Ijaz, R. v. Akram, T.

• Court: Superior Court of Pennsylvania
• Decided: August 8, 2023
• Docket: 1207 WDA 2022
• Status: Unpublished

Opinion

J-A15031-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

RAMSHA IJAZ : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TAIMUR AKRAM : : Appellant : No. 1207 WDA 2022

Appeal from the Order Entered September 15, 2022 In the Court of Common Pleas of Mercer County Domestic Relations at No(s): 74-DR-2020

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: AUGUST 8, 2023

Taimur Akram (Husband) appeals from the order entered in the Court

of Common Pleas of Mercer County (trial court) awarding Ramsha Ijaz (Wife)

five months of alimony pendente lite (APL) bringing the total APL that she

received to ten months. We affirm.

I.

Husband and Wife were married in Mercer County on October 22, 2018,

and separated on August 25, 2019, when Wife returned to Pakistan, her native

country, for a visit and her then-Husband refused to pay for a return ticket.

The marriage resulted in no children. With the help of an aunt and uncle, Wife

returned to the United States where she resides in Texas with the aunt and

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A15031-23

uncle and where she obtained employment as a retail clerk. Husband is a

medical doctor employed at UPMC. As part of the divorce decree of May 19,

2022, Husband was required to pay Wife $49,541.03, which represented 30

percent of the stipulated marital estate of $176,018.76 after expenses.

Husband was also directed to pay $16,000 in attorney’s fees to Wife’s counsel.

Wife filed an initial request for APL in January 2020. The trial court

initially awarded Wife APL of $3,856.91 per month over a period of five

months, totaling $19,284.55. It determined that a five-month period for APL

was appropriate considering the ten-month duration of the marriage. Wife

later filed a petition to reinstate APL, but the trial court denied the request for

further APL on December 9, 2020.

On December 22, 2021, following the issuance of the master’s report

and recommendations in the divorce matter and while exceptions were

pending, Wife filed a second petition to reinstate APL. In her petition, Wife

contended that additional APL was warranted because Husband was opposing

her receipt of any portion of the marital estate; his insistence that they had

engaged in a “sham marriage” resulting in the master’s recommended award

of $16,000 in attorney’s fees in her favor; the fact that she was required to

travel to Pennsylvania on three separate occasions to participate in hearings;

and Husband’s filing of 23 exceptions to the master’s report. At this point,

the matter was reassigned from Judge Robert G. Yeatts to President Judge

Daniel P. Wallace following the former’s retirement.

-2- J-A15031-23

Following a hearing, on April 6, 2022, the trial court found that Wife was

entitled to an additional five months of APL retroactive to November 17, 2021.

In the opinion accompanying that order, the trial court found that APL should

be reinstated because the December 9, 2020 decision was premised not only

on the short duration of the marriage, but also on the fact that it was

anticipated at that time that the parties’ economic issues would be resolved

at a final January 2021 hearing, and that the earlier determination left the

door open for additional APL to be ordered at a later date. Because the

economic issues were not all decided as envisioned in early 2021 but instead

remained pending and in active litigation more than a year later, the trial court

concluded that an additional five months of APL was “appropriate”

“[c]onsidering the duration of the marriage and the date of the anticipated

hearing [on Husband’s exceptions to the divorce master’s report] on April 8,

2022.” Trial Court Opinion, 4/6/22, at 3 (unnumbered) (citing Trial Court

Opinion, 12/9/20, at 1-3 (unnumbered)). Id. at 3. The court added that Wife

would not receive any additional APL beyond ten months “absent

extraordinary circumstances.” Id. A May 10, 2022 order established the APL

at $4,187.55 per month for a total of $21,018.06, pursuant to calculations by

the domestic relations section of the trial court.

Husband and Wife each then filed a demand for a de novo hearing before

the trial court. Husband challenged the necessity and reasonableness of the

APL award as well as the calculated amount, while Wife challenged the fact

-3- J-A15031-23

that the May 10, 2022 order only required Husband to pay $200 per month to

satisfy his obligations. Following a hearing, on September 7, 2022, the trial

court ordered that Husband’s obligations remained unchanged from the May

10, 2022 order.1 The trial court found that the amount of APL calculated

according to the support guidelines was reasonable, and that its review of the

deviation factors set forth in Rule 1910.16-5(b) did not show grounds to rebut

the presumption of correctness. Specifically, as to the deviation factors, the

court found that Husband’s assets as a medical doctor far outweigh Wife’s,

and he has no substantial liabilities because he lives with his parents (factor

(b)(5)), and that Husband has an upper middle-class standard of living, while

Wife’s standard was lower middle-class (factor (b)(7)).

With respect to factor (b)(8) related to the duration of the marriage, the

court referred to the analysis in its April 6, 2022 memorandum opinion. With

respect to “other relevant and appropriate factors” as set forth in (b)(9), the

trial court discussed Husband’s argument that Wife did not need the APL and

found that a party’s need is not strictly a requirement and instead that the

question is only whether the amount is reasonable for the purpose of

equalizing the economic resources of the spouses. The court, thus, rejected

Husband’s argument that the amount of APL far exceeds the amount

1 A September15, 2022 order amended the September 7, 2022 order to require Husband to pay the arrearage at a monthly rate of $4,187.55 rather than $200 per month.

-4- J-A15031-23

necessary for Wife to pursue the divorce proceedings on equal footing as only

reasonableness is required, and the reasonableness was bolstered by the short

duration of the additional APL award. Id. at 5-6.

Husband presents the following issues before this Court:

1. Did the trial court err in not giving factor 1910.16-5(b)(8), concerning the length of the marriage, proper weight?

2. Did the trial court err in failing to reduce the APL award under 1910.16[-]5(b)(9), concerning other relevant factors, when the award was unnecessary and unreasonable?

Husband’s Brief at 4 (unnecessary capitalization and suggested answers

omitted).

II.

The Divorce Code provides that, “[i]n proper cases, upon petition, the

court may allow a spouse reasonable” APL, which is defined as “[a]n order for

temporary support granted to a spouse during the pendency of a divorce or

annulment proceeding.” 23 Pa.C.S. §§ 3103, 3702(a).

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. . . . 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.

Ileiwat v. Labadi, 233 A.3d 853,860(2020) (quoting Schenk v. Schenk,

880 A.2d 633, 644-45 (Pa. Super. 2005)); see also Cook v. Cook, 186 A.3d

1015, 1023 (Pa. Super. 2018). When ruling on the claim for APL, the trial

-5- J-A15031-23

court shall consider the following factors: “the ability of the other party to

pay; the separate estate and income of the petitioning party; and the

character, situation, and surroundings of the parties.” Ileiwat, 233 A.3d at

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

The court shall also consider “the marriage’s duration, i.e., the date of

marriage to the date of final separation,” when determining the duration of

the APL award. Pa.R.Civ.P. 1910.16-1(c)(2).

If the court finds that APL is due, “there is a rebuttable presumption that

the guideline-calculated support amount is the correct support amount.”

Pa.R.Civ.P. 1910.16-1(d); see also Ileiwat, 233 A.3d at 860. “The

presumption is rebutted if the trier-of-fact concludes in a written finding or

states on the record that the guideline support amount is unjust or

inappropriate.” Pa.R.Civ.P. 1910.16-1(d)(1). In determining whether to

deviate from the guideline, “[t]he trier-of-fact shall consider the child’s and

parties’ special needs and obligations and apply the [Rule 1910.16-5(b)]

deviation factors, as appropriate.” Pa.R.Civ.P. 1910.16-1(d)(2). The Rule

1910.16-5(b) factors include:

(1) unusual needs and unusual fixed obligations;

(2) a party’s other support obligations;

(3) other household income;

(4) the child’s age;

(5) the parties’ relative assets and liabilities;

-6- J-A15031-23

(6) medical expenses not covered by insurance;

(7) the parties’ and the child’s standard of living;

(8) . . . the duration of the marriage from the date of marriage to the date of final separation; and

(9) other relevant and appropriate factors, including the child’s best interest.

Pa.R.Civ.P. 1910.16-5(b).

III.

A.

Husband contends that the trial court abused its discretion by awarding

five more months of APL by not giving proper weight to the duration of the

marriage in deviating from the support guidelines calculation of the amount

of APL calculated under Rule 1910.16-5(b)(8). See Pa.R.Civ.P. 1910.16-

5(b)(8) (requiring that the court consider “the duration of the marriage from

the date of marriage to the date of final separation” when assessing whether

to deviate from the guideline). He contends that the trial court should not

have used the duration to cap the possible APL award but, instead, should

have used it as a factor in reducing the amount of APL.

Moreover, he argues that the commentary to Pa.R.Civ.P. 1910.16-

1(c)(2) requires consideration of the marriage’s duration when determining

the length of the APL award because one of the primary purposes of this

provision is to allow the party paying APL the “opportunity for credit for these

payments at the time of equitable distribution.” Pa.R.Civ.P. 1910.16-1,

-7- J-A15031-23

Explanatory Comment—2010. Because the equitable distribution was not

finalized until the May 19, 2022 divorce decree, Husband argues that “there

was absolutely no opportunity to obtain credit due to the timing of the final

APL decision.” Husband’s Brief at 15.

Husband’s argument that the trial court erred by not considering the

duration of the marriage as a factor to deviate from the amount of APL as

opposed to the duration of the APL award is waived because it was not

included in his Pa.R.A.P. 1925 concise statement. See Concise Statement,

10/31/22; Order, 10/12/22 (directing Husband to file concise statement and

that any issues not raised therein shall be deemed waived). Husband does

not reference Rule 1910.16-5(b)(8) in his concise statement, nor does he

argue that the APL amount should have been reduced based upon the short

duration of the marriage. Moreover, Husband did not raise the potential

reduction of the APL award based upon the duration of the marriage in his

May 19, 2022 demand for a de novo hearing concerning the May 10, 2022

order that set the APL amount or at the August 4, 2022 hearing. See Demand

for Hearing, 5/19/22, at 1-2 (unnumbered); N.T., 8/4/22, at 1-16. While this

latter fact may not be dispositive as the trial court was required to consider

the Rule 1910.16-5(b) deviation factors as appropriate, see Pa.R.Civ.P.

1910.16-1(d)(2), the trial court did, in fact, address each of the factors in its

September 7, 2022 opinion.

-8- J-A15031-23

As to Husband’s contention that the trial court abused its discretion by

not giving proper weight in awarding five additional months of APL for the

duration of the marriage, which is not waived, his argument here appears to

be limited to the issue of his apparent lack of an opportunity to claim a credit

at equitable distribution lacks merit. First, it should be noted that the trial

court, as required by Rule of Civil Procedure 1910.16-1(c)(2), did consider the

duration of the marriage when determining the length of the additional months

of APL. Second, the commentary on the rule that discusses a potential credit

for APL paid at the time of equitable distribution appears to envision that such

credit is available “when the obligor is required to pay support over a

substantially longer period of time than the parties were married”; such is not

the case here and, therefore, it is not clear that he would be able to claim a

credit.2 Finally, his claim is factually inaccurate as he did have an opportunity

to claim a credit prior to equitable distribution: the amount of APL was fixed

in a May 10, 2022 order, while the divorce decree finalizing the equitable

distribution was filed on May 19, 2022.

2 See Pa.R.Civ.P. 1910.16-1, Explanatory Comment—2010 (“Subdivision (c)

has been amended to require the court to consider the duration of the marriage in determining the duration of a spousal support or alimony pendente lite award. . . The primary purpose of this provision is to prevent the unfairness that arises in a short-term marriage when the obligor is required to pay support over a substantially longer period of time than the parties were married and there is little or no opportunity for credit for these payments at the time of equitable distribution.”).

-9- J-A15031-23

B.

Husband next argues that the additional five months of APL was

unreasonable and unnecessary considering the prior APL award and the award

of attorney’s fees. Husband notes that Wife had already received 30 percent

of the marital estate, or $49,541.03, and that the award of attorney’s fees

($16,000), the first APL award ($19,284.55), and the second APL award at

issue here ($21,018.06), collectively result in Wife’s receipt of over $105,000,

which is equivalent to an award of 60 percent of the marital estate.

He contends that the second APL award far exceeds the reasonable

needs of Wife because she has already received $35,284.55 in APL and

attorney’s fees before the latest award of APL. He claims that amount was

sufficient to pay her monthly legal fee of $1,250 set forth in her monthly

budget submitted in the divorce matter, as well as her remaining expenses

over a 12-month period, with money left over. He also submits that the

second APL award cannot be justified as support, as she has minimal expenses

because she lives with her aunt and uncle.

While Husband is correct that “APL is based on the need of one party to

have equal financial resources to pursue a divorce proceeding,” Ileiwat, 233

A.3d at 860 (citation omitted), the test in assessing the amount of APL is

whether it is “reasonable for the purpose.” Id. (quoting Schenk, 880 A.2d at

644); see also Cook, 186 A.3d at 1023. In other words, there is no

requirement that the court make a dollar-for-dollar comparison of the shortfall

- 10 - J-A15031-23

in the beneficiary of the APL to ascertain exactly how much money is needed

to be on equal footing with the payer of the APL. If an exact calculation of

need were required, then the rules would not set forth a rebuttable

presumption that the guideline amount of support is appropriate. Pa.R.Civ.P.

1910.16-1(d); Ileiwat, 233 A.3d at 860. This presumption may be rebutted

if the trial court determines, after consideration of the relevant factors and

other special needs or obligations, that the award would be unjust or

inappropriate, Pa.R.Civ.P. 1910.16-1(d)(1)-(2); this analysis does not require

a line-by-line analysis of the beneficiary’s budget to determine whether the

APL is absolutely necessary.

Here, the trial court engaged in the required analysis and determined

that the additional amount of APL was not unjust or inappropriate. This

analysis has support in the record and Husband has not demonstrated that

the court’s conclusion was beyond the bounds of its discretion. Husband’s

arguments that the amount of APL paid to Wife are inappropriate conflate APL

with the equitable distribution and attorney’s fee award, all of which relate to

different issues. Even if the total APL award ($40,302.61) was averaged out

over the entire litigation history (28 months), it would be a monthly amount

of $1,439.37, which, when added to her net income, would only slightly

exceed her monthly expenses. Furthermore, if the APL were averaged over

the current appeal, then the monthly support would be only $1,119.51. See

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

- 11 - J-A15031-23

is based upon the state of the litigation); DeMasi v. DeMasi, 597 A.2d 101,

104 (Pa. Super. 1991) (same and stating that divorce is not final until decree

is entered and appeals from the decree are finally resolved). In any event,

the APL award was not simply based upon Wife being able to pay her lawyer,

but also to allow her the resources to engage in the “domestic warfare” of a

divorce. Ileiwat, 233 A.3d at 860 (citation omitted). Similarly, the equitable

distribution award was a division of the parties’ marital property and has

minimal relevance to the APL analysis.

Furthermore, the second award of APL, which was retroactive to

November 2021, concluded by the time of the divorce decree. The ten months

of total APL was far shorter than the divorce case that lasted over two years

and was characterized by protracted, combative litigation, including three

separate hearing dates each of which required Wife’s travel, numerous

exceptions to the master’s report, and Husband’s obstinate refusal to admit

that his marriage to Wife was legitimate or to initially allow her any amount

of equitable distribution from the marital estate.3

3 Husband also contends that the APL award was motivated by the bias towards Husband exhibited by President Judge Daniel P. Wallace, who presided over the proceedings related to Wife’s second petition to reinstate APL. See, e.g., Husband’s Brief at 24 (“the transcript from this August []4, 2022, hearing shows a very clear and present bias against Husband”). Husband argues that his “wealth was considered far too prominently” by Judge Wallace who described Husband as being analogous to a “rock star” with a large income. Id. at 21-22 (quoting transcript). Husband also raises Judge Wallace’s apparent criticism of his right to appeal, his refusal to settle and his (Footnote Continued Next Page)

- 12 - J-A15031-23

Accordingly, for the foregoing reasons, we find that the trial court did

not abuse its discretion in awarding an additional five months of APL.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8 /8/2023

decision not to seek a prenuptial agreement after a prior divorce. (This appeal involves Husband’s third marriage.) Id. at 22-26. This argument of bias by President Judge Wallace is waived as it is in no way encompassed within his Pa.R.A.P. 1925 concise statement, which does not raise any issue related to bias.

- 13 -