McCoy v. McCoy

Citation888 A.2d 906
PartiesKathy McCOY, Appellee v. Gary Lee McCOY, Appellant.
Decision Date13 December 2005
CourtUnited States State Supreme Court of Pennsylvania

Theresa B. Male, Harrisburg, for appellant.

Patricia J. Romano, Harrisburg, for appellee.

Before: KLEIN, BENDER and BOWES, JJ.

BENDER, J.

¶ 1 Gary Lee McCoy (Husband) appeals from the order entered January 31, 2005, providing for the equitable distribution of the marital property of Husband and Kathy McCoy (Wife) and awarding counsel fees to Wife. Husband claims that the trial court erred in awarding the sum of $5,000 to Wife toward the payment of her counsel fees and in affirming the master's determination as to the separation date of the parties. We affirm.

¶ 2 Initially, we note that Husband and Wife were married on January 4, 1986. The marriage, the first for both parties, produced three children who were born in 1986, 1988 and 1992. One child lives with Mother, one with Father, and the parties share custody of the third child on an alternating weekly basis. Husband earns approximately $63,000 as a teacher, and Wife earns about $15,000 as a psychiatric aide.

¶ 3 The trial court set forth the history of this case as follows:

On November 20, 2002, [Wife] filed a complaint in divorce against [Husband]. [Husband] then filed a petition on June 30, 2003, raising claims for equitable distribution, counsel fees, costs and expenses, and a special relief application for exclusive use and possession of the marital residence. On October 31, 2003, [Husband] filed a motion for appointment of a divorce master, which this court granted in an order of November 4, 2003. On November 14, 2003, [Wife] filed an amended complaint, including claims for equitable distribution, alimony, alimony pendente lite, and counsel fees and costs.

On January 27, 2004, [Husband] filed an amended special relief application requesting that the court award [Husband] the marital residence as an advance on equitable distribution. Following evidentiary hearings on February 23 and 27, 2004, this court entered an order awarding the marital residence to [Husband], and directing [Husband] to pay [Wife] $50,000 in cash and to transfer to [Wife] $25,000 from certain retirement accounts in [Husband's] name. The master's hearing was held on March 2, 3 and 8, 2004, before Hearing Master George Porter. On March 19, 2004, the master issued his report and recommendation to which both parties filed exceptions. The court denied the exceptions, except for one raised by [Husband] regarding the value of a car awarded to [Wife]. On January 31, 2005, this court adopted the master's recommendations, with the exception of the value of the car, and entered a divorce decree and distribution order.

Trial Court Opinion (T.C.O.), 4/26/05, at 1-2.

¶ 4 In light of the fact that the court adopted the master's recommendations, we note that the master found that the total marital assets equaled $409,646 and, after considering the relevant factors to be applied to the division of marital property and deducting for marital debt, he essentially recommended a 50-50 split of the assets. The master also recommended that Wife receive $500 per month in alimony payments for a 15-month period and that Husband should pay $5,000 toward Wife's attorney's fees.

¶ 5 From the January 31, 2005 decree and distribution order, Husband filed the instant appeal, raising two issues for our review:

Did the trial court abuse its discretion by directing Husband to pay $5,000 of Wife's counsel fees?

Did the trial court abuse its discretion by finding that the parties separated on the day Wife filed her divorce complaint when the evidence established that the parties had separated nearly six years prior to that date?

Husband's brief at 7.

¶ 6 Our role in reviewing equitable distribution awards is well-settled.

"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 (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 (1990), appeal denied, 527 Pa. 603, 589 A.2d 693 (1991).

Mercatell v. Mercatell, 854 A.2d 609, 612 (Pa.Super.2004).

¶ 7 Husband's first argument centers on the award of counsel fees in the amount of $5,000 to Wife. He contends that "the master provided no analysis of the facts, and no discussion of the applicable caselaw" and that the trial court "did not articulate a basis for its agreement with the master." Husband's brief at 14. With regard to this issue, the trial court stated:

In the instant case, [Husband] has an annual income of approximately $63,000.00. [Wife] earns approximately $15,000.00 per year. There is a great disparity between [Wife's] and [Husband's] income[s], therefore, in order to maintain or defend against an action for divorce, [Wife], who was financially dependent on [Husband] for support, clearly needs financial assistance.

[Husband] argues that [Wife] has $50,000.00 in cash that [Wife] received in advance of equitable distribution of the marital assets pursuant to an order of this court, dated February 27, 2004, that [Wife] should use to pay counsel fees.

[Wife] received the $50,000.00 in advance of equitable distribution of the marital assets, when [Husband] received exclusive possession of the marital residence. Therefore, [Wife] must use the $50,000.00 to purchase a place for her and her children to live, and this court properly awarded [Wife] counsel fees.

T.C.O. at 3-4 (citations omitted).

¶ 8 To support his contentions that the trial court abused its discretion, Husband quotes this Court's opinion in Teodorski v. Teodorski, 857 A.2d 194 (Pa.Super.2004), wherein we stated that:

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.

Id. at 201 (quoting Anzalone v. Anzalone, 835 A.2d 773, 785-86 (Pa.Super.2003)).

¶ 9 First, Husband asserts that Wife's documentation and testimony concerning the amount of counsel fees fails to "describe the activity, the amount of time spent on the particular activity, or any basis on which to assess the reasonableness of the claimed fees. There simply is no identification of the services performed." Husband's brief at 17. Husband relies on Litmans v. Litmans, 449 Pa.Super. 209, 673 A.2d 382 (1996), and Anzalone, cases in which this Court affirmed the denial of requests for counsel fees because of a failure to document both the amount of fees and the services performed for those fees.

¶ 10 Second, Husband contends that Wife's award in the equitable distribution of the marital property militates against an award of attorney's fees, particularly because Wife did not demonstrate actual need. Although Husband acknowledged that the marital estate had no liquid assets available for distribution, he argues that Wife received the $50,000 in exchange for Husband's receipt of the marital residence and, therefore, she could have used part of that sum to pay her counsel fees.

¶ 11 Relying on Fitzpatrick v. Fitzpatrick, 377 Pa.Super. 268, 547 A.2d 362 (1988), and Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985), Husband also argues that Wife's financial resources were not considered. These two cases stand for the proposition that the "receipt of a large amount of cash [in connection with equitable distribution] vitiates what would otherwise constitute need...." Fitzpatrick, 547 A.2d at 369. Therefore, Husband contends that since Wife received $50,000 in cash, some of that sum could pay counsel fees without her incurring any debt. Cf. Plitka v. Plitka, 714 A.2d 1067 (Pa.Super.1998) (affirming the award of counsel fees because dependent spouse was not in a position to pay these fees without incurring additional debt). As part of this argument, Husband also points out that Wife has chosen to work part-time at Hershey Medical Center as an aide, rather than work as a substitute teacher, a job that would bring in a larger income. Concomitantly, Husband argues that his inability to pay was not considered in that he incurred credit card debt to pay his attorney, he assumed all liabilities in connection with the marital home, including the borrowing of the $50,000 to make that payment to Wife, and he must pay alimony to Wife for 15 months.

¶ 12 We disagree with Husband's position with regard to his reliance on Litmans and Anzalone. Both cases are distinguishable in that neither record in those cases contained any documentation as to the amount of fees, while here Wife's documentation contains a running tally of her attorney's charges for services rendered. However, as noted by Husband, the record does not contain any notation as to whether the charges were for phone calls, reviewing documents or preparing for a hearing, etc., a practice that we do not condone. However, recognizing that there are no assertions by either party that the other party undertook practices that prolonged the litigation in this matter, as appeared to be the situation in Fitzpatrick, we conclude that the numerous hearings held before the trial court evidences knowledge on the part of the court as to the reasonableness of the charges.

¶ 13 In addition to the factors set forth above in Teodors...

To continue reading

Request your trial
21 cases
  • Smith v. Smith
    • United States
    • Superior Court of Pennsylvania
    • 14 Julio 2006
    ......An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.         McCoy v. McCoy, 888 A.2d 906, 908 (Pa.Super.2005) (internal quotations omitted). When reviewing an award of equitable distribution, "we measure the ......
  • Busse v. Busse
    • United States
    • Superior Court of Pennsylvania
    • 11 Abril 2007
    .......          Smith v. Smith, 904 A.2d 15, 18 (Pa.Super.2006), quoting McCoy v. McCoy, 888 A.2d 906, 908 (Pa.Super.2005). .         ¶ 30 Upon review, we find the following: Husband lacked evidence to prove that he ......
  • Cook v. Cook
    • United States
    • Superior Court of Pennsylvania
    • 4 Mayo 2018
    ...... Smith v. Smith , 904 A.2d 15, 18 (Pa. Super. 2006) (quoting McCoy v. McCoy , 888 A.2d 906, 908 (Pa. Super. 2005) ). As we previously observed, in the context of an equitable distribution of marital property, a ......
  • Yuhas v. Yuhas
    • United States
    • Superior Court of Pennsylvania
    • 28 Octubre 2013
    ......An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.McCoy v. McCoy, 888 A.2d 906, 908 (Pa.Super.2005) (citations omitted). Moreover, it is within the province of the trial court to weigh the evidence and ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT