Sbarbaro-Mortelliti, C. v. Mortelliti, S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAROL L. SBARBARO-MORTELLITI, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN MORTELLITI,
Appellant No. 1165 EDA 2014
Appeal from the Order Entered March 11, 2014
In the Court of Common Pleas of Delaware County
Domestic Relations at No(s): 07-9317
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 06, 2016
Appellant, Stephen Mortelliti (“Husband”), appeals pro se1 from the
order entered on March 11, 2014. We affirm.
The relevant factual background and procedural history of this case is
as follows. On March 28, 1987, Husband married Carol L. Sbarbaro-
Mortellitti (“Wife”). Shortly thereafter, Husband set up what the trial court
titled the Stephen Mortelliti Profit Sharing Account (“the PSA”). The PSA was
a profit-sharing plan as that term is used in the Internal Revenue Code. Cf.
26 C.F.R. § 1.401–1 (discussing profit-sharing plans). Husband also
established a retirement account at Merrill Lynch.
1
Husband is licensed to practice law in this Commonwealth. During the
course of the trial court proceedings, Husband ceased being represented by
counsel and began representing himself.
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On July 26, 2007, the parties separated. The next day, Wife filed for
divorce. In early 2011, the Honorable John L. Braxton, a senior judge of the
Court of Common Pleas of Philadelphia County, was specially assigned to
preside over the divorce proceedings. On February 7, 2011, a hearing was
held on a petition for contempt filed by Wife. In that petition, Wife alleged
that Husband violated prior discovery orders.
Husband and his counsel failed to appear for that hearing. Eventually,
the trial court contacted Husband and directed him to appear that afternoon
so the hearing could continue in his presence. At the conclusion of the
morning portion of the hearing, however, at which neither Husband nor his
counsel were present, Wife’s counsel asked to go off-the-record. That
request was granted. Nothing further appears on the record until Husband
appeared that afternoon.
On March 18, 2011, Husband filed a motion seeking Judge Braxton’s
recusal. In that motion, he argued that the off-the-record conversation held
on the morning of February 7, 2011 was a prohibited ex parte
communication. He argued that such ex parte communication required
Judge Braxton to recuse himself from the instant proceedings. A hearing on
Husband’s recusal motion was held that same day. At the conclusion of the
hearing, the trial court denied Husband’s recusal motion.
On September 23, 2011, the trial court bifurcated the divorce
proceedings. See 23 Pa.C.S.A. § 3323(c.1). On October 18, 2011, the trial
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court issued a divorce decree dissolving the matrimonial bond between
Husband and Wife. Thereafter, a hearing was held before a special master
regarding the equitable distribution of the parties’ property. On February 2,
2012, the hearing officer filed a report and recommendation.
Wife filed an appeal of the hearing officer’s report and
recommendation and requested a de novo hearing before the trial court. A
multi-day hearing ensued. On March 11, 2014, the trial court issued an
amended final order equitably distributing the parties’ property. This timely
appeal followed.2
Husband presents three issues for our review:
1. Whether the [trial c]ourt abused its discretion when it denied
Husband’s motion for recusal where it engaged in ex parte
communications with Wife’s attorney?
2. Whether the [trial c]ourt abused its discretion with regard to the
[PSA] where it (a) valued the asset at $373,434.00 even though
the record indicates that its value at the date of separation was
only $22,940.00; (b) failed to factor in the joint marital debt
owed on the account in the amount of $327,003.00; and (c)
included the amount of $22,940.00 which was already included
as a marital asset in the Merrill Lynch Profit Sharing Account?
3. Whether the [trial c]ourt abused its discretion where it failed to
account for the rental value of the marital home during Wife’s
exclusive possession of it?
Husband’s Brief at 8.
2
On April 17, 2014, the trial court ordered Husband to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On May 6, 2014, Husband filed his concise statement.
On July 25, 2014, the trial court issued its Rule 1925(a) opinion. All issues
raised on appeal were included in his concise statement.
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In his first issue, Husband argues that the trial court erred by not
recusing. “We review the trial court’s denial of the recusal motion for abuse
of discretion.” Becker v. M.S. Reilly, Inc., 123 A.3d 776, 778 (Pa. Super.
2015) (citation omitted). “A party seeking recusal bears the burden of
producing evidence to establish bias, prejudice, or unfairness which raises a
substantial doubt as to the jurist’s ability to preside impartially.”
Commonwealth v. Watkins, 108 A.3d 692, 734 (Pa. 2014) (citations
omitted). When
considering a recusal request, the jurist must first make a
conscientious determination of his or her ability to assess the
case in an impartial manner, free of personal bias or interest in
the outcome. The jurist must then consider whether his or her
continued involvement in the case creates an appearance of
impropriety and/or would tend to undermine public confidence in
the judiciary. This is a personal and unreviewable decision that
only the jurist can make. In reviewing a denial of a
disqualification motion, we recognize that our judges are
honorable, fair[,] and competent.
Commonwealth. v. Orie Melvin, 103 A.3d 1, 23 (Pa. Super. 2014)
(citation and internal ellipsis omitted).
Husband argues that the trial court engaged in ex parte
communication with Wife’s counsel. He further contends that the ex parte
communication, when viewed as part of the broader record, evidences bias.
Notably, in his statement of questions presented, Husband only argues that
the trial court erred in denying his recusal motion because of the ex parte
communication. See Husband’s Brief at 8. Thus, although we may view the
record as a whole, including the trial court’s statements made in open court,
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when determining if the trial court exhibited bias in light of the alleged ex
parte communication, see Commonwealth v. Stivala, 645 A.2d 257, 264
(Pa. Super. 1994), appeal denied, 655 A.2d 513 (Pa. 1994), we may not
reverse the trial court’s decision if no ex parte communication took place.
See Pa.R.A.P. 2116(a).
We conclude that the trial court did not engage in prohibited ex parte
communications with Wife’s counsel. Throughout the pendency of this case,
the Code of Judicial Conduct provided that:
Judges should accord to all persons who are legally interested in
a proceeding, or their lawyers, full right to be heard according to
law, and, except as authorized by law, must not consider ex
parte communications concerning a pending proceeding.
Pennsylvania Code of Judicial Conduct, Canon 3A.(4) (West 2012) (emphasis
added).3 In this case, the trial court stated that the off-the-record
conversation with Wife’s counsel did not concern the pending proceeding.
N.T., 3/18/11, at 10. Husband presented no evidence at the recusal hearing
to suggest that the off-the-record conversation between the trial court and
Wife’s counsel concerned the merits of this case. As no prohibited ex parte
communication occurred, we ascertain no abuse of discretion in the trial
court’s denial of the recusal motion.
3
In 2014, the former Code of Judicial Conduct was repealed and a new Code
of Judicial Conduct was promulgated. See 44 Pa.B. 455 (Jan. 25, 2014). As
the notice of appeal in this case was filed prior to the new Code of Judicial
Conduct’s effective date, all citations are to the former Code of Judicial
Conduct.
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In his second issue, Husband argues that the trial court erred in its
calculation of the PSA’s value. First, Husband argues that the evidence
established the PSA’s value was $22,940.00. Second, Husband argues that
the trial court ignored the fact that the PSA was encumbered by a significant
amount of debt. Finally, he argues that a portion of the PSA was already
included in the marital estate as part of another asset. “Our standard of
review when assessing the propriety of an order effectuating the equitable
distribution of marital property is whether the trial court abused its
discretion by a misapplication of the law or failure to follow proper legal
procedure.” Morgante v. Morgante, 119 A.3d 382, 386 (Pa. Super. 2015)
(citation omitted).
As this Court has explained:
The Divorce Code does not specify a particular method of valuing
assets. Thus, the trial court must exercise discretion and rely on
the estimates, inventories, records of purchase prices, and
appraisals submitted by both parties. When determining the
value of marital property, the court is free to accept all, part or
none of the evidence as to the true and correct value of the
property.
Childress v. Bogosian, 12 A.3d 448, 456 (Pa. Super. 2011) (internal
alterations, quotations marks, and citations omitted).
Husband first argues that the trial court erred by finding that the PSA
was worth $373,434.00. To the extent that Husband challenges the gross
valuation of the PSA, this argument is waived because the argument section
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of Husband’s brief contains no development of this claim. See Pa.R.A.P.
2119(a).
Next, Husband argues that the net value of the PSA was $22,940.00.
He argues that the difference – approximately $350,000 – was debt that he
and Wife owed to the PSA. In essence, Husband argues that the trial court
erred by not including the approximately $350,000.00 in loans taken from
the PSA as marital debt. Generally, debts accrued prior to separation are
marital debts; however, a debt accrued prior to separation may be a non-
marital debt where the other spouse did not take part in incurring the debt
and received no benefit therefrom. See Harasym v. Harasym, 614 A.2d
742, 746 (Pa. Super. 1992).
We conclude that the record supports the trial court’s finding that the
debt owed to the PSA was non-marital debt. At trial, Wife produced bank
records for the PSA along with the PSA balance sheets. These documents
showed that there was less than $100.00 in the PSA bank account at the
time of separation. Husband testified that he and Wife took approximately
$350,000.00 in loans from the PSA. N.T., 3/18/11, at 36. On the other
hand, the administrator of the PSA testified that he was unaware of any
loans taken from the PSA. N.T., 4/26/12, at 111. Wife testified that she
never authorized or approved any loans taken from the PSA and that she
never received any benefit from such loans. Id. at 151. Furthermore,
Husband failed to produce any written promissory notes. The trial court
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credited Wife’s testimony, together with the lack of promissory notes, over
Husband’s testimony. “Credibility determinations are for the trier of fact. As
long as sufficient evidence exists in the record to support the credibility
findings, this Court may not overturn those findings.” In re Merlo, 58 A.3d
1, 16 (Pa. 2012) (citation omitted). As sufficient evidence exists to support
the trial court’s credibility determinations, the trial court did not abuse its
discretion in finding that the PSA loans were non-marital debt.
Next, Husband argues that $22,940.00 in the PSA was double
counted. Specifically, he argues that the value of the PSA included the
$22,940.00 in the Merrill Lynch account. At the equitable distribution
hearing, Husband testified that the Merrill Lynch account balance was
included in the value of the PSA. There was no testimony or evidence to the
contrary. In essence, the trial court found Husband’s testimony not credible
and determined that the Merrill Lynch account balance was not included in
the value of the PSA.
It is well-settled that a trial “judge may reject . . . uncontradicted
testimony where, for any reason[], its credibility is doubtful.” V-Tech
Servs., Inc. v. St., 72 A.3d 270, 280 (Pa. Super. 2013). In this case, the
trial court explained its rationale for finding that Husband’s testimony lacked
trustworthiness, i.e., Husband was unable to produce any documentary
evidence that showed the Merrill Lynch account balance was included in the
PSA’s balance. As such, we ascertain no abuse of discretion in the trial
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court’s decision to count the Merrill Lynch account separately from the PSA
account.
In his final issue, Husband argues that the trial court erred in not
granting him a credit for the time Wife was the sole occupant of the marital
residence. For a period of over four years after separation, Wife had sole
use and enjoyment of the marital residence. Husband argues that he is
entitled to a credit equal to one-half of the rental value of the property over
that time period. Wife, on the other hand, argues that Husband was not
entitled to such a credit because of repair expenses for the marital residence
that she incurred.
As this Court has explained:
[T]he general rule is that the dispossessed party is entitled to a
credit for the fair rental value of jointly held marital property
against a party in possession of that property[; however,] the
party in possession is entitled to a credit against the rental value
for payments made to maintain the property on behalf of the
dispossessed spouse. . . . [W]hether the rental credit is due and
the amount thereof is within the sound discretion of the [trial
court.]
Lee v. Lee, 978 A.2d 380, 385-386 (Pa. Super. 2009) (citation omitted).
In this case, the trial court “found that any credit owed to [Husband]
was offset by [Wife’s] maintenance of the marital residence during her
occupancy and [Wife’s] extensive efforts to prepare the marital residence for
sale absent the assistance of [Husband].” Trial Court Opinion, 7/25/14, at
17. This finding is supported by the record. Wife testified regarding the
substantial work she undertook after Husband departed from the marital
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residence. N.T., 6/21/12, at 33-34. As such, the trial court did not abuse
its discretion in failing to grant Husband a credit for one-half of the rental
value of the marital residence for the time he was dispossessed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
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