Weisman, J. v. Weisman, M.

• Court: Superior Court of Pennsylvania
• Decided: September 18, 2017
• Docket: 2900 EDA 2016
• Status: Unpublished

Opinion

J-A08010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JANE ELLEN WEISMAN IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

MICHAEL PAUL WEISMAN

Appellee No. 2900 EDA 2016

Appeal from the Order Entered August 4, 2016 In the Court of Common Pleas of Montgomery County Domestic Relations at No(s): 99-08626

BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 18, 2017

Appellant, Jane Ellen Weisman (“Wife”), appeals from the order

entered in the Montgomery County Court of Common Pleas, modifying the

amount of alimony owed by Michael Paul Weisman (“Husband”). We affirm.

The relevant facts and procedural history of this appeal are as follows.1

Husband and Wife were married in 1968. In 1999, the parties separated and

Wife filed a complaint seeking a divorce. Throughout the lengthy divorce

proceedings, Wife repeatedly contested the value of a home healthcare

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* Former Justice specially assigned to the Superior Court. 1 The parties appeared before a previous panel of this Court, and we direct the interested reader to the more detailed factual recitation given in that memorandum. See Weisman v. Weisman, Nos. 1471 EDA 2014, 1472 EDA 2014, 1473 EDA 2014, 1474 EDA 2014 (Pa. Super., filed July 14, 2015) (unpublished memorandum). J-A08010-17

business Husband started in 1983 and closed in 2006. Husband provided

Wife with financial support until his business closed. At that time, Wife filed a

petition for special relief, seeking alimony pendente lite (“APL”)

arrangement. The court issued an order granting Wife’s petition and ordering

Husband to provide Wife with monthly APL payments of $2,400.00, for

Wife’s living expenses and healthcare costs. The court later reduced this

award upon discovering that Wife had improperly diverted some of these

funds away from her health insurance payments.

On March 26, 2014, the trial court entered a divorce decree. The

decree ordered Husband to pay alimony to Wife for five years, in the amount

of $367.00 per month, in place of the APL payments. The trial court also

ordered Wife to pay part of Husband’s counsel fees, due to purported

discovery violations. Wife appealed to this Court; the panel vacated the

award of counsel fees. The panel also found the trial court miscalculated the

amount of alimony Husband owed Wife, due to an error in determining

Husband’s assets. The panel remanded the case to the trial court for

recalculation of the alimony award, and affirmed the remainder of the

divorce decree. Wife filed a petition for allowance of appeal to the

Pennsylvania Supreme Court, which was denied.

On remand, the trial court recalculated the alimony award as $934.00

per month, modifiable based on any changes in the parties’ incomes.

Husband then filed a petition to modify the amount of alimony due to a

change in his income. After a two-day hearing, the court modified the

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alimony award on August 4, 2016. The court’s order stated that Husband

owed Wife alimony payments of $1,301.50 per month from the period of

March 26, 2014 through July 31, 2015. The court also ordered Husband to

pay alimony in the amount of $500.00 each month thereafter, until the end

of the five-year alimony period. The order did not modify any of the APL

payments made prior to the divorce decree.

Both parties filed petitions for reconsideration of the August 4 order.

The court refused to recalculate the alimony payment, and ultimately denied

the petitions. Wife filed a timely notice of appeal.

On appeal, Wife argues a single issue:

Did the trial court err in its order of August 4, 2016, in treating the amount of support fixed by the May 2008 Agreed Order for support as modifiable when it, by its own terms, was made nonmodifiable?

Wife’s Brief, at 2-3.

Though Wife specifically objects to the order of August 4, 2016, Wife’s

argument is rooted in her insistence that the underlying May 2008 APL order

was not modifiable because both parties agreed to the terms of the order.

See id. at 11-13, 16. In support of her claim, Wife cites to 23 Pa.C.S.A. §

3105(c), which states that an agreed-upon APL order may not be modified

by the trial court. Id. at 12. However, a previous panel of this Court

addressed this particular issue in Wife’s earlier appeal. We therefore

conclude the law of the case doctrine precludes Wife any relief on this issue.

“The law of the case doctrine sets forth various rules that embody the

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concept that a court involved in the later phases of a litigated matter should

not reopen questions decided by another judge of that same court or by a

higher court in the earlier phases of the matter.” In re Estate of Elkins, 32

A.3d 768, 776 (Pa. Super. 2011) (citation omitted).

Among the related but distinct rules which make up the law of the case doctrine are that: … (2) upon a second appeal, an appellate court may not alter the resolution of a legal question previously decided by the same appellate court.

George v. Ellis, 911 A.2d 121, 125 (Pa. Super. 2006) (citation omitted).

The prior panel addressed Wife’s contentions about the May 2008 APL

order as follows:

[T]he record contains no direct evidence that the parties agreed to the May 1, 2008 order. The order does not expressly state that it was entered by consent. The order makes the success of [Husband’s] petition to bifurcate conditional on his compliance with paragraphs 2 (provide health insurance) and 3 (obtain life insurance). The court did not condition the grant of [Husband’s] bifurcation motion on his compliance with Paragraph 1, which includes the “without reduction” language. Ultimately, we are left to speculate whether the terms of the May 1, 2008 order was the subject of a negotiated agreement or whether it was of the trial court’s design. Under these circumstances, we do not believe [23 Pa.C.S.A.] § 3105(c), governing APL by agreement, is dispositive.

Weisman, supra at 10.

The panel made the determination that the record did not contain

credible evidence that the May 2008 APL order was an unmodifiable

negotiated agreement. The panel remanded the case to the trial court for

the limited purpose of recalculating the amount of alimony Husband owed

Wife, due to the trial court’s miscalculation of Husband’s income. The panel

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did not order the trial court to alter the previously paid APL, as the APL

award was replaced by the alimony order. The Pennsylvania Supreme Court

declined to review the case on appeal, rendering the panel’s determination

final. Thus, we find unavailing Wife’s attempts to reopen that issue again on

appeal before the same Court that previously addressed it.

Based on the foregoing, we find this Court has already resolved the

core of Wife’s single question on appeal. Consequently, despite Wife’s

protestations, we are without discretion to reopen the issue. See George,

911 A.2d at 125. Accordingly, we affirm the August 4, 2016 order modifying

the amount of alimony Husband must pay Wife.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/18/2017

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