Fowler, J. v. Fowler, B.

Opinion

J-S30039-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

JUDITH A. FOWLER, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BRUCE A. FOWLER, : : Appellant : No. 73 WDA 2018

Appeal from the Order December 13, 2017 in the Court of Common Pleas of Fayette County Domestic Relations at No(s): 375 DR 2017

BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 7, 2018

Bruce A. Fowler (Husband) appeals from the spousal support order

requiring him to pay a support obligation to Judith A. Fowler (Wife). We

remand with instructions.

Husband and Wife were married on or about October 29, 19981 and

separated on July 16, 2017.2 Following a verbal dispute, Wife left the marital

home on July 16, 2017. On August 21, 2017, Wife filed for spousal support.

The trial court ordered Husband to appear on September 11, 2017 before a

1When Wife filed for support, she indicated they were married on this date, but Wife testified they were married on October 31, 1998. Complaint for Support, 8/21/2017, at 1; N.T., 12/11/2017, at 3.

2 As of the de novo hearing date, neither Husband nor Wife had filed for divorce. N.T., 12/11/2017, at 3, 9, 14, 21.

*Retired Senior Judge assigned to the Superior Court. J-S30039-18

domestic relations conference officer for a conference on Wife’s support

complaint. Order, 8/22/2017, at 1. While the record is unclear as to what

happened, it appears the parties attended said conference, and the conference

officer recommended Wife’s complaint for support be denied. See N.T.,

12/11/2017, at 9-10, 25. Thereafter, the trial court dismissed without

prejudice Wife’s complaint for support due to there being “no entitlement to

spousal support established.” Order, 9/18/2017, at 1 (unnumbered).

Wife then filed a demand for a de novo hearing before the trial court,

claiming that Husband had lied at the conference. Following the December

11, 2017 de novo hearing, the trial court determined that Wife had adequate

legal cause to leave the marital home due to her mental illness. Trial Court

Opinion (TCO), 2/27/2018, at 5; N.T., 12/11/2017, at 26. The trial court

granted Wife’s request for spousal support, but ordered the support to begin

as of the date of the hearing, not the filing of Wife’s petition. Final Order of

Court, 12/20/2017, at 1; N.T., 12/11/2017, at 26. The trial court entered its

final order on December 20, 2017, effective December 11, 2017, which

determined Husband’s monthly net income to be $3,626.67 and Wife’s

monthly net income to be $0.00, and directed Husband to pay $1,5003 per

3 The amount of Husband’s monthly support obligation is unclear from the record. The first page of the order set Husband’s obligation at $1500 per month due forthwith, and set arrears at $1001.79 due in full immediately. Final Order of Court, 12/20/2017, at 1. On the second page of the same order, Husband’s obligation was set at $1451 per month for current support, and $49 per month in arrears. Id. at 2.

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month in spousal support and $1,001.79 in arrears.4 Husband timely filed a

notice of appeal on January 5, 2018. Both Husband and the trial court

complied with Pa.R.A.P. 1925.

Before reaching the merits of Husband’s appeal, we note there is an

issue with respect to Wife’s representation by counsel. Based on the record

before us, it appears that in the trial court, Wife was represented by Ricardo

J. Cicconi, Esquire. At the de novo hearing, Attorney Cicconi appeared on

behalf of Wife. However, on appeal, and after receiving Husband’s brief,

Attorney Cicconi filed a letter with this Court, indicating that he would not file

a brief on Wife’s behalf. Cicconi Letter, 4/12/2018, at 1 (unnumbered). His

stated reason was that he does not represent Wife and that, in his capacity as

Domestic Relations Solicitor, he represents the office of Domestic Relations of

the Fayette County Court of Common Pleas. Id. This letter indicates he sent

a copy to Husband’s counsel, but not to Wife. Id.

Based upon our review of the record, it does not appear Wife received

notice of the briefing schedule or any other correspondence relating to the

instant appeal. Since it is unclear whether Wife was aware of her opportunity

to file a brief, we are constrained to remand this case to allow Attorney Cicconi

to file a petition with the trial court to withdraw as counsel for Wife. If the

trial court grants Attorney Cicconi’s withdrawal, Wife will then have an

4 We are unable to determine how the arrearages number was calculated.

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opportunity to file a pro se brief or to secure counsel to file a brief on her

behalf in this Court within 60 days of the trial court’s order. If the trial court

denies Attorney Cicconi’s petition, Attorney Cicconi shall file a brief on Wife’s

behalf within 60 days of the trial court’s order.

Case remanded with instructions.

Panel jurisdiction retained.

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