Opinion
J-S41024-17 No. 190 MDA 2017 No. 191 MDA 2017 No. 192 MDA 2017
09-07-2017
SUSAN C. SMITH Appellee v. CHRISTOPHER C. SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered December 29, 2016
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2013-20491 Appeal from the Order Entered September 15, 2015
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2013-20491 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
These are three consolidated appeals filed by Christopher Smith ("Husband"), pro se, from the orders entered on September 15, 2015 and December 29, 2016. The September 15, 2015 order entered a divorce decree and order of equitable distribution/qualified domestic relations order ("QDRO"), and the December 29, 2016 order granted Susan C. Smith's ("Wife") motion to compel Husband to sign Wife's proposed QDRO, and denied Husband's motion to compel Wife to sign the QDRO that he proposed. After our review, we quash the appeal at 191 MDA 2017, and affirm the appeals at 190 MDA 2017 and 192 MDA 2017.
Two of Husband's appeals, 190 MDA 2017 and 192 MDA 2017, are from the same order, entered on December 29, 2016. This Court consolidated these appeals, sua sponte, with the appeal filed at 191 MDA 2017. See Order, 2/13/17. See also Pa.R.A.P. 513. Because Husband's appeal from the September 15, 2015 order was stayed and subsequently withdrawn, we quash the appeal docketed at 191 MDA 2017. See discussion infra , at p. 8.
Wife's counsel has notified this Court that, due to Wife's limited resources, she would not be filing an appellee's brief. Counsel has indicated agreement with the trial court's findings and opinion.
The parties were married on September 15, 1984; they separated on February 24, 2014. The parties have an adult son, who is now 29 years old.
On June 12, 2014, the court appointed Loreen Burkett, Esquire, as a special master to hear the issue of alimony pendent lite (APL). On June 23, 2014, the court appointed Special Master Burkett to make recommendations on the claim for equitable distribution. Following a hearing on February 24, 2015, Special Master Burkett determined that Wife was entitled to APL and recommended Husband pay $1,178.00 per month. Husband, who argued Wife had not demonstrated need for APL, filed exceptions. The trial court denied Husband's exceptions, and, thereafter, denied Husband's motion for reconsideration. Husband appealed to this Court, and we quashed that appeal. See Smith v. Smith , 121 MDA 2015 (Order, filed February 12, 2015). See also Calibeo v. Calibeo , 663 A.2d 184 (Pa. Super. 1995) (order for either spousal support or alimony pendente lite is interlocutory and not appealable until all economic claims have been resolved).
On April 28, 2015, Special Master Burkett filed a motion for withdrawal, stating that she had recently "identified an issue which may create the appearance of a conflict in the future[.]" Motion for Withdrawal of Appointment of Special Master, 4/28/15, at ¶ 5. On May 5, 2015, the court granted the motion to withdraw and appointed Keith Kilgore, Esquire, as Special Master, who, on May 12, 2015, petitioned the court to appoint an alternate because he had previously represented Husband. On May 18, 2015, the court vacated Kilgore's appointment and appointed Anne Kline, Esquire, to address the issues of divorce, equitable distribution and alimony.
On July 7, 2015, Special Master Kline recommended a divorce be granted pursuant to section 3301(c) of the Divorce Code, and that the marital assets be distributed 53% to Wife and 47% to Husband; she also recommended Wife's request for alimony be denied.
Section 3301(c) provides: "The court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce." 23 Pa.C.S.A. § 3301(c).
Husband and Wife both filed exceptions. The Honorable Bradford H. Charles dismissed both parties' exceptions and entered an order on September 15, 2015, which states, in relevant part:
AND NOW, THIS 15TH DAY OF September, 2015, after a careful consideration of the file, including the transcript of the hearing on February 24, 2015 and the Special Master's report of July 7, 2015, the Exceptions filed by both parties in the above-captioned matter are DENIED and the recommendations of the Special Master are AFFIRMED in their entirety as follows:
1. Pursuant to Section 3301(c) of the Divorce Code, Susan C. Smith (hereafter "Wife") and Christopher C. Smith (hereafter "Husband") are hereby divorced from the bonds of matrimony.
2. Provided that no appeal of this decision is filed, alimony pendente lite will be terminated effective immediately. If an appeal is filed, we will entertain a hearing to determine whether alimony pendente lite should continue during the pendency of the appeal.
Order, 9/15/15.3. The marital property, excluding the joint TD Ameritrade stock account and Husband's [State Employee Retirement System] Pension [SERS], shall be divided 53% to Wife and 47% to Husband, with an offset for credits.
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7. Within sixty (60) days of the date of the final decree, Husband shall pay to Wife the sum of $92,310.88 to effectuate equitable distribution of the [marital] assets.
8. Husband's existing SERS pension value shall be divided equally between the parties by way of a QDRO. Husband shall elect the survivor annuity option. QDRO preparation costs shall be divided between the parties.
9. The joint TD Ameritrade stock account shall be divided 53% to Husband and 47% to Wife based upon its current valuation at the time [] the final Divorce Decree is entered.
10. Wife's request for alimony is DENIED.
On October 5, 2015, Husband filed a pro se notice of appeal. Wife filed a petition to stay the order pending appeal, averring irreparable harm in that Husband "will be free to remarry and name his future spouse as a beneficiary of his State Employees Retirement Pension to which [Wife] was awarded a fifty percent (50%) share." Application for Stay, 10/14/15, ¶ 6. The court granted the stay on October 20, 2015. Despite the filing of an appeal from the September 15, 2015 order, Husband filed a petition to seek enforcement of that order on October 19, 2015. The court denied that request on October 22, 2015, and five days later Husband filed a motion seeking disqualification of the Honorable Bradford H. Charles. See Motion for Immediate Disqualification of Judge Bradford H. Charles Due to Multiple Violations of the Code of Judicial Conduct, 10/27/15.
In his motion, Husband claimed Judge Charles allowed Wife's attorney "to knowingly make false statements about [Husband,] . . . and is clearly biased against [Husband] in his rulings and actions by allowing this misconduct of [Wife's] lawyer." Id. at 2. Husband also claimed that Judge Charles' granting of Wife's petition for stay "is illegal and biased against [him]." Id. On October 29, 2015, Judge Charles denied this motion, and also denied Husband's motion for reconsideration of the September 15, 2015 order. Order of Court, 10/29/15. Order of Court, 10/29/15.
On November 3, 2015, Husband filed a "Motion to the President Judge of the Court of Common Pleas of Lebanon County for the Immediate Reconsideration and Disqualification of Judge Bradford H. Charles due to Multiple Violations of the Code of Judicial Conduct[.]" In support of this motion, Husband averred, in part:
This judge has refused to properly calculate the APL payment based upon the laws of the Commonwealth of Pennsylvania and adjusted [Husband's] APL payment. This violation of the Code of Judicial Conduct has forced [Husband] to pay [Wife] over $270 a month more than the maximum amount allowed by law.
Rule 2.3 requires a judge to perform the duties of judicial office without bias or prejudice. A judge shall not by words or conduct, manifest bias or prejudice. Judge Charles has showed his distaste towards [Husband] by making a
number of derogatory comments about [Husband] during the Judge's Opinion on Equitable Distribution [referring to Judge Charles' September 15, 2015 opinion].
The granting of the Stay Order is illegal and biased against [Husband] on the following grounds:
Motion, 11/13/15, at 2-4 (emphasis added).Since [Husband] is fully willing to comply with the September 15, 2015 Divorce Decree and Order of Equitable Distribution, there can be absolutely no harm to [Wife] to allow the Entry and Execution of this September 15 order. [Wife], who is the moving party in the divorce, is not requesting reconsideration, nor is [Wife] appealing the September 15, 2015 Divorce Decree and Order of Equitable Distribution. So if [Husband] fully complies with the Order, even while [Husband] is appealing the Order, there is no legal reason for the Stay to be granted. There is no justifiably claim of economic harm to [Wife] that [Wife] can make. The only reason Judge Charles signed this Order is his blatant bias against [Husband].
The biased Judge failed to consider any of the economic and health issues (diagnosis of cancer) being endured by [Husband].
The trial court stated in its opinion that Husband has "impugned the integrity of everyone who disagrees with him[.]" Opinion, 9/15/15, at 1. From our review of Husband's motions, it appears that the court's statement is an accurate assessment. Husband's characterizations of the judge, the master, the judicial system and Wife's attorney, ("the biased judge," the "incompetent judge and domestic relations master," the "lack of integrity in Lebanon County," describing the Lebanon County judicial system as a "compete cesspool of nepotism," and references to the "unethical lawyer" who "needs a lesson in English," to list a few), are inappropriate and detract from his legal arguments.
On November 4, 2015, Judge Charles entered an order denying this second motion to disqualify, noting that President Judge John C. Tylwalk assigned him to preside over issues pertaining to this divorce. In his order, Judge Charles stated:
On November 11, 2015, President Judge Tylwalk issued an order denying Husband's motion seeking disqualification of Judge Charles. President Jude Tylwalk stated that Judge Charles "is in the best position to determine whether he is able to continue to preside impartially." Order, 4/11/15.
Prior to being assigned the responsibility to preside over issues in the above-referenced matter, this Jurist had no known contact with either [Wife] or [Husband]. This Jurist is not acquainted with either party, nor did this Jurist have any known business relationship with either party at any time in the past. This Jurist has rendered decisions that have angered [Husband]. By itself, that does not create grounds for disqualification. The fact that [Husband] has filed vitriolic-infused motions that have disparaged this Jurist also does not create a ground for this Jurist to recuse himself. . . . [Husband] has appealed the decision rendered by this Jurist with respect to divorce, equitable distribution and alimony pendente lite. We do not question [Husband's] ability to file and pursue an appeal, nor has [his] appeal engendered any personal animus by this Jurist toward him. [Husband] has asked us to enforce the Order we entered that he has appealed. We will not do this. So long as any party challenges the viability of a civil divorce order by filing an appeal, it would be improper for this Court to enforce said Order prior to a decision by the Pennsylvania Superior Court.Order, 11/4/15, at 1-3.
Thereafter, Husband filed an emergency petition in this Court to vacate the trial court's October 20, 2015 order staying enforcement of the September 15, 2015 order. This Court denied that petition. On November 16, 2015, Husband filed an application to withdraw his appeal, which this Court granted on November 24, 2015. That same day, the trial court vacated the stay order, reinstated its September 15, 2015 order, and the parties were divorced.
On April 19, 2016, Wife filed a petition to compel Husband to sign the QDRO. The court held a hearing on June 9, 2016, at which the parties disagreed on the term "survivor annuity option." Husband claimed that if Wife predeceased him, Wife's share should revert and become his property. Wife disagreed. The court scheduled another hearing for December 2, 2016, giving the parties time to consult with experts on the meaning of the term, "survivor annuity option."
On August 29, 2016, Wife filed a second petition to compel Husband to sign her proposed QDRO; on November 28, 2016, Husband filed a motion to compel Wife to sign his proposed QDRO. At a hearing on December 2, 2016, both parties testified; Wife's expert, Mark Altschuler, President of Pension Analysis Consultants, also testified. On December 29, 2016, the court entered an order granting Wife's motion to compel Husband to sign the QDRO prepared by Wife's expert, specifying that the parties were to share the costs of preparation equally, denying Husband's motion to compel Wife to sign his proposed QDRO, and denying Husband's continuing request that Judge Charles recuse himself. See Order, 12/29/16.
Husband appealed on January 24, 2017, and the court ordered Husband to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Husband filed his Rule 1925(b) statement on February 13, 2017.
In his appellate brief, Husband raises 39 issues, spanning ten pages of his brief. See Commonwealth v. Snyder , 870 A.2d 336, 340 (Pa. Super. 2005) ("14 very verbose issues which span three pages of his brief" constituted substantial defect permitting quashal). "Although the page limit on the statement of questions involved was eliminated in 2013, verbosity continues to be discouraged." Pa.R.A.P. 2116, comment. "The appellate courts strongly disfavor a statement that is not concise." Id. Due to the verbosity and confusing nature of Husband's issues, we will attempt to address Husband's main points of contention, which we have taken from his Rule 1925(b) statement. We have also reworded and condensed Husband's claims for ease of discussion and clarity:
We also note that Husband has failed to comply with Pa.R.A.P. 2135, which provides that "[a] principal brief shall not exceed 14,000 words" and "[a] party shall file a certificate of compliance with the word count limit if the principal brief is longer than 30 pages . . . when prepared on a word processor or typewriter." Pa.R.A.P. 2135(a)(1) and (d). The numbered pages, not including preliminary pages and appended exhibits, in Husband's appellate brief, amount to 69.
See Morgante v. Morgante , 119 A.3d 382, 396 (Pa. Super. 2015) (holding Husband's failure to raise challenge to equitable distribution award in Rule 1925(b) statement constituted waiver).
1. Did the court err in refusing to admit as hearsay, at the June 9, 2016 hearing, an affidavit and "routine business
correspondence" by SERS Assistant Counsel Salvatore A. Darigo, Jr.?Pa.R.A.P. 1925(b) Statement, 2/13/17 (rephrased and renumbered).
2. Did the court err or abuse its discretion in recessing the June 9, 2016 hearing and continuing it to December 2, 2016?
3. Did the court err in allowing testimony of Wife's expert witness, Mark Altschuler, at the December 2, 2016 hearing?
4. Did the court err in finding Mark Altschuler's testimony was not hearsay and was credible?
5. Did the court err in ordering Husband to sign the QDRO proposed by Wife, which does not comply with the equitable distribution order, where the payout calculation was based on a maximum single life annuity and not the survivor annuity option, thus precluding the pension amount awarded to Wife to revert back to Husband in the event Wife predeceases Husband?
6. Did the court err or abuse its discretion in awarding Wife alimony pendent lite, and in precluding Husband from cross-examining Wife on financial matters?
7. Did the court err or abuse its discretion in denying Husband's motion to recuse?
Our role in reviewing equitable distribution awards is well settled:
Our standard of review in assessing the propriety of a marital property distribution is whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure. An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.McCoy v. McCoy , 888 A.2d 906, 908 (Pa. Super. 2005) (internal quotations omitted). Further, this Court will only find an abuse of discretion where "the law has been overridden or misapplied or the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence in the certified record." Biese v. Biese , 979 A.2d 892, 895 (Pa. Super. 2009) (quotations and citations omitted). When reviewing an award of equitable distribution, "we measure the circumstances of the case against the objective of effectuating economic justice between the parties and achieving a just determination of their property rights." Hayward v. Hayward , 868 A.2d 554, 559 (Pa. Super. 2005). Moreover, in determining the propriety of an equitable distribution award, the court must consider the distribution scheme as a whole. Biese , supra. "[I]t is within the province of the trial court to weigh the evidence and decide credibility and this Court will not reverse those determinations so long as they are supported by the evidence." Morgante , 119 A.3d at 387.
Husband's first five claims are related. As such, we will discuss them together. As detailed in the facts above, Special Master Kline recommended Husband's SERS pension be divided equally between the parties by way of a QDRO, and that "Husband shall elect the survivor annuity option." Special Master's Report, Recommendation 6, 7/15/15. At the June 9, 2016, hearing on Wife's motion to compel, during Husband's cross-examination of Wife, Husband attempted to enter into evidence a letter from Salvatore Darigo, Jr., of the State Employee Retirement System, pertaining to Husband's proposed QDRO. N.T. Hearing on Motion to Compel, 6/9/16, at 21. Wife's counsel objected, arguing it constituted hearsay.
The court ruled as follows:
THE COURT: I agree. We're not going to get into the substance of this today. We're obviously going to need another hearing to have additional expert testimony provided. If he wants to show her the letter in order to establish a sequence of events, he may do so, but it's for that purpose only. So if you want to show Ms. Smith the letter to get into the sequence of events, you may do so.
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BY MR. SMITH: Okay. So would you agree that on that May 5th document from Salvatore Darigo that in the first paragraph he does say that the attached would be acceptable to SERS?
MS. WEISS [WIFE'S COUNSEL]: Objection.
THE COURT: It's the same objection he made to your exhibits. I will allow some questions about this document to establish the sequence of events. I will not allow the substance of what is contained in this letter to be proven for the truth of the matter asserted. Unless both of you agree to waive any hearsay problems, the truth of the matter is going to have to be established by witnesses on the witness stand who have personal knowledge of these pension.
MS. WEISS: I agree. I don't want to waive.
THE COURT: Okay. So with that, the objection is sustained.
MR. SMITH: I'm just asking her whether or not the paragraph says that the document attached is acceptable to the retirement system.
THE COURT: And that's calling for a substantive answer. Just like you objected when Ms. Weiss tried to get substantive information in through the letters, she's objecting to your effort to do that. I sustained your objections and I'm sustaining hers . . . . [Y]ou're asking for me to accept that that letter is accurate and without the witness to testify to the accuracy of the letter I cannot accept that. You want to question her about: did you receive this letter? What did you do with the letter? That establishes a sequence of events. But I'm telling both sides that as to the substance of which QDRO is correct and which QDRO is not correct , I'm going to need testimony from people that have personal knowledge about [the]
pensions and QDROs at issue. This witness does not have that expertise or that personal knowledge.Id. at 21-25 (emphasis added).
The parties disagreed on the meaning of the term "survivor annuity option." Husband interpreted it as meaning that if Wife predeceased him, before retirement, Wife's share should revert to him. Wife disagreed, and interpreted it as meaning if Wife predeceased Husband while the pension was in pay status, after retirement, only then would it revert back to him:
MS. WEISS: I think [t]hat the biggest objection we have is that it does not provide for the survivor annuity properly. . . . Paragraph 12 says that if she dies everything reverts back to him and that's not the case in a survivor annuity. It's not the law. It's not the case. When she dies , if she dies before he goes into retirement , it becomes part of her estate. . . .
MR. SMITH: That's an incorrect assessment, sir. Because the survivor annuity is provided for assuming she stays alive. SERS allows for overriding of the annuity at the point of the various parties' death[s].
THE COURT: . . . I don't know what you're both trying to communicate, but what I just heard you both agree. You both agree that if she dies the amount of the QDRO goes into her estate.
MR. SMITH: No, I do not agree with that and actually neither does Attorney Weiss.
MS. WEISS: I certainly do. And so does my expert.
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MR. SMITH: Sir, I'd also like to direct your attention to Exhibit Number 4, Paragraph Number 12, so basically it says here is if she dies before I retire, I pay her estate. If she dies after I retire all the proceeds revert to me, the member, so she agrees that if we're in a state of retirement that I should get all my
money back all the time. It's the last sentence in Paragraph 12 of the DRO that her own consultant put together.Id. at 29-33 (emphasis added).
MS. WEISS: And I believe that he's correct. I believe that my pension analyst guy is correct in interpreting what a survivor annuity means.
MR. SMITH: No, the survivor annuity says her benefits will revert to member. I am the member, meaning I get the money back.
MS. WEISS: When she dies after it's in pay status, not the way you want it, which is that it goes back to you at anytime she dies regardless of the pay status.
At that point, the court entered an order on the record, which reads, in part:
C. The Special Master did not define the term "survivor annuity option." This phrase is obviously a term of art. Neither of the parties have expertise to define the meaning of that term.Id. at 33-34; Order, 6/9/16 (emphasis added). The court also ordered that each party provide the opposing party with a brief expert report, focused on the meaning of the phrase "survivor annuity option," and stated: "You both can have experts. . . . And then I'll hear testimony at the next hearing as to what is meant by the term 'survivor annuity option.'" Id. at 35. The court recessed the hearing and rescheduled it for December 2, 2016.
D. It is obvious that expert testimony will be required to assist the Court in discerning what is meant by the phrase "survivor annuity option." It is also obvious that a new hearing will have to be scheduled to permit the parties to provide such expert opinion.
At the December 2, 2016 hearing, Mark Altschuler was qualified as an expert and testified on Wife's behalf. Husband cross-examined him, and Husband testified as well. Husband did not present an expert on his behalf.
Altschuler has a degree in mathematics and is a member of the American Academy of Pension Experts. He has personally prepared over 10,000 QDROs, and he has testified as an expert in pension analysis over 60 times. N.T. Hearing, 12/2/16, at 11-13.
Against this backdrop, Husband challenges the court's rescheduling of the hearing, its refusal to admit the correspondence from SERS representative Darigo as substantive evidence on hearsay grounds, and its decision to allow Wife's expert to testify. Each of these claims is meritless.
The trial court could not have been more transparent or justified in its reasoning for rescheduling the hearing, requiring expert testimony to assist the court in making a well-informed decision on the parties' main point of contention, and rejecting Husband's hearsay evidence. Husband had an opportunity to challenge Wife's expert's report and to present his own expert. As the trial court noted, Husband, "somewhat surprisingly," chose not to do so. Instead, he attempted to present unsubstantiated hearsay evidence. See Sprague v. Walter , 656 A.2d 80, 913 (Pa. Super. 1995) (affidavit is inadmissible hearsay when offered for its truth); see also Botkin v. Metropolitan Life Ins. Co., 907 A.2d 641 (Pa. Super. 2006) (report from financial expert, without testimony as to personal knowledge of matter, is hearsay). Wife's expert's opinion, therefore, was unrebutted. Further, the court found Wife's expert credible. This Court will not reverse credibility determinations as long as they are supported by the evidence. Morgante , 119 A.3d at 395. The trial court's reasons for accepting that testimony are supported by the record, and we decline to revisit the trial court's credibility determinations.
We conclude, therefore, that the court was within its discretion in accepting Wife's proposed QDRO with her interpretation of the term "survivor annuity option." Husband was neither surprised nor prejudiced by the court's decisions. We find no error or abuse of discretion. See Smith v. Smith , 653 A.2d 1259 (1995); see also Miller v. Miller , 617 A.2d 375 (Pa. Super. 1992) (where husband had opportunity to challenge wife's accounting expert's report on pension valuation, but instead offered unsubstantiated alternate calculation, and chose not to present his own expert valuation, court properly accepted report of wife's expert). Additionally, we find no abuse of discretion in the court's order requiring Husband to sign Wife's proposed QDRO. In doing so, the court effectuated economic justice. See Hayward , supra.
As indicated above, there were insufficient liquid assets available to offset the value of the marital home, and thus the master recommended that a QDRO of Husband's pension be used to effectuate economic justice. The trial court agreed, emphasizing that "a portion of wife's equitable distribution award was provided via the QDRO." Trial Court Opinion, 12/28/16, at 19. "[Wife's] rights to Husband's pension granted through the divorce are part of her estate and she should retain the ability to designate how and where those rights are to be distributed in the event of her death." Id. at 20. The order entered on December 28, 2016 granted Wife's motion to compel Husband to sign the QDRO prepared by Wife's expert, and it specified that costs of preparation be shared equally between the parties. Id . at 21. --------
Next, Husband argues the court erred or abused its discretion in awarding Wife alimony pendent lite [APL] and in precluding Husband from cross-examining Wife on financial matters.
We review APL awards under an abuse of discretion standard. Haentjens v. Haentjens , 860 A.2d 1056, 1062 (Pa. Super. 2004). APL is "an order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding." 23 Pa.C.S.A. § 3103. It "is designed to help the dependent spouse maintain the standard of living enjoyed while living with the independent spouse." Litmans v. Litmans , 209, 673 A.2d 382, 389 (Pa. Super. 1996). APL is thus not dependent on the status of the party as being a spouse or being remarried but is based, rather, on the state of the litigation, DeMasi v. DeMasi , 597 A.2d 101, 104-105 (Pa. Super. 1991), and "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." Haentjens , at 1062; see also Carney v. Carney , --- A.3d --- (filed July 11, 2017).
In one of the trial court's four comprehensive opinions in this case, the Honorable Bradford H. Charles sets forth a comprehensive analysis of Husband's challenge to the award of APL. See Trial Court Opinion, 12/19/14, at 6-21 (award of alimony pendente lite is within sound discretion of trial court; court evaluated facts and circumstances, noting significant income discrepancy, and concluded Wife established financial need). We, therefore, rely upon that opinion to dispose of this claim.
In his final issue, Husband claims the court abused its discretion in denying his continuing requests that Judge Charles, who has presided over this litigation since its inception, recuse himself. This Court presumes judges of this Commonwealth are "honorable, fair and competent," and, when confronted with a recusal demand, have the ability to determine whether they can rule impartially and without prejudice. Commonwealth v. White , 734 A.2d 374, 384 (Pa. 1999). The party seeking disqualification has the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal, and the "decision by a judge against whom a plea of prejudice is made will not be disturbed except for an abuse of discretion." Commonwealth v. Darush , 459 A.2d 727, 731 (Pa. 1983).
We discern no evidence of partiality on the part of Judge Charles. On the contrary, his rulings were evenhanded and thoughtfully analyzed. Husband's claims of bias and repeated characterizations of Judge Charles as the "biased judge" throughout his two motions to disqualify, is unsupported in the record, and his unsubstantiated accusations and allegations, strike this Court as bluster. We are in full agreement with Judge Charles: "[T]he time has come for both parties to dial down their rhetoric and focus their attention on moving beyond their vitriolic past. . . . [I]t is now time for both HUSBAND and WIFE to move forward with their respective lives." Opinion, 9/15/15, at 1, 21.
We affirm the trial court's orders, and rely in part on the opinion dated December 19, 2014. We direct the parties to attach a copy of that opinion in the event of further proceedings.
Orders in 190 MDA 2017 and 192 MDA 2017 affirmed. Appeal in 191 MDA 2017 quashed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/7/2017
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