Loading...
HomeMy WebLinkAbout96-4121 CIVILJOYCE H. SHOOP, PLAINTIFF V. GARY E. SHOOP, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 96-4121 CIVIL TERM IN RE: DEFENDANT'S EXCEPTION TO DIVORCE MASTER'S REPORT BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT Bayley, J., September 27, 2001:-- Plaintiff, Joyce H. Shoop, and defendant, Gary E. Shoop, were married on July 10, 1982. They separated on April 1, 1996. Wife instituted this complaint for divorce on July 19, 1996. A Divorce Master was appointed on May 3, 1999. A bifurcated decree in divorce was entered on December 16, 1999. A Master's hearing on the parties' economic dispute was held on March 1,5, 2001. The Master filed a report on May 23, 2001, equitably distributing the parties' marital estate.1 Defendant filed 1 The value of the marital assets was $284,747.08, which the Master distributed fifty- five percent to wife ($156,610.89), and forty-five percent to husband ($128,136.18). Marital debt was $5,836.73, forty-five percent which was allocated to wife ($2,626.33), and fifty-five percent to husband ($3,210.20). The marital assets consist of (1) a residence where wife lives, (2) a 38-acre farm where husband lives, (3) personal property, (4) farm equipment, (5) machinery, (6) a 1999 van, (7) a 1995 pickup truck, and (8) wife's public school employee pension. 96-4121 CIVIL TERM exceptions to the report. He briefed one issue which was argued on August 22, 2001: whether the Divorce Master "improperly granted, the Plaintiff's Motion in Limine precluding Defendant from offering testimony.": When the Divorce Master was appointed on May 3,, 1999, he directed, as of course, that pre-trial statements be filed. A pre-hearing conference was held on November 20, 2000, at which time defendant had not filed a pre-trial statement. On November 2?, 2000, plaintiff filed a motion to preclude defendant from offering any testimony or evidence for failure to have complied with Pa. Rule of Civil Procedure 1920.33(d)(1). The Master ruled as follows: Gary E. Shoop will be precluded from offering any testimony regarding the identification and valuation of marital assets of the parties. Wife's testimony on the identification and valuation of assets will be presented and will not be subject to rebuttal testimony or subject to direct statements by the Defendant. However, Gary E. Shoop can cross- examine Joyce H. Shoop on all matters testified to by Joyce H. Shoop including her testimony on identification and valuation of assets, and Gary E. Shoop can offer testimony on all factors in the divorce code relating to the claim of equitable distribution so long as the testimony does not relate to the matters precluded by this directive. This directive is made in accordance with P.R.C.P. 1920.33(d). (Emphasis added.) Pa. Rule of Civil Procedure 1920.33(b), provides: Within the time required by order of court or written directive of the master or, if none, at least sixty days before the scheduled hearing on : Cumberland County Rule of Court 210-7, relating to Argument Court, provides: "Issues raised, but not briefed, shall be deemed abandoned." -2- 96-4121 CIVIL TERM the claim for the determination and distribution of property, each party shall file and serve upon the other party a pre-trial statement. The pre-trial statement shall include the following matters, together with any additional information required by special order of the court: (1) a list of assets, which may be in chart form, specifying (i) the marital assets, their value, the date of the valuation, whether any portion of the value is non-marital, and any liens or encumbrances thereon, and (ii) the non-marital assets, their value, the date of the valuation, and any liens or encumbrances thereon; (2) the name and address of each expert whom the party intends to call at trial as a witness. A report of each expert witness listed shall be attached to the pre-trial statement. The report shall describe the witness's qualifications and experience and state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion; (3) the name, address and a short summary of the testimony of each person, other than the party, whom the party intends to call at trial as a witness; (4) a list of all of the exhibits which the party expects to offer in evidence, each containing an identifying mark. Any exhibits that do not exceed three pages shall be attached to the pre-trial statement, and any exhibits which exceed three pages shall be described; (5) the party's gross income from all sources, each payroll deduction, and the party's net income, including the party's most recent state and federal income tax returns and pay stubs; (6) if the party intends to offer any testimony as to his or her expenses, a current expense statement in the form required by the practice and procedure governing an action in support; (7) the value of a pension or retirement benefits, the marital portion thereof, and the facts and documentation upon which the party relies to support the valuation; (8) if there is a claim for counsel fees, the amount of fees to be charged, the basis for the charge, and a detailed itemization of the services rendered; (9) where there is a dispute, the description and value of any items of tangible personal property, the method of evaluating each item, and the evidence, including documentation, to be offered in support of the valuation; -3- 96-4121 CIVIL TERM (10) a list of marital debts including the amount of each debt as of the date of separation, the date on which the debt was initially incurred, the initial amount of the debt and its purpose, the amounts and dates of payments made since the date of separation, and the evidence that will be offered in support of the claim; (11) a proposed resolution of the economic issues. (Emphasis added.) Rule 1920.33(d)(1), provides: A party who fails to comply with a requirement of subdivision (b) of this rule shall, except upon good cause shown, be barred from offering any testimony or introducing any evidence in support of or in opposition to claims for the matters not covered therein. (Emphasis added.) In Hein v. Hein, 717 A.2d 1053 (Pa. Super. 1998), the Superior Court of Pennsylvania, in a divorce case, upheld a preclusion of evidence sanction for failing to comply with discovery requirements. The Court stated: In reviewing the trial court's imposition of discovery sanctions, "[w]e recognize that the imposition of specific sanctions for failure to obey a discovery order is largely within the discretion of the [trial] court. However, it is clear that in the exercise of judicial discretion in formulating an appropriate sanction order, the court is required to select a punishment which 'fits the crime.'" Brunetti v. Southeastern Pennsylvania Transportation Authority, 329 Pa. Super. 477, 478 A.2d 889 (Pa. Super. 1984) (citations omitted). The appropriateness of the sanction imposed is assessed in light of four factors: 1) the prejudice caused to the opposing party and whether the prejudice can be cured; 2) the defaulting party's willfulness or bad faith in failing to comply with the discovery order; 3) the number of discovery violations; and 4) the importance of the precluded evidence in light of the failure. Steinfurth v. LaManna, 404 Pa. Super. 384, 590 A.2d 1286 (Pa. Super. 1996). In his report, the Divorce Master set forth the procedural history of the case as follows: -4- 96-4121 CIVIL TERM Pursuant to a bifurcation order by the court, the parties were divorced on December 16, 1999. On May 3, 1999, the Master was appointed to hear all equitable distribution claims. Pre-trial statements were directed to be filed but were not filed by the date set in the directive. A pre-hearing conference was finally scheduled and held on November 20, 2000. At the time of the pre-hearing conference the Defendant, Gary E. Shoop, had not filed a pretrial statement. Additionally, neither the Defendant nor his attorney appeared for the pre-hearing conference. The Plaintiff, through her attorney, filed a motion in limine to preclude Defendant from offering evidence. The Master directed by letter sent to the parties and counsel that the Defendant would be precluded from offering any testimony regarding the identification and valuation of assets and that the Plaintiff would not be subject to any rebuttal testimony regarding the same. However, the Defendant could cross-examine the Plaintiff on any evidence she presented with regard to identification and valuation of assets. A Master's hearing was scheduled for February 15, 2001. The Defendant did appear at the hearing without counsel complaining that he had been unable to find representation .... The Master's hearing was then rescheduled to March 15, 2001 in order to give the Defendant additional time to obtain counsel. At that hearing the Plaintiff, Joyce H. Shoop, along with her attorney, Samuel L. Andes were present. The Defendant appeared and was unrepresented by counsel. Testimony was heard and the record was closed. A conference was scheduled by the Master for April 3, 2001, in order to discuss the value of wife's pension. Wife and her attorney were again present. Neither husband nor his attorney were present for the conference. The reason for the conference was that the Master, in reviewing the value wife placed on her pension, which value was presented for the record, did not appear to be the correct value. Consequently, the Master decided to call the parties and counsel for wife together at a conference to give husband the opportunity to open the record and prepare and present through additional testimony a value for wife's pension. Inasmuch as neither husband nor an attorney on his behalf appeared at the conference, the Master did not open the record and proceeded to prepare and file his report and recommendations based on the evidence presented in the record. -5- 96-4121 CIVIL TERM DISCUSSION By the time of the pre-hearing conference on November 20, 2000, which was a year and a half after pretrial statements were ordered, husband had not filed a statement, nor did he or his counsel even appear at the conference. Pa. Rule of Civil Procedure 1920.33(d)(1 ) requires that a party who fails to provide a pretrial statement "Is]hall, except upon good cause shown, be barred from offering any testimony or introducing any evidence in support of or in opposition claims for the matters not covered therein." (Emphasis added.) There was no good cause for husband having failed to file a pretrial statement. A pretrial statement facilitates the orderly progression of economic litigation. Here, wife was prejudiced by defendant's longstanding failure to comply with the Rule 1920.33(d)(1 ), because she could not adequately prepare for a Master's hearing if husband was going to be able to present evidence as to marital assets and their valuation to which she did not have notice. To have allowed husband additional time to comply with the Rule, when there was no assurance he would, would have only further delayed what was already an old case. As it was, the Master's hearing that was scheduled for February 15, 2001, was rescheduled for March 15, 2001, to facilitate husband. Husband's conduct was willful as there was no legitimate reason why he could not have filed a pretrial statement in the year and a half, during which his discovery -6- 96-4121 CIVIL TERM violation was ongoing. 3 Husband has not suggested in his brief, or otherwise demonstrated, the importance to him of the precluded evidence. The Master only precluded him from offering testimony regarding the identification and valuation of marital assets. He was not precluded from cross-examination on evidence presented 3 Husband's bad faith is reflected by wife having to file a petition to obtain appraisals of the marital assets. On September 1, 1998, the following order was entered: 1. Plaintiff, Joyce H. Shoop, may have an appraiser of her choice appraise the real property and personal property located on the parties' jointly owned farm at 3124 Orrstown Road, South Hampton Township, Franklin County. Plaintiff may accompany the appraiser and may have a law enforcement officer of her choosing attend. Defendant shall not dissipate any marital property pending further order of court. 2. An appraiser of the choosing of defendant, Gary E. Shoop, may appraise the parties' marital property at 947 Emily Drive, Mechanicsburg, Cumberland County. Defendant may attend that appraisal. Plaintiff shall not dissipate any marital property pending further order of court. Over five months later, on February 22, 1999, another order had to be entered, which provided: [b]ased upon Plaintiff's Petition and it appearing that the inspection authorized by our Order of September 1, 1998, has not been completed at least in part because the Defendant has failed to cooperate, we hereby order and decree as follows: 1. Plaintiff's appraiser shall visit and inspect the parties' jointly owned farm located at 3124 Orrstown Road, South Hampton Township, Franklin County, Pennsylvania, at 10:00 a.m. on March 23rd. The appraiser may be accompanied by Plaintiff, a law enforcement officer, Plaintiff's attorney, and one other competent adult. 2. Defendant shall be present for the inspection, either personally or by his attorney, and shall have no one other than his attorney present at the time. Defendant shall make the entire property available for inspection by Plaintiff's representatives, shall cooperate in the inspection and appraisal process and shall provide any information required by Plaintiff's appraiser. 3. The parties shall cooperate to implement this Order. (Emphasis added.) -7- 96-4121 CIVIL TERM by wife on the identification and the valuation of assets, nor was he precluded from offering testimony on all other factors in the Divorce Code relating to the issue of the equitable distribution of marital property. Yet, at the Master's hearing, there was no cross-examination regarding wife's evidence as to the identification and valuation of marital assets, nor did husband offer any testimony as to the other factors in the Divorce Code relating to the issue of equitable distribution of marital property, which the Master had not precluded him from offering. Furthermore, husband has not taken exception to the Master's identification of the marital property, his valuations of that property, the percentage distribution to each party, nor the method of distribution. It is apparent, that husband, for all intents and purposes, just sat back and opted out of active participation throughout this entire divorce case. The limited order, entered pursuant to Pa. Rule of Civil Procedure 1920.33(d)(1), precluding husband from offering testimony at the Master's hearing regarding the identification and valuation of marital assets, was warranted and not an error. ORDER OF COURT AND NOW, this day of September, 2001, the exception of defendant, Gary E. Shoop, to the Divorce Master's report, IS DISMISSED. By the Court, Edgar B. Bayley, J. -8- 96-4121 CIVIL TERM Samuel L. Andes, Esquire For Plaintiff Matthew J. Eshelman, Esquire For Defendant :sss -9-