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Home My WebLink About2009-1667 JOANNE L. MIKUS-KEEFAUVER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LARRY E. KEEFAUVER, : PACSES NO. 753110866 DEFENDANT : 400 SUPPORT 2009 LAWRENCE E. KEEFAUVER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF/RESPONDENT : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JOANNE L. MIKUS-KEEFAUVER, : PACSES NO. 753110866 DEFENDANT/PETITIONER : 09-1667 CIVIL TERM IN RE: DEFENDANT/PETITIONER’S EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATION OPINION AND ORDER OF COURT Masland, J., October 13, 2010:-- Defendant/Petitioner requests that this court grant her exceptions to the Support Master’s Report and Recommendation. For the reasons explained below, this court denies that request. STATEMENT OF FACTS Defendant/Petitioner Joanne L. Mikus-Keefauver (hereafter wife) and plaintiff/respondent Lawrence E. Keefauver (hereafter husband) were married on April 7, 2004 and separated on or about March 5, 2009, pursuant to the terms of an agreed 1 order entered to an action initiated by wife under the Protection from Abuse Act. On or about March 17, 2009, husband filed an action for a divorce to which wife 1 Support Master’s Report and Recommendation 1, filed May 6, 2010. 400 SUPPORT 2009 09-1667 CIVIL TERM filed an answer and counterclaim on April 22, 2009, including a claim for alimony 23 pendente lite. On May 12, 2009, wife filed a complaint for spousal support. The marital residence, which wife has been occupying exclusively since the separation, is encumbered by a first mortgage and a home equity second mortgage, both to Bank of America. The payments to these mortgages total approximately $1,225 per month and pursuant to the terms of the protection order entered March 5, 2009, husband paid 4 approximately half of the total payments through March, 2010. Pursuant to an order of court dated March 25, 2010, husband has been paying only the home equity second 5 mortgage with averages approximately $278 per month. Wife is employed by Pinnacle Heath as a receptionist/medical assistant and had gross earnings in 2009 of $24,764. Husband is employed by Menlo Worldwide Logistics which gross earnings in 2009 of $52,514. Both parties’ tax filing status is 6 married/separate. After a hearing on May 3, 2010, the Support Master determined that no spousal support should be awarded because husband had made direct payments for the benefit of wife from May, 2009 through March, 2010, which exceeded the guideline amount of 7 support that would have been payable. Significantly, the Master did not address the 2 Id. 3 Id. 4 Support Master’s Report and Recommendation 2, filed May 6, 2010. 5 Id. 6 Id. 7 Id. -2- 400 SUPPORT 2009 09-1667 CIVIL TERM merits of husband’s defense, where he alleged that wife’s pre-separation conduct 8 constituted indignities. See 23 Pa.C.S. § 3301(a)(6) (Grounds for divorce – Fault). The Master did determine that wife was entitled to an award of alimony pendente lite, and based on the aforesaid earnings determined that the award (calculated in the 9 same manner as spousal support) would be $545 per month. The court adopted the 10 Master’s Recommendations and issued an interim order of court on May 6, 2010. On May 26, 2010, wife filed timely pro se exceptions to the Master’s Report and 11 Recommendation. Wife’s filing is a two page handwritten document titled “Filing of 12 Exceptions” and purports to be a brief as well. DISCUSSION I. Standard of Review A Support Master’s Report is to be given the fullest consideration and should not be disturbed unless the record indicates a clear abuse of discretion based on a showing of clear and convincing evidence. Moran v. Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003). Abuse of discretion is found where the evidence on record is insufficient to sustain the award, where the law is overridden or misapplied, or where the exercise of judgment is unreasonable. Lampa v. Lampa, 538 A.2d 350, 352 (Pa. Super. 1988). 8 Id. 9 Support Master’s Report and Recommendation 3, filed May 6, 2010. 10 Interim order of court, filed May 6, 2010. 11 Defendant/Petitioner’s exceptions to recommended Interim order of court, filed May 26, 2010. 12 There are numerous attachments to wife’s filing, none of which are in the record before the court and therefore will not be considered. -3- 400 SUPPORT 2009 09-1667 CIVIL TERM II. Exceptions to the Support Master’s Report and Recommendation Wife’s pro se exceptions appear to raise three issues. First, under a heading titled “Findings of Fact -- #12” wife takes issue with the Master’s finding that between March 5, 2009 and March, 2010, husband paid the water, sewer and trash bills totaling approximately $40 per month. Husband testified that the parties intended to split the sewer and trash bill, which was $120.50 every quarter, however he “never received any 13 money whatsoever for that bill [from wife].” Wife testified on cross-examination that 14 husband shared the costs of that bill “in the beginning,” until it was transferred to her. Wife was unclear as to the amount of the bill, whether it was monthly or quarterly, and 15 when it was transferred. In short, the Master found the husband’s testimony credible that he was in fact paying this quarterly bill until March, 2010. We concur with the Master’s finding and further note that the amount paid by husband on these bills, as well as his direct payments on the mortgage, were factored into the Master’s consideration of spousal support and not alimony pendent elite. Because those payments had no bearing on the Master’s award, wife’s exception is misplaced and irrelevant. Wife’s second exception is titled “Discussion” and relates to husband’s 16 allegations regarding wife’s “pre-separation conduct constitute[ing] indignities.” It is axiomatic to divorce practitioners that fault or indignities are irrelevant in a claim for 13 Notes of testimony, 35, May 3, 2010. (hereinafter N.T. ). 14 N.T., 22. 15 N.T., 23. 16 Defendant/Petitioner’s exceptions, pg. 1. -4- 400 SUPPORT 2009 09-1667 CIVIL TERM alimony pendente lite. Unfortunately, wife does not appear to appreciate the fact that she was awarded alimony pendente lite irrespective of any allegations of fault. The Master did not consider them in his award of alimony pendente lite nor will the court. Finally, wife’s third objection, titled “New evidence,” alleges that husband “has 17 repeatedly displayed abusive and indignent [sic] behavior.” Wife goes on to decry the behavior of husband with the concluding remark “Please make him UNDERSTAND!! [sic].” It was the desire of the court that through oral argument (as requested by wife) wife would understand the deficiencies of her “exceptions.” For example, wife is upset because she did not receive spousal support; however, the Master clearly noted that husband was paying above the guidelines. Similarly, in the Master’s award of alimony pendente lite, wife does not comprehend the fact that indignities are irrelevant, no matter who may have committed them. Ultimately, her objections to the recommendation of the Master are misdirected. None of her claims, even if true, could alter the outcome. Husband insists that the exceptions were frivolous, filed solely for delay and have created an undue hardship for him. Consequently he has requested an award of attorney’s fees. Although wife’s pro se filing is fatally flawed, given her unfamiliarity with the law, we do not find it to be frivolous or vexatious and therefore do not award attorney fees. Ironically, we note that wife’s chief gripe (which was not preserved in her exceptions) emerged during oral argument -- the Master failed to make the payments of alimony pendente lite retroactive. The Master clearly noted that because wife had not made a formal request for a hearing on her claim of alimony pendente lite, the 17 Id. -5- 400 SUPPORT 2009 09-1667 CIVIL TERM 18 appropriate effective date was May 1, 2010. Therefore, even if wife had properly preserved that issue in her exceptions, it would still have been denied. In sum, wife’s exceptions do not raise any arguable abuse of discretion by the Master. To the contrary, his findings and recommendation are fully supported by the law and the record. Accordingly, we enter the following order: ORDER OF COURT AND NOW, this day of October, 2010, upon consideration of the exceptions filed to the Support Master’s Report and Recommendation, the record of the case presented before the Support Master on May 3, 2010, the briefs filed by the parties, and oral argument presented on October 11, 2010, IT IS HEREBY ORDERED AND DIRECTED that defendant/petitioner’s ARE DISMISSED exceptions to the Master’s Report and Recommendation and the current interim order of court dated May 6, 2010, is entered as a final order of court. By the Court, Albert H. Masland, J. 18 Support Master’s Report and Recommendation 3, filed May 6, 2010. -6- 400 SUPPORT 2009 09-1667 CIVIL TERM Joanne L. Mikus-Keefauver, Pro se 282 Walton Street Lemoyne, PA 17043 Joseph D. Caraciolo, Esquire For Lawrence E. Keefauver :saa -7-