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HomeMy WebLinkAbout1076 S 2009 MARIA D. WISER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : CALVIN E. WISER, : PASCES NO. 546111353 Defendant : NO. 1076 SUPPORT 2009 IN RE: PLAINTIFF’S EXCEPTIONS TO SUPPORT MASTER’S REPORT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., May 19, 2010. In this spousal support case in which both parties are proceeding pro se, Plaintiff wife, who left Defendant husband, has filed exceptions to a support master’s report which recommended denial of her claim for spousal support on the 1 basis of entitlement. The exceptions filed by Plaintiff, numbered in accordance with the findings of the master in the report complained of, are as follows: 6. In the oral argument in mid September 2009 Calvin slapped my hand which caused the coffee cup to fall and shatter as well as telling me that I was acting like a fucking bitch. This was only the straw that broke the camels back. There were countless other occasions where Calvin would call me a “piece of garbage” or a “bitch”. 7. The marriage was strained before the grandchildren arrived. The cause of the strain on the marriage was verbal and physical abuse as well as infidelity for many years. The specific day of the incident Calvin insisted I explain why I was “quiet”. I may not have scars from the physical abuse or be able to show you the emotional damage from being torn down for many years. I have been attending counseling and have a letter from my counselor stating that in her professional opinion my depression and anxiety is greatly impacted by the strained unstable relationship with Calvin. 8. After the incident we did not share a bedroom, I slept on the sofa down stairs, while Calvin remained sleeping in the bedroom and we did not have marital relations. At the hearing I was very flustered when the Master J. Wesley Oler Jr., J [sic] asked this question when I responded I thought that the question referred to the marriage before the incident not after. Calvin Wiser knows that my answer was incorrect. 1 Plaintiff’s Exceptions, filed March 18, 2010; see Support Master’s Report and Recommendation, filed March 8, 2010. 10. I did state that Calvin had affairs throughout our marriage. I cannot bring his illegitimate son that is only a few months older than our twin daughters, I did bring a letter from one of our tenants that Calvin wanted her to be his girlfriend. I do also have a letter from a gentleman that did electrical work for us, inquiring about the relationship between this man’s wife and Calvin that had occurred. Again, instances like this 2 were the strain on the marriage. In response to the exceptions, the court issued an order (a) directing the stenographer to transcribe and file the notes of testimony from the support master’s hearing, (b) prescribing a briefing schedule, and (c) providing that “[a]ny 3 issue not briefed by the Plaintiff shall be deemed waived.” Plaintiff has failed to submit a brief in accordance with the schedule. For the reasons stated in this opinion, Plaintiff’s exceptions to the support master’s report will be denied and the interim order of court dated March 8, 2010, issued pursuant to the master’s recommendation will be entered as a final order. STATEMENT OF FACTS Plaintiff Maria D. Wiser is an adult individual residing at 316 Walnut 4 Street, Shippensburg, Pennsylvania. Defendant Calvin E. Wiser is an adult individual residing at 402 South Penn Street, Shippensburg, Pennsylvania, the 5 former marital residence. The parties were married on May 19, 1990, and 67 separated on October 1, 2009, when Plaintiff left the marital residence. Plaintiff filed a complaint for spousal support on December 15, 2009. A hearing on the complaint before Cumberland County Support Master Michael R. Rundle, Esq., was held on February 22, 2010. The evidence at the hearing may be summarized as follows: 2 Plaintiff’s Exceptions, filed March 18, 2010. 3 Orders of Court, March 22, 25, 2010. 4 N.T. 3, Support Master’s Hearing, February 22, 2010 (hereinafter N.T. __). 5 N.T. 23. 6 N.T. 4. 7 N.T. 4, 9-10, 18, 21. 2 According to Plaintiff, the separation was precipitated by an incident 8 occurring in the middle of September, 2009. Plaintiff described the incident as follows: Q What time of day was this? A It must have been like in the afternoon. I couldn’t actually tell you—maybe 2:00 or 3:00. Q Where did it occur? A At the house. In the backyard of the house. Q And you were holding a cup of what? A Coffee. Q What led up to it? A He had said to me, what is wrong with you. At that time I had three grandchildren from—and he said what is wrong with you. I said nothing is wrong with me. And he said even the boys are asking what is wrong with you. And I said nothing is wrong with me. I am just a little stressed right now. I just want to be left alone for a little bit. He just flipped. That’s what he does sometimes. If you don’t give him the right answer he will flip. He wants to hear what he wants to hear. Q What exactly did he do? A He went like this. Q And you are making a motion with your right arm as if he was to backhand something? A Right, he backhanded me. Q And what did he hit? A I had the cup here and he hit me here. Q And you are referring to your left forearm? A Well, okay, I had the cup here. I don’t remember if I had the cup in my right hand or in left hand. I am sorry. I don’t remember. Q He hit you in the arm that you were holding the cup? A Right. Q And the cup fell out of your hand? A Right. Q And he called you a derogatory name? A Right. Q And then what happened? 8 N.T. 21. 3 A When he was talking to me, I could see him that he was getting angry. When he does that I just kind of walk away from him. And I said, you know what, if you are going to behave that way I don’t even want to talk—I don’t want to talk. And I said when you can talk to me nicely then you can talk to me. And that’s what triggered him, and that’s 9 when he came after me. He called me the name [“fucking bitch”]. And then I said, you know, you did that for the last time. Q What did you do? 10 A I walked away. Plaintiff, however, also testified as follows with respect to the period between the time of the incident in September, 2009, and her departure from the marital residence in October: Q Did you continue to share the bedroom? A Yes. Q Did you continue to have relations with him? 11 A Yes. Defendant’s version of the incident was quite different. He asserted that Plaintiff became angry with him in connection with an issue involving the raising 12 of three grandchildren in the household, and that his action with respect to the 13 coffee cup was defensive in nature, to avoid her throwing its contents at him. He 1415 testified that Plaintiff then “flew into him,” “with both fists.” Plaintiff also testified at the hearing as to her belief that Defendant had had 16 extramarital affairs, but did not offer evidence to substantiate her belief. Her belief as to his extramarital conduct in the period immediately prior to the separation was expressed in her testimony as follows: 9 N.T. 7 10 N.T. 19-21. 11 N.T. 22. 12 N.T. 23-27. 13 N.T. 26. 14 N.T. 27. 15 N.T. 26. 16 See, e.g., N.T. 8-9. 4 . . . I had a feeling in the back of my mind the way he was acting he had someone else, that he must have had someone, or just, you know, like trying to get someone, and in love with someone, or just the way that he was acting for a long time. So I said, you know, I have had 17 enough of the abuse. It is time to move on. . . . Both parties testified to physical altercations between them during the 18 course of the marriage, with each claiming to be the innocent party. Following the hearing, the support master issued a report, which included the following findings of fact: 6. In mid-September, 2009 the Plaintiff and Defendant had an oral argument during which the Defendant slapped a cup of coffee out of the Plaintiff’s hand and told her she was acting like a “fucking bitch.” 7. At the time of said argument the parties’ marriage was being strained by the presence of the Wife’s three grandchildren, ages 9 through 15, residing in the home. 8. After the incident as set forth above the parties continued to share a bedroom and resumed marital relations. * * * * 10. The Plaintiff believes that the Defendant had affairs during the 19 marriage but offered no evidence to substantiate her belief. Noting that, with the exception of the disputed 2009 incident, “Plaintiff’s testimony in general consisted of incidents that happened more than five years 20 prior to the separation,” the support master recommended a dismissal of Plaintiff’s complaint for spousal support on the ground that she had not met her burden of proving that conduct on the part of her spouse had justified her leaving 21 the marital residence. An interim order in accordance with the report’s recommendation was issued by the court on March 8, 2010. 17 N.T. 10. 18 Compare N.T. 8 with N.T. 28. 19 Support Master’s Report at 1, filed March 8, 2010. 20 Support Master’s Report at 2, filed March 8, 2010. 21 Support Master’s Report at 1-2, filed March 8, 2010. 5 The exceptions sub judice to this report were filed by Plaintiff on March 18, 22 2010. DISCUSSION The standard of review of a support master’s report and recommendation is well settled. The report “is to be given the fullest consideration, especially with regard to the credibility of witnesses,” although the findings and conclusions are advisory rather than binding. Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035 (1988); see McCurdy v. McCurdy, No. 02-0097 Support (slip op.) (Cumberland Co. 2002) (Hess, J.). Furthermore, as noted by the support master, [a] dependent spouse seeking support following a non-consensual voluntary departure from the marital residence has the burden of proving that conduct on the part of his or her spouse justified leaving the home. McKolanis v. McKolanis, 644 A.2d 1256 (Pa. Super. 1994). The conduct complained of need not rise to the same level as grounds for a fault divorce. Rock v. Rock, 560 A.2d 199 (Pa. Super. 1989), but must be more than a mere allegation that the offending spouse has made the claimant’s life unbearable. Martin v. Martin, 423 A.2d 6 (Pa. Super. 1980). In the present case, Plaintiff has waived her right to pursue the exceptions filed by virtue of her failure to submit a brief in support of them. In addition, her position on the merits is not persuasive. The support master was in a far better position than this court to evaluate the credibility of the parties with regard to the events of their marriage, and the proper outcome of this case is largely dependent upon the result of such an evaluation. Given the weight that is to be accorded the master’s evaluation of witness credibility, the court finds itself in agreement with the support master’s recommendation. ORDER OF COURT th AND NOW, this 19 day of May, 2010, upon consideration of Plaintiff’s Exceptions to the Support Master’s Report, and for the reasons stated in the 22 Plaintiff’s Exceptions, filed March 18, 2010. 6 accompanying opinion, Plaintiff’s exceptions are dismissed and the interim order of court dated March 8, 2010, is entered as a final order. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Michael R. Rundle, Esq. Support Master Maria D. Wiser 316 Walnut Street Shippensburg, PA 17257 Plaintiff, pro Se Calvin E. Wiser 402 S. Penn Street Shippensburg, PA 17257 Defendant, pro Se 7 8 MARIA D. WISER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : CALVIN E. WISER, : PASCES NO. 546111353 Defendant : NO. 1076 SUPPORT 2009 IN RE: PLAINTIFF’S EXCEPTIONS TO SUPPORT MASTER’S REPORT BEFORE OLER, J. ORDER OF COURT th AND NOW, this 19 day of May, 2010, upon consideration of Plaintiff’s Exceptions to the Support Master’s Report, and for the reasons stated in the accompanying opinion, Plaintiff’s exceptions are dismissed and the interim order of court dated March 8, 2010, is entered as a final order. BY THE COURT, _________________ J. Wesley Oler, Jr., J. Michael R. Rundle, Esq. Support Master Maria D. Wiser 316 Walnut Street Shippensburg, PA 17257 Plaintiff, pro Se Calvin E. Wiser 402 S. Penn Street Shippensburg, PA 17257 Defendant, pro Se