Melton v. Melton

• Decision Date: 20 August 2003
• Citation: 831 A.2d 646
• Parties: Scott MELTON, Appellant, v. Jean K. MELTON, Appellee, v. Jodene L. Berry, Appellee. Scott Melton, Appellee, v. Jean K. Melton, Appellant, v. Jodene L. Berry, Appellant. Scott Melton, Appellee, v. Jean K. Melton, Appellant, v. Jodene L. Berry, Appellee.
• Court: Pennsylvania Superior Court

831 A.2d 646

Scott MELTON, Appellant, v. Jean K. MELTON, Appellee, v. Jodene L. Berry, Appellee.

Scott Melton, Appellee, v. Jean K. Melton, Appellant, v. Jodene L. Berry, Appellant.

Scott Melton, Appellee, v. Jean K. Melton, Appellant, v. Jodene L. Berry, Appellee.

Superior Court of Pennsylvania.

Argued June 17, 2003.

Filed August 20, 2003.

Daniel H. Glasser, Pittsburgh, for Scott Melton.

Jean K. Melton, pro se.

BEFORE: HUDOCK, LALLY-GREEN, and CAVANAUGH, JJ.

OPINION BY LALLY-GREEN, J.:

¶ 1 In this equitable distribution/alimony case, Appellant, Scott Melton ("Husband"), appeals from the order dated April 29, 2002.¹ We reverse and remand.

¶ 2 Appellant and Jean K. Melton ("Wife") were married on September 20, 1980, separated on December 19, 1994, and divorced on December 10, 1996. The parties have no children. As of March 2001 (the time of the Master's hearing), Appellant was a 48-year-old attorney in private practice. Appellant is a 1/3 partner in his law firm, and has an imputed net income of $5,221.00 per month. Appellant has remarried and has three children with his second wife. Appellant and his new family live in the former marital residence (the "Gatehouse Drive property"). At the time of the Master's hearing, Wife was 47 years old and unemployed, with an imputed earning capacity of $700.00 per month.

¶ 3 The trial court summarized the procedural background to the case as follows:

On March 24, 2000, [after protracted litigation], the Court appointed Master Patricia Miller to resolve all pending economic claims of the parties including equitable distribution of marital property, Wife's claim for alimony, and Husband's claim for counsel fees. All evidence and testimony was presented to the Master over a four-day period [in March 2001], at which time Wife was represented by counsel, but she now participates in these appeals as a pro se litigant. In the master's Report, Wife was awarded 53 percent of the marital estate, and Husband 47 percent. In addition, Husband was awarded $45,000 in counsel fees from Wife for obdurate and vexatious conduct and further, Husband was awarded credits totaling $86,029 from Wife's share of the distribution. In addition, Wife was awarded alimony in the amount of $1,808 per month until she reaches the age of 62 subject to modification and possibly earlier termination as provided by applicable Pennsylvania law.² In order to effectuate the equitable distribution, the Master awarded certain assets to the parties.

Trial Court Opinion, 12/30/2002, at 1-2.

¶ 4 Both parties filed exceptions to the Master's report and recommendation. On April 29, 2002, the trial court dismissed all exceptions and adopted the Master's report in its entirety as the court's final order. This appeal followed.

¶ 5 Appellant raises nine issues on appeal:

A. Whether the trial court erred by awarding alimony where wife waived her right to alimony by failing to raise such claim prior to the entry of the divorce decree, and by permitting wife raise such claim nunc pro tunc where it had no jurisdiction or authority to consider such claim.

B. Whether the trial court erred in its determination of the duration and amount of alimony because it failed to give proper weight to the fact that wife had no barriers to becoming gainfully employed and that she could begin drawing on the retirement awarded to her at age 59½.

C. Whether the trial court erred in not giving husband all of the credits due him pursuant to the parties' March 1, 1996 agreement where Husband's right to receive the credits was unambiguously set forth in the agreement and the trial court impermissibly reformed the agreement thereby denying the husband's credits.

D. Whether the trial court erred by not giving Husband all of the credit due him pursuant to Judge Folino's April 8, 1997 order by finding that the October 14, 1997 consent order vacated such order when, in fact, by Wife's previous appeal, the October 14, 1997 order was itself vacated by this Court.

E. Whether the trial court erred by not awarding to Husband all of the attorney's fees requested where there was "absolutely no doubt" that Wife engaged in a pattern of obdurate and vexatious conduct and that such conduct "greatly increased" Husband's counsel fees.

F. Whether Wife waived her appeal rights as she failed to brief her exceptions and failed to file a concise statement of matters complained of on appeal.

G. Whether the trial court erred by valuing Husband's interest in his law firm as of the date of separation where there was no evidence of waste of the asset by Husband since separation and by the time of distribution it had precipituously [sic] declined in value, through no fault of Husband.

H. Whether the trial court erred by not subtracting from the value of the gatehouse drive property awarded to Husband the brokerage fees and other closing costs, including real estate taxes due, which will be incurred on its sale where the property was actively marketed for sale and husband unequivocally intends to sell the property.

I. Whether Wife's appellate claims pursuant to 964 WDA 2002 are moot.

Appellant's Brief at 4. We will address the relevant facts and circumstances surrounding each issue in turn.

¶ 6 First, Appellant argues that the trial court lacked jurisdiction to award alimony. The basis of this argument stems from Wife's actions (or inaction) in 1997, shortly after the parties were divorced. To understand Appellant's position, a brief history of the early divorce proceedings is necessary. On December 22, 1994, Husband filed a divorce complaint. By way of this complaint and an amended complaint, Appellant raised claims of equitable distribution and counsel fees. Wife did not file a counterclaim for alimony. On November 13, 1996, Appellant filed a Notice of Intention to Request Entry of Divorce Decree.

¶ 7 The court entered a divorce decree on December 10, 1996. The decree states that: (1) the parties are divorced; (2) "Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending"; and (3) "the court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered." Docket Entry 67 (Baer, J.). The parties then prepared for a trial on the pending economic claims.

¶ 8 Four months later, on April 3, 1997, Wife asserted a counterclaim for alimony for the first time by way of an untimely answer to the divorce complaint. Husband filed a motion to strike the alimony claim, on the ground that the court lacked jurisdiction to hear any such claim so late after the divorce decree was entered. On May 5, 1997, Wife filed a "Motion to File Counterclaims Nunc Pro Tunc/Alternatively Vacate Divorce Decree." Wife conceded that she had not filed a formal counterclaim for alimony. Wife argued, however, that the court had the equitable power to allow an alimony claim because: (1) Husband was aware that Wife would make such a claim; and (2) in many pretrial documents, Husband argued about the proper length and duration of alimony.

¶ 9 On May 1, 1997, the court granted Wife's motion to file a claim for alimony nunc pro tunc. The court's order states, in relevant part:

At all times throughout these proceedings, including during conciliations before this court, all parties were aware that Wife was making an alimony claim. Indeed, said alimony claim and its duration was [sic] a major part of the discussions at conciliation throughout this case. Accordingly, Husband is certainly not prejudiced or surprised by said claim being included as part of the issues to be litigated at the yet unscheduled trial in this matter.

Docket Entry 65 (Folino, J.).³ Similarly, the trial judge who disposed of Appellant's exceptions reasoned that allowing the alimony claim nunc pro tunc was equitable and was not an abuse of discretion. Trial Court Opinion, 12/30/1999, at 9 (Scanlon, J.).

¶ 10 On appeal, Appellant argues that the trial court lacked the power to grant a claim for alimony nunc pro tunc. We agree. Under 23 Pa.C.S.A. § 3503, "whenever a decree or judgment is granted which nullifies or absolutely terminated the bonds of matrimony, all property rights which are dependent upon the marital relation, except those which are vested rights, are terminated unless the court expressly provides otherwise in its decree. All duties, rights and claims accruing to each of the parties at any time theretofore in pursuance of the marriage shall cease, and the parties shall severally be at liberty to marry again as if they had never been married." The failure to raise a claim for alimony prior to the entry of the divorce decree renders the claim waived. Pa. R.C.P. 1920.31(c); see also, Official Comment to Pa.R.C.P. 1920.15 ("a claim for alimony must be raised before the entry of a final decree of divorce or annulment.")

¶ 11 In the instant case, the divorce decree stated that "[a]ny existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending"; and "the court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered." (emphasis added). Appellant raised a claim for equitable distribution, but Wife did not raise a counterclaim for alimony pursuant to Pa.R.C.P. 1920.15. Thus, Appellant's claim for alimony is waived. Justice v. Justice, 417 Pa.Super. 581, 612 A.2d 1354, 1357 (1992) (where husband filed divorce petition and wife failed to assert any economic claims before the final decree was entered, wife waived all economic claims, including alimony), appeal denied, 533 Pa. 635, 621 A.2d 581 (1993).

¶ 12 The question becomes whether the trial court erred by permitting Wife to assert an alimony claim nunc pro tunc. In order to consider untimely-filed economic claims, the divorce decree must be either opened or vacated. Justice, 612 A.2d at 1357....