Charity Kreider, v. David Kreider

Charity Kreider, v. David Kreider

Civil Action-Family Law-Divorce-Support-Alimony Pendente Lite-Counsel Fees-Reasonableness-Need of Dependent Spouse-Totality of the Circumstances-Criminal Charges of Dependent Spouse-Cost of Substance Rehabilitation-Impending Incarceration

Both parties filed Exceptions to the Order adopting the Report and Recommendation of the Domestic Relations Hearing Officer (“DRHO”) directing David Kreider (“Husband”) to pay to Charity Kreider (“Wife”) alimony pendente lite (“APL”) in the amount of $420.00 per month, as well as to pay the cost of substance rehabilitation treatment for Wife in the amount of $625.00 per month directly to the substance rehabilitation treatment provider and legal fees in the amount of $1,500.00 per month to Wife. 

1.  Title 23 Pa.C.S. § 3702(a) provides that the court may allow a spouse reasonable APL, counsel fees and expenses.

2.  The purpose of an award of counsel fees is to promote the fair administration of justice by enabling the dependent spouse to maintain or to defend the action without being placed at a financial disadvantage.

3.  The trial court must evaluate the totality of the circumstances to determine whether to award counsel fees including the payor’s ability to pay, the requesting party’s financial resources, the value of the services rendered and the property received in equitable distribution.

4.  Counsel fees must be reasonable.

5.  In light of the fact that the parties amassed assets during the marriage worth more than $100,000.00, Wife is an alcoholic who does not have an honest desire to change her addiction with her current interest in rehabilitation appearing to be to avoid incarceration, it is likely that Wife will spend one (1) year or more in a prison environment during the divorce such that Husband will not be required to pay a monthly amount for substance rehabilitation treatment during that time and Wife requires representation effectively to prosecute her claim for APL, the DRHO appropriately found that an award of counsel fees was warranted.

6.  The amount of counsel fees directed in the amount of $1,500.00 per month is not reasonable, as counsel fees expended in an effort to procure expensive drug and alcohol treatment for Wife given Wife’s attitude and behavior relevant to treatment is not appropriate for an award of counsel fees and Wife’s daily needs will be supplied in a prison environment where she is likely to spend time in the future with instead an award of a lump sum payment of $5,000.00 in counsel fees appearing reasonable through the completion of equitable distribution.

L.C.C.C.P.  No. 2022-50557, Opinion by Bradford H. Charles, Judge, August 1, 2024.   

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – DOMESTIC RELATIONS DIVISION

CHARITY A. KREIDER,                                                   :  NO. 2022-5-0557

                                    Plaintiff                                              :  PACSES 342301883

                                                                                                : 

v.                                                                                 :

: 

DAVID KREIDER,                                                              :

                                    Defendant                                         :  

                                                            ORDER OF COURT

AND NOW, this 1st day of August 2024, upon consideration of the exceptions filed, and in accordance with the attached Opinion, the Order of this Court is as follows: 

1. The Exceptions to the Domestic Relations Hearing Officer’s (DRHO) recommendations will be granted in part and denied in part.
2. David Kreider (hereafter HUSBAND) shall pay to Charity A. Kreider (hereafter WIFE) the amount of $420/month in Alimony Pendente Lite (APL).
3. HUSBAND shall pay the costs of WIFE’s alcohol treatment at the rate of $625/month, only while she is receiving treatment in a private facility.  These payments are to be made directly to the facility in which WIFE may be enrolled, and not directly to WIFE.
4. During any month in which WIFE is not in treatment in a private drug and alcohol treatment facility, including WIFE’s period of incarceration when she will be receiving State-funded drug & alcohol treatment, HUSBAND shall be excused from paying $625/month under the preceding paragraph. 
5. HUSBAND shall not be required to pay WIFE’s legal fees in the amount of $1,500/month.  Rather, we will require HUSBAND to pay a one-time payment of $5,000.  This amount is to be paid directly to WIFE’s legal counsel within forty-five (45) days from today’s date. No further counsel fees pertaining to APL will be awarded.

ACCORDINGLY, the Order of this Court is as follows:

This Order shall be effective April 1, 2024.

The amount of Alimony Pendente Lite to be paid by Defendant is $420.00 per month for Charity A. Kreider and $42.00 per month on arrears.

The amount to be paid for each dependent and obligation amount is allocated as follows:

AMOUNT/FREQUENCY     OBLIGATION TYPE            BENEFICIARY

_$420.00 _/_month_   _Alimony Pendente Lite_           Charity A. Kreider

_$42.00 _/_month_     _Arrears_                                                Charity A. Kreider

Arrears are due in full IMMEDIATELY.  All terms of this Order are subject to collection and/or enforcement by contempt proceedings, credit bureau reporting, tax refund offset certification, driver’s license revocation, and the freeze and seizure of financial assets.  These enforcement/collection mechanisms will not be initiated so long as Obligor does not owe overdue support.  Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all the means listed above.

The monthly support obligation includes cash medical support in the amount of $250 annually for un-reimbursed medical expenses incurred for each child and/or spouse.  Un-reimbursed medical expenses of Obligee or children that exceed $250 annually shall be allocated between the parties.  The party seeking allocation of the un-reimbursed medical expenses must provide documentation of the expenses to the other party no later than March 31^st of the following calendar year in which the final medical bill to be allocated was received.  The un-reimbursed medical expenses are to be paid as follows:  _100_% by Defendant and _0_% by Plaintiff.  __X__Defendant ___ Plaintiff ____Neither party is to provide medical coverage __ 

 IT IS ORDERED THAT (ITEMS CHECKED BELOW APPLY):

_____The defendant is ordered to cover the dependent(s) with health care coverage whenever it is available at a reasonable cost which shall be defined as a cost that does not exceed 5% of defendant’s net monthly income and does not exceed 50% of defendants net monthly income when added to the basic child support plus additional expenses.

_____Health care coverage is currently not available at a reasonable cost to defendant.  Therefore, plaintiff is ordered to continuegovernment-sponsored Children’s Health Insurance Program (CHIP).  The cost of said coverage shall not exceed 5% of plaintiff’s net monthly income.

_____Health care coverage is currently not available at a reasonable cost to defendant.  Therefore, plaintiff is ordered to cover the dependent(s) with health care coverage if it is available at a reasonable cost which shall be defined as a cost that does not exceed 5% of plaintiff’s net income.

IT IS FURTHER ORDERED:

Within 30 days after the entry of this order, the party ordered to provide health care  coverage shall provide written proof to the Lebanon County Domestic Relations Office and the other party that medical insurance has been obtained, including insurance cards and any other material necessary to utilize the coverage.

If Health Insurance is currently unavailable to the party/parties ordered to provide it, such proof shall be provided to Lebanon County Domestic Relations within 7 days of the date of this order.

If Health Insurance coverage is now available or becomes available to the party/parties ordered to provide it, the party/parties shall provide proof of the cost to Lebanon County Domestic Relations within 7 days of the date of availability.

D.  ____DEFENDANT  _____PLAINTIFF SHALL PAY THE FOLLOWING FEES:  

FEE TOTAL   FEE DESCRIPTION             PAYMENT FREQUENCY

__$40.25_/_once__     _JCS Fee ___  __X__ Previously Taxed or Paid

ADDITIONAL RECOMMENDATIONS:

__X___All other provisions from the court order effective _April 1, 2024_, not affected by this order, shall remain in full force and effect.

Any money collected pursuant to this Order shall be paid by Pennsylvania State Collection & Disbursement Unit to Plaintiff, Plaintiff’s assignee, or as designated, by other Order of Court.  Said money to be turned over by the Pennsylvania State Collection & Disbursement Unit to Plaintiff, Plaintiff’s assignee, or as designated, by other Order of Court.

            Within thirty (30) days after the entry of this Order, the party or parties providing insurance shall submit to the person having custody of the child(ren) written proof that medical insurance coverage has been obtained or that application for coverage has been made.  Proof of coverage shall consist, at a minimum, of: 1) the name of the health care coverage provider(s); 2) any applicable identification numbers; 3) any cards evidencing coverage; 4) the address to which claims should be made; 5) a description of any restrictions on usage, such as prior approval for hospital admissions, and the manner of obtaining approval; 6) a copy of the benefit booklet or coverage contract; 7) a description of all deductibles and co-payments; and 8) five copies of any claim forms. 

            Payments must be made by check or money order.  All checks and money orders must be made payable to Pennsylvania State Collection & Disbursement Unit and mailed to P.O. Box 69110, Harrisburg, PA 17106-9110.  Each payment must bear your social security number and member number in order to be processed.

IMPORTANT LEGAL NOTICE

PARTIES MUST WITHIN SEVEN DAYS INFORM THE DOMESTIC RELATIONS SECTION AND THE OTHER PARTIES, IN WRITING, OF ANY MATERIAL CHANGE IN CIRCUMSTANCES RELEVANT TO THE LEVEL OF SUPPORT OR THE ADMINISTRATION OF THE SUPPORT ORDER, INCLUDING, BUT NOT LIMITED TO, LOSS OR CHANGE OF INCOME OR EMPLOYMENT AND CHANGE OF PERSONAL ADDRESS OR CHANGE OF ADDRESS OF ANY CHILD RECEIVING SUPPORT. A PARTY WHO WILLFULLY FAILS TO REPORT A MATERIAL CHANGE IN CIRCUMSTANCES MAY BE ADJUDGED IN CONTEMPT OF COURT, AND MAY BE FINED OR IMPRISONED.

PENNSYLVANIA LAW PROVIDES THAT ALL SUPPORT ORDERS SHALL BE REVIEWED AT LEAST ONCE EVERY THREE (3) YEARS IF SUCH REVIEW IS REQUESTED BY ONE OF THE PARTIES. IF YOU WISH TO REQUEST A REVIEW AND ADJUSTMENT OF YOUR ORDER, YOU MUST DO THE FOLLOWING: CALL YOUR ATTORNEY. AN UNREPRESENTED PERSON WHO WANTS TO MODIFY (ADJUST) A SUPPORT ORDER SHOULD CONTACT THE DOMESTIC RELATIONS SECTION.

ALL CHARGING ORDERS FOR SPOUSAL SUPPORT AND ALIMONY PENDENTE LITE, INCLUDING UNALLOCATED ORDERS FOR CHILD AND SPOUSAL SUPPORT OR CHILD SUPPORT AND ALIMONY PENDENTE LITE, SHALL TERMINATE UPON DEATH OF THE PAYEE.

A MANDATORY INCOME ATTACHMENT WILL ISSUE UNLESS THE DEFENDANT IS NOT IN ARREARS IN PAYMENT IN AN AMOUNT EQUAL TO OR GREATER THAN ONE MONTH’S SUPPORT OBLIGATION AND (1) THE COURT FINDS THAT THERE IS GOOD CAUSE NOT TO REQUIRE IMMEDIATE INCOME WITHHOLDING; OR (2) A WRITTEN AGREEMENT IS REACHED BETWEEN THE PARTIES WHICH PROVIDES FOR AN ALTERNATE ARRANGEMENT.

UNPAID ARREARS BALANCES MAY BE REPORTED TO CREDIT AGENCIES. ON AND AFTER THE DATE IT IS DUE, EACH UNPAID SUPPORT PAYMENT SHALL CONSTITUTE, BY OPERATRION OF LAW, A JUDGEMENT AGAINST YOU, AS WELL AS A LIEN AGAINST REAL PROPERTY.

IT IS FURTHER ORDERED that, upon payer’s failure to comply with this order, payer may be arrested and brought before the Court for a Contempt hearing; payer’s wages, salary, commissions, and/or income may be attached in accordance with law; this Order will be increased without further hearing by 10 % a month until all arrearages are paid in full.  Defendant is responsible for court costs and fees.

BY THE COURT,

                                                                        ______________________________, J.

                                                                        BRADFORD H. CHARLES

BHC/pmd

cc:        Ebony Hammond, Esq.

            Colleen Gallo, Esq.

            Charity Kreider

            David Kreider

            Domestic Relations

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – DOMESTIC RELATIONS DIVISION

CHARITY KREIDER,                                                        :  NO. 2022-5-0557

                                    Plaintiff                                              :  PACSES 342301883

                                                                                                : 

v.                                                                                 :

: 

DAVID KREIDER,                                                              :

                                    Defendant                                         :  

APPEARANCES:

Ebony Hammond, Esq.                                            For Plaintiff  

Colleen Gallo, Esq.                                                   For Defendant

OPINION BY CHARLES, J., August 1, 2024

             The practice of this jurist has been to introduce Opinions with an opening paragraph that summarizes the dispute and provides a theme for the decision of the Court.  Formulating a theme for this multi-faceted dispute would be an insular exercise.  Because of this, we will simply state that we understand and endorse the decision of the Domestic Relations Hearing Officer (DRHO) to award Alimony Pendente Lite (APL) to a woman who is in the process of self-sabotaging her own life.  We also endorse the DRHO’s decision not to rely upon a formulaic model when assessing the amount to be paid.  We even agree with the DRHO that some amount of counsel fees should be paid by David Kreider (hereafter HUSBAND) to Charity Kreider (hereafter WIFE).  However, we cannot agree completely with everything recommended by the DRHO.  Therefore, for reasons we will articulate in far more detail below, we will grant in part and deny in part the Exceptions to the recommendation of the DRHO that are now before this Court.

I.          FACTUAL BACKGROUND

             WIFE has been a party to numerous court disputes that have proceeded separately but simultaneously.  It is important to understand the basic fundamentals of pending litigation that involves WIFE.  We will therefore set forth a history of events.  For sake of clarity, we will divide our discussion of history into two sections: (A) Criminal Litigation; and (B) Domestic Relations Litigation.

1. Criminal Litigation
2. 9-1-22 – WIFE was charged with a DUI in York County.  On 8-23-23, she was sentenced for driving with the Highest Rate of Blood Alcohol Content. Because this was a first offense, WIFE received six (6) months probation.  In addition, she was ordered to undergo drug and alcohol counseling.  
3. 1-10-23 – WIFE was charged with another DUI in Lancaster County. She was sentenced on 12-14-23 for driving with the Highest Rate of Blood Alcohol Content.  WIFE received five (5) years of probation, in part because she agreed to undergo residential drug and alcohol treatment.  
4. 6-6-23 – WIFE was arrested on charges of Driving Under the Influence when police saw her driving on Old Route 22 in Swatara Township, Lebanon County.  Police described WIFE as “appearing heavily intoxicated”.  She was unable to complete field sobriety tests, and police were so concerned for WIFE’s welfare that she was transported to the WellSpan Good Samaritan Hospital for a medical examination.  While at the hospital, WIFE was asked to submit to a blood alcohol test.  She refused.
5. 6-22-23 – WIFE was arrested again for DUI when she was observed by police driving in a reckless manner on State Route 72 in northern Lebanon County.  After the traffic stop was effectuated, WIFE admitted to consuming whisky.  She could not maintain her balance after leaving the vehicle, and failed numerous field sobriety tests.  She was transported to a hospital for a blood alcohol test.  The test revealed that she had a Blood Alcohol Content of .0128%. 
6. 6-29-23 – WIFE was afforded unsecured bail on both of her Lebanon County DUI charges. 
7. September of 2023 – At an unknown point in time during late August, WIFE entered the Caron Foundation Residential Treatment program.  She absconded from that treatment program on September 27, 2023.  Three days later, WIFE was found by police in a cabin in upstate Pennsylvania.  She was intoxicated at the time. 
8. 10-6-23 – The Commonwealth filed a Motion to Revoke Bail based upon the events that had occurred in September.  In its motion, the Commonwealth alleged that WIFE had attempted residential treatment on seven prior occasions, and that none of the treatment was successful. 
9. 10-18-23 – The Court conducted a hearing regarding bail revocation.  The Court indicated that it would entertain a request for a long-term residential treatment program in lieu of incarceration. 
10. 11-1-23 – WIFE was released from the Lebanon County Correctional Facility (LCCF) so that she could begin attending the BluePrints Residential Treatment program.  The Court Order indicated that WIFE should not be released to live in the community.
11. 11-20-23 – The BluePrints Recovery facility sent a letter recommending that WIFE be transitioned to a halfway house environment. 
12. 12-7-23 – WIFE was approved to begin residing in the Grace House Sobriety House. 
13. 1-29-24 – WIFE filed a request for bail modification.  She proposed to undergo intensive outpatient counseling under the auspices of the Retreat Behavioral Health System. 
14. 1-31-24 – WIFE entered a plea of guilty pursuant to an agreement that called for her to spend one (1) year in residential treatment. 
15. 2-28-24 – The Court was advised that WIFE entered the Banyon Treatment Facility. 
16. 3-8-24 – WIFE filed another request for bail modification, seeking permission to live in the Bold Steps Sobriety House located in Harrisburg. 
17. 3-13-24 – The Court conducted a hearing regarding bail.  The Court reiterated that it would not permit WIFE to reside in her home in order to participate in outpatient treatment.  However, the Court stated:

“Throughout the Defendant’s pre-trial hospitalization, the parties have represented to the Court that their intent was for the Defendant to receive a sentence of time in a residential treatment facility instead of time in prison…[The Court will] allow the Defendant to attend residential treatment instead of prison.”

1. 4-15-24 – A Pre-Sentence Investigation Report was provided to the Court.  That Pre-Sentence Report contained the following:

“The Defendant was very defiant during her PSI Interview and stated she does not have an alcohol problem despite being in treatment for her alcohol use.  Prior to treatment, she had been drinking daily but the Defendant does not see an issue with that.  She has been to numerous inpatient facilities to include Brookdale in 2022, BluePrints, Grace House, Caron and Retreat in 2023.  Unfortunately, the Defendant has been resistant in treatment and had checked herself out of treatment…

Before completion, her current counselor noted that she continues to deflect and not take any responsibility for her actions that got her to where she is today.  The Defendant continues to give everyone the third degree and does not seem to comprehend or appreciate that treatment is an alternative to being in jail…”

1. 4-29-24 – This Court undertook sentencing of the Defendant.  We accepted the parties’ plea agreement and sentenced the Defendant to spend one (1) year in residential treatment.  We emphasized to the Defendant at sentencing that we would not agree to house arrest or outpatient treatment and that the alternative to residential treatment was prison.  We advised her that we intended to place her in a State Correctional Institution should she fail to complete treatment.  We also told the Defendant that we would not afford her with additional treatment opportunities beyond what she had already been afforded. 
2. 5-2-24 – WIFE was discharged from residential treatment.  According to representatives of Bold Steps Behavioral Health facility:

“Charity was and continues to be in complete denial of her alcohol use disorder, stating that ‘I do not have an alcohol problem’.  Charity continues to insist that she has only 2 DUIs because ‘The other two times I was trying to commit suicide.’  Both primary therapist and group therapist facilitators tried to break through Charity’s denial and encouraged her to engage in treatment.  Throughout the course of treatment, Charity chose to deflect, blame and avoid treatment, accepting no responsibility for her current situation.  Because she insists that she does not have an alcohol use problem, she refused to engage in 12-step facilitation therapy or AA meetings, as required by the program.”

• 5-15-24 – The Commonwealth filed a Petition to Determine Probation Violation as a result of WIFE’s discharge from her program. 
• 5-22-24 – This Court entered an Order vacating the sentence we had imposed on April 29, 2024.  In addition to WIFE’s behavior, the Commonwealth indicated that it had mislabeled WIFE’s latest DUI as second and third ones instead of as third and fourth ones.  Because of this, the Commonwealth asserted that it would not be possible for the Court to implement its stated intent to place WIFE in the State Drug/Alcohol Treatment Program as a result of her failure to complete residential treatment.  When we vacated our sentencing order, we afforded WIFE with an opportunity to withdraw her plea of guilty.  We then established bail at $150,000.  WIFE was placed in LCCF. 
• 6-19-24 – WIFE entered another plea of guilty pursuant to a plea agreement that called for her to spend one (1) year in the State Drug/Alcohol Treatment Program administered by the State Bureau of Corrections.  Before WIFE entered the plea, this Court very clearly advised her that it had essentially “re-set” her case and that she would be able to request a jury trial if she so chose.  We also clearly advised WIFE that if she entered a plea, we would accept the plea agreement and would sentence her to one (1) year in the State Drug/Alcohol Treatment Program.  After being advised of her options, WIFE entered her plea of guilty. 
• 8-7-24 – Sentencing is scheduled for this date.  Given everything that has occurred, we hesitate to predict precisely what will occur at the time of sentencing. 

2. Domestic Relations Litigation
3. 9-30-22 – WIFE filed a Divorce Complaint against HUSBAND. 
4. 11-21-22 – HUSBAND filed a request for relief under Protection From Abuse Act (PFA).  HUSBAND alleged that WIFE hit him over the head with a bucket and that she threatened to have a friend “beat the shit” out of him.  The PFA also alleged that when police arrived at the scene, they gave WIFE a breath alcohol test.  Her B.A.C. was .28%.
5. 11-28-22 – WIFE was charged with violating the PFA by initiating four (4) text messages and placing sixteen (16) calls to HUSBAND. 
6. 12-2-22 – A hearing regarding the PFA and the violation was continued.  The Judge told WIFE to remain in residential treatment. 
7. 12-9-22 – WIFE again violated the PFA by initiating calls and texts to HUSBAND.
8. 12-20-22 – WIFE filed a Complaint with the Domestic Relations Office seeking APL. 
9. 1-6-23 – WIFE was found in violation of the PFA.  She was advised to remain in residential treatment in lieu of incarceration.
10. 1-12-23 – WIFE violated the PFA by entering HUSBAND’s business and initiating contact with him.
11. 1-27-23 – A Final PFA Order was entered by agreement and without admission of culpability.  WIFE was evicted from the marital home.  The PFA was continued in place until November 24, 2023.
12. 2-16-23 – A conference was conducted regarding APL.  A Conference Officer recommended that HUSBAND pay $876/month based upon HUSBAND’s reported income of $53,696 and WIFE’s reported income of $0.  A hearing before a DRHO was then scheduled.
13. 3-24-23 – WIFE filed a Motion Seeking to Continue the Support Hearing in order to obtain more information regarding HUSBAND’s income. 
14. 3-28-23 – This Court entered an Order postponing the APL Hearing until September 21, 2023.  The Order required HUSBAND to provide information regarding his business to WIFE.
15. 7-7-23 – WIFE violated the PFA by entering HUSBAND’s residence without permission while carrying a can of beer.  While in the residence, WIFE confronted friends of HUSBAND who were present and she destroyed some personal property located there.  At some point shortly thereafter, WIFE was arrested and incarcerated.
16. 7-21-23 – HUSBAND filed a Motion to Suspend APL due to WIFE’s incarceration.
17. 8-4-23 – WIFE was found in violation of the PFA.  WIFE was sentenced to spend 45 days in LCCF. 
18. 8-14-23 – WIFE reported to the Domestic Relations Office that she had been approved to enter the Caron Foundation Residential Treatment program on August 21, 2023. 
19. 9-15-23 – WIFE filed a Motion for Special Relief.  She alleged that she was “excelling at Caron.”  She stated that she had relapsed in prior rehabilitation programs because the duration of those programs was short.  She requested $14,400 from HUSBAND so that she could remain in the Caron Foundation program. 
20. 9-18-23 – This Court entered an Order denying WIFE’s request that HUSBAND immediately pay $14,400.  We stated in the Order: “We would certainly entertain a Petition for Interim Distribution of Marital Assets in order to cover costs pertaining to WIFE’s treatment.”  In addition, we noted that an APL Hearing was scheduled for September 21, 2023, where all issues pertaining to the parties’ income and expenses could be addressed.
21. 9-21-23 – A hearing was conducted regarding APL before a DRHO. 
22. 10-3-23 – The DRHO issued a report and recommendation.  The report set forth an analysis of HUSBAND’s business earnings and concluded that HUSBAND had a monthly net income of $8,998.  WIFE was again afforded an income of $0.  Based upon these income figures, APL of $2,821/month was recommended.  In her report, the DRHO stated that HUSBAND had agreed to pay $5,000 of the amount needed by WIFE for residential treatment at the Caron Foundation.  The DRHO also indicated that the parties had significant marital assets totaling in the hundreds of thousands of dollars.  The DRHO indicated that the Special Master in Divorce would determine how the cost of WIFE’s treatment could be divided.  She also stated: “Defendant shall be responsible only if Plaintiff completes the treatment program.”
23. 10-13-23 – HUSBAND filed a Petition to Suspend APL.  HUSBAND alleged that WIFE absconded from treatment at the Caron Foundation and was incarcerated as a result of violating her bail. 
24. 10-18-23 – The Court entered an Order regarding HUSBAND’s Motion to Suspend.  We stated, inter alia:

“While it may be that WIFE’s food and housing are now provided at no cost by the County, WIFE may have other financial needs related to the divorce…We are unwilling to completely suspend APL given that WIFE may have financial responsibilities that transcend food, clothing and shelter.”

Based upon the above, we temporarily reduced APL to $1,000/month and we scheduled a Factual Hearing for November 3, 2023.

• 10-24-23 – HUSBAND filed Exceptions to the recommendation of the DRHO. 
• 11-3-23 – This Court conducted a Factual Hearing regarding APL.  We learned that WIFE had entered the BluePrints Residential Treatment program and was scheduled to transition into the Grace House Residential Sobriety House facility.  We reduced APL to $750/month, with a proviso that the APL would automatically increase to $1,000/month on December 1, 2023, if WIFE entered the Grace House program.  We also stated: “There is much we do not know regarding WIFE’s impending residence at Grace House.”  A hearing was ordered to assess WIFE’s expenses at Grace House and her ability to earn income while residing there.
• 2-28-24 – WIFE filed an Emergency Petition seeking money to pay costs of treatment at the Banyan Treatment facility.  In her motion, WIFE represented that her therapist recommended a “step-down” to outpatient treatment.  She stated that if she were to be compelled to remain in residential treatment, the Dreamlife Residential program would cost $18,500/month and the Banyan Treatment facility would cost $3,000/day.
• 2-29-24 – This Court entered an Order proposed by WIFE granting her request for $18,500. 
• 3-5-24 – This Court vacated the Order entered on February 29, 2024, as having been “improvidently entered.”  After consultation with counsel, the Court determined that issues pertaining to the cost of WIFE’s treatment should be addressed at an upcoming DRHO hearing scheduled for March 7, 2024.  We also stated that we would not approve any plan that would require HUSBAND to pay $18,500/month for treatment.  We advised both counsel that a multitude of sobriety houses exist that would provide residential services at no cost or at minimal cost within Lebanon County, and we provided counsel with the names of a number of these programs.
• 3-7-24 – A hearing was conducted before a DRHO. 
• 3-25-24 – The DRHO issued a report and recommendation.  In her report, the DRHO stated that WIFE alleged that she could not locate a sobriety house program that would support her use of medications for depression and anxiety.  The DRHO also stated that WIFE would not consult with a doctor to determine whether or how her medications could be suspended during residence in a sobriety house.  The DRHO reported that WIFE appeared in Court with “professionally manicured fingernails” and that she sought $13,000/month for a sobriety house that would enable her to continue her medications.  The DRHO emphasized that both HUSBAND and WIFE possessed marital assets, including retirement funds, “from which they may resort to pay their respective living expenses during the pendency of their divorce.”  The DRHO indicated that many of the issues raised by WIFE should be addressed within the context of equitable distribution.  Ultimately, the DRHO recommended that HUSBAND pay APL of $420/month plus the cost of treatment up to $625/month.  In addition, the DRHO recommended that HUSBAND pay WIFE’s legal fees totaling $1,500/month.
• 4-5-24 – HUSBAND filed Exceptions to the recommendation of the DRHO.  HUSBAND argued that the DRHO erred by awarding counsel fees of $1,500 to WIFE. 
• 4-24-24 – WIFE filed counter-Exceptions alleging that the DRHO erred by limiting HUSBAND’s treatment reimbursement to $625/month. 
• 6-5-24 – This Court conducted oral argument.  We were not satisfied with the parties’ arguments pertaining to counsel fees.  Therefore, we directed that both parties file supplemental briefs on the issue of whether HUSBAND should be required to pay $1,500/month in counsel fees to WIFE.

II.        DISCUSSION

            As evident from the preceding recitation of events, the questions before this Court are multi-faceted and inter-related.  If there ever was a case where “rough justice” should be elevated over strict adherence to a formulaic model, this case is it.  The DRHO obviously recognized this reality and tailored a recommendation that was non-traditional in nature; we endorse this approach even as our Court Order will differ in some respects from what the DRHO recommended.

            Because HUSBAND’s Exception relates largely to the DRHO’s decision requiring him to pay counsel fees, we need to begin by addressing how and when counsel fees should be awarded.  Both parties agree that Pennsylvania law affords courts with the authority to award counsel fees during the pendency of a divorce.  Section 3702(a) of the Domestic Relations Code states: “Upon petition the court may allow a spouse reasonable alimony pendente lite, spousal support and reasonable counsel fees and expenses.  Reasonable counsel fees and expenses may be allowed pendente lite…: 23 Pa. C.S.A. § 3702(a).  In addition, § 4351 of the Domestic Relations Code states:

“If an obligee prevails in a proceeding… to obtain a support order, the court may assess against the obligor…reasonable attorney’s fees…Attorney’s fees may be taxed as cost and shall be ordered to be paid directly to the attorney, who may enforce the order in the attorney’s own name.” 23 Pa. C.S.A. § 4351(a). 

            Pennsylvania’s Appellate Courts have consistently demanded that trial courts evaluate the “totality of the circumstances of the case to determine whether to award counsel fees.” Bowser v. Blom, 807 A.2d 830, 836 (Pa. 2002).  That said, the court also noted that “the very failure of the General Assembly to specifically address the circumstances which would warrant an award of counsel fees demonstrates that it contemplated some degree of flexibility in application – which perhaps is not surprising in an area where the facts of the cases are myriad and difficult to categorize.” Id at page 836.  However, at least some guidance has been provided by our Superior Court regarding an award of counsel fees:

“The purpose of an award of counsel fees is to promote fair administration of justice by enabling the dependent spouse to maintain or defend the divorce action without being placed at a financial disadvantage; the parties must be ‘on par’ with one another.

Counsel fees are awarded based on the facts of each case after a review of all the pertinent factors.  These factors include the payor’s ability to pay, the requesting party’s financial resources, the value of the services rendered, and the property received in equitable distribution. 

Counsel fees are awarded only upon a showing of need.  In most cases, each party’s financial considerations will ultimately dictate whether an award of counsel fees is appropriate.”  Llaurado v. Garcia-Zapata, 223 A.3d 247, 259 (Pa. Super. 2019), quoting  Brubaker v. Brubaker, 201 A.3d 180, 181 (Pa. Super. 2018). 

Moreover, property received by a spouse via equitable distribution must be considered when assessing a spouse’s need for counsel fees.  Adelstein v. Adelstein, 553 A.2d 436 (Pa. Super. 1989).”

            Any award of counsel fees is governed by the concept of reasonableness.  The Superior Court has recognized that “it is the trial court that has the best opportunity to judge the attorney’s skills, the effort that was required and actually put forth in the matter at hand, and the value of that effort at the time and place involved.”  Carmen Enterprises Inc. v. Murpenter LLC, 185 A.3d 390 (Pa. Super. 2018), citing Gilmore by Gilmore v. Dondero, 582 A.2d 1106 (Pa. Super. 1990).  In assessing reasonableness, we are guided by the following:

“What is a fair and reasonable fee is sometimes a delicate, and at times a difficult question.  The facts and factors to be taken into consideration in determining the fee or compensation payable to an attorney include: the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was ‘created’ by the attorneys; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or value of the property in question.”

In Re: LaRocca’s Trust Estate, 246 A.2d 337, 339 (Pa. 1968).

            It is clear from the above that a court such as ours has the authority to order pendente lite payment of counsel fees from one spouse to another.  However, the counsel fees must be “reasonable” and reasonableness must be defined in part by the amount in controversy between the parties.  No spouse should be handed a “blank check” from the other spouse for unlimited counsel fees; such an approach would, in the words of the Superior Court, “only encourage further litigation and expense for both parties.” Siro v. Siro, 951 A.2d 1188, 1198 (Pa. Super. 2008).

            In this case, there are many moving parts that have intersected to create the dispute now before this Court.  As it relates to APL and the DRHO’s decision to incorporate counsel fees within her award, we feel compelled to emphasize a number of factors that we view as particularly important:

•  During their marriage, HUSBAND and WIFE accumulated assets that are now worth well into six figures.^[1]  These assets will ultimately be divided between HUSBAND and WIFE; they can and should be available to pay for present necessities, including counsel fees. 
•  WIFE is an alcoholic.  Her decisions fueled by alcohol abuse have been and will continue to be self-destructive. 
•  WIFE does not have an honest desire to combat or change her addiction to alcohol. 
•  WIFE is only interested in rehabilitation programs as a means to avoid incarceration.  Moreover, WIFE is only interested in the crème-de-la-crème of rehabilitation programs that will afford her with a comfortable lifestyle; WIFE is not interested in having either her comfort or her habits challenged in any significant way. 
•  It is likely and possibly even inevitable that WIFE will spend one (1) year or more in a prison environment during the pendency of the parties’ divorce litigation. 
•  Requiring HUSBAND to pay $1,500/month toward WIFE’s counsel fees would total $18,000 in one year.  Combined with the $20,000 this Court has already required HUSBAND to pay, the DRHO’s recommendation would result in HUSBAND paying WIFE over $35,000 for counsel fees by the end of 2024.
•  At this point, we do not have definitive information about the size of the marital estate developed by HUSBAND and WIFE during their time together.  Thus, we cannot gauge whether the type of services proposed by WIFE’s lawyers are reasonable or excessive given the amount in controversy.  Such a decision will be possible when equitable distribution is litigated.
•  We have a concern that awarding counsel fees on a monthly basis as recommended by the DRHO could encourage unnecessary litigation.  If WIFE comes to expect that HUSBAND will be required to pay all or most of her counsel fees, she may be incentivized to practice scorched earth litigation.  At a minimum, her motive to compromise will be diminished. 
•  WIFE should not be economically deprived of the ability to be represented by competent counsel.  At this point, it is particularly important that WIFE be able to prosecute a claim for APL.
• There are alternatives to the approach adopted by the DRHO.  One alternative is to require that both parties pay their own lawyers from the proceeds of equitable distribution once it is decided.  Another alternative is to enable the Special Master in Divorce to assess counsel fees as part of an equitable distribution decision.  From what we know about this litigation, it seems likely that a combination of the two methodologies outlined above will ultimately be necessary.^[2]
• A fair percentage of WIFE’s APL efforts have been disingenuously focused upon her quest for unduly expensive alcohol treatment programs.  As we have outlined above, WIFE is interested only in attending the crème-de-la-crème of residential treatment programs, and she is only interested in those programs because they will enable her to live in relative comfort while avoiding incarceration.  WIFE is not legitimately interested in getting help for her alcoholism, nor is she interested in changing her alcohol consumption habits. 

How do we sort through all of the above? 

First, we will not quarrel with the DRHO’s decision to require that HUSBAND pay something to WIFE in counsel fees.  WIFE requires representation to effectively prosecute her claim for APL, and that costs money. 

Second, we cannot trust that WIFE would pay her lawyers from an unallocated award of APL.  Without limitations on how APL is to be spent, we fear that WIFE would spend it recklessly, including the expenditure of funds to feed her alcohol addiction.  Therefore, we understand and endorse the DRHO’s decision to attach spending strings to some of HUSBAND’s APL responsibility. 

Third, we cannot forget that $20,000 has already been paid by HUSBAND for WIFE’s counsel fees.  That is not an inconsequential sum.^[3]  Truthfully, we anticipated when we directed payment of $20,000 that the amount would be sufficient to enable WIFE to pay for representation at least through the process of determining APL. 

Fourth, we cannot declare the totality of fees already charged by WIFE’s counsel to be reasonable.  We say this not as an indictment of WIFE’s lawyers, but because considerable time was expended in an effort to pursue funding for pointless residential treatment programs.  To the extent necessary, we declare today that every dime expended by WIFE on counsel fees to pursue expensive residential treatment should be paid by WIFE alone without any reimbursement from HUSBAND.

Fifth, as it relates to the ultimate decision of what HUSBAND should contribute to WIFE toward her counsel fees, the Special Master in Divorce will be in a far better position to assess this question than either the DRHO or this Court is today.  The Special Master will have detailed knowledge of the size and nature of the marital estate.  By definition, the Special Master will know what assets will be awarded to WIFE from which she would be able to pay some or all of her counsel fees.  Also by definition, the Special Master will have rendered a decision regarding ongoing alimony.  The totality of the Special Master’s decision, including any decision regarding counsel fees, must effectuate economic justice for the parties.  Today, we simply are not able to determine how an up-front award of counsel fees could impact the quest for economic justice. 

Sixth, we cannot ignore the likelihood that WIFE will spend roughly one (1) year in prison during the pendency of this divorce litigation.  During that period of time, WIFE’s food, clothing and lodging will be paid by the State.  We hope that WIFE will have an epiphany regarding treatment and that she will be able to take advantage of programs such as the State Drug/Alcohol Treatment program.  Regardless, the cost of living for WIFE during her period of incarceration will be far different than her cost of living in a rehabilitation facility or in the community. 

Based upon the above, it is obvious that we cannot adopt the recommended amount of counsel fees determined by the DRHO.  At this point, our goal is to enable WIFE to pursue a claim for APL.  As it relates to counsel fees pertaining to divorce, equitable distribution and/or post-divorce alimony, a decision regarding counsel fees is best left in the hands of the Special Master.  Thus, we are left today with the question of “How much in counsel fees is reasonable for WIFE to pursue her claim for APL?”  As we tackle that question, we are constrained by our decision that counsel fees expended in an effort to procure expensive drug and alcohol treatment for WIFE cannot be deemed “reasonable” given WIFE’s attitude and behavior relative to treatment.  Finally, we must also recognize that WIFE’s entitlement to APL will be affected by her impending incarceration; it is not reasonable to expend considerable time and effort to pursue a claim for APL for an individual who is and will continue to be in a prison setting. 

Considering everything presented in this case, we will require HUSBAND to pay WIFE a lump sum of $5,000 in additional counsel fees.  That is all we will authorize until equitable distribution is complete.  By virtue of this decision, we will eliminate the decision of the DRHO to require HUSBAND to pay $1,500/month in counsel fees. 

Other aspects of the DRHO’s recommendation will be affirmed.  WIFE’s Exception to the limit placed upon HUSBAND’s obligation to reimburse her for treatment costs will be rejected for multiple reasons, including the disingenuousness of WIFE’s “desire” for treatment and her current and impending incarceration that will be State-funded.  Moreover, the $420/month amount that HUSBAND has otherwise been obligated to pay will remain in place.  Even though WIFE will be in prison for most of the next year, that does not eliminate completely her need for funding.  In particular, WIFE will have counsel fees related to her criminal defense, she will be obligated to pay fines and costs, and she will also benefit by having at least some money available to her in a prison commissary account.  We do not find $420/month to be unreasonable for these purposes. 

III.       CONCLUSION

            We will affirm the DRHO’s decision to award WIFE APL, and we do not quarrel with the amount recommended.  We also endorse the DRHO’s decision that HUSBAND’s obligation to pay costs pertaining to WIFE’s alcohol treatment be paid directly to providers instead of to WIFE herself.  We recognize that the net effect of this recommendation will be to prospectively eliminate HUSBAND’s requirement to pay $625/month because WIFE will not be undertaking residential treatment.  Finally, we agree with the DRHO that HUSBAND should pay WIFE additional counsel fees.  However, we disagree that HUSBAND should be required to pay ongoing legal fees totaling $1,500/month.  Rather, we will require HUSBAND to pay a one-time additional amount of $5,000.  Thereafter, any further dispute over counsel fees should be left to the discretion of the Special Master in Divorce.^[4]

            Before we end, we wish to communicate to the parties that even though WIFE’s latest incarceration occurred after the date of the hearing before the DRHO, we have not ignored the reality of WIFE’s incarceration and the reality that she will likely spend additional time in prison.  While WIFE is in prison, our expectation is that HUSBAND will pay $420/month in APL plus an additional one-time payment of $5,000 to WIFE’s legal counsel.  It is not our intent to entertain further litigation via a request for modification or suspension of APL stemming from WIFE’s incarceration.  We are satisfied that the recommendation of the DRHO, as modified by us relating to counsel fees, will adequately enable the parties to move forward with their divorce dispute even as WIFE pays her debt to society from her four DUIs.  An Order to accomplish these conclusions will be entered today’s date.

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[1] We use this observation on the comments of both parties’ counsel and on observations found within the DRHO reports.  However, we lack specific information about the exact size of the marital estate.

[2] The extent to which WIFE will be required to pay her own counsel fees and the extent to which HUSBAND will be required to contribute to those fees is a decision that can best be made with the benefit of hindsight.  What we mean is that when a decision about counsel fees is rendered, it can include a retrospective analysis that includes an assessment of the amount in controversy and an evaluation of whether WIFE has acted reasonably or unreasonably during the course of litigation. 

[3] The amount HUSBAND has already been required to pay to WIFE’s attorneys represents nearly one-half of the median annual income earned by Americans. 

[4] We view $25,000 as more than sufficient to enable WIFE to pursue APL.