appellate level. They were not intended, however, to be so

rigidly applied as to result in manifest injustice, particularly when there has

been substantial compliance and no prejudice.” Stout v. Universal

Underwriters Insurance Co., 421 A.2d 1047, 1049 (Pa. 1980).
J-A09006-20

- 3 -

[c]ourt’s permanent masters, as well as before two judges of this

Division. The [c]ourt entered a divorce decree on June [28], 2019.

* * *

The matter was initially assigned to the Honorable Hugh McGough,

who addressed preliminary issues in March 2016. On March 9,

2016, in response to a motion presented by Wife, the [c]ourt

ordered Husband to make timely mortgage payments on the

marital home. On March 23, 2016, the [c]ourt entered a consent

order granting Husband exclusive possession of the marital home.

The [c]ourt then referred the matter to a Hearing Officer to

determine issues of child support and alimony pendente lite.

Following a full-day hearing on August 31, 2016, the [c]ourt

entered an order directing Husband to pay Wife alimony pendente

lite and child support in the amount of $1,743/month. Wife’s

exceptions to this order were dismissed on November 29, 2016.

By early 2017, the [c]ourt focused on a contempt hearing

regarding Husband’s child support and began to move forward on

equitable distribution. Following a March 27, 2017 hearing,

Hearing Officer Peggy Ferber issued Findings and

Recommendations regarding child support and contempt issues.

Wife filed 25 exceptions to the Hearing Officer’s Findings and

Recommendations, asserting multiple flaws. The [c]ourt

dismissed Wife’s exceptions on July 12, 2017.

On June 21, 2017 the [c]ourt appointed a master to conduct

the equitable distribution proceedings and issued an order

providing for discovery. On June 29, 2017 the [c]ourt denied

Wife’s Petition for Special Relief to compel discovery responses

and to examine Husband’s computers, and on July [24], 2017, the

[c]ourt denied Wife’s Petition for Reconsideration.

Judge McGough recused himself on September 8, 2017, and

the matter was reassigned to the undersigned Judge on

October 2, 2017. Wife immediately filed a Petition for Contempt

of Mortgage. On October 12, 2017, the [c]ourt issued an order

reiterating Husband’s obligation to make timely mortgage

payments. Wife then filed another Petition for Contempt of

Mortgage on October 26, 2017. As the equitable distribution

matter was already referred to a master, the [c]ourt directed the

parties to promptly schedule the master’s hearing to resolve the
J-A09006-20

- 4 -

equitable distribution matters and to address the mortgage

contempt issue as well. After the master’s hearing was scheduled,

Wife filed two more Petitions for Contempt of Mortgage, both of

which the [c]ourt denied, as the [c]ourt had already scheduled a

contempt proceeding to address the issue.

On December 22, 2017, Wife presented a Request for

Modification of Support. The [c]ourt added that issue to the

matters to be addressed at the upcoming master’s hearing.

Master Peggy Ferber conducted the hearing on February 21, 2018

and filed her Master’s Report and Recommendation on March 19,

2018. An interim child support order was entered, setting

Husband’s support obligation at $765/month. On April 23, 2018,

Wife filed 44 exceptions to the Master’s Report and

Recommendation. The [c]ourt heard argument on the exceptions

on September 25, 2018[,] and entered an Order regarding Wife’s

exceptions on January [31], 2019. The [c]ourt dismissed most of

Wife’s exceptions but granted the exception regarding the

Master’s failure to address the mortgage contempt matter in her

report.

The [c]ourt accordingly held a hearing regarding the

mortgage contempt matter on April 25, 2019. By then, the parties

and the [c]ourt all were aware of the need to arrange for the sale

of the marital home. In response to both parties raising the issue

at the contempt hearing, the [c]ourt entered an Order granting

Husband the authority to sell the marital home. Wife requested

reconsideration of that Order, which the [c]ourt denied on May 17,

2019. On May 31, 2019, following review of the exhibits and

testimony, the [c]ourt denied Wife’s request to hold Husband in

contempt for failure to make timely mortgage payments.

A divorce decree was entered on June [28], 2019.

Trial Court Opinion, 11/6/19, at 1–5 (footnotes omitted).

Wife’s Pa.R.A.P. 1925(b) statement raised sixteen issues and fifty-eight

sub-issues some of which have not been briefed on appeal. In her sixty-five

page appellate brief to this Court, Wife lists nine questions, one of which has

ten sub-issues. Wife’s Brief at 2–3. Issue eight in Wife’s brief concerning
J-A09006-20

- 5 -

Husband’s continued failure to pay for Edgewood Country Club (“ECC”) was

not included in her 1925(b) statement.3 This issue is waived. See T.M.W. v. ____________________________________________

3 The only reference to ECC in Wife’s Pa.R.A.P. 1925(b) statement is that the

court erred “[b]y ordering [Husband’s] arrears to ECC to $0.00 & limit his

month[ly] payments to June, July, and August, when monthly dues are 12

months a year[.]” Wife’s 1925(b) statement, 7/23/19, at ¶ 10(3).

If we did review the issue of Husband’s failure to pay the ECC dues, we

would not conclude that the trial court abused its discretion or committed an

error of law in its resolution of this claim. After considering testimony of

Husband’s reduced income, see Master’s Report and Recommendation,

3/19/18, at 3 n.3, and noting that “Wife has had an unrealistic attitude

towards the standard of living she must have for herself and the children,” see

id. at 3 n.4, the Master recommended:

Husband’s obligation for payment to the [ECC] fees shall be limited

to $135/mo. for the 3 months of June, July and August each year.

If that is not satisfactory to the Club or to Wife, membership in the

Club can be cancelled. Any arrears as of 3/16/18 shall be set to

zero.

Master’s Report and Recommendation, 3/19/18, at 5. In response to Wife’s

exception to the Master’s recommendation on the ECC dues, the trial court

directed that “a final PACSES order be entered to effectuate the Master’s

report.” Order, 1/31/19, at 2. The trial court also did not specifically address

the question of the ECC dues in its Pa.R.A.P. 1925(a) opinion, concluding

generally: “Overall, the [c]ourt finds that the Master properly applied the

guidelines based on the facts she found at the February 21, 2018 hearing.

Further, the Master correctly adjusted the child support award based on

adjustments for equal shared custody . . . .” Trial Court Opinion, 11/16/19,

at 26–27.

As discussed, infra, at 16–17, the child support guidelines provide that a

parent is financially responsible for extracurricular activities that are beneficial

to the child and “the expenses associated with these activities are consistent

with the family's standard of living and station in life.” Pa.R.C.P. 1910.16- 6(d); Silver v. Pinskey, 981 A.2d 284, 302 (Pa. Super. 2009) (en banc). Herein, after the Master evaluated Husband’s reduced income and Wife’s

impractical life style expectations, she impliedly determined that if Husband
J-A09006-20

- 6 -

N.J.W., 227 A.3d 940, 947 (Pa. Super. 2020) (“an appellant’s failure to

include an issue in his Pa.R.A.P. 1925(b) concise statement waives that issue

for purposes of appellate review.). Moreover, issues one and three are not

reviewable because they are premised on different legal theories than those

presented in the 1925(b) statement. See Commonwealth v. Rush, 959

A.2d 945, 949 (Pa. Super. 2008) (holding an appellant may not present a new

legal theory on appeal, even if the new and original theories both support the

same general issue preserved in the trial court). 4

____________________________________________ could not negotiate a reduced fee with ECC, a country club membership would

not be consistent with the family’s station in life. Thus, the Master properly

assessed the evidence concerning responsibility for the ECC dues in the

context of the support guidelines, and the trial court did not abuse its

discretion or commit an error of law in accepting the Master’s

recommendation. 4

In Wife’s first appellate issue, she avers that the trial court abused its

discretion and/or committed an error of law by failing to apply the clean hands

doctrine to Husband. Wife’s Brief at 10. While in her Pa.R.A.P. 1925(b)

statement, Wife faulted the trial court for not taking negative inference from

some of Husband’s behavior concerning the parties’ finances, she did not refer

to the clean hands doctrine. Wife’s 1925(b) statement, 7/23/19, at ¶¶ 3(2),

3(3). Accordingly, issue one is waived.

Even if we addressed the negative inference allegation, we would conclude

that Wife was challenging Husband’s credibility regarding the reduction in his

income. This issue is addressed, infra. In issue three, Wife claims that the trial court abused its discretion and/or

committed an error of law when it made arrears and support awards

retroactive without a pending petition. Wife’s Brief at 11. In her Rule 1925(b)

statement, however, Wife claims that an error occurred when the trial court

reduced Husband’s child support obligation without a hearing. Wife’s 1925(b)

statement, 7/23/19, at ¶ 8(17). Therefore, issue three is waived.
J-A09006-20

- 7 -

The trial court addressed Wife’s burdensome concise statement as

follows:

Wife fails to cite the record regarding any of her 63 issues and

includes many general, sweeping claims.

The Superior Court could justifiably dismiss Wife’s appeal,

based on deficiencies in her Concise Statement. An appellant’s

concise statement must properly specify the error or errors to be

addressed on appeal. The Superior Court has held that trial courts

are impeded in preparing an opinion in cases where the appellant

fails to adequately identify in a concise manner the issues sought

to be pursued on appeal. A concise statement that is “too vague

to allow the court to identify the issues raised on appeal is the

functional equivalent of no Concise Statement at all.” The

Superior Court has further stated that when the trial court has to

guess what issues an appellant is appealing, that does not allow

for meaningful review. Appellants who file “extravagant” concise

statements that raise an “outrageous” number of issues risk

dismissal. Although the Superior Court could deem all Wife’s issues

waived and dismiss her appeal in its entirety, this [c]ourt believes

that many of Wife’s complaints arise from a few key

determinations. Consequently, it seems appropriate to the [c]ourt

____________________________________________

In any event, the issue has no merit. In her brief, Mother contends that the

subject of the March 27, 2017 hearing was Husband’s contempt and that the

support issue was improperly considered therein. However, both Wife’s and

Husband’s pretrial statements submitted prior to the hearing acknowledge the

parties’ agreement to consolidate the contempt and support issues for

purposes of the March 27, 2017 hearing. See Wife’s Pretrial Statement,

3/21/17, at 3 (“Pacses filed a Petition for Contempt on Wife’s behalf dated

November 23, 2016, December 13, 2016. The parties agreed to consolidate

it with these support proceedings.”); see also Husband’s Pretrial Statement,

3/21/17, at 1 (after the contempt hearing was continued until December 13,

2016, “[t]he parties agreed at this time to include the issues regarding the

payment of support, the Verizon Wireless bill, the Verizon FIOS bill, and

unreimbursed medical expenses.”). Wife cannot now claim error when she

agreed to the consolidation of the support and contempt matters.
J-A09006-20

- 8 -

to identify this more limited group of issues to enable the Superior

Court to review them.

This [c]ourt suggests that the Superior Court focus its

review on the following matters:

A. The [c]ourt’s decision to treat all the parties’ debts

as marital debt, accept Husband’s agreement to take

responsibility for all the debt, and assign the parties’

one significant asset - the marital home - to Husband.

B. The [c]ourt’s decision to authorize Husband to act

as sole agent to sell the marital home and to award all

proceeds to Husband, to be used to pay the marital

debts.

C. The [c]ourt’s decision to deny Wife’s request for

alimony.

D. The [c]ourt’s decision to deny Wife’s request that

the Court hold Husband in contempt for failure to

make timely mortgage payments.

E. The [c]ourt’s decision regarding child support.

Trial Court Opinion, 11/6/19, at 8–10 (footnotes and citations omitted). We

conclude that the trial court accurately summarized Wife’s issues as outlined

in her Pa.R.A.P. 1925(b) statement and we will address those appellate

arguments that are responsive to the trial court’s resolution of those questions

and/or have been properly preserved. Thus, Wife’s viable issues, renumbered

for ease of disposition, are:

1. Did the [c]ourt abuse its discretion and/or commit an error

of law by not verifying [Husband’s] income, not perform a

genuine assessment available for support and failing to

assign an earning potential to [Husband]?
J-A09006-20

- 9 -

2. Did the [c]ourt abuse its discretion and/or commit an error

of law by [recommending] unreimbursed medical expenses

be handled in equitable distribution proceedings?

3. Did the [c]ourt abuse its discretion and/or commit an error

of law by [recommending] a reduction [in] support because

[Wife] failed to enroll the children in CHIP medical coverage?

4. Did the [c]ourt abuse its discretion and/or commit an error

of law by failing to award counsel fees to [Wife]?

5. Did the trial court abuse its discretion and/or commit an

error of law by not awarding the cost of activities under

[R]ule Pa.R.C.P. 1910.16-6 to be proportionate to the

parties[’] income?

6. Did the [Trial] Court abuse its discretion and/or commit an

error of law when it failed to find [Husband] in contempt for

not paying the mortgage?

Wife’s Brief at 10–11.

Wife’s first issue asserts that the Master erred in her child support

recommendation because she miscalculated Husband’s income. Wife’s Brief

at 48. We observe at the outset that it is very difficult to understand the

specifics of Wife’s argument because her references to the record are not

identified by court, proceeding, or date. As best as we can discern, Wife is

challenging the Master’s support calculation that credited Husband’s testimony

and evidence of income and rejected that of Wife.5

____________________________________________

5 At the August 31, 2016 hearing on child support and alimony pendente lite, Wife presented the testimony of Beth Mascetta, a certified public accountant.

Ms. Mascetta calculated Husband’s net disposable income for 2014 and 2015

at amounts significantly greater than Husband’s evidence of his 2016 income.

The Master addressed the income discrepancy, as follows:
J-A09006-20

- 10 -

The trial court addressed the Master’s support calculation in its

discussion of the decision to deny Wife alimony:

[T]he Master determined that Husband’s income is $5,607 per

month. The Master arrived at this figure after hearing evidence

from both Husband and Wife. Husband owns and runs a company

that performs real estate appraisals. The company consists of

Husband and one other employee. Husband presented credible

evidence that his income has steadily declined over the past

several years.[6] The Master accepted Husband’s corporate tax

returns from 2015 and 2016 and personal tax return from 2016.

To calculate his 2017 income, Husband introduced his client

invoices from that year, as well as evidence of his business and

personal expenses. Husband also testified as to his projected

2018 income, which he based on figures from 2017, while

factoring in the loss of one of his company’s major clients. The

____________________________________________ [Master] has not ignored the testimony provided by Beth Mascetta

regarding Husband’s prior incomes for 2014 and 2015. In all of

2014 he had just one client. In the first half of 2015 he maintained

that one client. In May 2015 he was advised that this client was

diversifying their appraisal list and that he would now be part of a

rotating list. This severely impacted his income. Since mid 2015

he has sought and obtained additional customer/broker referrals

through other agencies and is building his business up again. He

has also increased his range for business by adding some new

purchase appraisal business to his refinancing appraisal business.

Attachment to Hearing Summary, 9/2/16, at unnumbered 5.

6 As noted by the Master:

There were many changes to Husband’s business in the two years

prior to separation which seriously diminished his net income, such as the enactment of the Dodd-Frank Act and the loss of his

single biggest referral source, Southwest Financial. In 2016, he

joined Mueller Services to begin adding consulting work from

IKOR, a company that does estates, settlements and trust

management. Even with the new business opportunities, by

2016, his net income was reduced to $5,607/mo.

Master’s Report and Recommendation, 3/19/18, at 4 n.3
J-A09006-20

- 11 -

Master found Husband’s testimony credible. The [c]ourt notes

that Husband’s supporting documentation was coherently

organized and presented.

Wife attempted to rebut Husband’s evidence and to

demonstrate that Husband has far greater financial resources than

he claimed. Wife introduced hundreds of pages of bank

statements for the years 2014-2017, from eight different bank

accounts to prove her claim. The Master directly asked Wife

several times to explain how her voluminous documentation

established her point and received no clear answer. The Master

accorded greater weight to Husband’s credible testimony and

clearer supporting documentation than to Wife’s confusing

presentation and calculated that Husband’s monthly income was

$5,607. This [c]ourt properly deferred to the Master’s credibility

determination and discerned no error in the Master’s weighing of

the evidence. Trial Court Opinion, 11/6/19, at 19–20.

Our standard review of a child support order is as follows:

Appellate review of support matters is governed by an abuse of

discretion standard. 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. An abuse of discretion

is [n]ot merely an error of judgment, but if in reaching a

conclusion the law is overridden or misapplied, or the judgment

exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will, as shown by the evidence of record. The

principal goal in child support matters is to serve the best interests

of the children through the provision of reasonable expenses.

J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015) (quoting R.K.J. v.

S.P.K., 77 A.3d 33, 37 (Pa. Super. 2013)). Moreover,

it is within the province of the trial court to weigh the evidence

and decide credibility and this Court will not reverse those

determinations so long as they are supported by the evidence.

We are also aware that a master’s report and recommendation,

although only advisory, is to be given the fullest consideration,

particularly on the question of credibility of witnesses, because the

master has the opportunity to observe and assess the behavior

and demeanor of the parties. Morgante v. Morgante, 119 A.3d
J-A09006-20

- 12 -

382, 386–87 (Pa. Super. 2015) (quoting Childress v. Bogosian, 12 A.3d 448, 455–56 (Pa. Super. 2011)) (internal citations and

quotation marks omitted).

Carney v. Carney, 167 A.3d 127, 131 (Pa. Super. 2017).

Wife’s disagreement with the Master’s acceptance of Husband’s income

evidence is clearly an assault on Husband’s credibility. A reviewing court does

not weigh the evidence or determine credibility, as these are functions of the

trial court. Doherty v. Doherty, 859 A.2d 811, 812 (Pa. Super. 2004). The

Master explained the basis for her findings, and we discern no abuse of

discretion or error by the trial court’s endorsement of the Master’s assessment

of the evidence. This issue lacks merit.7

____________________________________________

7 Wife does not develop her theory that the court should have assigned an

earning potential to Husband. In any event, we would have rejected this

argument. Pennsylvania Rule of Civil Procedure Rule 1910.16-2(d) provides,

in part:

Rule 1910.16-2. Support Guidelines. Calculation of Net Income

* * *

(d) Reduced or Fluctuating Income.

(4) Earning Capacity. If the trier of fact determines that a party

to a support action has willfully failed to obtain or maintain

appropriate employment, the trier of fact may impute to that party

an income equal to the party’s earning capacity. Age, education,

training, health, work experience, earnings history and child care

responsibilities are factors which shall be considered in

determining earning capacity. In order for an earning capacity to

be assessed, the trier of fact must state the reasons for the

assessment in writing or on the record. Generally, the trier of fact

should not impute an earning capacity that is greater than the

amount the party would earn from one full-time position.
J-A09006-20

- 13 -

Wife next argues that it was unlawful for the court to refer consideration

of the support issue of unreimbursed medical expenses in conjunction with

the equitable distribution hearing. Wife’s Brief at 50. Wife cites no authority

for this position, nor does she provide a citation to the record wherein she

objected at the equitable distribution hearing to the scope of the hearing. This

issue, therefore, is waived. See Pa.R.A.P. 2119(a) (requiring that arguments

in briefs be followed by discussion and pertinent citation of authorities); J.J.

DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402, 410 (Pa. Super.

2012) (stating failure to provide record citation in support of argument

violates Pa.R.A.P. 2119(c) and constitutes waiver).

Wife’s third claim is that the court erred by recommending a reduction

in support because Wife failed to enroll the children in the Children’s Health

Insurance Program (“CHIP”). Wife’s Brief at 51. Our review of this issue is

hampered by Wife’s incoherent presentation and incomprehensible record

citation. It appears that the basis of Wife’s argument centers on the language

of support orders entered on September 2, 2016, and March 30, 2017. The

____________________________________________ Determination of what constitutes a reasonable work regimen

depends upon all relevant circumstances including the choice of

jobs available within a particular occupation, working hours,

working conditions and whether a party has exerted substantial

good faith efforts to find employment.

Pa.R.C.P. 1910.16-2(d)(4). Herein, the trier of fact determined that

Husband’s reduction in income was not willful, but rather, it was attributable

to changes in the law and the loss of a major client. Master’s Report and

Recommendation, 3/19/18, at 4 n.3
J-A09006-20

- 14 -

September 2, 2016 order included the following language: “[Wife] is to return

to her medicare/supplemental insurance and the children are to be enrolled in

CHIP.” Order, 9/2/16, at 3. After Wife filed a petition for modification for

support, a support order was entered wherein the Master observed:

[Husband] to pay [Wife] $1,400.31 for [support] of Wife and 3

children. This is a reduction of $243.60/mo based on [Wife’s]

proportionate share of the 3 children’s [health insurance

premium] which are now paid by [Husband]. In the 9/2/16 order,

Wife was ordered to enroll the children in CHIP and to obtain

[insurance] for herself [through her Social Security disability

benefits.] She did not do so, so Husband obtained [insurance] for

himself and the kids. [Master] is granting Husband a credit of

$2,415.16 being Wife’s share of the insurance costs Husband was

forced to incur.

Order, 3/30/17, at 3. Wife’s objection to these orders is two-fold: 1) the

September 2, 2016 order did not order her to enroll the children in CHIP; 2)

her failure to enroll the children cannot form the basis for a support reduction.

We are constrained to agree with Wife that the September 2, 2016 order

was not specific as to which parent was responsible for enrolling the Children

in CHIP. However, we disagree with Wife’s position that the failure to enroll

the children was the reason for the support modification. Rather, the Master

reduced the support to account for Wife’s share of the medical insurance

Husband procured in lieu of the coverage that would have been provided under

CHIP. Wife does not contest the determination that she was responsible for a

proportionate share of the medical insurance. Wife’s third issue is meritless.

Wife next asserts that she was entitled to counsel fees. Wife’s Brief at

52. The Master denied an award of counsel fees for the following reasons:
J-A09006-20

- 15 -

Based on the extremely litigious nature of this case, both

parties have incurred very high legal fees. Husband has provided

support for Wife and the children since April 11, 2016. Wife was

awarded preliminary counsel fees of $2500. In, addition, she took

a self-help $8,000 advance on the equitable distribution. Based

on these factors, the Master is recommending that each party pay

his or her own legal fees, costs and expenses.

Master’s Report and Recommendation, 3/19/18, at 6. Similarly, in its order

on Wife’s exceptions to the Master’s Report, the trial court determined that

each party shall be responsible for his/her own counsel fees. Order, 1/31/19,

at 2.

A trial court’s award of counsel fees is subject to an abuse of discretion

standard of review. Gates v. Gates, 933 A.2d 102, 109 (Pa. Super. 2007). Furthermore,

The purpose of an award of counsel fees is to promote fair

administration of justice by enabling the dependent spouse to

maintain or defend the divorce action without being placed at a

financial disadvantage; the parties must be “on par” with one

another.

Counsel fees are awarded based on the facts of each case

after a review of all the relevant factors. These factors include the

payor’s ability to pay, the requesting party’s financial resources,

the value of the services rendered, and the property received in

equitable distribution. Counsel fees are only to be awarded upon

a showing of need. In essence, each party’s financial

considerations dictate whether such an award is appropriate.

Id.

On appeal, Wife does not contest the Master’s implicit finding that the

parties were on par financially with one another at the time of the Master’s

hearing and therefore, were responsible for their own counsel fees. Rather,
J-A09006-20

- 16 -

Wife urges that she is entitled to counsel fees based upon her judgment that

Husband’s fraudulent behavior and noncompliance with court orders

occasioned the high cost of the litigation. Id. at 51–52. This assertion is

without record support and does not entitle Wife to an award of counsel fees.

Accordingly, there was no abuse of discretion in the trial court’s denial of

counsel fees.

Wife also contends that the trial court erred by not awarding the cost of

the children’s extracurricular activities to be proportionate to the parties’

income. Wife’s Brief at 53. The applicable standard of review with respect to

support awards is abuse of discretion. Spahr v. Spahr, 869 A.2d 548, 551

(Pa. Super. 2005). Pennsylvania Rule of Civil Procedure 1910.16-6(d) acknowledges that “[e]xpenditures for needs outside the scope of typical child-rearing expenses,

e.g., private school tuition, summer camps, have not been factored into the

Basic Child Support Schedule.” Pa.R.C.P. 1910.16-6(d). Thus, the guideline

provides:

(1) If a party incurs an expense for a need not factored into the

Basic Child Support Schedule and the trier-of-fact determines the

need and expense are reasonable, the trier-of-fact shall allocate

the expense. The trier-of-fact may order that the obligor’s

expense share is added to his or her basic support obligation, paid

directly to the service provider, or paid directly to the obligee.

Pa.R.C.P. 1910.16-6(d)(1). A parent can be required to pay for extracurricular

activities under Rule 1910.16–6(d) even if he or she does not believe they are

necessary, when the activities are beneficial to the child in question and “the
J-A09006-20

- 17 -

expenses associated with these activities are consistent with the family's

standard of living and station in life.” Silver v. Pinskey, 981 A.2d 284, 302

(Pa. Super. 2009) (en banc) (citation omitted).

Although Wife frames this issue as a challenge to the trial court’s

apportionment of the costs of the children’s activities, she does not explain

why the order is disproportionate. Rather, Wife’s argument focuses on her

displeasure with the following proviso in the May 29, 2018 custody and

support order:

[Husband] may choose extracurricular activities for the Children.

[Husband] shall consider both the Children’s and [Wife’s]

suggestions for these activities. [Wife] shall communicate her

suggestions through OFW only. If [Wife] suggests an activity for

the Children that [Husband] supports but cannot afford,

[Husband] has the discretion to consent to the Children’s

participation subject to [Wife] being solely financially responsible

for the cost of the activity.

Order, 5/29/18, at unnumbered 3. Wife’s concern is that Husband will grasp

upon the affordability language to refuse payment of costs associated with the

children’s participation in various skiing activities. However, as Wife does not

allege that Husband has refused to pay for the skiing expenses, the question

of his refusal is not ripe for discussion. Moreover, in the event that Husband

denies the funds requested there is a mechanism in place to confront the

issue. In her September 2, 2016 order, the Master stated:

Any other extracurricular activities for any of the children shall be

mutually agreed upon before the child is enrolled. If the other

parent does not agree, there are two [options:] the Parent who

wants the child to participate can cover all of the expenses or can
J-A09006-20

- 18 -

go to [c]ourt with a Motion to let the [c]ourt decide if the activity

is reasonable, necessary and affordable for this family. Order, 9/2/16, at 3.8 Thus, in the future if Husband claims that he does not

have sufficient resources to finance the children’s skiing, Mother may petition

the court to determine if the need for the expenditure is reasonable and if

Husband is acting in good faith.

Wife’s remaining issue centers on the trial court’s refusal to hold

Husband in contempt for non-payment of the mortgage on the marital

residence. Wife’s Brief at 55. The trial court explained its reasoning, as

follows:

Not long after the parties separated, they agreed that

Husband would retain exclusive possession of the marital home.

The [c]ourt accordingly ordered Husband to bear responsibility for

the monthly mortgage payments, although the mortgage itself is

in Wife’s name. Neither party disputes that Husband has failed to

make monthly mortgage payments on time and in full. Neither

party disputes that Husband has fallen farther behind on the

mortgage payments over the months that he has continued to

reside in the home.

* * *

Based on the Master’s findings regarding Husband’s income

and expenses, as well as Husband’s credible testimony at the

contempt hearing, the [c]ourt concluded that he lacked the

present ability to make the delinquent mortgage payments.

Consequently, the [c]ourt denied Wife’s petition for contempt. ____________________________________________

8 We note that the language of this order imposes an unwelcome burden on

trial courts. “Many times in custody disputes, the parties ask the trial court

to decide minor issues. We recognize that the state cannot raise children and

that our courts are ill equipped to decide such issues.” S.W.D. v. S.A.R., 96

A.3d 396, 403 (Pa. Super. 2014). We do not “encourage over-intervention by

the court into disputes that should and can be decided by a child's guardians.” Id.
J-A09006-20

- 19 -

Wife’s challenge to the [c]ourt’s decision seems to the [c]ourt to

center on her disagreement with the [c]ourt’s findings regarding

Husband’s income.

As discussed above, the [c]ourt properly deferred to the

Master’s credibility assessments in accepting the Master’s

calculation of Husband’s income. The [c]ourt did not revisit that

finding, but heard Husband’s testimony regarding his current

financial circumstances. Husband credibly testified that he is

making monthly mortgage payments of $1,376 and that he had

been doing so for over a year. Husband would need to pay much

more to fully satisfy the mortgage delinquency, but the bank has

accepted the $1,376 monthly payment as sufficient to keep the

house out of foreclosure. Husband credibly explained that

additional payments, if available, in miscellaneous amounts of less

than $1,376 would serve no practical purpose and would likely not

reduce the accumulated mortgage debt. Husband then provided

updated information as to his monthly income and expenses by

comparing his current information with the budget presented at

the Master’s hearing. In 2018, Husband had approximately $135

left per month after paying fixed monthly obligations. By April

2019, Husband had approximately $400 left per month, from

which he still needed to pay for food, any clothing needs, and gas.

These figures were consistent with the figures accepted by the

Master, and the [c]ourt accepted them.

Wife devoted much of her testimony during the contempt

hearing to matters outside the limited scope of the hearing. Her

core argument appears to the [c]ourt to be the same as her

argument regarding the alimony and child support components of

the [c]ourt’s decision - that Husband has far greater financial

resources than he claims and that he successfully hides it from

the [c]ourt and from Wife. Wife again relied on her attempted

analysis of Husband’s bank statements to document his resources.

As discussed above, neither the Master nor this [c]ourt found the

evidence persuasive.

Based on the credible evidence, the [c]ourt concluded that

Husband lacks the present ability to pay more towards the

delinquent mortgage than he is currently paying. Established case

law provides that courts may not make contempt findings and

impose sanctions or other relief under these circumstances.
J-A09006-20

- 20 -

Trial Court Opinion, 11/6/19, at 22–25 (footnotes omitted). Our standard of

review of the denial of a contempt petition is as follows:

This Court will reverse a trial court’s order denying a civil

contempt petition only upon a showing that the trial court

misapplied the law or exercised its discretion in a manner lacking

reason. In proceedings for civil contempt of court, the general

rule is that the burden of proof rests with the complaining party

to demonstrate that the defendant is in noncompliance with a

court order. To sustain a finding of civil contempt, the

complainant must prove, by a preponderance of the evidence,

that: (1) the contemnor had notice of the specific order or decree

which he is alleged to have disobeyed; (2) the act constituting the

contemnor’s violation was volitional; and (3) the contemnor acted

with wrongful intent.

MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012) (internal

citations omitted). Additionally,

a showing of non-compliance is not sufficient in itself to prove

contempt. Wetzel v. Suchanek, 373 Pa. Super. 458, 541 A.2d

761, 762 (1988). If the alleged contemnor is unable to perform

and has in good faith attempted to comply with the court Order,

contempt is not proven. Id. (emphasis in original). The alleged

contemnor has the burden of proving the affirmative defense that

he has the present inability to comply with the court Order.

In re Estate of DiSabato, 165 A.3d 987, 992 (Pa. Super. 2017). Wife’s argument that Husband has the ability to pay the mortgage

rehashes her claim that the evidence of Husband’s income is not trustworthy.

We have already decided that the Master explained the basis for finding

Husband credible on this issue and that the trial court properly relied on the

Master’s determination.

Finally, we address the trial court’s comment that the matter must be

remanded for an adjustment to the support order. The trial court’s January
J-A09006-20

- 21 -

31, 2019 order granting in part and denying in part Wife’s exceptions to the

March 19, 2018 Master’s Report and Recommendation, included the following

paragraph: “The [c]ourt will direct a final PACSES order be entered to

effectuate the [child support] recommendations in the Master’s Report.” See

Order 1/29/19, at unnumbered 1. In its Pa.R.A.P. 1925(a) opinion, however,

the trial court revisited this directive:

The [c]ourt carefully reviewed the figures used and the

application of the guidelines set forth in Pa.R.C.P. 1910.16. In

doing so, the [c]ourt noticed that the Master included weekly

wages of $80 as part of Wife’s income. Perhaps this arose from

the Master’s expectation that Wife could perform part time work

despite her disability. As discussed above, the [c]ourt did not rely

on this finding by the Master. Consequently, the child support

award needs to be recalculated. It will likely be adjusted upward

slightly. The Superior Court should remand this issue to the

[c]ourt for recalculation of the monthly child support award.

Trial Court Opinion, 11/6/19, at 26 (footnotes omitted). Based upon our

concurrence with the trial court’s assessment that the Master erred in

including Wife’s purported weekly wages in her support award, we vacate that

portion of the support award and remand for the limited purpose of

recalculation of support to reflect correction of this error.

Order of January 31, 2019, on Wife’s exceptions to the Master’s March

19, 2018 Report and Recommendation affirmed in part. Paragraph seven of

the order directing that “a final PACSES order be entered to effectuate the

[child support] recommendations in the Master’s Report” see Order 1/19/19,

at unnumbered 3, is vacated, and the matter is remanded for recalculation of
J-A09006-20

- 22 -

Wife’s income and child support award. All other orders affirmed.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2020