M.S.P. v. W.P., III ( 2016 )

J-A24017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.S.P. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
W.P., III
Appellee No. 3336 EDA 2015
Appeal from the Decree October 23, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2007-19144
BEFORE: BOWES, J., OTT, J., and SOLANO, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 23, 2016
M.S.P. (“Wife”) appeals from the decree in divorce entered
on October 23, 2015,1 in the Montgomery County Court of Common Pleas
related to the dissolution of her marriage to W.P., III (“Husband”).
The trial court entered the decree after dismissing Wife’s “exceptions” to the
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1
We note Wife filed her pro se notice of appeal from the order entered
October 19, 2015, dismissing her exceptions in equitable distribution, and
making final a master’s report and recommendation entered February 11,
2015. See Notice of Appeal, 11/2/2015; Order, 10/19/2015. However, this
Court has made clear “a pre-divorce decree distributing marital property is
interlocutory … [and] cannot be reviewed until it has been rendered final by
the entry of a decree in divorce.” Wilson v. Wilson, 828 A.2d 376, 378
(Pa. Super. 2003) (citation omitted). Here, the trial court entered a final
decree in divorce on October 23, 2015. Therefore, we will consider this
appeal as properly filed after the entry of the divorce decree. See Pa.R.A.P.
905(a)(5). We direct the Prothonotary of this Court to correct the caption
accordingly.
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report and recommendation of a master determining the parties’ claims of
equitable distribution. On appeal, Wife contends the trial court erred in (1)
dismissing her “exceptions,” rather than continuing the trial de novo, when
she failed to appear, and (2) permitting her attorney to withdraw.
Moreover, Husband has filed a motion seeking quashal of this appeal and an
award of sanctions. For the reasons that follow, we deny Husband’s motion
to quash the appeal, and affirm the divorce decree.
The relevant facts and procedural history are summarized by the trial
court as follows:
On August 7, 2007, [Wife] filed a Complaint in Divorce
against [Husband]. Count II of the Divorce Complaint requested
equitable distribution of the parties’ marital property. On
November 3, 2014, an equitable distribution hearing was held
before the Honorable Arthur R. Tilson, S.J. sitting as Special
Master. On January 22, 2015, Judge Tilson issued a Master’s
Report and Recommendation upon Equitable Distribution,
Alimony, Counsel Fees and Costs.1 On February 11, 2015,
[Wife] filed Exceptions to Recommendation of Conference
Officer/Master. On June 18, 2015, the court scheduled [Wife’s]
exceptions for a two day trial to be held on October 19 and 20,
2015. The June 18, 2015 scheduling notice was sent to both
parties at their addresses of record, as well as to [Wife’s]
counsel, Thomas F. Grady, Esquire, and [Husband’s] counsel,
Mary T. Vidas, Esquire.
__________
1
On February 26, 2015 Judge Tilson issued an Amended
Master’s Report and Recommendation upon Equitable
Distribution, Alimony, Counsel Fees and Costs. [Our
review reveals no changes in amended report.]
__________
On October 19, 2015, Thomas Musi, Esquire appeared on
behalf of [Wife], but [Wife] failed to appear.2 [Husband] and
Ms. Vidas were present and ready to proceed with the hearing.
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Mr. Musi stated to the court: “I was contacted in July in this
matter … I’ve attempted to work with the client, and there has
been a lack of communication.” N.T. October 19, 2015 at 3-4.
Mr. Musi stated to the court that he had filed by letter with the
court “a continuance of this hearing based upon my client’s
direction.” The continuance request had been objected to by
[Husband’s] counsel, and denied by the court before the October
19, 2015 hearing. N.T. at 4. Mr. Musi stated that he and [Wife]
“… were certainly not working together preparing for this trial
...”, and that he had “very limited ability to review
documentation” prior to trial because [Wife] “…was not
authorizing me to do such.” N.T. at 5. Mr. Musi stated that on
September 29, 2015 he filed “a request to allow me to withdraw
my appearance.” N.T. at 5. Mr. Musi stated[:] “So based upon
all those facts, I’m simply not prepared to proceed, and would
renew my request to allow me to withdraw from this matter.”
N.T. at 5. When addressing [Wife’s] absence from the
courtroom, Mr. Musi stated: “I looked out in the hallway, I’ve
asked opposing counsel as well as the witnesses as to whether
they’ve seen her. Everyone has indicated that they have not
seen her or heard from her.” N.T. at 7. In response to Mr. Musi,
the court stated: “And I have not heard – and I just stopped at
my chambers before I came up here, and my secretary didn’t
say that [Wife] had called, or was any way saying she was late
or something to that effect.” N.T. at 8. Ms. Vidas stated that
she did not object to Mr. Musi’s request to withdraw his
appearance. N.T. at 6. The court permitted Mr. Musi to
withdraw his appearance.
__________
2
On September 23, 2015 Mr. Grady filed a withdrawal of
his appearance for [Wife], and … Mr. Musi filed his entry of
appearance for [Wife].
__________
Ms. Vidas made an oral motion to dismiss [Wife’s]
equitable distribution exceptions, and requested that the court
enter “as the order of the court Judge Tilson’s recommendation
that was dated January 23, 2015 arising from the hearing and/or
trial that was held on November [3], 2014.” N.T. at 6. The
court granted [Husband’s] counsel’s request and [Wife’s]
exceptions in equitable distribution were dismissed. Referring to
[Wife’s] absence from the courtroom, the court stated: “… my
chambers hasn’t heard from her, you haven’t heard from her,
she’s not here, they are her exceptions.” N.T. at 8.
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On October 19, 2015 the court issued an order granting
[Husband’s] oral motion to dismiss [Wife’s] February 11, 2015
Exceptions in Equitable Distribution, and make Judge Tilson’s
equitable distribution report and recommendation a final order.
On October 23, 2015, [Wife] filed a Motion for Reconsideration of
[the trial court’s] Order of 10/19/15 Dismissing [Wife’s]
Exceptions of 2/11/15 Equitable Distribution. In her motion,
[Wife] stated that she failed to appear at the October 19, 2015
hearing due to “medical issues requiring hospitalization of 4
nights including 10/19/15.” [Wife] states in the motion that due
to the difficulty in communicating and preparing for trial with her
counsel, and due to the fact that the court denied Mr. Musi’s
request for a continuance of the October 19, 2015 hearing,
[Wife] was “under a lot of stress”. [Wife] states she was,
therefore, “required” to seek medical attention, and she
contacted two physicians. [Wife] states that one of these
physicians recommended [Wife] “seek hospitalization”, and
[Wife] drove herself to a hospital and was admitted. [She]
states she was in the hospital “for 4 nights, including the trial
date of October 19, 2015.” [Wife] does not state anywhere in
her motion what her medical diagnosis was, or what ailment or
injury she was suffering from which required hospitalization.
[Wife] states generally in her motion that she was hospitalized
for “medical reasons” from October 17, 2015 to October 20,
2015 and that “documents showing [Wife] was hospitalized for
medical reasons” are attached to the motion. However, no
attachment was made. Furthermore, despite having notice of
the trial date of October 19, 2015, [Wife] did not contact the
court, or her attorney, to inform anyone about her
hospitalization. Instead, [Wife] states in her Motion that “no
effort was made to call [Wife’s] cell phone number…by her
counsel or the court to inquire of her whereabouts.”
On October 29, 2015, the court denied [Wife’s] October
23, 2015 Motion for Reconsideration.
Trial Court Opinion, 1/5/2016, at 1-4 (some record citations omitted). This
timely appeal followed.2
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2
On November 6, 2015, the trial court ordered Wife to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
(Footnote Continued Next Page)
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Before we may review Wife’s substantive claims on appeal, we must
first consider Husband’s motion to quash. On March 3, 2016, Husband filed,
in this Court, a motion seeking to (1) quash Wife’s appeal for her failure to
comply with the Pennsylvania Rules of Appellate Procedure; and (2) strike
from the reproduced record medical documents that were not included in the
certified record before the trial court. See Motion to Quash Appeal and for
Sanctions, 3/3/2016, at ¶¶ 3-5, 13, 15-20. He also requested the
imposition of monetary sanctions, pursuant to Pa.R.A.P. 2744, due to Wife’s
“dilatory, vexatious, and bad faith conduct.” Id. at ¶ 22. Thereafter, on
March 17, 2016, Wife filed a response, as well as an application for a partial
seal of the record, specifically those documents related to her medical
records.3 On April 4, 2016, this Court entered a per curiam order, striking
_______________________
(Footnote Continued)
Wife complied with the court’s directive, and filed a concise statement on
November 23, 2015. We note that when Wife filed her notice of appeal, she
was proceeding pro se, however, she subsequently retained counsel, who
filed a timely reply brief.
3
Implicit in her request to partially seal the record was a request to
supplement the record with the aforementioned medical documents that
were not attached to her motion for reconsideration. That same day, Wife
filed in the trial court a document titled, “Emergency Motion for
Reconsideration of the Motion for Reconsideration dated October 23, 2015
and Application to Correct and Modify the Record pursuant to Pa.R.A.P.
1926.” Wife’s Reply Brief at 5 n.7. While this emergency motion is not
included in the certified record, Wife explains in her Reply Brief:
That Emergency Motion set forth the fact that certain medical
records (three pages) confirming the hospitalization expressly
intended to be attached to the Reconsideration Motion were in
(Footnote Continued Next Page)
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Wife’s medical records from the reproduced record, deferring both Husband’s
motion to quash and his request for sanctions to the merits panel, and
denying Wife’s requests to supplement and partially seal the record. See
Order, 4/4/2016. Accordingly, Husband’s motion to quash is ripe for our
review.
Husband seeks to quash the appeal based upon the deficiencies in
Wife’s pro se brief and reproduced record. Namely, he asserts (1) the brief
is “completely devoid of legal support[;]” and (2) the reproduced record
improperly contains documents which were “absent from the record on
appeal.” Motion to Quash Appeal and for Sanction, 3/3/2016, at ¶¶ 3, 13.
He concludes these actions constitute “dilatory, vexatious, and bad faith
conduct” necessitating monetary sanctions. Id. at ¶ 22. We disagree.
It is well settled “this Court may quash or dismiss an appeal if the
appellant fails to conform substantially to the briefing requirements set forth
in the Pennsylvania Rules of Appellate Procedure.” Karn v. Quick & Reilly
Inc., 912 A.2d 329, 335 (Pa. Super. 2006). Moreover,
[a]lthough this Court is willing to liberally construe materials
filed by a pro se litigant, pro se status confers no special benefit
upon the appellant. To the contrary, any person choosing to
represent himself in a legal proceeding must, to a reasonable
_______________________
(Footnote Continued)
fact submitted to court personnel, but apparently not considered
when reconsideration was denied on October 29, 2015.
Id. The trial court subsequently denied the motion on March 25, 2016.
See id.-6-
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extent, assume that his lack of expertise and legal training will
be his undoing.
Wilkins v. Marsico, 903 A.2d 1281, 1284–1285 (Pa. Super. 2006)
(quotation omitted).
Our review of Wife’s pro se brief reveals no substantial defects that
hamper our assessment of her claims on appeal. Contrary to Husband’s
assertion that Wife’s brief is “completely devoid of legal support,” 4 she does
refer to the controlling statute in the argument section of her brief.
Accordingly, we decline to quash Wife’s appeal.5
Although Wife purports to raise seven issues on appeal, her argument
is focused on two claims: (1) the trial court erred in dismissing her
“exceptions” to the master’s report and recommendation when she had a
satisfactory excuse for her failure to appear at the de novo hearing; and (2)
the trial court erred in permitting her attorney to withdraw in her absence.
First, Wife contends the trial court erred in dismissing her
“exceptions,” rather than granting a continuance, when she had a
satisfactory excuse for her failure to appear at the de novo trial, namely,
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4
Motion to Quash Appeal and for Sanction, 3/3/2016, at ¶ 3.
5
We also decline to award Husband monetary sanctions because he has not
demonstrated Wife’s conduct in filing this appeal was “dilatory, obdurate or
vexatious.” Pa.R.A.P. 2744. Although we agree Wife improperly attempted
to include medical documentation in the reproduced record that was not
before the trial court, those documents have been struck from the
reproduced record, and we will not consider them on appeal. See Order,
4/4/2016.
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“she was hospitalized for severe depression and anxiety and as a precaution
for suicide, due to past history.” Wife’s Brief at 17. Wife’s “argument”
largely consists of a recitation of the events preceding the October 19, 2015,
trial de novo. See id. at 18-22. Specifically, she asserts that while she was
aware of the trial date in June 2015, she retained Thomas Musi, Esquire, and
Luke Clark, IV, Esquire,6 as new counsel in mid-July 2015, and “they
dropped the ball[.]” Id. at 18. Wife claims Musi and Clark failed to prepare
for trial, or even obtain the files from her prior attorney. See id. at 19. She
maintains they then filed a petition to withdraw as counsel on September 29,
2015, less than one month before trial. Although Wife attempted to obtain a
continuance of the scheduled trial, the court denied her request. See id. at
20. Wife contends the stress of the impending trial, for which she was
unprepared, as well as a pre-existing medical condition, led her to seek
“emergency medical attention” on October 16, 2015. Id. at 21. She states
she was hospitalized under psychiatric care on October 17, 2015, and not
released until October 20, 2015, after the scheduled trial date.
Furthermore, Wife asserts no one attempted to contact her on October 19,
2015, to determine her whereabouts, and she was not informed by either
counsel or the trial court that the de novo trial would proceed in her
absence. See id. at 22.
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6
Only Mr. Musi appeared for Wife at the October 19, 2015, hearing.
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Our disposition of Wife’s claims involves an interpretation of the
Pennsylvania Rules of Civil Procedure.7 Rule 1920.51 permits a trial court
“upon its own motion or the motion of either party” to appoint a master to
determine certain matters in divorce actions, including equitable distribution
of property. Pa.R.C.P. 1920.51(a)(1). After the appointed master holds a
hearing, and issues a report and recommendation, a party seeking to
challenge the master’s report must either file exceptions pursuant to
Pa.R.C.P. 1920.55-2, or request a de novo hearing pursuant to Pa.R.C.P.
1920.55-3. When exceptions are filed under Rule 1902.55-2, the trial court
hears argument on the exceptions before entering a final decree. Pa.R.C.P.
1920.55-2(c). If no exceptions are filed by either party, the Rule states “the
court shall review the report and, if approved, shall enter a final decree.”
Pa.R.C.P. 1920.55-2(d).
Conversely, when a case proceeds under Rule 1920.55-3, no record is
made of the master’s hearing. Pa.R.C.P. 1920.55-3(a). A party who seeks
to challenge the master’s report and recommendation “may file a written
demand for a de novo hearing.” Pa.R.C.P. 1920.55-3(c). When such a
demand is filed, “the court shall hold a hearing de novo and enter a final
decree.” Id. Like the previous rule, if neither party demands a de novo
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7
“Statutory interpretation is a question of law, therefore our standard of
review is de novo, and our scope of review is plenary.” Tosi v. Kizis, 85
A.3d 585, 588 (Pa. Super. 2014), appeal denied, 97 A.3d 745 (Pa. 2014).
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hearing, “the court shall review the report and recommendation and, if
approved, shall enter a final decree.” Pa.R.C.P. 1920.55-3(d).
Rule 1920.55-1 provides that “[m]atters referred to a master for
hearing shall proceed as prescribed by Rule 1920.55-2 unless the court by
local rule adopts the alternative procedure of Rule 1920.55-3.” Pa.R.C.P.
1920.55-1(a). In the present case, the Montgomery County Court of
Common Pleas has adopted the procedures set forth in Rule 1920.55-3.
See id. Therefore, Wife properly requested a de novo hearing to address
her dispute with the master’s report and recommendation.8
As Wife emphasizes in her counseled reply brief, the trial court
appears to have been under the misunderstanding that Wife’s complaints
regarding the master’s report were “exceptions” under Rule 1920.55-2. See
Trial Court Opinion, 1/5/2016, at 12 (citing Rule 1920.55-2, and stating it
“dismissed [Wife’s] exceptions since she was not present to litigate them.”)
(emphasis supplied). To that end, she argues the court abused its
discretion. See Wife’s Reply Brief at 10. Indeed, Wife asserts: “There is a
significant difference between the substantive and procedural due process
protections afforded a litigant under the applicable Pa.R.C.P. No. 1920.55-3
from that afforded under the inapplicable 1920.55-2.” Id. In particular, she
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8
We note the document Wife filed was titled, “Exceptions to
Recommendation of Conference Officer/Master.” See Exceptions, 2/11/2015
(emphasis supplied). However, the document did not list exceptions to the
master’s findings, but rather, simply requested a de novo hearing. See id.- 10 -
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points out Rule 1920.55-3 explicitly states the master’s hearing is not
recorded, as compared to Rule 1920.55-2, which provides for the filing of
the transcript. See id. Wife further argues that where, as here, a timely
demand for a hearing de novo was filed, “the initial unrecorded hearing and
the Master’s Report and Recommendation each becomes a ‘nullity’ that was
incapable of being adopted as a final order of the trial court.” Id. at 12,
citing Pavie v. Pavie, 606 A.2d 1207, 1210 (Pa. Super. 1992). Therefore,
she contends that because the trial court misapplied the law, “its order[]
should be reversed.” Id. at 10.
Wife’s interpretation of the applicable procedural rules ignores the
crucial fact that despite the court’s reference Rule 1920.55-2, it did schedule
on October 19 and 20, 2015, a “two (2) day Protracted Hearing,” i.e., a
hearing de novo, for which Wife failed to appear without notice to counsel
or the trial court. Order, June 18, 1015. Pennsylvania Rule of Civil
Procedure 218 provides, in relevant part:
(a) Where a case is called for trial, if without satisfactory excuse
a plaintiff is not ready, the court may enter a nonsuit on motion
of the defendant or a non pros on the court’s own motion.
****
(c) A party who fails to appear for trial shall be deemed to be not
ready without satisfactory excuse.
Pa.R.C.P. 218.
Here, Wife acknowledges she received notice of the scheduled October
19, 2015, hearing four months earlier, that is, in June of 2015. See Wife’s
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Brief at 18. Moreover, she admits she sought a continuance of the hearing
in early October 2015 – “as a result of the attorney issues and their dropping
the ball” – but was advised on October 13, 2015, before the hearing (and
before her claimed hospitalization), that her request had been denied.9 Id.
at 20. Thereafter, Wife failed to appear for the hearing de novo, without
alerting counsel or the trial court, and counsel, although present, was
unprepared to proceed, purportedly due to Wife’s lack of cooperation. Under
these circumstances, the court deemed Wife “not ready without satisfactory
excuse” pursuant to Rule 218(c), and dismissed her “exceptions,” i.e., her
request for a de novo trial. Pa.R.C.P. 218(c).
The trial court explained the basis for its ruling as follows:
Not only did [Wife] fail to present the court with a
satisfactory excuse, she failed to present the court with any
excuse prior to the commencement of the October 19, 2015
hearing for her absence. In paragraph 9 of her October 23,
2015 Motion for Reconsideration, [Wife] states that due to
“being under a lot of stress” she contacted two physicians. The
first was contacted on October 13, 2015, six days before the
scheduled hearing was to begin. The second was contacted on
October 15, 2015, four days before the scheduled hearing.
Despite contacting her physicians several days before the
hearing, [Wife] made no attempt to contact the court, or her
attorney, about her alleged medical condition. In her motion for
reconsideration, [Wife] states she admitted herself into the
hospital on October 16, 2015, three days before the scheduled
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9
Wife’s attorney also purportedly requested a continuance in a letter sent to
the court on September 23, 2015, which the court also denied. See Trial
Court Opinion, 1/5/2016, at 6. Neither continuance request is included in
the certified record or listed on the docket.
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hearing, and also states she was “hospitalized…for 4 nights” on
October 17, 2015. Despite knowing on October 17, 2015 that
she would be hospitalized for four days, [Wife] still failed to
contact the court, or her attorney, to inform them of her
situation. In fact, [Wife’s] alleged medical issues were not
raised with the court until [Wife] filed her October 23, 2015
Motion for Reconsideration, and even then, [Wife] refers to her
medical condition in vague terms and without any specificity as
to the nature of her illness. She also did not attach any medical
documentation or physician’s letter to her motion, despite
stating in her motion that she had done so. Nor did she present
any medical documentation or physician’s letter to the court
independently of her motion for reconsideration. Furthermore,
based on [Wife’s] statements made in her motion for
reconsideration, the court concluded that [Wife’s] hospitalization
was not based on a true medical emergency, but rather appears
to be based on [her] own initiative in contacting her physicians
due to “being under a lot of stress”. Nothing stated by [Wife] in
her motion indicates that [her] alleged medical condition was life
threatening, or that she was specifically forbidden from
attending the hearing due to a medical diagnosis or doctor’s
instructions. The court does not find that [Wife’s] opinion that
she was “under a lot of stress” satisfactorily excuses her from
not appearing at trial.
Trial Court Opinion, 1/5/2016, at 6-7.
In determining whether a trial court properly proceeded under Rule
218, “our inquiry must focus on whether the trial court’s decision was a
proper exercise of discretion based on all facts of the case.” Faison v.
Turner, 858 A.2d 1244, 1246 (Pa. Super. 2004). Here, based on the facts
before the trial court at the time it dismissed Wife’s request for a de novo
hearing and entered the master’s report and recommendation as a final
order, we find no abuse of discretion. When Wife failed to appear for trial,
the court properly deemed her “not ready without satisfactory excuse”
pursuant to Rule 218(c). Pa.R.C.P. 218(c). Both counsel and the trial court
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stated they had not heard from Wife regarding her absence. See N.T.,
10/19/2015, at 5, 7-8. Moreover, counsel explained to the court that he
was not prepared to proceed as a result of Wife’s lack of communication with
him and his “very limited ability to review documentation” due to her failure
to “authoriz[e]” him to do so. Id. at 5. He also noted that after he filed a
petition to withdraw, Wife responded, in a timely answer, by “specifically
request[ing] that the Court grant [his] petition to withdraw.” Id. Counsel
further claimed his efforts to contact Wife after receiving her response were
futile, and stated: “[S]o, therefore, I do not even know what her position is
or where she is or what is going on.” Id. At that point, the trial court was
under no obligation to proceed with the de novo hearing.10 Rather, when it
deemed Wife not ready without satisfactory excuse, it proceeded as if no de
novo request had been filed under Pa.R.C.P. 1920.55-3(d), and, after
review, approved the report and recommendation of the master.11 See
Pa.R.C.P. 1920.55-3(d).
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10
It is evident from a review of the trial court’s opinion that it found
counsel’s statements regarding Wife’s failure to cooperate and communicate
with him credible. See Trial Court Opinion, 1/5/2016, at 11 (“[C]ounsel
presented the court with sufficient testimony as to his reasons why he found
it necessary to withdraw from the case, which included lack of
communication with [Wife] and lack of sufficient time to prepare for trial due
to [Wife’s] actions.”). See also Busse v. Busse, 921 A.2d 1248, 1255 (Pa.
Super. 2007) (“The fact-finder is in the best position to assess credibility of
witnesses and we do not disturb credibility determinations on appeal.”),
appeal denied, 934 A.2d 1275 (Pa. 2007).
11
In her Reply Brief, Wife insists the trial court
(Footnote Continued Next Page)
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Although Wife filed a timely motion for reconsideration in which she
provided an explanation for her failure to appear, the trial court found that
Wife’s hospitalization, which appeared to be self-imposed, did not constitute
a “satisfactory excuse” for her absence.12 Indeed, in the motion, Wife
asserted she had been “under a lot of stress” and contacted her physicians
as early as October 13, 2015, the same day she learned her request for a
continuance was denied. Motion for Reconsideration, 10/23/2015, at ¶ 9.
Moreover, she further stated she was admitted to the hospital on October
17, 2015, still two days before her scheduled de novo hearing. See id._______________________
(Footnote Continued)
rubberstamped, sight unseen, the disputed and nullified master’s
report and recommendation in a multi-million dollar equitable
distribution dispute – by default and without taking any
admissible evidence to whatsoever support the “equitable
distribution” it entered as a “final order” with the issuance of the
Dismissal Order.
Wife’s Reply Brief at 15-16. However, we have no basis to doubt the trial
court’s statement that it did review the report before entering it as a final
order. See Trial Court Opinion, 1/5/2016, at 12. Furthermore, to the extent
Wife complains the court issued the final order without taking any evidence
or reviewing “any admissible facts of record,” we note the court properly
proceeded under Rule 1920.55-3(d), as if no de novo request had been
made. See Wife’s Reply Brief at 10 (emphasis omitted). When no demand
is made, the Rule mandates only that the court “shall review the report and
recommendation” before entering a final decree. Pa.R.C.P. 1920.55-3(d).
12
It bears emphasis that Wife failed to attach supporting medical
documentation to her motion. Therefore, while we do not doubt Wife was
hospitalized at the time of the hearing, she failed to verify her purported
inability to make telephone calls, or to have someone make such calls on her
behalf, to inform the court or counsel of her hospitalization.
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Significantly, Wife did not provide any reason why she could not contact
either counsel or the trial court before or during her hospital stay to inform
them that she would be unavailable for the de novo hearing. See id. We
cannot say under these circumstances, the court abused its discretion.
We also reject Wife’s claims that the trial court should have either (1)
granted a continuance when she failed to appear, or (2) conducted a de
novo hearing in her absence. See Wife’s Reply Brief at 14-15. First, the
court was under no obligation to continue the matter when it had already
denied a continuance request, and Wife failed to appear without any notice
to the court or counsel. The court explained “the case had been in litigation
for over eight years” and the de novo hearing date was originally scheduled
“in order to accommodate [Wife’s] prior counsel, Mr. [Thomas F.] Grady.” 13
Trial Court Opinion, 1/5/2016, at 8, 9.
Furthermore, the language in Rule 218 does not require the trial court
to proceed with a hearing when the moving party fails to appear or is
otherwise not ready to proceed. Contrary to Wife’s characterization, the
master’s report and recommendation did not become a “nullity” as soon as
she requested a de novo hearing. See Wife’s Reply Brief at 12. Rather,
because Wife was the party who requested the de novo hearing, and then
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13
Our review of the record reveals Wife has retained no fewer than five
different attorneys during these proceedings.
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she failed to appear, the court properly proceeded as if Wife had never made
such a demand pursuant to Rule 1920.55-3(d). See Pa.R.C.P. 1920.55-3(d)
(“If no demand for de novo hearing is filed … the court shall review the
report and recommendation and, if approved, shall enter a final decree.”).
The trial court opined:
Because [Wife’s] exceptions[/request for a de novo hearing]
were dismissed due to her failure to appear, … the court
reviewed the report and recommendation, and, after review,
made the report a final order. [Wife] failed to appear for the
October 19, 2015 hearing, therefore the court was under no
obligation to create a record or enter exhibits on her behalf in
support of her equitable distribution exceptions.
Trial Court Opinion, 15/2016, at 12. Again, we find no reason to disagree.14
Moreover, to the extent Wife argues in her reply brief that the trial
court erred in relying on Rule 218 to dismiss her request for a de novo
hearing in a divorce matter,15 we note Pa.R.C.P. 1920.1(b) states “if the
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14
Wife cites Pavie, supra, to support her assertion that the trial court was
required to conduct a de novo hearing in her absence. See Wife’s Reply
Brief at 12. We find such reliance misplaced. First, Pavie was decided in
1992, before the adoption of Rule 1920.55-3. See Pa.R.C.P. 1920.55-3
(Adopted Sept. 11, 1995, effective Jan. 1, 1996). Furthermore, in that case,
after the wife filed exceptions to the master’s report, the trial court actually
conducted a de novo hearing, although “no witnesses were sworn, nor was
any testimony taken.” Pavie, supra, 606 A.2d at 1208. Rather, the court
heard the arguments of counsel and subsequently affirmed the master’s
recommendation. See id. On appeal, a panel of this Court reversed the
trial court’s order and remanded for a proper de novo hearing “at which
evidence is presented, witnesses heard, and the proceedings recorded.” Id.
at 1211. Conversely, in the present case, no de novo hearing was ever held.
15
See Wife’s Reply Brief at 19.
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rules governing divorce do not provide a specific procedure then ‘the
procedure in the action shall be in accordance with the rules relating to a
civil action.’” Kropf v. Kropf, 24 A.3d 405, 409 (Pa. 2011), quoting
Pa.R.C.P. 1920.1(b). Accordingly, we conclude Wife is entitled to no relief
on her first issue.
Next, Wife argues the trial court erred in permitting counsel to
withdraw when she failed to appear for the de novo hearing. See Wife’s
Reply Brief at 22. The trial court defended its ruling as follows:
Because the court found that [Wife’s] absence was unexcused,
the court proceeded to hear [her] counsel’s motion to withdraw
his appearance [in her absence. Wife’s] counsel presented the
court with sufficient testimony as to his reasons why he found it
necessary to withdraw from the case, which included lack of
communication with [Wife] and lack of sufficient time to prepare
for trial due to [Wife’s] actions. Furthermore, in [her] October 2,
2015 Answer to Mr. Musi’s Motion to Withdraw, [Wife] requested
that the court permit Mr. Musi to withdraw from the case, and in
an October 8, 2015 letter to the court, Mr. Musi stated that
[Wife] “agreed to our withdrawal from the case…” [Wife’s ]
claim … that the court erred by granting her counsel permission
to withdraw is, therefore, without merit, and contrary to [her]
position on this issue prior to the October 19, 2015 hearing. The
fact that [Wife’s] counsel was permitted to withdraw from the
case before the court entered “an adverse judgment” against
[Wife] is of no merit. [Wife] did not oppose the withdrawal, and
she voluntarily absented herself from the October 19, 2015 trial.
Trial Court Opinion, 1/5/2016, at 10-11.
Here, Wife contends that, contrary to the trial court’s characterization,
she did not simply agree to counsel’s withdrawal in her answer to the
petition. See Wife’s Reply Brief at 23-24. Rather, she detailed how counsel
failed to retrieve her files from her former attorney or otherwise prepare for
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trial. See Answer to Petition to Withdraw as Counsel, 10/2/2015, at ¶ 3.
Furthermore, Wife insists her agreement with counsel’s request was
conditional because she also requested 90 days to hire new counsel and
sought a return of her retainer fee. See id. Moreover, Wife emphasizes
that because the court issued a Rule to Show Cause order, scheduling a
hearing on counsel’s petition for November 2, 2015,16 she “had no reason to
understand that she would be unrepresented at the [October 19, 2015, de
novo] hearing, irrespective of her availability to attend such hearing.” Wife’s
Reply Brief at 23.
While we agree the trial court’s order permitting counsel to withdraw
was premature, Wife is entitled to no relief. Once the trial court issued the
show cause order, and scheduled a hearing for November 2, 2015, it should
have waited until that date to rule upon counsel’s petition to withdraw.
Nevertheless, even if the court had declined to consider counsel’s motion at
the October 19, 2015, de novo hearing, it would not have changed the fact
that neither Wife nor counsel was prepared to proceed with the hearing.
Therefore, the court’s premature ruling on counsel’s petition to withdraw is
irrelevant to its dismissal of Wife’s de novo request pursuant to Rule 218.
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16
See Rule to Show Cause, 9/29/2015.
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Moreover, because Wife does not articulate a remedy for the court’s error,
we find she is entitled to no relief.17
Accordingly, we conclude the trial court did not abuse its discretion by:
(1) dismissing Wife’s request for a hearing de novo, after she failed to
appear without any satisfactory excuse; (2) approving, after review, the
master’s report and recommendation; (3) entering the master’s report as a
final order of the court; and (4) entering a decree in divorce. Therefore, we
affirm the decree on appeal.
Decree affirmed. Motion to Quash Appeal and for Sanctions denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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17
Indeed, in her answer to counsel’s petition, Wife requested the trial court
grant counsel’s request to withdraw. See Answer to Petition to Withdraw as
Counsel, 10/2/2015, at ¶ 3. Her dispute with counsel concerning their lack
of preparation and her demand for the return of her retain fee properly lies
with counsel, not this Court.
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