Ramos v. Ramos

80 Pa. D. & C.4th 242
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedMarch 24, 2006
Docketno. 1021 DR 2004, no. 479 CV 2005
StatusPublished

This text of 80 Pa. D. & C.4th 242 (Ramos v. Ramos) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ramos v. Ramos, 80 Pa. D. & C.4th 242 (Pa. Super. Ct. 2006).

Opinion

ZULICK, J.,

These are exceptions filed by Husband and Wife from a master’s report and recommendation in divorce. Eduardo L. Ramos (Husband) and Maribel Ramos (Wife) were married on August 11,2001, and separated on September 4,2004. They raised two children, Megan Rose Ramos, bom on May 23,1994, and Nikita Ramos, bom on October 28,1996, both of whom are in Wife’s primary physical custody, although Husband now contests paternity of Megan.

Wife filed a complaint for divorce on January 21,2005. A master’s hearing was held by Robert C. Lear, Esquire, divorce master, on September 29,2005. The master filed his report and recommendations on November 22,2005. [244]*244Both Wife and Husband filed timely exceptions. Oral argument was heard on January 3, 2005.

When evaluating the merit of Wife’s exceptions to the master’s recommendation, the court must first examine the master’s report. In Pennsylvania, “a master’s report and recommendation, although only advisory, is to be given the fullest consideration particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.” Moran v. Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003), citing Simeone v. Simeone, 380 Pa Super. 37, 50, 551 A.2d 219, 225 (1988). However, “[i]t is advisory only,... and the reviewing court is not bound by it and it does not come to the court with any preponderate weight or authority which must be overcome.”Rothrick v. Rothrick, 765 A.2d 400, 404 (Pa. Super. 2000), citing Arcure v. Arcure, 219 Pa. Super. 415, 416, 281 A.2d 694, 695 (1971).

“ [A] 1 though the master’s report is entitled to great weight, it is the responsibility of the court to make the final equitable distribution.” Trembach v. Trembach, 419 Pa. Super. 80, 84, 615 A.2d 33, 35 (1992), citing Morschhauser v. Morschhauser, 357 Pa. Super. 339, 516 A.2d 10 (1986). In addition, the court must keep in mind the legislature’s intent “to effectuate economic justice between the parties.” Perlberger v. Perlberger, 426 Pa. Super. 245, 259, 626 A.2d 1186, 1196 (1993), citing 23 Pa.C.S. §3102(a)(6).

Wife filed one exception to the master’s recommendation and Husband filed 14 exceptions. The parties combined some of these exceptions in their briefs filed in support of their exceptions. I will first address Husband’s [245]*245exceptions to the master’s recommendations, since they were filed first in time.

I. HUSBAND’S EXCEPTIONS

1. Husband Contends That the Divorce Complaint Was Not Properly Served Upon Him

Wife filed the divorce complaint in this case on January 21, 2005. An affidavit of service of the complaint was filed on February 9,2005, showing that the complaint was personally served upon Husband on February 7,2005, by a process server in the Monroe County Courthouse.

Husband filed a responsive pleading entitled “Answer, preliminary objections and counterclaims” on February 17,2005. In this pleading, he answered the paragraphs of the complaint, then added a paragraph entitled “First Preliminary Objection,” and there stated that he had not been properly served with process. He also filed a counterclaim.

Husband, representing himself, failed to follow the applicable rules of civil procedure when he filed this hybrid pleading. The failure to raise the issue of lack of personal jurisdiction by preliminary obj ection to the complaint constituted a waiver of that defense. Encelewski v. Associated-East Mortgage Co., 262 Pa. Super. 205, 208, 396 A.2d 717, 718 (1978). Here, Husband did not file a separate preliminary objection as required by Pa.R.C.P. 1028(a)(1). He did not praecipe his preliminary objection for argument as required by Monroe County Local Rule 43 J.D.R.C.P. 1028(c), which provides as follows:

“Ride 1028(c) — Preliminary objections

“(1) Preliminary obj ections shall be filed with the prothonotary. At the time of filing preliminary objections [246]*246with the prothonotary, the moving party shall also file a praecipe pursuant to Local Rule 208.3(a)(5) to place the matter on the first argument list occurring more than 30 days following the date of filing the preliminary objections.

“(2) Failure to comply with this provision may be sufficient basis for the court to deny the preliminary objections.”

I find that Husband’s failure to follow state and local rules of procedure resulted in the waiver of his objection to this court’s jurisdiction over his person. Husband never brought his objection to the attention of the court for disposition before trial. He fully participated in the litigation, filing an answer and a counterclaim, and attended and participated in the trial before the master.

Even if Husband had properly raised his objection to our court’s jurisdiction, his objection was not well-taken. Husband concedes that he was personally served with a copy of the divorce complaint on February 7,2005. Husband states in his brief that he was ordered out of the marital home by a protection from abuse order on September 13, 2004. This order caused him to move out of Pennsylvania to a residence in New Jersey. He returned to Pennsylvania on February 7, 2005, for a hearing on a petition for contempt filed in that protection from abuse case.

The petition for contempt charged Husband with indirect criminal contempt. “[A]s with those accused [of] other crimes, one charged with indirect criminal contempt is to be provided the safeguards which statute and criminal procedures afford.” Commonwealth v. Baker, 722 A.2d 718, 720 (Pa. Super. 1998) (en banc).

[247]*247Husband cites the case of Crusco v. Strunk Steel Co., 365 Pa. 326, 74 A.2d 142 (1950) for the proposition that criminal process may not be used to obtain service upon a defendant in a civil matter. While that was the result reached in the Crusco decision, the case does not support Husband’s position. In Crusco, the plaintiff filed a civil action in Philadelphia County and 12 days later filed a criminal action against the defendant, who resided in Montgomery County. The court found that the plaintiff fraudulently filed the criminal charges for the sole purpose of bringing the defendant to Philadelphia to obtain personal service there. Under these circumstances, the Crusco court voided the civil service of process. Before it reached that result, however, the court stated the general rule that persons appearing in court on criminal charges are not immune from service of civil process:

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Related

Commonwealth v. Baker
722 A.2d 718 (Superior Court of Pennsylvania, 1998)
Perlberger v. Perlberger
626 A.2d 1186 (Superior Court of Pennsylvania, 1993)
Moran v. Moran
839 A.2d 1091 (Superior Court of Pennsylvania, 2003)
Isralsky v. Isralsky
824 A.2d 1178 (Superior Court of Pennsylvania, 2003)
Geyer v. Geyer
456 A.2d 1025 (Superior Court of Pennsylvania, 1983)
Pacella v. Pacella
492 A.2d 707 (Supreme Court of Pennsylvania, 1985)
Miller v. Miller
508 A.2d 550 (Supreme Court of Pennsylvania, 1986)
Twilla v. Twilla
664 A.2d 1020 (Superior Court of Pennsylvania, 1995)
Schneeman v. Schneeman
615 A.2d 1369 (Superior Court of Pennsylvania, 1992)
Trembach v. Trembach
615 A.2d 33 (Superior Court of Pennsylvania, 1992)
Simeone v. Simeone
551 A.2d 219 (Supreme Court of Pennsylvania, 1988)
Arcure v. Arcure
281 A.2d 694 (Superior Court of Pennsylvania, 1971)
Morschhauser v. Morschhauser
516 A.2d 10 (Supreme Court of Pennsylvania, 1986)
Teribery v. Teribery
516 A.2d 33 (Supreme Court of Pennsylvania, 1986)
Encelewski v. Associated-East Mortgage Co.
396 A.2d 717 (Superior Court of Pennsylvania, 1978)
Anderson v. Anderson
822 A.2d 824 (Superior Court of Pennsylvania, 2003)
Teodorski v. Teodorski
857 A.2d 194 (Superior Court of Pennsylvania, 2004)
Dyer v. Dyer
536 A.2d 453 (Supreme Court of Pennsylvania, 1988)
Verdile v. Verdile
536 A.2d 1364 (Supreme Court of Pennsylvania, 1988)
Rothrock v. Rothrock
765 A.2d 400 (Superior Court of Pennsylvania, 2000)

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Bluebook (online)
80 Pa. D. & C.4th 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramos-v-ramos-pactcomplmonroe-2006.