Boris, A. v. Vurimindi, V. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANN S. BORIS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
VAMSIDHAR VURIMINDI :
:
Appellant : No. 77 EDA 2017
Appeal from the Order December 16, 2016
in the Court of Common Pleas of Philadelphia County
Domestic Relations at No.: August Term 2010 No. 8575
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED MAY 30, 2018
Husband, Vamsidhar Vurimindi, appeals pro se from the order
announcing the bifurcated divorce decree entered on December 16, 2016.1
We affirm.
We take the following facts and procedural history from our independent
review of the record and the trial court’s April 21, 2017 opinion. Husband and
Wife, Ann S. Boris, married on October 28, 2005. On March 13, 2010, they
separated, and Wife filed a complaint in divorce on August 27, 2010. The
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1 On March 3, 2017, after issuing a rule to show cause as to the interlocutory
nature of Husband’s equitable distribution issues, and receiving Husband’s
response thereto, we entered an order advising him that only his issues
related to the divorce decree are final and appealable at this time. (See Order,
3/03/17). Therefore, we quash Husband’s equitable distribution issues
without prejudice.
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* Retired Senior Judge assigned to the Superior Court.
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complaint required several reinstatements. The final reinstatement occurred
on June 5, 2012. Husband filed his answer and counterclaim on July 2, 2012,
seeking, inter alia, alimony and equitable distribution.
The trial court opinion aptly details the ensuing procedural history.
On June 5, 2013, an order approving grounds under section
3301(d)[2] of the Divorce Code3 was entered. Divorce Master
Dennis O’Connell held two hearings on March 26, 2014, and
August 29, 2014. As stated in Master O’Connell’s report, it was
necessary for [him] to abruptly conclude the second hearing as
the result of Husband[’s] disruptive behavior and shouting of
obscenities. The master left the record open for submission of
additional documentation and[,] on June 19, 2015, filed his report.
Husband filed his praecipe for a trial de novo on July 9, 2015. On
August 26, 2015, the . . . supervising judge of family court[]
assigned the de novo divorce hearing to the [trial court].
Husband has been incarcerated since October 2013,
following a determination by the criminal court that he violated
the terms of his bail. The criminal docket shows that during the
pendency of Husband’s criminal case, there were numerous orders
for mental health evaluations, with [at] least one interim
determination that was later superseded, that he was incompetent
to stand trial. On February 7, 2014, Husband was convicted of
two counts of stalking pursuant to 18 Pa.C.S.[A.] section
2709.1(a[)(1]) and one count of disorderly conduct pursuant to
18 Pa.C.S.[A.] section 5503(a)(1).
Husband has represented himself during these divorce
proceedings. This divorce action has been unduly protracted due
to the high volume of filings by Husband. During the course of
the divorce proceedings, Husband has filed in excess of twenty-
five motions or petitions[.] . . . In addition, Husband has filed four
appeals to the Superior Court, not including the instant appeal, all
of which have been quashed.
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2 Irretrievable breakdown.
3 23 Pa.C.S.A. §§ 3301-3333.
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Th[e trial] court held three hearings on Husband’s praecipe
for a de novo trial, which were scheduled on July 25, 2016,
December 12, 2016 and December 16, 2016. Wife was
represented by counsel at each of the hearings and Husband
proceeded as self-represented. Due to Husband’s incarceration,
he participated by telephone at each listing and the prison limited
the length of each of the hearings to approximately two hours. . .
.
(Trial Court Opinion, 4/21/17, at 3-4) (record citations and unnecessary
capitalization omitted).
On December 16, 2016, the trial court filed an order entering the divorce
decree, finding both parties have “sufficient economic protection pending
disposition of the economic matters[,]” retaining jurisdiction to determine
equitable distribution, and allowing Wife to maintain possession of the marital
home. (Id. at 4) (unnecessary capitalization omitted). Husband timely
appealed on January 3, 2017.4
Husband raises ten questions for this Court’s review.
(01) Whether [the trial court] made an error denying Husband’s
petition to compel Wife for counseling?
(02) Whether [the trial court] made an error in denying
Husband’s petition to assert cross-claims?
(03) Whether [the trial court] made an error in denying
Husband’s petition for injunction and appoint trustee in
receivership?
(04) Whether [the trial court] made an error by awarding
excusive possession of Husband’[s] properties to Wife?
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4Husband filed a timely court-ordered statement of errors complained of on
appeal on January 23, 2017. The court filed an opinion on April 21, 2017.
See Pa.R.A.P. 1925.
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(05) Whether [the trial court] made an error in denying
Husband’[s] motion for sanctions against Wife?
(06) Whether [the trial court] made an error in denying
Husband’s motion to compel Wife to provide accommodation for
Husband?
(07) Whether [the trial court] made an error in denying
Husband’[s] motion for discovery, home plan, and tax returns?
(08) Whether [the trial court] made an error in quashing
Husband’[s] subpoenas upon Mary, NC, NT, and NCI?
(09) Whether [the trial court] made an error by ignoring
Husband’[s] motion to stay proceedings; and ignoring writ of
mandamus against Divorce Master Dennis O’Connell?
(10) Whether [the trial court] made an error entering bifurcated
divorce decree?
(Husband’s Brief, at 2-3) (unnecessary capitalization omitted).
Our review of the record in this matter reveals that Husband’s second
through eighth questions pertain to the equitable distribution portion of this
case. (See id. at 2-3, 15-42). Therefore, we lack jurisdiction to review those
claims, and they are quashed.5 (See supra at *1 n.1).
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5 Also, although not included in his statement of questions involved or fairly
suggested thereby, see Pa.R.A.P. 2116(a), Husband argues that Wife’s failure
“to safeguard exculpatory evidence” resulted in his criminal prosecution.
(Husband’s Brief, at 30 (unnecessary capitalization omitted); see id. at 32).
The criminal case is not before us. Therefore, we lack jurisdiction to review
this claim. (See id. at 30-32). Moreover, the argument would be waived for
Husband’s failure to include it in his statement of questions involved. See
Pa.R.A.P. 2116(a).
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In Husband’s first issue, he argues that “[the trial court] made an error
denying [his] petition for counseling[.]” (Id. at 13 (unnecessary capitalization
omitted); see id. at 14). Husband’s issue does not merit relief.
“Our standard of review in divorce actions is well settled. [I]t is the
responsibility of this court to make a de novo evaluation of the record of the
proceedings and to decide independently . . . whether a legal cause of action
in divorce exists.” Rich v. Acrivos, 815 A.2d 1106, 1107 (Pa. Super. 2003)
(citation and internal quotation marks omitted).
There are only three situations that present the court with an
opportunity to order counseling. Section 3302 of the Divorce Code
provides:
(a) Indignities.—Whenever indignities under section
3301(a)(6) (relating to grounds for divorce) is the
ground for divorce, the court shall require up to a
maximum of three counseling sessions where either
of the parties requests it.
(b) Mutual consent.—Whenever mutual consent
under section 3301(c) is the ground for divorce, the
court shall require up to a maximum of three
counseling sessions within the 90 days following the
commencement of the action where either of the
parties requests it.
(c) Irretrievable breakdown.—Whenever the court
orders a continuation period as provided for
irretrievable breakdown in section 3301(d)(2), the
court shall require up to a maximum of three
counseling sessions within the time period where
either of the parties requests it or may require such
counseling where the parties have at least one child
under 16 years of age.
23 Pa.C.S.A. § 3302(a), (b), (c).
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The law is clear that the trial court is under no obligation to
order marriage counseling if no reasonable prospect of
reconciliation exists. [See] Liberto v. Liberto, 520 A.2d 458(1987)[.] . . .
Id. at 1108 (case citation formatting provided).
More specifically:
Section [3302] must be construed in a common sense manner. It
was intended to provide additional time and counseling where the
possibility of reconciliation existed. It was not intended to compel
a court to engage in futile and useless exercises, nor was it
intended to provide a spouse with the means to delay the entry of
a decree in divorce for no good reason.
Liberto, supra at 461 (citation omitted).
Here, Husband concedes, “Wife opposed counselling.” (Husband’s Brief,
at 14). In spite of this concession, he maintains that there was “a reasonable
probability that counselling would have allowed Husband and Wife to reconcile
their differences[,] given that on [September 10, 2013], Wife told Husband
that she will return to [him].” (Id.). However, on September 10, 2012, after
a hearing on Husband’s petition for counseling, the trial court entered an order
denying it. (See Order, 9/10/12, at 1). In fact, four years later, after three
subsequent hearings, the trial court found that irreconcilable differences
existed where “Wife has demonstrated compelling circumstances [] for the
entry of the decree in divorce.” (Order, 12/16/16, at 1).
The record supports the court’s finding of irreconcilable differences
where the parties had lived separate and apart for approximately two and a
half years at the time Husband’s petition for counseling was denied, and they
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were still apart six years later when the trial court granted the divorce decree.
Accordingly, under a common sense construction of section 3302, we conclude
that the court properly denied Husband’s petition for counseling where there
was no reasonable probability of reconciliation.6 See Rich, supra at 1108;
Liberto, supra at 288.
In his ninth issue, Husband argues that the divorce master erred in
failing to grant his motion to stay the proceedings due to his incompetence.
(See Husband’s Brief, at 42-45). Husband’s claim is waived.
We observe that:
In instances where [divorce] claims are referred to a
master, the provisions of Pa.R.C.P. 1920.55 govern. This rule
requires that any objections to the master’s report . . . or to any
matters which occurred during the hearing, are to be included in
exceptions filed within ten days after notice of the filing of the
master’s report is mailed. When exceptions are filed, the court is
to hear argument on the exceptions and enter an appropriate final
decree. . . .
In counties where the hybrid procedure is employed and the
matter is first heard by a master followed by a de novo trial court
hearing, the court will disregard the master’s report. . . . The court
then issues an order based upon the testimony heard and
information presented in the hearing. . . .
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6 Moreover, Husband’s argument that the trial court should have dismissed
Wife’s complaint for failure to provide notice of the availability of counseling
is waived where Husband did not object to the complaint’s omission, and
instead filed an answer. (See Trial Court Docket, at 2). Indeed, Husband
fails to provide any legal authority to support his argument that such a
procedural error requires dismissal of the complaint. (See Husband’s Brief,
at 14). Finally, this oversight did not prejudice Husband where he petitioned
for counseling ten days after receiving the complaint, and the trial court held
a hearing on his request. (See Trial Court Docket, at 2).
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. . . Because this practice requires the court to hold a de novo
hearing after the matter has been heard before a master, the
initial hearing becomes a nullity, as does the master’s report. . . .
Pavie v. Pavie, 606 A.2d 1207, 1209-10 (Pa. Super. 1992) (citation omitted).
Here, after the master filed his report, the court held a thorough de novo
hearing in which it received testimony and exhibits from both parties, at the
request of Husband. (See Trial Ct. Op., at 4). Therefore, the master’s report
is a legal nullity, and Husband waived his opportunity to challenge it when he
failed to file exceptions and instead filed a praecipe for a trial de novo.7 See
Pavie, supra, at 1209.
In his tenth issue, Husband maintains that the trial court abused its
discretion in ordering a bifurcated divorce decree. (See Husband’s Brief, at
49-53). This issue lacks merit.
Bifurcation, the severance of divorce claims from economic
claims, is authorized by the Divorce Code. Our Rules of Civil
Procedure recognize that:
([c]) The court need not determine all claims at one
time but may enter a decree adjudicating a specific
claim or claims. [. . .]
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7 We note for sake of completeness that Husband was declared incompetent
in his criminal trial, on October 11, 2012, deemed competent on November
29, 2012, and deemed incompetent again on December 13, 2012. (See
Criminal Docket, CP-51-CR-8022-2012, at 8-9). Although the criminal docket
does not reflect when Husband was declared competent again, it does
evidence that he began filing a plethora of motions beginning on August 9,
2013, and proceeded to a trial where he was found guilty. (See id. at 12).
Therefore, from at least 2010 until October 11, 2012, and then after August
9, 2013, there is no evidence that Husband was incompetent to proceed in
this divorce matter.
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Pa. R.C.P. 1920.52([c])[.] . . . Additionally, the Divorce Code
contains the following recognition of the procedure:
Bifurcation.—In the event that the court is unable for
any reason to determine and dispose of the matters
provided for in subsection (b) [ancillary claims] within
30 days after the report of the master has been filed,
it may enter a decree of divorce or annulment. Upon
the request of either party and after a hearing, the
court may order alimony pendente lite, reasonable
counsel fees, costs and expenses and may make a
temporary order necessary to protect the interests of
the parties pending final disposition of the matters in
subsection (b).
23 Pa.C.S.[A.] § 3323(c). . . .
. . . [W]hen a court considers whether to bifurcate:
The eventual decision should be the approach
which is fair to both parties.
Since the decision to bifurcate is discretionary,
we will review lower court decisions pertaining to
bifurcation by using an abuse of discretion standard.
So long as the trial judge assembles adequate
information, thoughtfully studies this information, and
then explains his decision regarding bifurcation, we
defer to his discretion. In other words, this
determination should be the result of a reflective
examination of the individual facts of each case.
Thus, we require not only an on-the-record analysis of
factors, but also a finding as to whether bifurcation would be fair
under the circumstances, prior to the entry of a decision. . . .
Savage v. Savage, 736 A.2d 633, 644-45 (Pa. Super. 1999) (case citations
and footnote omitted).
Instantly, the court explained:
. . . [S]o, there are a number of financial issues that I still have to
determine how to distribute the asset.
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However, I do believe that there are compelling
circumstances at this time for me to enter an entry of divorce. I
am going to enter the divorce decree today. And I am going to
hold under advisement, I retain jurisdiction of all economic issues,
and that under Section C point [one] of section 3323, if the moving
party has demonstrated that compelling circumstances exist for
the entry of the decree, and that there are sufficient economic
protections provided for each of the parties[.] I do believe that
exists in this case, therefore, I do decree that [Wife] and
[Husband] are hereby divorced from the bonds of matrimony.
. . . [I]t is a bifurcated divorce[.] . . .
(N.T. Hearing, 12/16/16, at 100-01). We do not discern an abuse of
discretion.
The court explained its reasons for bifurcation, after having had
the benefit of three partial days of hearing testimony, and the vast
record, including all economic documentation. The parties had been
litigating the divorce for six years, since 2010. (See id. at 104; Trial
Court Docket, at 2). The case was assigned to the trial judge, on August
2015, after five years of litigation had already occurred. The trial court
observed that, in determining the equitable distribution of the marital
assets, it would be required to consider three real estate properties, an
escrow account of approximately $75,500.00, and the marital value of
the increase or decrease in value to a corporation and a limited liability
company. (See N.T. Hearing, 12/16/16, at 99-100).
Further, the notes of testimony support the court’s conclusion that
there were “compelling circumstances” to enter the divorce decree. (Id.
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at 100). The record reflects Husband’s undetermined release date from
prison due to his misconduct, (see N.T. Hearing, 12/12/16, at 108); his
potential deportation issues, (see id. at 17; N.T. Hearing, 12/16/16, at
97-98); and Wife’s declining health, (see N.T. Hearing, 7/25/16, at 8-
9; N.T. Hearing, 12/16/16, at 94-95). Finally, the court ensured that
its decision to bifurcate the economic issues was fair to both parties by
ordering that “neither party may enjoin, encumber, or otherwise dispose
of any of the property that is before the [c]ourt in this divorce action.”
(N.T. Hearing, 12/16/16, at 101).
Based on the foregoing we conclude that the trial court properly
exercised its discretion when it ordered the bifurcation of the divorce
decree. See Savage, supra at 644-45. Appellant’s tenth issue lacks
merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/18
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