J-A35012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAUL MACKAY, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

KAREN MACKAY,

Appellee No. 99 WDA 2014

Appeal from the Order December 16, 2013

In the Court of Common Pleas of Allegheny County

Family Court at No(s): F.D. 09-009303-001

BEFORE: BENDER, P.J.E., BOWES, J., and ALLEN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 24, 2015

Paul Mackay (Husband) appeals from the December 16, 2013 order 

resolving numerous issues related to the equitable distribution of his and 

Karen Mackay’s (Wife) marital assets and the payment of alimony and 

counsel fees. Following our review, we affirm. 

The trial court set forth background information and the procedural 

history of this matter in its opinion filed pursuant to Pa.R.A.P. 1925(a), 

stating:

[Husband] and [Wife] were married on October 3, 1997. 

They are the parents of one (1) child [Child], ... who is ten (10) 

years old and resides primarily with Wife. Husband has little to 

no involvement in his son's day to day life, but for the occasional 

Friday afterschool until Saturday evening, or no more than 12 to 

15 overnights per year. [Child] has been diagnosed with autism, 

pervasive development disorder, ADHD, Obsessive Compulsive 

Disorder and an eating disorder which requires him to be on a 

special gluten-free diet. He has wraparound services, speech 
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and occupational therapy and is followed by a developmental 

pediatrician who works with him at home and school.

[Child] attends public school at Myrtle Avenue Elementary 

School in Castle Shannon, which is in the Keystone Oaks School 

District. Joseph Arcuri has been the principal at Myrtle since 

[Child] started attending the school. [Child] is one of the 

school's leaning support students, which means he receives 

special services and a modified curriculum for some subjects, in 

addition to participating in general classroom studies. Principal 

Arcuri testified that [Child] has had violent outbursts at school in 

the past, but has been an excellent student this year. 

Wife and Husband have both completed their high school 

education. As of the date of the proceedings in this case, 

Husband was 44 years old and Wife was 50 years old. Maternal 

Grandmother ... testified that at the age of 75 years old she 

cannot be a primary or even secondary caregiver for [Child], but 

rather is occasionally available for emergency care. 

Husband was not faithful during the marriage and 

ultimately left Wife for his current fiancé. Wife testified that she 

was devastated and was left to pick up the pieces of raising a 

mentally challenged son alone. At the beginning of this 

litigation, Wife qualified and received emergency food stamps, in 

part due to Husband's failure to provide enough support for Wife 

and his son.

The parties agreed prior to trial to use December 8, 2009 

as the separation date, which was the date when Husband filed a 

Divorce Complaint. Husband's Divorce Complaint requested a 

divorce and equitable distribution of marital property. Wife filed 

a Petition Raising Claims seeking divorce and raising financial 

claims including alimony pendente lite, spousal support, alimony, 

equitable distribution and counsel fees. 

A two-day trial was held before the undersigned on 

October 23, 2013 and November 8, 2013. Following the first 

day of trial, this Court bifurcated the divorce from the economic 

issues at Husband’s request to allow for his planned marriage in 

Sydney, Australia on New Years’ Eve 2013. A Divorce Decree 

was issued on November 8, 2013 by which Husband and Wife 

were divorced from the bonds of matrimony. 
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This Court filed a Memorandum Opinion and Order of Court 

on December 16, 2013[,] resolving the remaining economic 

claims raised by the parties. Husband has appealed that 

decision. Husband filed a timely Concise Statement of Matters 

Complained of on Appeal listing fifteen bases for his appeal, 

many of which take issue with this Court's factual findings and 

credibility determinations. The contemporaneous Memorandum 

Opinion we filed set forth our reasoning in detail. This Opinion 

for the most part restates our Memorandum Opinion. 

Trial Court Opinion (T.C.O.), 4/3/14, at 2-4. 

The court then discussed the parties’ incomes. It explained that five 

months after Child was born, Wife resigned her position with US Airways as 

a flight attendant, and has worked at various part time positions since that 

time. The court noted the necessity for Wife to participate in Child’s care, 

particularly citing Child’s after-school therapy, which Wife claims makes it 

impractical “for her to work a second job in the evenings.” Id. at 4. Thus, 

the court concluded “that Wife’s present earnings are realistic at $7,000 per 

year with a net monthly income of $533 per month.” Id. The court also 

noted that it gave no weight to the testimony of the vocational expert hired 

by Husband, because the expert had not met or interviewed Wife or 

reviewed any of her records. 

In regard to Husband’s income and expenses, the court “observed that 

Husband is a savvy businessman.” Id. at 5. Husband operates an 

Australian barbecue business, selling prepared foods at barbecue events that 

are held all over the country from the spring through the fall. The court 

discussed evidence presented about Husband’s income, “including Husband’s 

2009 Partnership Return and his 2009 Profit and Loss statement,” which 
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showed “Husband’s total income reported was $403,545 and his total cost of 

goods sold [was] $97,581[.]” Id. at 6. However, the court found Husband’s 

testimony about his income was not credible and, therefore, “declined to 

arbitrarily assign an earning capacity to Husband or to guess as to his actual 

income.” Id. 

Concerning the alimony and child support awarded, the court 

explained its award as follows:

Given: the length of the marriage, minimal marital estate, 

Husband's infidelity, Husband's younger age as compared to 

Wife, Husband's earnings, Wife's status as a full-time caregiver 

and stay-at-home mother to the parties’ special needs son, 

leaving her with little opportunity or ability to seek anything 

other than part-time employment, the contribution of Wife as 

home-maker to allow the increased earning potential of 

Husband's businesses, this Court determined that an award of 

alimony was both reasonable and appropriate. Wife submitted 

an inflated budget to the Court; however, even with the inflated 

items removed there was a shortfall between Wife's revised 

budget and her income. 

On March 8, 2011, Wife filed her claim for child support 

and [alimony pendent lite] APL. A hearing was held on May 16, 

2011 which awarded Wife with $1,703 per month and allocated 

the award: $835.00 in child support and $868.00 in APL. 

Considering the uncertainty regarding the parties' incomes, we 

decided to award alimony and child support consistent with the 

then-current APL/child support award. The equitable distribution 

award herein (which is skewed towards Wife) should account for 

any additional shortfall between Wife's budget and her income. 

As such, this Court awards Wife alimony in the amount of 

$868.00 per month for eight (8) years, or until [Child’s] 

graduation from high school, whichever is sooner. Commencing 

with the entry of the final Decree in Divorce, the APL award shall 

terminate and Husband shall continue to pay child support in the 

amount of $835.00 and shall pay to Wife alimony in the amount 

of $868.00 per month. 
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Id. at 6-7.

Next, in its opinion, the court set forth the marital assets contained in 

the marital estate and awarded Wife 58% of the total of $394,912, with 

Husband’s award set at 42%. Lastly, the court reviewed Wife’s request for 

counsel fees, explaining the reasons for its award of $20,000, as follows:

This Court reviewed the Counsel Fees submitted by Wife's 

Counsel. As Husband's income was a major issue in the case, 

discovery was required to determine this important aspect of the 

case: Wife served discovery on May 10, 2010 and received no 

response. On August 18, 2010, Wife's Motion to Compel was 

granted along with $500.00 in counsel fees. On September 16, 

2010, as Husband again failed to serve full and complete 

responses, Wife was awarded $750.00 toward Wife's Motion for 

Contempt of Discovery. On July 6, 2011, Wife was granted 

counsel fees in the amount of $500.00 pursuant to a Motion for 

Injunctive Relief as Husband continued to liquidate martial funds 

post-separation for his own use. On September 14, 2011, Wife 

was granted $1,000 in counsel fees as Husband's counsel failed 

to appear for his Motion to Continue the Support Exceptions. 

Finally, Wife served discovery on February 12, 2013, and on 

March 15, 2013, Husband served inadequate discovery 

responses, necessitating an emergency Motion to Continue the 

trial. 

Further, at the beginning of the support case, Husband 

filed exceptions to all aspects of the PACSES Order requiring 

Wife to spend substantial fees on writing a brief in opposition 

and orally opposing the same. On December 28, 2011, the 

undersigned dismissed Husband's exceptions in their entirety. 

Wife claims to have incurred counsel fees in excess of 

$30,000 in this case, most of which was outstanding at the time 

of trial. This Court concluded $20,000 was a reasonable counsel 

fee award for litigation that began in 2009. As Husband credibly 

testified that he has access to a open PNC Line of Credit which 

has been substantially paid in full and is presently seeking to 

obtain a Line of Credit for yet another business venture[,] FitFul, 

it was clear that Husband has the means to pay this counsel fee 

award.
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Id. at 8-9. 

In his appeal to this Court, Husband raises the following four issues for 

our review:

1. Whether the trial court abused its discretion by a 

misapplication of the law in its determination of marital assets 

and in the overall scheme of equitable distribution?

2. Whether the trial court abused its discretion by a 

misapplication of the law in awarding alimony for eight years in 

addition to the four years already paid, based upon the health of 

the parties’ son?

3. Whether the trial court abused its discretion by a 

misapplication of the law in awarding counsel fees to Wife in 

addition to adequate liquid assets in equitable distribution?

4. Whether the trial court abused its discretion in awarding 

counsel fees of $1000 in response to counsel’s request for 

continuance of a support exception argument where the 

underlying support obligation was being paid in full pending 

argument? 

Husband’s brief at 6-7.

Generally, in addressing the first issue raised in this appeal, we are 

guided by the following:

“Our standard of review in assessing the propriety of a 

marital property distribution is whether the trial court abused its 

discretion by a misapplication of the law or failure to follow 

proper legal procedure.” Harasym v. Harasym, 418 Pa. Super. 

486, 614 A.2d 742, 746 (Pa. Super. 1992). “An abuse of 

discretion is not found lightly, but only upon a showing of clear 

and convincing evidence.” Zollars v. Zollars, 397 Pa. Super. 

204, 579 A.2d 1328, 1330 (Pa. Super. 1990), appeal denied, 

527 Pa. 603, 589 A.2d 693 (1991).

Pursuant to 23 Pa.C.S.A. § 3502(a), when fashioning 

equitable distribution awards, the trial court must consider: the 
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length of the marriage; any prior marriages; age, health, skills, 

and employability of the parties; sources of income and needs of 

the parties; contributions of one party to the increased earning 

power of the other party; opportunity of each party for future 

acquisitions of assets or income; contribution or dissipation of 

each party to the acquisition, depreciation or appreciation [of] 

marital property[;] value of each party's separate property[;] 

standard of living established during the marriage; economic 

circumstances of each party and whether the party will be 

serving as custodian of any dependent children. 23 Pa. C.S.A. § 

3502(a)(1-11). The weight to be given to these statutory 

factors depends on the facts of each case and is within the 

court's discretion. Gaydos v. Gaydos, 693 A.2d 1368, 1376 

(Pa. Super. 1997) (en banc).

Mercatell v. Mercatell, 854 A.2d 609, 611 (Pa. Super. 2004). 

“Furthermore, the trial court has ‘the authority to divide the award as the 

equities presented in the particular case may require.’” Id. We also 

recognize that when reviewing an award of equitable distribution, “we 

measure the circumstances of the case against the objective of effectuating 

economic justice between the parties and achieving a just determination of 

the property rights.” Hayward v. Hayward, 868 A.2d 554, 559 (Pa. Super. 

2005). Moreover, “[t]he law is ... well settled that the trial court can accept 

all, some or none of the submitted testimony in determining the value of 

marital property.” Isralsky v. Isralsky, 824 A.2d 1178, 1185 (Pa. Super. 

2003). 

In support of his argument that the court erred in its assessment of 

the parties’ marital estate, Husband indicates that the total marital estate 

minus liabilities equals $264,945.74, rather than the $394,912.00 

determined by the trial court. Essentially, Husband claims the court erred 
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by failing to base its decision on the evidence presented, i.e., that it “ignored 

the Asset & Liability Statements and Pre-Trial Statement of the parties ... in 

setting forth the marital property that they owned.” Husband’s brief at 22. 

Husband further identifies specific assets, claiming these assets were held 

pre-separation but did not exist at the time of separation. Husband also 

identifies assets, which he asserts belong to one of his numerous business 

entities. He claims these assets’ values were considered without deducting 

for the business’ debts. 

We conclude that Husband’s allegations of error are without merit. 

Our review of the record reveals that the court’s findings are supported by 

the evidence of record. At the same time, Husband’s allegations in many 

instances are not supported by the record. Moreover, we note that the court 

found that Husband was not credible. Since we are not in a position to reweigh the facts presented or to override the court’s credibility 

determinations, we conclude that the trial court’s conclusions regarding the 

parties’ marital assets should not be disturbed. The court did not abuse its 

discretion in assigning values to various assets and in dividing the assets in 

an equitable manner as dictated by the circumstances. 

We next turn to Husband’s allegations of error relating to the award to 

Wife of alimony for an eight-year period. Husband sets forth a review of 

what he deems to be the parties’ earnings and earning capacities. 

Specifically, he argues that the court’s support award “was based upon 
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erroneous earnings for Husband and fails to consider a reasonable earning 

capacity for Wife.” Husband’s brief at 31. Moreover, Husband contends that 

despite Child’s learning disabilities, Wife “is able to work if she chose to do 

so.” Id. at 33. Husband also claims that the court relied on Husband’s 

alleged infidelity as a factor in awarding alimony; however, he asserts that 

testimony indicated that he had not engaged in sexual relations with his 

fiancée until after he and Wife were separated. 

We conduct our review of this issue according to the following 

standard:

 The role of an appellate court in reviewing alimony orders is 

limited; we review only to determine whether there has been an 

error of law or abuse of discretion by the trial court. Absent an 

abuse of discretion or insufficient evidence to sustain the support 

order, this Court will not interfere with the broad discretion 

afforded the trial court. 

Smith v. Smith, 904 A.2d 15, 20 (Pa. Super. 2006). Likewise: 

 The purpose of alimony is not to reward one 

party and to punish the other, but rather to ensure 

that the reasonable needs of the person who is 

unable to support himself or herself through 

appropriate employment, are met. In determining 

the nature, amount, duration and manner of 

payment of alimony, the court must consider all 

relevant factors, including those statutorily 

prescribed for at 23 Pa.C.S.A. § 3701. Alimony is 

based upon reasonable needs in accordance with the 

lifestyle and standard of living established by the 

parties during the marriage, as well as the payor's 

ability to pay. 

Isralsky, [824 A.2d at 1188].

Dalrymple v. Kilishek, 920 A.2d 1275, 1278-79 (Pa. Super. 2007).
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Also, as noted above, the court must consider the relevant statutory

factors listed at 23 Pa.C.S. § 3701. Those factors include:

(1) The relative earnings and earning capacities of the parties. 

(2) The ages and the physical, mental and emotional conditions 

of the parties. 

(3) The sources of income of both parties, including, but not 

limited to, medical, retirement, insurance or other benefits. 

(4) The expectancies and inheritances of the parties. 

(5) The duration of the marriage.

(6) The contribution by one party to the education, training or 

increased earning power of the other party. 

(7) The extent to which the earning power, expenses or financial 

obligations of a party will be affected by reason of serving as the 

custodian of a minor child. 

(8) The standard of living of the parties established during the 

marriage. 

(9) The relative education of the parties and the time necessary 

to acquire sufficient education or training to enable the party 

seeking alimony to find appropriate employment. 

(10) The relative assets and liabilities of the parties. 

(11) The property brought to the marriage by either party. 

(12) The contribution of a spouse as homemaker. 

(13) The relative needs of the parties. 

(14) The marital misconduct of either of the parties during the 

marriage. The marital misconduct of either of the parties from 

the date of final separation shall not be considered by the court 

in its determinations relative to alimony except that the court 

shall consider the abuse of one party by the other party. As 
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used in this paragraph, “abuse” shall have the meaning given to 

it under section 6102 (relating to definitions). 

(15) The Federal, State and local tax ramifications of the alimony 

award. 

(16) Whether the party seeking alimony lacks sufficient 

property, including, but not limited to, property distributed under 

Chapter 35 (relating to property rights), to provide for the 

party's reasonable needs. 

(17) Whether the party seeking alimony is incapable of selfsupport through appropriate employment. 

23 Pa.C.S. § 3701(b). 

Following our review, we conclude that the trial court adequately 

examined the specific facts of this case and properly analyzed the 

appropriate statutory factors in determining Wife’s reasonable needs and 

Husband’s ability to pay. Husband has not convinced this Court that the 

findings and conclusion reached by the trial court are in error. The record 

supports the findings and, therefore, we conclude that the court did not 

abuse its discretion in its award of alimony to Wife. 

Husband’s third issue concerns the court’s award of $20,000 in 

attorney’s fees to Wife. Husband acknowledges that Wife claimed that she 

incurred over $30,000 in legal fees, but he asserts that the fees are 

excessive, unreasonable, and resulted from Wife’s repeated assertions that 

Husband manipulated his income and/or concealed his interest in various 

businesses. Husband further claims that because he would need to borrow 

the money to pay this award, he does not have the ability to pay. 
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We review an award of attorney’s fees pursuant to the following

principles:

We will reverse a determination of counsel fees and 

costs only for an abuse of discretion. 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. 

Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. 2004), 

quoting Anzalone [v. Anzalone, 835 A.2d 773,] 785-786 [(Pa. 

Super. 2003)]. “Counsel fees are awarded only upon a showing 

of need.” Teodorski at 201, quoting Harasym v. Harasym, 

418 Pa. Super. 486, 614 A.2d 742, 747 (Pa. Super. 1992). “In 

most cases, each party’s financial considerations will ultimately 

dictate whether an award of counsel fees is appropriate.” Plitka 

v. Plitka, 714 A.2d 1067, 1070 (Pa. Super. 1998). Also 

pertinent to our review is that, “in determining whether the court 

has abused its discretion, we do not usurp the court's duty as 

fact finder.” Teodorski at 201, quoting Verdile v. Verdile, 370 

Pa. Super. 475, 536 A.2d 1364, 1369 (Pa. Super. 1988).

Busse v. Busse, 921 A.2d 1248, 1258 (Pa. Super. 2007). 

Again, we concur with the decision reached by the trial court on the 

attorney’s fees issue. The court certainly was aware of the respective 

financial positions of the parties and arrived at a reasonable solution based 

upon the record before it. The record simply does not support Husband’s 
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allegations that Wife failed to submit evidence supporting her counsel fee 

claim. Thus, we conclude that Husband’s third issue is without merit. 

Husband’s final issue deals with the $1,000 in attorney’s fees awarded 

to Wife in response to “Husband’s counsel’s failure to appear for his Motion 

to Continue the Support Exceptions.” T.C.O. at 9. The trial court listed this 

specific award in its opinion along with a discussion about the award of 

various other attorney’s fees imposed on Husband. Notably, the trial count 

did not provide any further discussion or reasoning related to this specific 

amount due Wife’s counsel because Husband had not raised this issue with 

any particularity in his Pa.R.A.P. 1925(b) statement. Rather, in response to 

the general attorney’s fees issue raised by Husband, the court provided its 

reasoning for its award, which we have concluded was not an abuse of 

discretion. Having failed to identify the $1,000 award in his Rule 1925(b), 

Husband cannot expect the trial court or this Court to address it; we 

conclude this issue is waived. See Pa.R.A.P. 1925(4)(ii) (stating “the 

Statement shall concisely identify each ruling or error that the appellant 

intends to challenge with sufficient detail to identify all pertinent issues for 

the judge”); Pa.R.A.P. 1925(4)(vii) (stating “[i]ssues not included in the 

Statement and/or not raised in accordance with the provisions of this 

paragraph (b)(4) are waived”). 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/24/2015