HomeMy WebLinkAbout2003-1535 Civil Term
KIRK ALAN PERKINS, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
LORIEN AUDREY PERKINS, : NO. 2003 – 1535 CIVIL
Defendant :
:
IN RE: CROSS EXCEPTIONS
TO DIVORCE MASTER’S REPORT AND RECOMMENDATIONS
BEFORE OLER, GUIDO, MASLAND, JJ.
OPINION AND ORDER
Currently before us are numerous exceptions filed by each party to the Report and
Recommendations of the Divorce Master. For the reasons hereinafter set forth, the plaintiff’s
exceptions will be denied and defendant’s will be granted in part.
Procedural Background
We will start with a brief recitation of the relevant procedural background. On August 5, 2003 a
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final decree in divorce was entered by the Honorable Edgar B. Bayley. The decree did not preserve any
economic claims.
On May 25, 2005 Defendant (hereinafter “wife”) filed a petition to vacate the divorce decree
based upon, inter alia, a claim of extrinsic fraud. A hearing on wife’s petition was eventually scheduled
to be held before Judge Bayley on December 7, 2006. Each party was represented by counsel at the
scheduled hearing. Rather than present testimony the parties agreed to have counsel articulate on the
record an agreed upon resolution of the dispute. In essence their agreement was to allow the divorce
decree to stand but to refer certain issues of equitable distribution to the Divorce Master. Judge Bayley
issued an order adopting the parties’ agreement. The order provided, in relevant part as follows:
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Judge Bayley retired at the end of 2009.
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AND NOW, this 7 day of December, 2006, the parties having reached agreement, the
following order is entered . . . 3. The issues of the existence of a marital agreement and/or the
distribution of the Harrisburg properties, the existing escrow account, husband’s tax deferred
savings plan, the parties’ personal property, the Department 56 collection, the parties’ marital
debts and the prior payment thereof, and rental income and expenses from all of the properties
shall be referred to the Divorce Master for a recommendation to the Court as far as distribution
and/or determination. To be excluded from distribution but not necessarily from consideration
as part of that process separate property of the parties shall be each party’s marital pensions or
retirement plans with the exception of husband’s TSP, the parties’ bank accounts, vehicles, and
the business with the exception of the business debts.
On March 31, 2011 a hearing was held before the Divorce Master. Prior to the commencement
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of the hearing the parties agreed that 1) there was no marital agreement and 2) any distribution would
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be 50/50.
On April 21, 2011 the Master filed his report which included findings of fact as well as
recommendations regarding the distribution of marital assets and debt. Both parties filed timely
exceptions. Husband challenges 1) this court’s jurisdiction to address the economic issues; and 2)
several of the Master’s findings and recommendations. Wife contends that the Master erred in failing
to 1) give proper credit for her excess contribution toward the marital debt; 2) make certain specific
findings of fact regarding the M&T line of credit, the USAA Visa Account and the MBNA account; 3)
recommend that the husband’s share of the Department 56 collection be held in escrow until he pays
the marital debt; 4) award her the entire balance of the TDSP account, and 5) award her counsel fees.
After a thorough review of the record, as well as the briefs filed by the parties, and having heard
argument thereon, this matter is now ready for disposition.
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Transcript of Divorce Master Proceedings, March 31, 2011, p 4.
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Master’s Report, p. 6.
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DISCUSSION
Standard of Review
The court may appoint a Master to consider and make recommendations on the issues of
equitable distribution of property and counsel fees, costs, and expenses. Pa. R.C.P. 1920.51; 23 Pa.
C.S.A. § 3321. While the Master’s Report and Recommendations are entitled to great consideration, we
are not bound by them. Morschhauser v. Morschhauser, 357 Pa. Super. 339, 349, 516 A.2d 10, 15 (Pa.
Super 1986). We note that particular consideration should be given to the Master’s findings with regard
to witness credibility because the Master has the opportunity to observe and assess the testimony.
Moran v. Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003).
Husband’s Exceptions
We are satisfied that husband’s exceptions to the Master’s findings and recommendations are
without merit. Since they are all supported by the record, those exceptions will be dismissed without
further discussion.
While we are also satisfied that husband’s challenge to this court’s jurisdiction is equally without
merit, we feel that a discussion is warranted. Husband correctly points out that the Final Divorce Decree
entered in 2003 made no reference to economic claims. Therefore, he contends that it should not have
been disturbed absent a specific finding of extrinsic fraud. He further argues that since Judge Bayley
made no ruling on the issue of extrinsic fraud, neither this Court nor its Master had jurisdiction over the
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economic issues. We disagree.
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He attempted to present evidence before the Master to show that there was no extrinsic fraud in the
procurement of the divorce decree. The Master properly sustained wife’s objection to relevance in light of Judge
Bayley’s order of December 7, 2006. See Transcript of Divorce Master Proceedings, March 31, 2011, pp. 12 – 14.
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Extrinsic fraud is among the enumerated reasons to justify opening or vacating a decree of
divorce. 23 Pa. C.S.A. § 3332. “Extrinsic fraud relates to matters collateral to the judgment which have
the consequence of precluding a fair hearing or presentation of one side of the case.” Id. Extrinsic fraud
encompasses behavior by the prevailing party which has prevented a fair submission of the controversy,
including keeping the defeated party away from court by a false promise to compromise. Foley v. Foley,
572 A.2d 6, 14 (Pa. Super. 1990) quoting McEvoy v. Quaker City Cab Co., 267 Pa. 527, 534, 110 A. 366,
368 (Pa. 1920). A proceeding to open a divorce decree is equitable in nature. Magistro v. Magistro, 127
A.2d 758, 759 (Pa. Super. 1956). “Where equity requires the decree be opened and additional
testimony be taken, the court may, in its discretion, do so.” Beamer v. Beamer, 330 Pa. Super. 154, 159,
479 A.2d 485, 488 (Pa. Super. 1984).
Wife filed a timely petition to vacate the divorce decree in which she alleged extrinsic fraud.
Judge Bayley scheduled a hearing on the petition. Immediately prior to the commencement of the
hearing, the parties agreed to resolve their dispute. Their resolution was articulated on the record and
at their request entered as an order of court. Rather than vacate the decree on the grounds of extrinsic
fraud, and pursuant to the parties’ agreement, Judge Bayley allowed the decree to stand but opened the
record to allow the economic claims to be addressed.
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Wife’s petition to vacate was filed solely to allow the Court to address the economic issues.
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Husband’s agreement at the 11 hour to allow those issues to be addressed if the decree was allowed
to stand amounts to a concession that wife’s petition had merit. Therefore, Judge Bayley’s order of
December 7, 2006 confirming that agreement was a de facto finding that extrinsic fraud existed. To
allow Husband to renege on his agreement and to relitigate the precise issue Judge Bayley was prepared
to address several years earlier would not serve the interests of justice.
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She had alleged that her uncounseled consent to the entry of a final decree was based upon husband’s assurance
that they could divide their marital property without court involvement.
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Wife’s Exceptions
Wife’s first allegation of error is that the Master failed to credit her for the excess contribution
she made toward payment of the marital debts. She further alleges that the Master should have
awarded her the entire balance of Husband’s TDSP account to compensate her for the payment of a
disproportionate share of the marital debt. We are satisfied that the Master’s findings in connection
with these issues are supported by the record and should not be disturbed.
She next argues that the Master erred in not making certain findings of fact regarding the M & T
line of credit, the USAA Visa Account and the MBNA account. The specific findings of fact requested by
wife were not necessary to support the Master’s recommendations. Therefore, we cannot find that he
committed error in failing to make them. However, we do understand how those findings will help to
alleviate the ancillary credit and career consequences to wife as a result of the outstanding account
balances. Furthermore, since we are satisfied that her proposed findings of fact are supported by the
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record, we will grant her request.
Wife takes further exception to the Master’s failure to recommend that Husband’s share of the
Department 56 (Snow Village) collection be held in escrow until the marital debt is paid in full. She
argues such action will encourage husband to pay off his obligations quickly. She also contends that the
collection is an asset which may be sold if husband does not meet his obligations. We are satisfied that
the Master correctly decided this issue. Husband has been ordered to pay off the marital debts within a
specified period of time. Should he violate this order, wife may petition to have him held in contempt.
“A court may exercise its civil contempt power to enforce compliance with its orders.” Garr v. Peters,
773 A.2d 183, 189 (Pa. Super. 2001). The possibility of being held in civil contempt provides sufficient
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We discount any testimony to the contrary by plaintiff because of the Master’s specific that husband “was less
than credible in his testimony.” See Master’s report p. 5.
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incentive for husband to comply with the order. It also grants wife a remedy if he fails to do so. We
therefore deny this exception.
Finally, Wife takes exception to the Master’s failure to recommend an award of attorney’s fees.
She contends that such an award is justified because of husband’s vexatious and obdurate conduct.
The Divorce Master made no such findings. Nor did he recommend that husband should be in any way
penalized. Attorney’s fees may be imposed as a sanction against an opposing party for dilatory,
vexatious, or obdurate conduct during the pendency of a matter. 42 Pa. C.S.A. § 2503. “Conduct is
considered vexatious if it is instituted without sufficient grounds and serves only to cause annoyance.”
Bykowski v. Chesed, Co., 425 Pa. Super. 595, 600, 625 A.2d 1256, 1259 (Pa. Super. 1993). Wife argues
that husband’s vexatious and obdurate conduct is evidenced by his failure to pay marital debt as agreed,
his dishonesty in his dealings with wife post-separation, and his opposition to the agreement allegedly
reached by the parties that resulted in the December 7, 2006 order. We are not persuaded that
Husband engaged in this conduct solely to cause delay or annoyance. Therefore, we deny wife’s
exception.
ORDER OF COURT
AND NOW, this ________ day of FEBRUARY, 2012, Plaintiff’s exceptions to the Divorce Master’s
Report and Recommendations are DISMISSED. Defendant’s exceptions are granted in part. Her
exceptions to the Master’s failure to make specific findings of fact with respect to the M&T Line of
Credit, the USAA Visa account and the MBNA account are granted. In that regard we make the following
additional Findings of Fact.
1.)The M&T line of credit was used primarily for Kaplas Systems, Inc. which is Husband’s
business.
2.)The parties agreed that Husband would pay this debt.
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3.)Husband did not make timely payments on the M&T account.
4.)The past due M&T account negatively impacts Wife’s security clearance.
5.)Husband did not pay the MBNA account.
6.)The MBNA account #5803 had a balance of $16,669.52 as of 3/26/02
7.)Plaintiff-Perkins continued to use that account after separation charging minor amounts
from time to time.
8.)MBNA Account # 5803 and the Bank of America Account #7720 are one and the same
accounts:
i. The original account was with MBNA and was designated as account # 5803;
ii.MBNA merged with Bank of America, and commencing with the statement for
June 2006, the statements showed both banks names, but continued to use the
original MBNA account # 5803;
iii.As of October 2010 only Bank of America appeared on the statements. In that
month two statements were issued. The first one zeroed out the $16,522.04
balance on account #5803. The second transferred that $16,522.04 balance to
the Bank of America Account # 7720. Both of these statements and all
subsequent statements were sent to Husband Perkins at his then Creek view
Road home address.
9.)On 4/26/07 Husband contacted Bank of America, and had his name removed from the
account.
10.)Husband failed to pay the balance owed on the account. In fact, he made no payments at all
after the 3/26/06 statement was sent to him at his home address.
11.)Wife sent Husband more than enough money to pay her 50% share of this account.
12.)As the sole result of Husband’s unreasonable failure and refusal to pay the account balance
after he had been provided with adequate funds to do so, late charges and interest were
assessed which increased the balance on this account to $32,269.35 as of 10/6/10.the
13.)Husband was provided with the opportunity to settle that account for a payment of
$19,361.73, but unreasonably refused to do so.
14.)The existence of this past due account balance has had and continues to have an adverse
effect on Wife’s security clearance which she requires for her employment.
15.)The USAA Visa Account was paid in full by August 3, 2002.
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16.)After the account was paid off Husband continued to use it.
17.)Husband agreed to be solely responsible for the USAA Visa.
18.)The past due balance on said account negatively impacts Wife’s security clearance.
In all other respects wife’s exceptions are DISMISSED. Except as modified herein, the Master’s
Recommendations are adopted in their entirety as a final order of this Court.
By the Court,
/s/ Edward E. Guido
Edward E. Guido, J.
STACY B. WOLF, ESQUIRE
10 WEST HIGH STREET
CARLISLE, PA 17013
DIANE G. RADCLIFF, ESQUIRE
3448 TRINDLE ROAD
CAMP HILL, PA 17011
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