J-A07042-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
DAVID A. JONES, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : ELAINE K. JONES, : NOW KNOWN AS ELAINE K. BUCHANAN : : No. 1519 WDA 2016 Appellee
Appeal from the Order September 8, 2016 in the Court of Common Pleas of Mercer County Domestic Relations at No(s): 2011-3446
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 21, 2017
David A. Jones (Husband) appeals from the September 8, 2016 order,
wherein the trial court made no changes to the alimony and equitable
distribution scheme after remand from this Court. We affirm.
Husband and Elaine K. Jones, now known as Elaine K. Buchanan,
(Wife), were married on June 29, 1974, and separated on September 18,
2011. Husband filed a complaint for divorce on October 20, 2011. Hearings
before a family law master were held in January of 2014, on the issues of
divorce, equitable distribution, alimony, and attorney fees and expenses.
Subsequently, the master issued a written report containing findings of fact
and conclusions of law.
*Retired Senior Judge assigned to the Superior Court. J-A07042-17
Both parties filed exceptions to the master’s report. On October 20,
2014, the trial court issued a memorandum opinion, granting in part and
denying in part both parties’ exceptions. Relevant to this appeal, the trial
court granted Husband’s exception requesting a credit against Wife’s
alimony equal to the amount he paid in alimony pendente lite (APL). Trial
Court Memorandum Opinion, 10/20/2014, at 8.1 Additionally, after
analyzing the factors set forth at 23 Pa.C.S. § 3701(b), the trial court denied
Husband’s exception contesting the award of alimony over a period of twelve
years, finding that the alimony award was equitable, and even though it may
prevent Husband from retiring in five years as he planned, other factors
justified the master’s award of long-term alimony. Id. at 5-7.
Wife timely appealed to this Court. Husband did not file an appeal or a
cross-appeal. On June 20, 2016, we issued a memorandum affirming in
part, vacating in part, and remanding for proceedings consistent with the
memorandum. Jones v. Jones, 153 A.3d 1113 (Pa. Super. 2016)
(unpublished memorandum). Relevant to this appeal, we vacated the trial
court’s alimony order, holding that the trial court abused its discretion and
misapplied the law by crediting Wife’s receipt of APL against her award of
alimony. Id. at 10, 14. Because “our disposition of the alimony issue may
alter the trial court’s equitable distribution scheme,” we remanded “for
1 The memorandum opinion is unnumbered, but we add page numbers for ease of reference.
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additional proceedings and for entry of an order consistent with this
[m]emorandum.” Id. at 14.
Notwithstanding the limited scope on remand, after conducting a
status conference, the trial court ordered the parties “to submit briefs
regarding the issue of whether the [m]aster’s alimony recommendation was
inequitable.” Order, 8/1/2016, at 1. Following the parties’ submission of
briefs, the trial court entered an order reaffirming its previous findings set
forth in paragraph 3(a) of the October 20, 2014 Memorandum Opinion and
finding the master’s alimony recommendation set forth in the master’s
report to be equitable notwithstanding the removal of the credit for prior APL
payments. Order, 9/20/2016, at 1.
Husband timely filed an appeal of this order.2 Husband sets forth two
issues for our consideration.
2 The trial court ordered Husband to file a concise statement pursuant to Pa. R.A.P. 1925, and Husband complied. The trial court filed a Rule 1925 opinion, opining that Husband violated Rule 1925 by listing 18 issues and citing to Mahonski v. Engel, 145 A.3d 175, 182 (Pa. Super. 2016). In Mahonski, this Court affirmed the trial court’s dismissal of appellant’s claims based upon the trial court’s finding that the appellant’s “voluminous 1925(b) statements failed to set forth non-redundant, nonfrivolous issues in an appropriately concise matter” and were filed in bad faith. Id. Although a number of Husband’s issues are redundant and should have been omitted since they constitute subsidiary issues, see Pa.R.A.P. 1925(b)(4)(iv), because the issues are coherent and the trial court did not make a finding that Husband circumvented the process in bad faith, we will proceed with our review. Mahonski, 145 A.3d at 180-82. We also note, pertinent to our discussion later in this memorandum, that despite the number of Husband’s issues, none of them relates to the limited issue on remand.
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1. Did the trial court commit reversible error and abuse its discretion in simply accepting the [m]aster’s recommended award of post-divorce alimony of $662,400.00 payable over a period of [12] years?
2. Did the trial court commit reversible error and abuse its discretion in failing to properly consider and apply all of the statutorily established criteria (in accordance with 23 Pa.C.S.[] § 3701(b)), thereby leading to an alimony award which was improper, inequitable and unfair?
Husband’s Brief at 4 (suggested answers omitted).
As described above, the purpose of remand was for the trial court to
determine whether eliminating the credit from the alimony award altered the
equitable distribution scheme. Thus, our remand order was limited in scope.
“[I]n remanding a case for rehearing, [the appellate court] may limit
the scope thereof to certain defined issues. This limitation restricts the
power of the court below to a determination of those issues.” Quaker State
Oil Ref. Co. v. Talbot, 185 A. 586, 588 (Pa. 1936). “Where a case is
remanded for a specific and limited purpose, issues not encompassed within
the remand order may not be decided on remand. A remand does not
permit a litigant a proverbial second bite at the apple.” Levy v. Senate of
Pennsylvania, 94 A.3d 436, 442 (Pa. Cmwlth. 2014) (internal citations and
quotation marks omitted). See also Agostinelli v. Edwards, 98 A.3d 695,
706 (Pa. Super. 2014) (requiring strict compliance with the mandate of the
appellate court on remand).
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It is unclear from the record whether Husband initiated attempts to re-
litigate the equitability of the alimony award on remand as Wife suggests,
see Wife’s Brief at 5, or whether reexamination of the alimony award was
initiated sua sponte by the trial court. However, it is clear that the remand
order permitted the trial court to determine only whether the equitable
distribution scheme was altered, not to reexamine the alimony award.
Nevertheless, after reviewing briefs from the parties and its prior analysis of
the alimony award pursuant to 23 Pa.C.S. § 3701(b), the trial court
concluded that the alimony scheme was equitable notwithstanding the
removal of the credit equal to previously-paid APL and re-affirmed the award
of alimony. The trial court did not make any changes to the equitable
distribution scheme. See Rule 1925 Opinion, 11/9/2016, at 1; Order,
9/8/2016, at 1.
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J-A07042-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
DAVID A. JONES, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : ELAINE K. JONES, : NOW KNOWN AS ELAINE K. BUCHANAN : : No. 1519 WDA 2016 Appellee
Appeal from the Order September 8, 2016 in the Court of Common Pleas of Mercer County Domestic Relations at No(s): 2011-3446
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 21, 2017
David A. Jones (Husband) appeals from the September 8, 2016 order,
wherein the trial court made no changes to the alimony and equitable
distribution scheme after remand from this Court. We affirm.
Husband and Elaine K. Jones, now known as Elaine K. Buchanan,
(Wife), were married on June 29, 1974, and separated on September 18,
2011. Husband filed a complaint for divorce on October 20, 2011. Hearings
before a family law master were held in January of 2014, on the issues of
divorce, equitable distribution, alimony, and attorney fees and expenses.
Subsequently, the master issued a written report containing findings of fact
and conclusions of law.
*Retired Senior Judge assigned to the Superior Court. J-A07042-17
Both parties filed exceptions to the master’s report. On October 20,
2014, the trial court issued a memorandum opinion, granting in part and
denying in part both parties’ exceptions. Relevant to this appeal, the trial
court granted Husband’s exception requesting a credit against Wife’s
alimony equal to the amount he paid in alimony pendente lite (APL). Trial
Court Memorandum Opinion, 10/20/2014, at 8.1 Additionally, after
analyzing the factors set forth at 23 Pa.C.S. § 3701(b), the trial court denied
Husband’s exception contesting the award of alimony over a period of twelve
years, finding that the alimony award was equitable, and even though it may
prevent Husband from retiring in five years as he planned, other factors
justified the master’s award of long-term alimony. Id. at 5-7.
Wife timely appealed to this Court. Husband did not file an appeal or a
cross-appeal. On June 20, 2016, we issued a memorandum affirming in
part, vacating in part, and remanding for proceedings consistent with the
memorandum. Jones v. Jones, 153 A.3d 1113 (Pa. Super. 2016)
(unpublished memorandum). Relevant to this appeal, we vacated the trial
court’s alimony order, holding that the trial court abused its discretion and
misapplied the law by crediting Wife’s receipt of APL against her award of
alimony. Id. at 10, 14. Because “our disposition of the alimony issue may
alter the trial court’s equitable distribution scheme,” we remanded “for
1 The memorandum opinion is unnumbered, but we add page numbers for ease of reference.
-2- J-A07042-17
additional proceedings and for entry of an order consistent with this
[m]emorandum.” Id. at 14.
Notwithstanding the limited scope on remand, after conducting a
status conference, the trial court ordered the parties “to submit briefs
regarding the issue of whether the [m]aster’s alimony recommendation was
inequitable.” Order, 8/1/2016, at 1. Following the parties’ submission of
briefs, the trial court entered an order reaffirming its previous findings set
forth in paragraph 3(a) of the October 20, 2014 Memorandum Opinion and
finding the master’s alimony recommendation set forth in the master’s
report to be equitable notwithstanding the removal of the credit for prior APL
payments. Order, 9/20/2016, at 1.
Husband timely filed an appeal of this order.2 Husband sets forth two
issues for our consideration.
2 The trial court ordered Husband to file a concise statement pursuant to Pa. R.A.P. 1925, and Husband complied. The trial court filed a Rule 1925 opinion, opining that Husband violated Rule 1925 by listing 18 issues and citing to Mahonski v. Engel, 145 A.3d 175, 182 (Pa. Super. 2016). In Mahonski, this Court affirmed the trial court’s dismissal of appellant’s claims based upon the trial court’s finding that the appellant’s “voluminous 1925(b) statements failed to set forth non-redundant, nonfrivolous issues in an appropriately concise matter” and were filed in bad faith. Id. Although a number of Husband’s issues are redundant and should have been omitted since they constitute subsidiary issues, see Pa.R.A.P. 1925(b)(4)(iv), because the issues are coherent and the trial court did not make a finding that Husband circumvented the process in bad faith, we will proceed with our review. Mahonski, 145 A.3d at 180-82. We also note, pertinent to our discussion later in this memorandum, that despite the number of Husband’s issues, none of them relates to the limited issue on remand.
-3- J-A07042-17
1. Did the trial court commit reversible error and abuse its discretion in simply accepting the [m]aster’s recommended award of post-divorce alimony of $662,400.00 payable over a period of [12] years?
2. Did the trial court commit reversible error and abuse its discretion in failing to properly consider and apply all of the statutorily established criteria (in accordance with 23 Pa.C.S.[] § 3701(b)), thereby leading to an alimony award which was improper, inequitable and unfair?
Husband’s Brief at 4 (suggested answers omitted).
As described above, the purpose of remand was for the trial court to
determine whether eliminating the credit from the alimony award altered the
equitable distribution scheme. Thus, our remand order was limited in scope.
“[I]n remanding a case for rehearing, [the appellate court] may limit
the scope thereof to certain defined issues. This limitation restricts the
power of the court below to a determination of those issues.” Quaker State
Oil Ref. Co. v. Talbot, 185 A. 586, 588 (Pa. 1936). “Where a case is
remanded for a specific and limited purpose, issues not encompassed within
the remand order may not be decided on remand. A remand does not
permit a litigant a proverbial second bite at the apple.” Levy v. Senate of
Pennsylvania, 94 A.3d 436, 442 (Pa. Cmwlth. 2014) (internal citations and
quotation marks omitted). See also Agostinelli v. Edwards, 98 A.3d 695,
706 (Pa. Super. 2014) (requiring strict compliance with the mandate of the
appellate court on remand).
-4- J-A07042-17
It is unclear from the record whether Husband initiated attempts to re-
litigate the equitability of the alimony award on remand as Wife suggests,
see Wife’s Brief at 5, or whether reexamination of the alimony award was
initiated sua sponte by the trial court. However, it is clear that the remand
order permitted the trial court to determine only whether the equitable
distribution scheme was altered, not to reexamine the alimony award.
Nevertheless, after reviewing briefs from the parties and its prior analysis of
the alimony award pursuant to 23 Pa.C.S. § 3701(b), the trial court
concluded that the alimony scheme was equitable notwithstanding the
removal of the credit equal to previously-paid APL and re-affirmed the award
of alimony. The trial court did not make any changes to the equitable
distribution scheme. See Rule 1925 Opinion, 11/9/2016, at 1; Order,
9/8/2016, at 1.
On appeal, Husband seeks to pay alimony for a shorter duration to
permit him to retire. Husband’s Brief at 20. His first issue centers on his
argument that the twelve-year-alimony award is inequitable because the
trial court failed to consider his income, age, and desire to retire. Husband’s
Brief at 9-13. His second issue is based upon his argument that the trial
court failed to weigh factors in 23 Pa. C.S. § 3701(b) in the manner Husband
would have liked. Husband’s Brief at 14-19. Husband never argues that
removing the credit for APL should have altered the equitable distribution
scheme, the sole issue on remand. Husband’s only argument regarding the
-5- J-A07042-17
removal of the APL credit essentially consists of his bald assertion that the
original imposition of the impermissible credit demonstrated that the trial
court believed the alimony award was inequitable, and therefore, that
entitled him to a do-over of the entire alimony award. See Husband’s Brief
at 17, 20.
The trial court, however, imposed the impermissible credit to avoid
incentivizing Wife to prolong the divorce, not because it deemed the alimony
award to be inequitable. See Trial Court Memorandum Opinion,
10/20/2014, at 8. Since it had concluded previously that the alimony award
was equitable after applying the Section 3701(b) factors, the trial court
stated there was no need to change the alimony award because it was
independent of the credit for APL. Rule 1925 Opinion, 11/9/2016, at 1.
Even if the trial court were permitted to expand the scope on remand,
Husband makes no specific argument as to why removing the credit
rendered the alimony award inequitable.
In short, all of the issues Husband asserts on appeal are ones that he
asserted or could have asserted during the original action. Having decided
not to appeal the trial court’s October 20, 2014 order finding the alimony
scheme to be equitable, Husband cannot now attempt to re-litigate the
general equitability of the alimony award. To hold otherwise would give
Husband an impermissible second bite at the apple.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/21/2017
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