Goforth, M. v. Goforth, J.

• Court: Superior Court of Pennsylvania
• Decided: April 21, 2025
• Docket: 700 WDA 2024
• Status: Unpublished

Opinion

J-A02038-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MCKENZIE M. GOFORTH : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JASON E. GOFORTH : : Appellant : No. 700 WDA 2024

Appeal from the Order Entered May 20, 2024 In the Court of Common Pleas of Fayette County Civil Division at No(s): 1402 of 2018 GD

BEFORE: KUNSELMAN, J., MURRAY, J., and BECK, J.

MEMORANDUM BY BECK, J.: FILED: April 21, 2025

Jason E. Goforth (“Goforth”) appeals from the order entered by the

Fayette County Court of Common Pleas (“trial court”), directing the release of

proceeds from the sale of his former marital home to Paul Mongell (“Mongell”)

and Huntington National Bank (“Huntington”), and denying a petition for

special relief for attorney’s fees filed by Goforth’s attorney, Kevin Henderson

(“Henderson”). Upon review, we affirm.

Goforth was married to McKenzie M. Goforth (“McKenzie”) and together

they owned a residence in Connellsville, Pennsylvania. They held the property

as tenants by the entireties during the marriage. On July 5, 2018, McKenzie

filed a complaint in divorce. On July 2, 2020, Goforth and McKenzie entered

into a marital settlement agreement, which, in part, directed the parties to list

the marital residence for sale and stated that McKenzie would receive sixty J-A02038-25

percent of the net proceeds and Goforth would receive forty percent of the net

proceeds. Relevantly, the settlement agreement specified that each party

would pay their own respective attorneys’ fees. On August 19, 2020, the trial

court entered a divorce decree and incorporated the marital settlement

agreement. That same day, Goforth and McKenzie entered a sale of real

estate to sell the marital property for $165,000.

On November 24, 2020, McKenzie filed a petition for special relief after

a title company discovered liens filed by Huntington and Mongell against

Goforth, which had not been previously disclosed during the divorce

proceedings.1 McKenzie requested the trial court permit the sale of the marital

residence and hold Goforth’s portion of the proceeds in escrow. On December

7, 2020, the trial court entered an order permitting the sale of the property

and directed the forty percent of net proceeds distributable to Goforth be held

in the escrow account by his attorney, Henderson, until further order of court

to determine the priority of liens. Separately, Huntington and Mongell

consented to the sale of the marital property, free and clear of the liens. As

a result, the property was sold on December 17, 2020. Huntington and

Mongell settled the priority of their liens agreeing that Huntington would

____________________________________________

1 In April 2019, Mongell obtained judgment against Goforth for approximately

$525,000, and in September 2019, Huntington recorded judgment against Goforth for approximately $150,000 on a commercial loan.

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receive twenty-five percent and Mongell would receive seventy-five percent of

Goforth’s net proceeds.

On December 30, 2020, Huntington and Mongell jointly filed a petition

for rule to show cause why the proceeds should not be distributed to them as

partial payments for their respective liens. Goforth filed a response.

Separately, on January 29, 2021, Henderson filed a petition for special relief

for attorney’s fees, alleging that he and Goforth had entered into a written

retainer agreement for his representation. Henderson argued his attorney

fees should have priority for the proceeds from the sale of the property over

the third-party lienholders. On July 19, 2022, the trial court denied

Henderson’s petition for special relief for attorney’s fees, finding the

contractual obligation to pay fees did not subvert the recorded liens. The trial

court further directed that the net proceeds from the sale of the property be

distributed to Huntington and Mongell in accordance with their agreement.

Following Goforth’s appeal, this Court vacated the trial court’s order and

remanded for further proceedings. See Goforth v. Goforth, 299 A.3d 926

(Pa. Super. May 24, 2023) (non-precedential decision). Specifically, this Court

concluded that the trial court did not adequately explain its decision, noting

no findings of fact or conclusions of law were included in the decision, nor did

the court address Goforth’s issues. Id. at *3. This Court remanded for the

trial court to detail its rationale for its decision. Id. Further, we noted there

was a potential attorney-client conflict of interest, as Goforth’s fee agreement

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with Henderson, included in the marital settlement agreement, appeared to

be adverse to Henderson’s petition for special relief for attorney’s fees. Id. at

*4. This Court stated that when Henderson became aware that Goforth did

not have funds to make any payments, his interest in securing payment for

his representation may have eclipsed his loyalty to Goforth. Id. Thus, we

remanded to determine the question of the potential conflict of interest; if

there was no conflict, the trial court could re-enter the order and provide a

detailed opinion that included its reasoning. Id.

On October 24, 2023, Goforth filed a petition for special relief, arguing

that pursuant to 41 P.S. § 407, if he is the prevailing party, he would be

entitled to recover attorney’s fees and costs. The trial court held a hearing on

October 31, 2023, at which Goforth testified. Ultimately, on May 20, 2024,

the trial court denied the petition for special relief and directed the release of

proceeds from his share of the sale of the marital residence to be paid to

Mongell and Huntington in accordance with their previous agreement.

Further, the trial court found that Goforth waived any conflict of interest with

Henderson. Goforth timely appealed.

On appeal, Goforth raises the following questions for our review:

I. Whether the [trial] court committed an error of law and or an abuse of discretion by ordering the proceeds of the sale of the marital residence to be remitted to the creditors instead of [Goforth] because the [trial] court failed to take into account that it held the property of the parties in custodia legis over the proceeds of the sale of the marital home held as tenants by the entireties where the divorce proceedings began before the third-party creditor liens

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against only one spouse were filed, the divorce proceedings were pending and distribution of the proceeds of the sale of the marital home were in furtherance of the parties’ equitable distribution of the marital property pursuant to the parties’ marital settlement agreement?

II. Whether the [trial] court committed an error of law and or an abuse of discretion by failing to take into account that parties which were married at the time they entered into a marital settlement agreement were free to dispose of entireties properties pursuant to a marital settlement agreement without implicating the rights of third-party creditors of only one spouse?

III. Whether the [trial] court committed an error of law and or an abuse of discretion by failing to take into account the lower court rendered its order in a divorce case and failed to take into account the economic injustice that would result by awarding the proceeds of the sale of the marital home to third party creditors?

IV. Whether the [trial] court committed an error of law and or an abuse of discretion by failing to take into account that that the third-party creditors only have confessions of judgments against the appellant, that the third-party creditors did not comply with 41 P.S. § 407 and that [] Mongell’s Confession of Judgment was not revived?

V. Whether the [trial] court committed an error of law and or an abuse of discretion by erroneously concluding that the parties to the divorce action and the third-party creditors agreed to the language in the Petition for Special Relief filed by McKenzie [] as it is clear from the record that the parties “through extensive negotiation” agreed to “the new form of the Order,” not the Motion?

VI. Whether the [trial] court committed an error of law and or an abuse of discretion by denying [Goforth’s] Attorney’s Petition for Special Relief: Counsel Fees where [Goforth] had a contractual obligation to pay his attorney fees, [Goforth] granted his attorney an equitable lien against the gross proceeds of the sale of his marital residence long before the third-party creditor judgments ever existed, [Goforth] agreed to pay attorney fees as a gross cost of the sale of his

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property before receiving the net proceeds from the sale of his property, the contractual obligation was entered into before the lienholder’s judgments existed, the lienholders agreed in a subsequent order to take only the net proceeds of the sale and the lienholders benefited from [Goforth’s] Attorney’s work?

Goforth’s Brief at 3-5.

This Court reviews an order denying a petition for special relief for an

abuse of discretion. Johnson v. Johnson, 864 A.2d 1224, 1229 (Pa. Super.

2004). “[W]e may find an abuse of discretion only on clear and convincing

evidence that the trial court misapplied the law or overrode it or that the

judgment reached was manifestly unreasonable, or based on bias, ill-will, or

partiality.” Id.

In Custodia Legis

In his first claim, Goforth contends that the trial court held the marital

property in custodia legis,2 and abused its discretion by remitting the proceeds

of the sale of the property to his creditors. Goforth’s Brief at 18-30. Goforth

highlights that the marital settlement agreement, which made him

contractually bound to list the property for sale, was incorporated into the

divorce decree, and thus a part of the divorce proceeding. Id. at 18-19, 22-

23. He notes that a property subject to a divorce proceeding is in custodia

2 In custodia legis means “[i]n the custody of the law … . The phrase is traditionally used in reference to property taken into the court’s charge during pending litigation over it. — Also termed in legal custody.” BLACK’S LAW DICTIONARY (12th ed. 2024) (emphasis omitted).

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legis, under the control of the trial court, and cannot be subject to attachment.

Id. at 22, 24, 25, 27, 33. According to Goforth, the entry of the divorce

decree did not terminate the divorce proceedings, noting that the trial court

maintains jurisdiction of the matter to enforce the terms of the marital

settlement agreement and decide any petitions for special relief. Id. at 25-

28, 29-30, 33. He maintains the trial court held the property in custodia legis

until the agreed-upon distribution of proceeds were given to the parties. Id.

at 28. Because the divorce proceedings were ongoing at the time the creditors

filed liens against him, and Goforth and McKenzie owned the property as

tenants by the entireties, he asserts that the proceeds of the sale of the

property after the divorce should have been provided directly to him. Id. at

18-19, 23, 24; see also id. at 36-38 (noting that the trial court’s finding that

the marital property was held by the parties as tenants in common was an

error of law). Goforth further argues that the trial court’s emphasis on

McKenzie’s lack of knowledge of the liens was an abuse of discretion, as the

parties were not required to disclose any debts under the settlement

agreement and it is irrelevant to the determination of whether custodia legis

applies. Id. at 33-36. In support of his argument, he contends the instant

case is analogous to Klebach v. Mellon Bank, N.A., 565 A.2d 448 (Pa.

Super. 1989). Goforth’s Brief at 22, 23-25.

In custodia legis is a common law doctrine that exempts from execution,

garnishment, or attachment funds or property in the hands of an officer of the

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court. Fid. Bank v. Carroll, 610 A.2d 481, 483 (Pa. Super. 1992); see also

ISN Bank v. Rajaratnam, 83 A.3d 170, 174 (Pa. Super. 2013) (noting that

“if only one spouse is a debtor, entireties property is immune from process,

petition, levy, execution or sale”).3 When a party initiates a divorce action,

all marital property is placed under the jurisdiction of the trial court. Carroll,

610 A.2d at 483. “As such, the property [is] in custodia legis, or under

wardship of the court, pending the outcome of the divorce proceeding.” Id.

Property in custodia legis is not subject to attachment until “parties to

the action complied with the order of the lower court.” Klebach, 565 A.2d at

452. However, the doctrine is limited to those circumstances which would

allow trial courts to address the parties’ marital interests; public policy

encourages free alienation of property. See Mid–State Bank & Trust Co.

v. Globalnet International, Inc., 735 A.2d 79, 84 (Pa. 1999).

Here, pursuant to the marital settlement agreement, Goforth and

McKenzie agreed to sell the marital home, which was held as tenants by

entireties during the marriage. Marital Settlement Agreement, 7/2/2020, at

3-4. Under the agreement, “[t]he net proceeds of sale, less the mortgage

payoff, transfer taxes and other costs of sale, shall be divided by allocating

forty percent (40%) to [Goforth] and sixty percent (60%) to Wife.” Id. at 4.

3 Unlike the facts in this case, “a judgment creditor may execute on entireties

property to enforce his judgment if both spouses are joint debtors.” Rajaratnam, 83 A.3d at 174.

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The trial court entered a divorce decree on August 19, 2020, wherein it

incorporated the marital settlement agreement. Divorce Decree, 8/19/2020.

Subsequently, the parties sold the marital property for $175,000.

The trial court explained that it no longer held the net proceeds of the

sale of the marital property in custodia legis:

The [trial c]ourt directed the sale of the marital property and does not continue to hold title to the property in the divorce proceedings. At issue now are the proceeds of the sale, not the title. The [trial c]ourt finds dispositive that during the divorce proceedings[,] [] Goforth did not disclose the confessions of judgment, which were filed of record and served upon him, particularly when he executed the marital settlement agreement. Any allegation that he did not know of the judgments is dubious as service was properly made, by mail in the Huntington National Bank action and in person by the Sheriff with [] Mongell. … As such, this cause of action fails as we decline to assert [in] custodia legis of the marital property.

Trial Court Opinion, 5/20/2024, at 11 (some capitalization and emphasis

omitted).

We find the trial court did not abuse its discretion. Upon the entry of

the divorce decree, the marital property became a tenancy in common, as

each party retained an interest in the property. See 23 Pa.C.S. § 3507(a)

(“Whenever married persons holding property as tenants by entireties are

divorced, they shall, except as otherwise provided by an order made under

this chapter, thereafter hold the property as tenants in common of equal one-

half shares in value[.]”); Jawork v. Jawork, 548 A.2d 290, 292-93 (Pa.

Super. 1988) (noting the entry of a divorce decree severs the parties’ tenancy

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by the entirety and creates a tenancy in common). Following divorce

proceedings, a tenancy in common is subject to the satisfaction of liens held

against either party to the tenancy. See Frantz v. Frantz, 972 A.2d 525,

528 (Pa. Super. 2009) (stating “a judgment creditor may obtain a lien against

property held by tenants in common even where the lien arises from a

judgment against only one of the multiple tenants”). Therefore, because

Mongell and Huntington held record liens against Goforth on the date of

divorce, their interests attached to Goforth’s portion of the marital property

when the divorce decree was entered as the marital property became a

tenancy in common. See Weaver v. Weaver, 605 A.2d 410, 411-12 (Pa.

Super. 1992) (en banc) (concluding that creditor of husband which entered

judgment against husband was entitled to share of husband’s interest in the

property following divorce); see also Keystone Savings Assoc. v. Kitsock,

633 A.2d 165, 168 (Pa. Super. 1993) (finding that creditor only succeeded to

whatever interest husband acquired in the marital property at the time of

equitable distribution).

Property held in custodia legis is only held until the trial court addresses

marital interests. See Mid-State, 735 A.2d at 84 (rejecting appellant’s

argument that property deeded to an ex-spouse pursuant to an equitable

distribution order remained in custodia legis until it was actually paid for

pursuant to a fifteen–year installment arrangement). “Protection of the rule

of custodi[a] legis is removed when the purpose for which the property is held

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has been achieved.” Weicht v. Auto. Banking Corp., 47 A.2d 705, 706 (Pa.

1946). It does not, as Goforth advocates, allow an ex-spouse to shelter the

property beyond the date of the sale of the property pursuant to the equitable

distribution agreed to by the parties. In this case, the divorce decree had

been entered, the property in question had been sold, and the money in

question was no longer in the custody of the court. Therefore, property was

not held in custodia legis.

We find Goforth’s reliance on Klebach to be misplaced. In Klebach, a

husband and wife, who owned realty by the entireties, were involved in divorce

proceedings. Klebach, 565 A.2d at 449. During this time, a creditor obtained

a judgment solely against the husband. Id. Prior to the entry of the divorce

decree, husband and wife entered into an agreement wherein husband

conveyed his interest in the property to the wife. Id. After the entree of the

divorce decree, which directed husband to convey his interest to wife, the

parties executed a deed conveying the property to wife. Id. Wife filed an

action to quiet title the property to remove any liens. Id. The trial court

found the creditor had no lien on the property because the property was under

the court’s jurisdiction during the divorce proceedings. Id. at 448-49. This

Court affirmed, noting the property was held in custodia legis until the parties

complied with the court’s order—the order to convey the property—and was

not subject to attachment by lien. Id. at 452.

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In Klebach, the entire marital property was conveyed to wife and

husband held no further interest in the property. See id. at 450 (noting “[a]t

the time the agreement was concluded …, [husband] held no separate interest

in the marital residence to which [the] lien could attach.”). As such, no

tenancy in common for the real estate was created. Contrarily, as noted

above, under the marital settlement agreement, Goforth retained a forty

percent interest in the marital property, making Goforth and McKenzie tenants

in common, and Goforth’s portion of the proceeds was not immune from

creditors. See 23 Pa.C.S. § 3507(a); Frantz, 972 A.2d at 528. Accordingly,

Goforth’s reliance on Klebach is misplaced, and the in custodia legis doctrine

is not applicable under these facts.

Marital Settlement Agreement

In his second claim, Goforth contends that the trial court abused its

discretion by failing to consider that the parties were married when they

entered into the marital settlement agreement. Goforth’s Brief at 38.

According to Goforth, the parties were free to dispose of the property pursuant

to the agreement without implicating third-party creditors, as the property

was owned as tenants by the entireties. Id. at 38, 41. He claims that under

the agreement, the parties agreed to sell the marital residence, evidencing a

joint act which did not have to be performed at the time of the entry of the

divorce decree, but instead was a binding contract between them. Id. at 40.

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In so arguing, Goforth ignores that following the entry of a divorce

decree, a tenancy by the entireties property is converted to a tenancy in

common property. See 23 Pa.C.S. § 3507(a). Furthermore, such property

owned as tenants in common is not immune from creditors of one of the

owners. See Frantz, 972 A.2d at 528. Goforth does not cite any order by

the trial court (or even a provision in the marital settlement agreement)

dictating that this property was to remain as a tenancy by the entireties until

the property was sold. Nor does he cite, let alone discuss, section 3507 of the

Divorce Code. He makes much of the fact the parties agreed to sell the

property after the entry of the divorce decree, but fails to establish that this

somehow delayed or limited the destruction of the entireties, converting the

joint ownership into a tenancy in common.

Because Goforth owned the property in question as a tenant in common

with McKenzie as of the date of the entry of the divorce decree, the third-party

liens attached to his interest at that time. See Weaver, 605 A.2d at 411-12;

see also Frantz, 972 A.2d at 528. We therefore conclude that Goforth’s claim

is without merit.

Economic Injustice

In Goforth’s third claim, he argues the trial court failed to account for

the economic injustice that would result from awarding the proceeds of the

sale of the marital property to the creditors. Goforth’s Brief at 41. Goforth

claims that he bargained for consideration of forty percent of the sale of the

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marital property, and providing such proceeds to his creditors would deprive

him of the agreed-upon contractual provisions under the marital settlement

agreement, creating an economic injustice. Id. at 41-43. Goforth asserts

that he did not bargain for the partial payment of liens as part of the marital

settlement agreement. Id. at 44.

In so arguing, Goforth relies upon section 3102(a)(6) of the Divorce

Code, which provides:

The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is the policy of the Commonwealth to … [e]ffectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.

23 Pa.C.S. § 3102(a)(6); see also Gorforth’s Brief at 42, 44. In his view, this

supports his claim that the proceeds due to him under the sale of the marital

property should not go to his creditors. See Goforth’s Brief at 42, 44. Because

the marital settlement agreement was incorporated into the divorce decree,

he contends that it would be inequitable for him not to receive what he

bargained for under the agreement. Id.

Goforth makes no connection between section 3102(a)(6) of the Divorce

Code and the propriety of allowing third-party liens to attach to property held

by the debtor spouse. He cites no case law, statute, or rule of court that

provides any interplay whatsoever between the economic justice requirement

regarding divorcing parties under the Divorce Code and the rights and duties

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of judgment creditors. See Banfield v. Cortés, 110 A.3d 155, 168 n.11 (Pa.

2015) (noting that where appellate brief “fails to develop the issue in any

other meaningful fashion capable of review, that claim is waived. It is not the

obligation of an appellate court to formulate [an] appellant’s arguments for

him.”). Moreover, as the trial court observed, “Henderson argued throughout

that [] Goforth is getting no benefit from his marital settlement agreement

bargain. Contrary, Goforth is receiving the benefit of money that he owes

being paid to his creditors of record on valid liens.” Trial Court Opinion,

5/20/2024, at 11.

Based upon Goforth’s bald argument, we cannot conclude that the trial

court committed any error of law or abuse of discretion. See 42 Pa.C.S.

§ 4303(a) (stating “[a]ny judgment or other order of a court of common pleas

for the payment of money shall be a lien upon real property”).

Compliance with 41 P.S. § 407

In his fourth claim, Goforth argues that the trial court failed to account

for the fact that the third-party creditors only have confessions of judgment

entered against Goforth and did not comply with 41 P.S. § 407. Goforth’s

Brief at 45-46. According to Goforth, section 407 applies to all confession of

judgment proceedings involving residential real property. Id. at 46. Goforth

notes that Mongell attempted to garnish his account, which establishes

execution on the judgment. Id. at 47. Goforth claims that neither creditor

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obtained a judgment against him in accordance with section 407; thus, their

liens did not attach to his portion of the marital property. Id. at 47-48.

Section 407 states the following:

(a) As to any residential real property, a plaintiff shall not have the right to levy, execute or garnish on the basis of any judgment or decree on confession, whether by amicable action or otherwise, or on a note, bond or other instrument in writing confessing judgment until plaintiff, utilizing such procedures as may be provided in the Pennsylvania Rules of Civil Procedure, files an appropriate action and proceeds to judgment or decree against defendant as in any original action. The judgment by confession shall be changed as may be appropriate by a judgment, order or decree entered by the court in the action. After the above mentioned original action has been prosecuted and a judgment obtained, that judgment shall merge with the confessed judgment and the confessed judgment shall be conformed as to amount and execution shall be had on the confessed judgment. The parties to the action shall have the same rights as parties to other original proceedings. Nothing in this act shall prohibit a residential mortgage lender from proceeding by action in mortgage foreclosure in lieu of judgment by confession if the residential mortgage lender so desires.

(b) Any debtor who prevails in any action to remove, suspend or enforce a judgment entered by confession shall be entitled to recover reasonable attorney’s fees and costs as determined by the court.

(c) Hereafter when any plaintiff has received payment in full for any judgment entered by confession he shall order the record in the proceeding marked satisfied within thirty days of the receipt thereof, and shall not require any action on the part of the defendant or any payment by him to cover the cost of satisfying the judgment.

41 P.S. § 407.

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The plain language of the statute “presupposes the existence of a

judgment or decree on confession” … before the second step of levying,

executing or garnishing occurs.” Higgins v. Pavidis, 839 A.2d 445, 447 (Pa.

Super. 2003) (citation, brackets, and quotation marks omitted). The purpose

of the statute is “to protect residential real estate owners from execution upon

their property pursuant to arbitrary and capricious actions of creditors by

confession of judgment.” Drum v. Leta, 512 A.2d 36, 38 (Pa. Super. 1986).

Importantly, the mere act of confessing a judgment without taking steps to

levy or execute on the judgment does not violate section 407(a). Higgins,

839 A.2d at 447 (“[A]n elementary reading of the statute would suggest that

the protections of the act apply to the attempted execution.”).

The record reflects that by the time of the entry of the divorce decree

on August 19, 2020, Mongell and Huntington had obtained judgments against

Goforth. Judgment (Huntington), 9/16/2019 (confessing judgment in favor of

Huntington in the amount of $150,368.07); Judgment (Goforth), 4/18/2019

(confessing judgment in favor of Mongell in the amount of $521,652.47); see

also N.T., 2/8/2021, at 5, 42 (wherein Henderson has no objection to the

judgments entered against Goforth). Upon the entry of the divorce decree,

Goforth and McKenzie owned the marital property as tenants in common. See

23 Pa.C.S. § 3507(a). At this point, the third-party creditors’ 2019 judgments

attached to Goforth’s interest in property. See generally Frantz, 972 A.2d

at 528. Importantly, the property was sold and Mongell and Huntington were

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entitled to Goforth’s portion of the net proceeds of the sale. Neither Mongell

nor Huntington took any action to levy, execute, or garnish on the residential

property. 41 P.S. § 407(a). As there is no further action seeking execution

on the judgments, section 407 is inapplicable. See Higgins, 839 A.2d at 447

(concluding that because party had only confessed the judgment but had not

commenced execution proceedings, section 407(a) was inapplicable). Thus,

Goforth’s claim is without merit.4

Erroneous Statements in Trial Court Opinion

Goforth next argues that the trial court erred by stating that the parties

to the divorce action and the third-party creditors agreed to language in

McKenzie’s November 24, 2020 petition for special relief. Goforth’s Brief at

49-57. Relevantly, the trial court stated that “by prior [o]rder and upon

consent of the parties, because no litigation remained pending as the divorce

was finalized, [the trial c]ourt permitted the sale of the marital residence and

directed that [] Goforth’s 40% interest in the real estate proceeds be held in

escrow for further resolution between the creditors.” Trial Court Opinion,

5/20/2024, at 13; see also id. at 10 (highlighting an averment in the petition

for special relief filed by McKenzie and agreed to by Henderson and Goforth

4 Goforth also baldly asserts that Mongell failed to revive his confession of judgment on the day the final judgment was entered. Goforth’s Brief at 48- 49. However, Goforth presents no analysis or citation to the record or case law to support this argument, resulting in its waiver. See Banfield, 110 A.3d at 168 n.11 (noting claim is waived where appellant failed to develop an issue in any meaningful way).

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that “the share of the real estate proceeds can be held in escrow for further

resolution between two creditors: [] Mongell and Huntington [],” and noting

Henderson “did not object to the [trial c]ourt distributing [] Goforth’s

proceeds” to the third-party creditors) (emphasis and citation omitted).

Goforth contends that the trial court did not support its statement with any

authority or citation to the record. Goforth’s Brief at 49-50. To that end,

Goforth notes that neither he, his attorney, nor the creditors, signed the

November 2020 petition for special relief. Id. at 51, 52-53, 54. Goforth

claims that the evidence of record establishes that there was a dispute over

the proceeds of the sale of the marital property. Id. at 50-52, 54. He

emphasizes that the trial court’s December 2020 order includes language to

determine which of the parties are entitled to the proceeds. Id. at 55-56.

In McKenzie’s November 24, 2020 petition for special relief, she asked

the trial court to permit the marital property to be sold, the proceeds due to

her under the marital settlement agreement to be disbursed, and the

remaining sale proceeds be held in escrow until further court order. Petition

for Special Relief, 11/24/2020, at 1-2 (unnumbered). On December 7, 2020,

the trial court entered an order, directing that a hearing would be held on

February 8, 2021 and further directing the sale of the marital property and

that the net real estate proceeds after disbursements to McKenzie, must be

paid into an escrow account held by Henderson until further order of the court.

Trial Court Order, 12/7/2020. On December 30, 2020, Mongell and

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Huntington filed a petition for rule to show cause on Goforth to show why the

proceeds from the sale of the marital property should not be distributed to the

creditors. Petition for Rule to Show Cause, 12/30/2020. Goforth filed a

response, raising various claims similar to the ones raised in the instant

appeal. Response, 1/29/2021. Subsequently, Goforth and Henderson filed a

petition for special relief, asking that the escrowed proceeds from the sale be

awarded to Henderson to pay his attorneys’ fees before Goforth receives the

net proceeds from the sale. Petition for Special Relief, 2/2/2021, at 1-3. On

July 19, 2022, the trial court entered an order, granting the petition for rule

to show cause filed by Mongell and Huntington, and denying Henderson and

Goforth’s petition for special relief.

We disagree with Goforth’s assertion that the trial court’s statement in

its opinion on May 24, 2024, regarding consent of the parties relating to the

distribution of the proceeds of the marital property, effectively revised the

December 7, 2020 order. More specifically, the parties were bound by the

trial court’s December 7, 2020 order. Moreover, and in any event, the trial

court considered the claims raised by Goforth and Henderson regarding their

priority in gaining the funds held in escrow. See Trial Court Opinion,

5/20/2024, at 7-8 (noting it held a hearing on the issue of attorney’s fees

from the proceeds of the sale of the marital property). Thus, no relief is due.

Henderson’s Petition for Special Relief

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In his final claim, Goforth raises various arguments that the trial court abused

its discretion in denying Henderson’s petition for special relief. Goforth’s Brief

at 57.

Attorney Fee Agreement and Equitable Lien

Goforth argues that he had a contractual obligation to pay Henderson’s

attorney’s fees with the proceeds of the sale of the property because he had

granted Henderson an equitable lien against the proceeds of the sale before

the third-party creditor judgments existed. Id. at 57-58, 69-70. Specifically,

he claims that pursuant to the marital settlement agreement, he agreed to

pay Henderson’s attorney’s fees out of the gross proceeds of the sale of the

marital property. Id. at 58, 66; see also id. at 59, 73 (noting the marital

settlement agreement explicitly states that “each party shall pay their own

respective attorney fees for all legal services or to be rendered on his behalf”)

(emphasis and citation omitted). According to Goforth, he and Henderson

entered into a fee agreement in July 2018, which indicated that any unpaid

balance would be paid from the gross proceeds to his attorneys and that

Henderson’s firm would have an equitable lien against the property. Id. at

60, 61, 67-71; see also id. at 68-69 (rebutting the trial court’s finding that

Henderson did not have a lien because the payment arrangement was not

disclosed in the marital settlement agreement by claiming that the fee

agreement was protected by attorney-client privilege and disclosure was not

required). Goforth asserts that the trial court’s denial of Henderson’s petition

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for special relief prevents him from performing under the marital settlement

agreement and fee agreement. Id. at 64-65.

Alternatively, Goforth states that third-party creditors may only claim

an interest in the proceeds of the sale after the payment of expenses of sale,

which includes the attorney’s fees. Id. at 65, 75. Since Goforth consented to

Henderson being paid out of the gross proceeds of the sale, Henderson is not

a creditor and does not require priority over other creditors. Id. at 65; see

also id. at 71 (stating that Henderson’s fees have a priority to be paid first

from the escrowed funds). He additionally contends that it was irrelevant that

the third-party creditors did not know about Henderson’s equitable lien. Id.

at 72-75. In this regard, Goforth notes that the creditors had notice of the

existence of the marital settlement agreement. Id. at 74. He further claims

that the third-party creditors would be unjustly enriched if Henderson’s fees

are not paid. Id. at 75-78.

Pennsylvania recognizes two types of attorneys’ liens: a charging lien

and a retaining lien. Austin v. Thyssenkrupp Elevator Corp., 254 A.3d

760, 766 (Pa. Super. 2021); see also Pa.R.P.C. 1.8(i)(1) (noting a lawyer

may “acquire a lien authorized by law to secure the lawyer’s fee or expenses”).

The charging lien, originally, was defined to be the right of an attorney at law to recover compensation for his services from a fund recovered by his aid, and also the right to be protected by the court to the end that such recovery might be effected. Unlike the retaining lien, the charging lien does not depend upon possession, but upon the favor of the court in protecting attorneys, as its own officers, by taking care, ex oequo et bono, according to the right and good that a party should not run away

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with the fruits of the cause without satisfying the legal demands of the attorney by whose industry those fruits were obtained.

Austin, 254 A.3d at 766 (citation, brackets, and emphasis omitted).

Courts must consider five factors before issuing a charging lien:

(1) that there is a fund in court or otherwise applicable for distribution on equitable principles, (2) that the services of the attorney operated substantially or primarily to secure the fund out of which he seeks to be paid, (3) that it was agreed that counsel look to the fund rather than the client for his compensation, (4) that the lien claimed is limited to costs, fees or other disbursements incurred in the litigation by which the fund was raised and (5) that there are equitable considerations which necessitate the recognition and application of the charging lien.

Id. at 764-65 (citation omitted).

The record reflects that Goforth entered into an agreement to provide

legal services with Henderson’s law firm for his divorce proceedings in July

2018, which stated, in relevant part:

11. Charging Lien, Real Estate, and Intervention. You agree that any unpaid balance for legal fees and costs that you owe to the Firm shall constitute an equitable charging lien in the Firm’s favor on any assets generated on your behalf in connection with your case. … Additionally, you agree that if there is a balance due to the Firm at the time of the sale of any real estate owned by you, in whole or in part, or any entity in which you have an ownership interest, the Firm shall be entitled to collect any unpaid balance at the time of settlement where it is understood and agreed by you that the Firm’s unpaid balance shall be part of your gross costs of your sale so that before any net proceeds are received by you, the Firm’s unpaid balance shall be paid first. You further agree that no sale of any such real estate owned by you, in whole or in part, or any entity in which you have an ownership interest, shall occur without the Firm’s express written consent. You further understand and agree that the Firm shall have priority of all subsequent encumbrances on your real estate which you acknowledge and agree is hereby perfected from the effective date of this Agreement. …

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Agreement, 7/26/2018, at 3.

In 2019, during the divorce proceedings, Mongell and Huntington

obtained judgments against Goforth. Subsequently, the parties entered into

a marital settlement agreement, wherein Goforth and McKenzie agreed that

“each party shall pay their own respective attorney fees for all legal services

rendered or to be rendered on his behalf.” Marital Settlement Agreement,

7/2/2020, at 7.

Upon entry of the August 2020 divorce decree, as part of the marital

settlement agreement, Goforth and McKenzie agreed to sell their marital home

for $175,000, with Goforth receiving forty percent of the net proceeds. The

trial court entered an order directing that Goforth’s portion of proceeds be

placed in an escrow account of Henderson without release pending further

findings about the “applicability and priority of liens and order distribution of

proceeds.” Trial Court Order, 12/7/2020, at 1-2 (unnumbered). The trial

court then entered an order directing that seventy-five percent of Goforth’s

proceeds from the marital property be distributed to Mongell and twenty-five

percent to Huntington “as partial payment of the judgment liens.” Trial Court

Order, 5/20/2024.

Regarding the first factor—whether there is a fund in court or otherwise

applicable for distribution on equitable principles—Goforth has not established

that a fund exists that could be distributed to Henderson. Significantly, when

the divorce decree was entered and Henderson sought to enforce a charging

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lien on the real estate proceeds, Mongell and Huntington already had

judgments entered against Goforth. Thus, the third-party creditors had

priority over Henderson’s charging lien. See Shenango Sys. Sols., Inc. v.

Micros-Sys., Inc., 887 A.2d 772, 775 (Pa. Super. 2005) (finding that third-

party creditor, who had a lien against an attorney’s client before the resolution

of an arbitration, had priority over the attorney’s charging lien for attorney’s

fees arising out of their representation during the arbitration). The amount

owed to Mongell and Huntington exceeded Goforth’s portion of the net

proceeds from the sale of the marital property; therefore, there were no funds

available for distribution. See id. at 774 (concluding charging lien could not

be enforced where there were no funds for distribution because the creditors’

judgment was more than the arbitration award). In light of the foregoing,

Goforth has not met the first factor of the charging lien test, and Henderson

is not entitled to proceeds from the sale of the marital property to pay

attorneys’ fees. See id. at 775.5

5 We note that in his appellate brief, Goforth claims that Henderson and his

firm had an “equitable lien” against Goforth’s real estate based on the fee agreement. See Goforth’s Brief at 67-68 (citing Agreement, 7/26/2018, at 3). Goforth quoted language from his agreement with Henderson’s firm, but omits the phrase “equitable charging lien,” stating instead that there was an “equitable lien.” Goforth’s Brief at 68. This is clearly unsupported by the record. In any event, a lien attaches to real estate “when it is entered of record in the office of the clerk of the court of common pleas of the county where the real property is situated.” 42 Pa.C.S. § 4303(a). Goforth has not established that Henderson has a lien on the marital property.

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Additionally, we reject Goforth’s argument that the trial court’s finding

prevented him from performing under the agreement. Goforth cites to no

authority to support his claim that his inability to perform a private contract

with his attorney would permit the court to release the funds to cover his

counsel fees before third-party creditors who had already secured judgments

against Goforth. See Pa.R.A.P. 2119(a). Nor, incidentally has Goforth

established that he cannot pay his attorney’s fees.

Finally, we find Goforth’s claim that attorneys’ fees were included in the

expenses related to the sale of the marital property to be unsupported by the

record. The marital settlement agreement states that each of the parties were

responsible for their own attorneys’ fees. See Marital Settlement Agreement,

7/2/2020, at 7. Additionally, the order directing the sale of the marital

property indicates Goforth was entitled to the net real estate proceeds “after

the costs of sale, satisfaction of the PNC mortgage, and disbursements to

[McKenzie].” Trial Court Order, 12/7/2020, at 1 (unnumbered). Thus, there

is no record support to establish that the payment of attorneys’ fees had to

be paid from the gross proceeds of the sale of the marital property.6

Costs and fees pursuant to 41 P.S. § 407

6 We note that Goforth also provides an extensive argument related to Henderson’s knowledge of the sale of the marital property. See Goforth’s Brief at 62-64. However, regardless of Henderson’s knowledge of the sale, no lien for attorney’s fees attached to the proceeds from the sale of the property.

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Lastly, Goforth argues that his petition for special relief sought “attorney

fees and costs from the third-party creditors pursuant to 41 P.S. § 407(b).”

Goforth’s Brief at 78. Goforth notes this petition was denied or rendered moot

by the trial court’s finding in favor of the third-party creditors. Id. at 78-79.

Goforth claims that if this Court finds in his favor, he is entitled to recover

attorney fees and costs pursuant to section 407(b). Id. at 79.

As the foregoing plainly shows, we conclude that the trial court did not

abuse its discretion in denying the petition for special relief. Therefore,

Goforth is not entitled to recover attorney’s fees and costs under section

407(b).

Order affirmed.

DATE: 04/21/2025

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