Pavie v. Pavie

606 A.2d 1207, 414 Pa. Super. 294, 1992 Pa. Super. LEXIS 1189
CourtSuperior Court of Pennsylvania
DecidedApril 14, 1992
DocketNo. 1540
StatusPublished
Cited by9 cases

This text of 606 A.2d 1207 (Pavie v. Pavie) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pavie v. Pavie, 606 A.2d 1207, 414 Pa. Super. 294, 1992 Pa. Super. LEXIS 1189 (Pa. Ct. App. 1992).

Opinion

DEL SOLE, Judge:

This appeal follows a trial court decree divorcing the parties from the bonds of matrimony and ordering the distribution of marital property. Because our review of the record in this matter has uncovered critical procedural irregularities, we decline review of the ultimate issues on appeal and conclude that the matter of equitable distribution must be remanded to the trial court for a hearing and final order.

The equitable distribution claims in this case were originally presented before a Master in three days of hearings, following which he entered a Report and Recommendation. Among other matters, the Master made a recommendation concerning inheritance funds received by Appellant-husband. The Master acknowledged that these funds were [296]*296placed in a joint account but elected to deduct from the account the base amount of the husband’s inheritance since it “was received close in time to the separation,” and since Appellee-wife had also received a substantial inheritance prior to the hearings which was never converted to marital property. After listing the other marital property, the Master made a recommendation on the division of savings funds, personal property, realty and two mortgages due the parties from their children.

Within ten days of the entry of this Report, Wife filed exceptions and the court issued an order scheduling a “hearing on the Exceptions to Equitable Distribution.” On December 10, 1990 a proceeding was held before the trial court, the nature of which cannot be clearly ascertained. A transcript of the proceeding evidences the parties’ confusion:

MR. MC EVILLY [APPELLEE’S COUNSEL]: I guess the threshold issue in this hearing, Your Honor, is what the hearing is all about.
The Conciliator issued his recommendations and the plaintiff is the only one who filed exceptions to the findings. It’s our position that the Court signed a order on June 26th saying the hearing on the exceptions of equitable distribution was scheduled in this matter.
Counsel and I have, I believe, cooperated and spoken as much as possible, and exchanged information ahead of time, and we seem to have a difference of opinion as to why we’re here this morning.
My position is that we’re here only on the issues raised in the exceptions. Counsel’s position seems to be that this is a hearing de novo, in which the whole matter can be relitigated.
N.T. 12-10-90 at 2-3.

In response to these remarks, Appellant’s counsel stated:

It’s very clear to me. First of all, Gordon Mair [The Master] said any exceptions filed will be a hearing de novo. It's Montgomery County policy to have a hearing de novo, because the Master’s hearing is not transcribed. [297]*297Id. at 5.

Considering the arguments of counsel, the court ultimately stated: “I think it’s a de novo hearing.” Id. at 6. Although labeled a de novo “hearing,” no witnesses were sworn, nor was any testimony taken at the December 10th proceedings; the court only heard the arguments of counsel. Among the issues debated was the division of Husband’s inheritance funds and the rental value of the house Appellant occupied during separation. The court made no specific comments on these matters in its December 12th order in which it “affirmed and ratified” the Master’s “recommendations.” The court’s order, which was not labeled a “final” order, made one exception and altered the recommended equal distribution of the marital estate to award 53% to Wife and 47% to Husband.

After entry of the court’s order Wife filed a motion for post-trial relief. Therein Appellee repeated the issues raised in her exceptions including those concerning Husband’s inheritance and the rental value of the marital home occupied by Appellant. Wife also requested a new trial alleging that she was unable to present testimony at the de novo hearing and that the hearing was ended due to another court commitment.

On March 22, 1991 the court entered a “Decree and Order.” The court acknowledged receipt of argument on Wife’s post-trial motions and consideration of the briefs of counsel. The court then affirmed its December 12th order with four changes. Among those changes, it reversed the previous ruling and ordered that Husband’s inheritance totalling $105,345.86 be included in the marital estate and that Wife recover $54,472.91 from Husband representing the rental value of the marital home occupied by Husband. The March 22nd order also decreed that the parties were hereby divorced from the bonds of matrimony.

On April 6th, Wife filed a Petition to Modify the court’s most recent order alleging that a securities account had increased in value from the time of the Master’s report, and that she should be entitled to 53% of the increase. The [298]*298court agreed with wife’s position and on April 19, 1991, within 30 days of its March 22nd order, the court entered an order awarding Wife an additional $12,529.97 to reflect her portion of the increase in the joint securities account.

Husband filed this appeal in which he maintains the trial court erred in considering wife’s Petition to Modify as a Motion for Reconsideration and entering an order thereon where Wife failed to raise the matter in her post-trial motions. He makes further claims regarding his inheritance, the rental value of the marital home, the court’s failure to consider his payment of income and personal property taxes and the absence of an accounting of liquid marital assets distributed in 1984.

It is impossible for this court to consider these claims with the record before us. No transcript was made of the hearing before the Master, and the proceeding labeled a “hearing” which took place before the trial court contains no testimony. It was only after the trial court considered both exceptions and post-trial motions filed by Wife that it altered, in a significant manner, the ultimate distribution scheme recommended, and the court took such action without consideration of a transcript of the testimony taken before the Master and without itself receiving such testimony. It is unclear from the record whether the trial court was able to consider the impact of these changes as they related to the distribution scheme.

As this court has previously identified, there are two alternative procedures governing economic claims under the Pennsylvania Divorce Code. See Colagioia v. Colagioia, 362 Pa.Super. 213, 523 A.2d 1158 (1987). The rules provided that a trial court may hear testimony and decide a case, or “may appoint a master ... to hear the testimony and return the record and a transcript of the testimony to the court, together with a report and recommendation.” Pa. R.C.P., Rule 1920.51(a)(1), 42 Pa.C.S.A. A third approach, which is not specifically authorized by the Rules and which is apparently in place in Montgomery County, permits a party to demand a hearing de novo by the court following [299]*299the filing of a master’s report. See Colagioia v. Colagioia, supra. In the later situation “[bjecause the hearing is de novo, the court’s decree is based upon its own review of the testimony instead of that of the master.” Id., 362 Pa.Superior Ct. at 218, 523 A.2d at 1160.

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Cite This Page — Counsel Stack

Bluebook (online)
606 A.2d 1207, 414 Pa. Super. 294, 1992 Pa. Super. LEXIS 1189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pavie-v-pavie-pasuperct-1992.