Camper, C. v. Werner, B. ( 2023 )

J-A26025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAROLYN T. CAMPER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRADLEY S. WERNER :
:
Appellant : No. 2 EDA 2022
Appeal from the Order Entered May 17, 2021
In the Court of Common Pleas of Bucks County
Civil Division at No(s): A06-13-60988-D-37
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED MARCH 3, 2023
Appellant, Bradley S. Werner (“Husband”), appeals from the order
entered in the Bucks County Court of Common Pleas, denying his recusal
motion. We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
Husband and [Appellee,] Carolyn Camper (hereinafter
“Wife”) were married on December 18, 2005 and separated
on June 19, 2013. This was the second marriage for Wife,
and the fifth marriage for Husband. This matter was
commenced when Wife filed a complaint in divorce on May
24, 2013, seeking equitable distribution of the parties’
marital assets, alimony, alimony pendente lite (“APL”),
counsel fees, costs, and expenses. Grounds for divorce
were approved and, on March 22, 2017, a Master’s hearing
was held.
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* Retired Senior Judge assigned to the Superior Court.
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Husband filed a motion for a hearing de novo on May 5,
2017, asserting that he took “exceptions to the
recommendation of” the Master. A three-day equitable
distribution trial was held on August 25, 2017, February 20,
2018, and May 24, 2018. Thereafter, on August 20, 2018,
[the trial c]ourt entered an order granting the parties a
decree in divorce and resolving all claims of equitable
distribution concluding, “[c]onsidering all of the factors, an
equal split of the marital estate is appropriate.” Husband
appealed the August 20, 2018 order to the Superior Court.
On December 3, 2019, in a memorandum decision, the
Superior Court vacated the August 20, 2018 order and
remanded the matter for further proceedings. [See
Camper v. Werner, 225 A.3d 1126 (Pa.Super. 2019)
(unpublished memorandum) (“Camper I”).]
On January 22, 2020, Husband filed a motion, and
memorandum of law in support, to disqualify and recuse the
[trial judge] (hereinafter “motion for recusal”). Thereafter,
Wife filed an answer to Husband’s motion and new matter
request for counsel fees. On June 19, 2020, a hearing was
held at the conclusion of which Husband’s motion for recusal
was denied. Before the proceeding was adjourned, both
parties requested the [trial judge] remain in the case and
specifically requested the [trial judge] assist the parties to
reach a settlement agreement. Therefore, a subsequent
written order was not entered, and the matter was
continued to June 25, 2020 for a settlement conference.
Ultimately, the parties were unable to agree upon a
settlement.
(Trial Court Opinion, filed January 25, 2022, at 1-2) (internal citations to the
record, footnotes, and some capitalization omitted).
The court entered a new equitable distribution order, responding to this
Court’s remand instructions, on February 23, 2021.1 On May 17, 2021, the
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1Husband challenges the equitable distribution order in a separate appeal,
which this Court docketed at 3 EDA 2022.
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court entered a formal order denying Husband’s recusal motion. The court
entered a final divorce decree on November 17, 2021.
Husband timely filed a notice of appeal challenging the denial of the
recusal motion on December 17, 2021.2 That same day, the court ordered
Husband to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal. Husband timely filed his Rule 1925(b) statement on December
28, 2021.
Husband now presents two questions for this Court’s review:
Whether the [trial] court’s order on remand … pertaining to
equitable distribution, and incorporated into its order dated
November 17, 2021, should be vacated based upon bias,
lack of impartiality, prejudice and/or unfairness towards
Husband by the [trial judge].
Whether the [trial judge] should have been recused from
presiding over this matter.
(Husband’s Brief at 5).
On appeal, Husband initially asserts that the trial judge did not follow
this Court’s remand instructions because the new equitable distribution order
failed to address two of the statutory factors that are relevant to the equitable
division of marital property. Moreover, Husband alleges that the new order
addresses “the potential reversal and remand” of the most recent equitable
distribution determination. (Husband’s Brief at 17). Based on the wording of
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2 Issues in divorce are reviewable after entry of the divorce decree and the
resolution of all economic issues. See Fried v. Fried, 509 Pa. 89, 501 A.2d
211 (1985).
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the new order, Husband argues “[i]t is abundantly clear that [the trial judge]
has predetermined Wife’s award for the marital interest in [two limited liability
corporations operated by the parties], which is erroneous and improper, and
extremely unfair to Husband.” (Husband’s Brief at 17-18). Husband insists
that the purported predetermination of the value of Wife’s interest in these
assets is, on its own, a sufficient reason to require the trial judge’s recusal.
In the alternative, Husband suggests that the trial judge “has exhibited
partiality, prejudice, bias or ill will towards Husband throughout the post-
dissolution proceedings sufficient to establish a basis for recusal[.]” (Id. at
19). Husband emphasizes the trial judge’s comments and actions at: 1) an
August 20, 2018 hearing where the judge first announced his decision
regarding the parties’ economic issues; 2) a January 7, 2019 hearing on Wife’s
first contempt petition; 3) a May 28, 2019 hearing on Wife’s second contempt
petition; and 4) September 2019 hearings on Wife’s third contempt petition.3
Aside from highlighting certain comments from the aforementioned hearings,
Husband also complains that the trial judge failed to address Husband’s
concerns regarding “disclosure of confidential and proprietary business
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3 Husband challenged the contempt orders in a prior appeal. See Camper v.
Werner, 260 A.3d 172 (Pa.Super. 2021) (unpublished memorandum)
(“Camper II”). This Court dismissed Husband’s appeal from the first two
contempt orders as moot. Regarding the third order, which held Husband in
contempt and compelled him to pay Wife’s counsel fees, this Court reversed
the order in part. Specifically, this Court determined that the decision in
Camper I vacated the original equitable distribution order, which effectively
extinguished the contempt and counsel fee terms in the third contempt order.
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information” related to the limited liability corporations. (Id. at 37). Husband
maintains that the trial judge’s “lack of impartiality raises, at the least, an
appearance of impropriety” that warranted recusal. (Id. at 41). Husband
concludes that the trial judge erred in denying the recusal motion, and this
Court must vacate the new equitable distribution order on this basis. We
disagree.
The following standard of review governs our consideration of this issue:
Our Supreme Court presumes judges of this Commonwealth
are honorable, fair and competent, and, when confronted
with a recusal demand, have the ability to determine
whether they can rule impartially and without prejudice.
The party who asserts a trial judge must be disqualified
bears the burden of producing evidence establishing bias,
prejudice, or unfairness necessitating recusal and the
decision by a judge against whom a plea of prejudice is
made will not be disturbed except for an abuse of discretion.
* * *
As a general rule, a motion for recusal is initially directed to
and decided by the jurist whose impartiality is being
challenged. In 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. Where a jurist rules that he or she can hear and
dispose of a case fairly and without prejudice, that decision
will not be overruled on appeal but for an abuse of
discretion.
2303 Bainbridge, LLC v. Steel River Building Systems, Inc., 239 A.3d
1107, 1118 (Pa.Super. 2020) (quoting Commonwealth v. Kearney, 92 A.3d
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51, 60 (Pa.Super. 2014), appeal denied, 627 Pa. 763, 101 A.3d 102 (2014)).
“In practice, ‘[d]iscretion is abused when the course pursued represents not
merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.’” Lewis v. Lewis,
234 A.3d 706, 722 (Pa.Super. 2020) (quoting Commonwealth v. Goldman,
70 A.3d 874, 879 (Pa.Super. 2013), appeal denied, 624 Pa. 672, 85 A.3d 482(2014)).
“Further, ‘because the integrity of the judiciary is compromised by the
appearance of impropriety, a jurist’s recusal is necessary where [the judge’s]
behavior appears to be biased or prejudicial.” Bowman v. Rand Spear &
Associates, P.C., 234 A.3d 848, 862 (Pa.Super. 2020) (quoting Rohm and
Haas Co. v. Continental Cas. Co., 732 A.2d 1236, 1261 (Pa.Super. 1999)).
However, simply because a judge rules against a [party]
does not establish bias on the part of the judge against that
[party]. Along the same lines, a judge’s remark made
during a hearing in exasperation at a party may be
characterized as intemperate, but that remark alone does
not establish bias or partiality.
Lewis, supra at 722 (quoting Commonwealth v. McCauley, 199 A.3d 947,
951 (Pa.Super. 2018)). Likewise, “opinions formed by the judge on the basis
of facts introduced or events occurring in the course of the current proceedings
... do not constitute a basis for a bias or partiality motion unless they display
a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bowman, supra at 862-63 (quoting Kearney, supra at 61).
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Instantly, the court conducted a hearing on Husband’s recusal motion
on June 19, 2020. In light of the arguments presented in the motion and at
the hearing, the court denied Husband’s recusal request. The trial court
opinion offered the following explanation in support of this decision:
Essentially, Husband was complaining that [the trial
judge’s] conduct in dealing with his multiple instances of
contempt of the original equitable distribution order,
rendered [the trial judge] biased against him. [The trial
judge] found to the contrary subsequent to the hearing on
the motion. Husband’s failure to follow the order of the
court, and the court insisting on compliance, is not a
demonstration of bias or prejudice. [The trial judge] had no
problem finding that [his] ability to continue to preside was
reasonable and impartial.
Additionally, after the ruling, but prior to adjourning the
June 19, 2020 proceeding, both parties, and their counsel,
requested the [trial judge] remain in the case and
specifically requested the [trial judge] assist the parties in
settlement discussions. At the parties’ joint request, the
matter was continued to June 25, 2020 for a settlement
conference. Thereafter, Husband never renewed his motion
for recusal and instead participated in further proceedings.
Thus, Husband’s argument lacks merit as both parties
agreed that the [trial judge] would and should remain on
the case.
(Trial Court Opinion at 4-5) (some capitalization omitted).
Our review of the record confirms the court’s analysis. Husband’s brief
identifies a handful of negative comments made by the trial judge during
contempt hearings that occurred while Husband’s appeal of the original
equitable distribution order was pending. Rather than demonstrating bias or
partiality, the trial judge’s comments simply illuminate the jurist’s frustration
over Husband’s non-compliance with certain directives. In the context of a
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contempt hearing, a judge’s use of pointed language with a contemnor is
unremarkable. Thus, the comments at issue are more akin to remarks made
“in exasperation” rather than a “display a deep-seated favoritism.” See
Lewis, supra; Bowman, supra.
Regarding Husband’s claim that the trial judge demonstrated his bias
when he “predetermined” the value of Wife’s interest in certain assets, we
disagree with Husband’s interpretation of the new equitable distribution order.
The exact language that Husband complains about is as follows:
This court determines the marital value of PRAC and WAC[,
the parties’ limited liability corporations,] to be
$2,300,000.[4] This is in line with Wife’s expert’s testimony
which valued the increase of these business interests at
$2,300,000. This court found Wife’s expert’s testimony
credible, and Husband’s expert’s testimony not credible.
While Wife argued that the value of the PRAC and WAC
should be increased by an additional $110,000 to
$2,410,000, this court does not adopt this addition to value
as the overall increase in value accounts for Wife’s
premarital contribution to this business.
This court has considered both the possible tax
consequences of a sale as well as all other possible
liquidation cost[s]. However, the court does not find it
appropriate to deduct for those possible costs. Said
deductions are not mandatory, and a further reduction of
the value of this marital asset would not serve to effectuate
economic justice in this matter. Most importantly the court
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4 In Camper I, this Court reversed the portion of the prior equitable
distribution order that valued the martial portion of PRAC and WAC at
$2,300,000. Upon remand, we instructed the trial court to address tax and
cost of sale consequences and, if necessary, set forth a new valuation. See
Camper I, supra at 10. This Court also emphasized that the trial court should
provide on-the-record statement of reasons to support the chosen valuation.
See id.
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finds that a sale of the business is extremely unlikely. The
business is very profitable. It provides Husband with a
substantial direct income. In addition, as we previously
found, the business supports Husband’s expenditure of
substantial sums for his personal expenses. As noted below,
the court determines that Wife shall receive 60% of the
marital assets. Wife’s 60% of this asset is $1,380,000. If
the court did deduct the theoretically possible
dispositional costs (taxes, liquidation costs, etc.), the
court would award Wife substantially more than 60%
of the asset, as the court finds that awarding Wife
$1,380,000 of this asset is equitable.
(Order, entered 2/23/21, at 1-2) (emphasis added and some capitalization
omitted).
Contrary to Husband’s assertions, the above-quoted language does not
demonstrate some type of “predetermination” or bias on the part of the trial
judge. Instead, the trial judge considered specific factors that were relevant
to its decision regarding the valuation of the marital assets. See 23 Pa.C.S.A.
§ 3502(a) (stating court shall equitably divide marital property between
parties and providing factors relevant to equitable distribution). The trial
judge also explained the interplay between these factors and the distribution
scheme as a whole, concluding that the award of a specific amount to Wife
was necessary to effectuate economic justice. See Childress v. Bogosian,
12 A.3d 448 (Pa.Super. 2011) (reiterating that courts must consider whole of
distribution scheme in determining propriety of equitable distribution award;
circumstances of case are measured against objective of effectuating
economic justice between parties and achieving just determination of property
rights). Absent more, we cannot say that the court abused its discretion in
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denying the recusal motion. See 2303 Bainbridge, LLC, supra; Lewis,
supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2023
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