Sales, C. v. Sales, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTINE V. SALES, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : STEPHEN R. SALES, SR., : : Appellant : No. 197 WDA 2014

Appeal from the Order Entered January 2, 2014 In the Court of Common Pleas of Allegheny County, Civil Division, at No. FD-10-08504-016.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ. MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 06, 2014

Appellant, Stephen R. Sales, Sr. (“Husband”), appeals from the final Order of the trial court which divorced Husband and Appellee, Christine V. Sales (“Wife”), from the bonds of matrimony. We affirm.

Initially, we note that Husband’s brief is not compliant with the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure. Issues are waived when they are not addressed in conformance with the rules. Moses Taylor Hospital v. White, 799 A.2d 802, 804 (Pa. Super. 2002) (citing Korn v. Epstein and DeSimone Reporting Group, 727 A.2d 1130, 1135 (Pa .Super. 1999)); Hrinkevich v. Hrinkevich, 676 A.2d 237, 241 (1996). As provided in Pa.R.A.P. 2101, appellate briefs “shall conform in all material respects with the requirements of these rules,” and failure to

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do so may result in the brief being quashed or dismissed. Id. We recognize that Husband is proceeding pro se. While this Court is willing to liberally construe materials filed by a pro se litigant, Husband is not entitled to any particular advantage because he lacks legal training. Commonwealth v. Maris, 629 A.2d 1014, 1017 n.1 (Pa. Super. 1993). Accordingly, a pro se litigant must comply with the procedural rules set forth in the Pennsylvania Rules of Court. Id.

In the instant case, the defects in Husband’s brief are substantial; Husband’s brief is rambling and often inexplicable. See Pa.R.A.P. 2119. It is difficult to evaluate whether Husband’s attempt at the statement of questions presented comports with his rambling Pa.R.A.P. 1925(b) statement. The thirty-page brief, without consideration of the pages from unidentified transcripts, motions, and court orders he has inserted, has two pages of argument consisting of mere compilations of actions he “wants” regarding a particular issue. There is no identified argument, no explanation of an issue, and no citation to applicable law or reference to the record in his “argument.” See Husband’s Brief at 27–28.

While we are inclined to quash this appeal due to the numerous defects in Husband’s brief, we have concluded that we are able to sufficiently discern some of the claims Husband seeks to raise. See Commonwealth v. Lyons, 833 A.2d 245 (Pa. Super. 2003) (holding that while pro se brief

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was defective, this Court would address issues that could reasonably be discerned).

The trial court summarized the lengthy procedural history of this case in its Pa.R.A.P. 1925(a) opinion. We will not reproduce that sixteen-page history here, but note the following. The underlying suit began on September 24, 2010, when Wife filed a complaint in divorce against Husband. The parties have two children: Stephen, who has been emancipated throughout the case, and Jessica, who is sixteen years old. Both parties initially sought custody of Jessica, who was then twelve years old. The parties ultimately shared custody of Jessica on an alternating weekly basis. It appears that Husband has filed numerous frivolous motions and pleadings that have all been denied, thereby causing Wife to incur significant costs to defend. Indeed, Wife contends that Husband’s “conduct became so egregious that on June 23, 2011 (in motion’s court) [the trial judge] awarded Wife counsel fees in the amount of $500, specifically noting it was the first time he had awarded counsel fees since being on the Family Division bench.” Wife’s Brief at 5. The trial court indicated that Husband was pro se from September 24, 2010, until November 16, 2010. He was represented by counsel from November 16, 2010, until counsel withdrew on June 23, 2011. Husband was again pro se until new counsel entered his

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appearance on October 10, 2012. That counsel withdrew on February 6, 2013.

The trial court opinion lists, in chronological order, the various motions the parties brought and their dispositions. Husband praeciped for a conciliation on equitable distribution, alimony, and counsel fees on June 11, 2012. Wife sought special relief on July 18, 2012, alleging that Husband made “unauthorized charges on Wife’s credit card and . . . withdrawals from Wife’s bank accounts.” Trial Court Opinion, 3/31/14, at 10. The trial court sanctioned Husband $500 for his actions. Following a failed conciliation on July 18, 2012, the trial court granted a one-day hearing before a Master that was eventually held on February 12, 2013.

Following the February 12, 2013 hearing, the Master issued a report and recommendation on March 19, 2013. In her report, the Master noted that Wife’s yearly income was $141,762 in 2012, and Husband’s income was $62,327 in 2012. Pursuant to a July 20, 2012 order, Wife paid Husband $1,779 in spousal and child support. Husband resided in the marital residence. The Master recommended a 60%-40% distribution of the marital estate in Husband’s favor.1 The Master also recommended that Husband pay Wife $2,000 toward Wife’s counsel fees, stating, “It is clear that discovery difficulties and frivolous motions by husband have unnecessarily

1 Husband did not make a claim for alimony.

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increased wife’s counsel fees . . . .” Master’s Report, 3/19/13, at 8. Husband filed exceptions on April 5, 2013.

Husband did not file a brief in support of his exceptions. On June 26, 2013, the trial court ordered Husband to file his brief within thirty days. Eventually, oral argument was heard on October 1, 2013. On October 3, 2013, the trial court granted the exceptions in part, holding that Husband’s PNC savings account containing $25.00 was non-marital property, and the court removed it from the marital estate. The trial court also held that Wife’s PNC ISP account had a balance at date of separation of $133,918, not $127,622, and that Husband paid $10,828 toward marital debt, not $3,360. The trial court directed that Wife was to forgo $5,414 of the marital estate to compensate Husband for his payment of this debt, and it dismissed the remaining exceptions. The trial court determined that “Wife was to make an equalization payment of $5,401 to Husband, which included a deduction of $2,000 for the counsel fees owed from Husband to Wife.” Trial Court Opinion, 3/19/13, at 14. Following more maneuverings, a divorce decree was issued on December 31, 2013, which was docketed on January 2, 2014. Husband filed a notice of appeal on January 30, 2014.2 The trial court directed the filing of a concise statement on February 4, 2014, and Husband filed his purported statement on February 24, 2014.

2 Husband filed a variety of prior notices of appeal that were quashed as interlocutory.

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Husband raises the following issues in his statement of the questions involved:

Was the February 6, 2013 order an abuse of discretion[?] Wife’s attorney intentionally states the wrong date of the hearing, in notice to [H]usband. Wife submits the requested documents at trial as her exhibits. Husband never submitted any documents to [W]ife after February 6, 2013.

Does Judge Walko abuse his authority by suspending [H]usband[’]s APL, without a petition and twenty day’s notice as required by statue[?] Judge Walko is not allowed to give [W]ife or [W]ife’s attorney legal advice; he essentially is acting as [W]ife’s legal counsel.

Does the Court abuse their discretion by using [W]ife’s student loan as a marital debt, which was paid off with marital funds (Exception 7). And saying [H]usband[’]s student loans are a voluntary debt, and discounting [H]usband[’]s loans. Both student loans were used to pay adult son’s tuition at Duquesne for the school year 2010-11.

Does the Court abuse its authority by notifying [W]ife’s attorney of a time change of a motion and not notify [H]usband[?] Husband believes since [W]ife didn’t show up for the hearing he should’ve received a default judgment and [W]ife’s motion should be vacated.

If [W]ife’s motion of October 22, 2013 is not vacated, does the Court abuse its discretion by requiring [H]usband to supply [W]ife’s attorney with mortgage information in violation of privacy laws[?] Whether [H]usband gives [W]ife’s attorney mortgage information or not, [W]ife and/or [W]ife[’s] attorney wouldn’t be able to obtain any information from the mortgage lender in any event.

Does court abuse its discretion by requiring [H]usband to refinance home before the minor child turns 18[?]

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Does court abuse its discretion, by changing the time of [W]ife's motion hearing on July 18, 2012 from 2:00 pm to 9:30 am without advising [H]usband, but advising [W]ife's attorney[?]

Order of Court July 18, 2012 does court abuse its discretion by allowing [W]ife and [W]ife’s attorney to present false testimony and require [H]usband to pay attorney fees[?]

Order of Court June 23, 2011, does [c]ourt abuse its discretion by allowing [W]ife’s attorney to present false testimony and require [H]usband to pay attorney fees[?]

False testimony, false swearing, changing of times of court hearing without notice to [H]usband, and disposing of [H]usband[’]s motions prior to a hearing. Husband believes these issues have unfairly burdened him and thinks collectively these issues warrant a new trial.

Husband’s Brief at 2–3.

In reviewing equitable distribution orders, our standard of review is limited. We have stated:

It is well established that absent an abuse of discretion on the part of the trial court, we will not reverse an award of equitable distribution. In addition, when reviewing the record of the proceedings, we are guided by the fact that trial courts have broad equitable powers to effectuate economic justice and we will find an abuse of discretion only if the trial court misapplied the laws or failed to follow proper legal procedures. Further, the finder of fact is free to believe all, part, or none of the evidence and the Superior Court will not disturb the credibility determinations of the court below.

In addition,

We do not evaluate the propriety of the distribution order upon our agreement with the court’s actions nor do we find a basis for reversal in the court’s application of a single factor. Rather, we look at the distribution as a whole, in light of the court’s overall application of the 23 Pa.C.S.A. § 3502(a) factors for

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consideration in awarding equitable distribution. If we fail to find an abuse of discretion, the order must stand.

Lee v. Lee, 978 A.2d 380, 383–384 (Pa. Super. 2009) (citing Trembach v. Trembach, 615 A.2d 33, 36 (1992), and Anzalone v. Anzalone, 835 A.2d 773, 780 (Pa. Super. 2003)).

As to Husband’s issues regarding payment of counsel fees, we note the trial court imposed fees pursuant to 42 Pa.C.S. § 2503,3 which provides as follows:

§ 2503. Right of participants to receive counsel fees

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:

• • * *

(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.

We have stated:

Section 2503(7) is a statutory provision enabling a participant to receive reasonable counsel fees when another participant engages in dilatory, obdurate or vexatious conduct during the pendency of a matter. In re Estate of Liscio, 432 Pa.Super. 440, 638 A.2d 1019 (1994). . . . Moreover, “it is well-settled that this Court will not reverse the trial court on its decision to award counsel fees absent an abuse of discretion.” O’Connell v. O’Connell, 409 Pa.Super. 25, 597 A.2d 643, 647 (1991) (citation omitted).

3 The trial court mistakenly identified the section number as 2503 (8) rather than (7), but it quoted the correct language.

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Bonds v. Bonds, 689 A.2d 275, 279–280 (Pa. Super. 1997). See Kulp v. Hrivnak, 765 A.2d 796, 800 (Pa. Super. 2000) (trial court award of attorneys’ fees affirmed where lower court found the appellants’ conduct dilatory, obdurate, and vexatious). Cf. Busse v. Busse, 921 A.2d 1248, 1258 (Pa. Super. 2007) (no abuse of discretion for award of counsel fees where the husband prolonged the already extensive litigation, he was not forthcoming with information the wife requested, and the wife incurred counsel fees as a result of the husband’s conduct).

Finally, regarding Husband’s issues involving the award of alimony pendent lite, we have stated:

We review APL awards under an abuse of discretion standard. Haentjens v. Haentjens, 860 A.2d 1056, 1062 (Pa. Super. 2004). APL is “an order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding.” 23 Pa.C.S.A. § 3103. APL “is designed to help the dependent spouse maintain the standard of living enjoyed while living with the independent spouse.” Litmans v. Litmans, 449 Pa. Super. 209, 673 A.2d 382, 389 (1996). Also, and perhaps more importantly, “APL is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets which are the financial sinews of domestic warfare.” Id. at 388. APL is thus not dependent on the status of the party as being a spouse or being remarried but is based, rather, on the state of the litigation. DeMasi v. DeMasi, 408 Pa. Super. 414, 597 A.2d 101, 104–105 (1991). . . . “APL focuses on the ability of the individual who receives the APL during the course of the litigation to defend her/himself, and the only issue is whether the amount is reasonable for the purpose, which turns on the economic resources available to the spouse.” Haentjens, at 1062; see also DeMasi, at 105.

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Childress v. Bogosian, 12 A.3d 448, 463 (Pa. Super. 2011).

In reference to the issues that can be gleaned from Husband’s brief, we have completely reviewed the record, including the notes of testimony from the February 12, 2013 hearing, and considered the arguments of the parties in light of the applicable law. We conclude that the issues that are preserved for review and adequately explained in Husband’s brief are aptly addressed in the trial court’s thorough opinion filed on March 31, 2014. We affirm on the basis of the trial court’s opinion and direct the parties to attach it in the event of further review.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/6/2014

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