Marks, T. v. Marks, S. ( 2023 )

J-A14041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
TIMOTHY MARKS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANNA MARKS :
:
Appellant : No. 2622 EDA 2022
Appeal from the Decree Entered September 14, 2022
In the Court of Common Pleas of Northampton County
Civil Division at No(s): C-48-CV-2016-09322
BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 14, 2023
Shanna Marks (“Wife”) appeals pro se from the order issuing a final
decree divorcing her from Timothy Marks (“Husband”). We affirm.
The trial court provided the factual and procedural history of this case,
which we set forth in relevant part, as follows:
[Husband filed a Complaint in Divorce on October 26, 2016,
seeking a divorce under, inter alia, 23 Pa.C.S.A. § 3301(d) and
asserting, among other things, that “[t]he parties are not
currently living as husband and wife, and will have lived separate
and apart continuously for a period of at least two years at the
time of the hearing of this matter . . . .” Complaint, 10/26/16, at
¶ 13.]
[T]he parties litigated equitable distribution before the
[Divorce] Master [on] October [15,] 2021[,] and the Master issued
his report and recommendations on November 2, 2021.
On November 19, 2021, [Wife] filed exceptions to the
Master’s recommendations.
On January 19, 2022, after review of the exceptions, [the
trial court] issued [its] [o]rder disposing of [Wife’s] exceptions.
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[The trial court] accepted the Master’s recommendations.
Further, [the o]rder directed: “The parties will be divorced from
their bonds of matrimony via a decree to be entered
contemporaneously with this Order.” However, according to the
docket[,] no final divorce order was entered contemporaneously
with the January 19, 2022 Order.
****
On September 14, 2022, the final [d]ivorce [decree] was
presented to the [trial court] by Husband’s counsel[,] and [the
court] signed the same . . ..
****
On October 14, 2022, Wife filed a[ pro se] appeal [from] the
[d]ivorce [d]ecree signed on September 14, 2022. Therefore, the
final [d]ivorce [d]ecree . . . was placed before the Superior Court
on [a]ppeal.
****
[The trial court] directed [Wife] to file a Concise Statement
of Matters Claimed of on Appeal as required by Pa.R.A.P. 1925(b).
. . ..
[The court] received a copy of [Wife’s pro se c]oncise
[s]tatement on November 10, 2022. . . ..
Trial Court Opinion, 11/14/22, at 1-4 (paragraphs re-ordered for clarity). The
trial court complied with Pa.R.A.P. 1925(a)
Wife raises the following issues for our review:
1. Whether the case was ripe for trial. Act 102 3301(d) the
separation law changed from 2 years to 1-year effective
November 4, 2016[?] [sic]
2. Whether the conduct of [H]usband and [W]ife[,] after filing
of the complaint[,] is sufficient to extend the date of
separation beyond the date of the service of the
complaint[?]
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3. Whether the separation date has an effect on equitable
distribution, support, apl, custody[sic][?]
4. Whether the record was complete and accurate[?]
5. Whether there was fraud in the court[?]
Wife’s Brief at 6.
Our standard of review in divorce actions is well-settled:
It is the responsibility of this Court to make a de novo evaluation
of the record of the proceedings and to decide independently of
the . . . lower court whether a legal cause of action in divorce
exists. However, in determining issues of credibility, the lower
court’s findings must be given the fullest consideration[,] for it
was the lower court who observed and heard the testimony and
demeanor of various witnesses.
Frey v. Frey, 821 A.2d 623, 627 (Pa. Super. 2003) (internal citations,
brackets, and quotations omitted).
Initially, we observe that the argument section of Wife’s brief speaks
only to the issue of separation and whether the trial court’s ruling regarding
the date of separation was in error. See Wife’s Brief at 30. Wife’s remaining
issues are thus undeveloped and thereby waived. See Karn v. Quick & Reilly
Inc., 912 A.2d 329, 336 (Pa. Super. 2006) (providing that “[a]ppellate
arguments which fail to adhere to [the Rules of Appellate Procedure] may be
considered waived, and arguments which are not appropriately developed are
waived. Arguments not appropriately developed include those where the
party has failed to cite any authority in support of a contention”).1
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1 Regarding pro se litigants, this Court has stated:
(Footnote Continued Next Page)
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In her sole preserved appellate issue, Wife challenges the divorce decree
based on her assertion that the parties had not been separated for the
requisite amount of time. Section 3301(d) of the Divorce Code provides:
(1) The court may grant a divorce where a complaint has
been filed alleging that the marriage is irretrievably broken and
an affidavit has been filed alleging that the parties have lived
separate and apart for a period of at least one year and that the
marriage is irretrievably broken and the defendant either:
(i) Does not deny the allegations set forth in the affidavit.
(ii) Denies one or more of the allegations set forth in the
affidavit but, after notice and hearing, the court determines that
the parties have lived separate and apart for a period of at least
one year and that the marriage is irretrievably broken.
23 Pa.C.S.A. § 3301(d) (emphasis added).2
The Divorce Code defines “separate and apart” as: “Cessation of
cohabitation, whether living in the same residence or not. In the event a
complaint in divorce is filed and served, it shall be presumed that the
____________________________________________
While this court is willing to liberally construe materials filed by a
pro se litigant, we note that appellant is not entitled to any
particular advantage because [s]he lacks legal training. Further,
any layperson choosing to represent himself in a legal proceeding
must, to some reasonable extent, assume the risk that his lack of
expertise and legal training will prove his undoing.
Rich v. Acrivos, 815 A.2d 1106, 1108 (Pa. Super. 2003) (internal citations
and quotations omitted).
2 The prior version of the statute, effective up to December 4, 2016—thus, in
effect at the time Husband filed his complaint—required two years of
separation.
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parties commenced to live separate and apart not later than the date
that the complaint was served.” 23 Pa.C.S.A. § 3103 (emphasis added).
Regarding cohabitation, this Court has explained:
“[C]ohabitation” means “the mutual assumption of those rights
and duties attendant to the relationship of husband and wife.”
Thus, the gravamen of the phrase “separate and apart” becomes
the existence of separate lives not separate roofs. This position
follows the trend of Pennsylvania case law in which a common
residence is not a bar to showing that the parties live separate
and apart. The ties that bind two individuals in a marital
relationship involve more than sexual intercourse.
Frey, 821 A.2d at 628 (internal citations and quotations omitted).
As for the statutory presumption that the date of separation is the date
the divorce complaint was filed, this Court has articulated the presumption’s
function as follows:
A presumption . . . is a procedural device which not only permits
an inference of the presumed fact, but also shifts to the opposing
party the burden of producing evidence to disprove the presumed
fact. Failure to meet this burden of production will normally result
in a decision . . . in favor of the party invoking the presumption.
In short, the party attempting to rebut the presumption has the
burden of proof.
McCoy v. McCoy, 888 A.2d 906, 912 (Pa. Super. 2005) (internal citations,
quotations, and brackets omitted).
Wife contests the trial court’s finding that she and Husband lived
separate and apart for more than two years by the time of the evidentiary
hearing on October 15, 2021. Wife argues that the final separation occurred
only on August 27, 2021, “when husband abruptly, and forcefully, ceased
cohabitation with the wife. The husband subsequently terminated supporting
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the wife by; refinancing, canceling, and/or closing all accounts. Husband then
filed for emergency custody of the two children . . ..” Wife’s Brief at 30.
The trial court considered this issue and concluded it was meritless.
According to the trial court, following the October 15, 2021 hearing before the
Divorce Master, the court on January 19, 2022 adopted the Master’s report.
See Trial Court Opinion, 11/14/22, at 2; see also Order, 1/19/22, at ¶ 11.
The trial court, in its Rule 1925(a) opinion again accepted the Divorce Master’s
report. See Trial Court Opinion, 11/14/22, at 5. The Divorce Master’s report
set forth his findings as follows:
Before discussing the marital estate, it is necessary to
address the date of separation. Wife contended that the parties
had not been separated for one year and contended the parties
had reconciled. . . ..
The date of separation is presumed to be the date of the
filing of the divorce complaint. This presumption “is a procedural
device which not only permits an inference of the ‘presumed’ fact,
but also shifts to the opposing party the burden of producing
evidence to disprove the presumed fact.” [] McCoy, 888 A.2d [at
912 . . ..
There are no bright line rules whereby certain behavior
establishes an intent to live separate and apart. Rather, all facts
must be examined and weighted together. . . ..
Applying Pennsylvania law to the facts presented in this
case[,] it is clear that Wife failed to present sufficient evidence to
establish that the parties had reconciled. The . . . parties made
attempts to reconcile, discussed the withdrawal of the divorce
complaint[;] Husband continued to financially support Wife, and
the parties had sexual relations. Nevertheless, the testimony and
evidence presented never clearly established that the parties had
reconciled. On the contrary[,] all evidence showed that these
efforts failed and despite the stop-and-go progress of the case, at
no time did the parties actually resume life as husband and wife.
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Therefore, the undersigned finds the date of separation to be
October 26, 2016.
Divorce Master’s Report, 11/2/21, at 2-3.
Based on our review, we conclude Wife is due no relief. In addition to
the statutory presumption that the separation date is the date of the filing of
the complaint, Husband testified that, notwithstanding some reconciliation
attempts, the separation date was October 26, 2016, which was nearly five
years before the evidentiary hearing. See N.T., 10/15/21, at 20-21, 30. Wife,
during her testimony, did not offer any evidence to rebut the statutory
presumption that separation occurred as of the filing of the divorce complaint.
See N.T., 10/15/21, at 65-84. The most Wife established on this point was
during her cross-examination of Husband in which he conceded the two
continued to have sexual intercourse up to August 2021, though Husband also
testified to his belief that Wife was having a sexual relationship during the
same time with another man. See id. at 51. For the foregoing reasons, Wife’s
appellate issue merits no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2023
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