Barnhart, D. v. Barnhart, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DONNA J. BARNHART, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JONATHAN L. BARNHART, :
:
Appellant : No. 1378 WDA 2014
Appeal from the Decree entered on July 23, 2014
in the Court of Common Pleas of Cambria County,
Civil Division, No. 2005-3380
BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 13, 2015
Jonathan L. Barnhart (“Husband”), pro se, appeals the July 23, 2014
Decree of divorce between Husband and Donna J. Barnhart (“Wife”), which
incorporated the April 23, 2010 Master’s Report and Recommendation
regarding equitable distribution of the parties’ marital property. We deny
Wife’s Motion to Quash the appeal, and affirm the Decree.
In his prior appeal, Husband, pro se, appealed the trial court’s January
11, 2012 Decree of divorce, which also adopted the April 23, 2010 Master’s
Report and Recommendation, as incorporated into the trial court’s December
29, 2010 Opinion and Order. Husband claimed, in his prior appeal, that
outstanding issues remained regarding certain martial assets. A panel of
this Court determined that the January 11, 2012 Decree was not final
because “neither the master nor the trial court provide[d] a discussion as to
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the factors contained in 23 Pa.C.S.A. § 3502(a) or other rationale for the
split of assets.” Barnhart v. Barnhart, 68 A.3d 354 (Pa. Super. 2013)
(unpublished memorandum at 3). The panel urged the trial court, upon
remand, to provide a detailed explanation for its decision. See id.1
Upon remand, the trial court issued an Order on January 17, 2014,
scheduling a status conference for March 12, 2014, at which the parties
were to provide the trial court with “information relative to any and all
outstanding issues … so that the court [could] either immediately address
those issues or refer those issues to [Master George] Gvozdich [Jr., Esq.
(“Master Gvozdich”)] for further hearing or further recommendation without
hearing.” Trial Court Order, 1/17/14 at 1. Husband was present at the
1
In addressing Husband’s prior pro se appeal, a panel of this Court noted
that Husband’s brief “was so poorly drafted that this Court could have
quashed the appeal based on the briefing defects.” Barnhart, 68 A.3d 354
(unpublished memorandum at 3-4). The panel went on to admonish
Husband, as follows:
Our review of the record reveals that much of the complexity
plaguing this case is the result of Husband's pro se
representation in the later stages of the proceedings. … [W]e
remind Husband that this Court does not extend special
privileges to pro se litigants[,] allowing them to ignore the rules
of appellate procedure. We strongly suggest to Husband
that he retain counsel to represent him for the duration of
these proceedings, so that they may be concluded with
minimal complication and delay.
Id. at 4-5 (emphasis supplied). Despite this Court’s prior recommendation,
Husband has chosen to continue to proceed pro se in this action. Notably,
Husband is an employed medical doctor, and the trial court determined that
his earning capacity is $12,556.00 per month. See Trial Court Findings,
7/23/14, at 5.
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March 12, 2014 status conference, but chose not to identify any issues which
required further hearing or recommendation. Thereafter, the trial court
issued its July 23, 2014 Decree of divorce, which incorporated the April 23,
2010 Master’s Report and Recommendation, and provided an explanation
regarding equitable distribution of the parties’ marital property.
Husband filed a timely Notice of Appeal, and a court-ordered Concise
Statement of Matters Complained of on Appeal.
On appeal, Husband raises the following issues for our review:
1. Did the trial court deny [Husband] his right to due process?
2. Did the trial court err by refusing to recuse?
3. Did the trial court err by failing to equitably distribute the
marital property?
4. Did the trial court err by failing to bifurcate?
5. Is [Husband] entitled to counsel fees?
Husband’s Brief at 6.2
In his first issue, which consists of several sub-issues, Husband
contends that the trial court failed to provide him with notice of the March
12, 2014 status conference, thereby denying him due process. Id. at 16.
Husband asserts that he was in the courtroom at the time of the status
conference because he had other matters pending before the trial court, but
2
As was the case in Husband’s prior appeal, Husband’s brief is so poorly
drafted that this Court could have quashed the appeal based on the briefing
defects. See Pa.R.A.P. 2111. However, to the extent possible, we have
attempted to discern the issues raised by Husband.
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objected to the status conference and refused to participate in it on the basis
that he had not received notice of the conference.3 Id. at 17. Husband
claims that the trial court ignored his objections, and proceeded with the
status conference, effectively depriving Husband of his right to notice and
his right to defend himself. Id. at 18-19.
Initially, we observe that, pursuant to its January 17, 2014 Order, the
trial court, upon remand, sought “information relative to any and all
outstanding issues … so that the court [could] either immediately address
those issues or refer those issues to [Master] Gvozdich [] for further hearing
or further recommendation without hearing.” Trial Court Order, 1/17/14 at
1. Husband, a pro se litigant, having recently prevailed in his prior appeal,
an appeal that was premised on the need for the trial court to address
certain outstanding issues regarding marital assets and conduct further
hearings regarding such issues, was well-aware of the outstanding issues
which, he claimed, required a hearing. In fact, on January 2, 2014, Husband
3
Pursuant to the January 17, 2014 docket entry, notice of the March 12,
2014 status conference was to be sent to “James Pappas, Esq[. (“Attorney
Pappas”)], Defendant, Master [] Gvozdich, [] and copy to DRO[.]” Husband,
who is the sole “defendant” in this case, contends that the docket entry
should be construed as incorrectly identifying Attorney Pappas, who is Wife’s
attorney, as the attorney for the “Defendant.” Utilizing this construction,
Husband argues that the notice intended for Husband must have been sent
to Attorney Pappas. Husband’s Brief at 16-17. Wife contends that the
docket entry clearly directed that notice be sent to both Attorney Pappas, as
counsel for Wife, and to Husband, pro se, as the “Defendant.” Wife’s Brief at
8. We concur with Wife’s interpretation of the docket entry.
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had written to Master Gvozdich, specifically referencing the necessity for
additional hearings. See Husband’s Letter, 1/2/14, at 2 (unnumbered).
Our review discloses that Husband was present at the March 12, 2014
status conference and afforded the opportunity to advise the trial court of
the outstanding issues and matters for which he sought a hearing, but
Husband chose not to do so. Accordingly, we conclude that the notice issue
raised by Husband is without any support in the record.4
Husband also contends that the trial court violated his right of due
process by refusing to conduct a hearing on his Motion to Compel and for
Sanctions following Wife’s failure to respond to Husband’s discovery
requests. Husband’s Brief at 21. Specifically, Husband claims that Wife
failed to respond to Husband’s Request for Production of Documents, “which
requested, inter alia, information on undeclared bank accounts, dissipated
marital assets, property assets, perjury and hidden assets.” Id. Husband
asserts that the trial court refused to permit a hearing on these matters. Id.
4
Husband raises this same “lack of notice” issue throughout his brief. See
Husband’s Brief at 16-19, 25-26, 28-29, 31, 33, 34, 39. However, as we
have already addressed this issue, we decline to address it further, despite
Husband’s repeated references thereto. Relatedly, Husband contends that
the trial court erred by failing to conduct additional hearings, upon remand,
despite a directive from this Court to conduct further proceedings in the
equitable distribution matter. Id. at 19-20, 32-33, 35, 39. However, we
conclude that Husband’s refusal to participate in the March 12, 2014 status
conference, or to inform the trial court at that status conference of the
outstanding issues and matters for which Husband sought a hearing,
resulted in a waiver of this issue. See Pa.R.A.P. 302(a).
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Our review of the record discloses that, contrary to Husband’s
assertions, the trial court conducted hearings on April 29, 2011, and August
2, 2011, regarding marital assets. Notably, Husband sought a continuance
of the April 29, 2011 hearing, asserting that he sought to be heard regarding
“stolen (and/or hidden) assets.” Civil Continuance Request, 4/18/11, at 1;
see also Husband’s Letter to Judge F. Joseph Leahey (“Judge Leahey”),
4/18/11, at 2 (requesting a continuance of the April 29, 2011 hearing, and
averring “significant assets not disclosed by [Wife].”). Although Judge
Leahey denied Husband’s request for a continuance, Judge Leahey
specifically stated in his Order that Husband could testify at the April 29,
2011 hearing by telephone. See id. Husband does not contend that he was
denied the opportunity to raise these issues at the April 29, 2011 hearing
regarding martial assets, or at the subsequent hearing regarding martial
assets on August 2, 2011. Thus, we conclude that this issue lacks support in
the record.
Husband next contends that he was denied due process by impartial
jurists. Husband’s Brief at 21. Husband argues that Judge Timothy P.
Creany (“Judge Creany”) was biased, bore animosity toward Husband,
disregarded statutes, and defended Judge Leahey at a hearing regarding
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Husband’s Motion to Recuse Judge Leahey. Id. at 23.5 Husband claims that
the appearance of Judge Creany’s prejudice toward Husband is sufficient to
warrant the grant of new proceedings to Husband. Id. at 29.6
Husband also asserts that Master Gvozdich was biased against
Husband. Id. Husband contends that, although Master Gvozdich initially
ordered Wife to pay $6,000.00 in Master’s fees and costs, he subsequently
ordered Husband to pay those fees and costs, and thereafter filed a Petition
for Contempt against Husband. Id. at 29-30.7
“The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and analysis of
pertinent authority.” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super.
2014); see also Pa.R.A.P. 2119(a) (stating that the appellant’s brief “shall
5
Notably, in its Findings, the trial court noted that “[t]his case has been
fraught with allegations of misconduct by [Husband] against every person
and entity involved during its pendency.” Trial Court Findings, 7/23/14, at
2-3.
6
In support of his argument, Husband cites to portions of the transcript of
the March 12, 2014 status conference, as well as a hearing conducted by
Judge Creany on that same date, in another case involving Husband, entitled
Barnhart v. Treece, 395 WDA 2014. Our review of the excerpts cited by
Husband reflect no bias or ill-will by Judge Creany. However, such excerpts
reflect a grave disrespect for the tribunal by Husband.
7
Husband also generally claims that “the docket in the instant matter is
replete with illegitimate hearings regarding custody and multiple payments
to hearing officers who have no jurisdiction to hear matters of primary
custody.” Husband’s Brief at 31. However, as none of the trial court’s
custody rulings are before us, this assertion is beyond the scope of our
review.
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have ... such discussion and citation of authorities as are deemed
pertinent.”). “Appellate arguments which fail to adhere to these rules may
be considered waived, and arguments which are not appropriately developed
are waived. Arguments not appropriately developed include those where the
party has failed to cite any authority in support of a contention.” Coulter,
94 A.3d at 1088 (citation omitted). This Court will not act as counsel, and
will not develop arguments on behalf of an appellant. See id. at 1088-89
(stating that mere issue spotting without analysis or legal citation to support
an assertion precludes appellate review of a matter).
We need not reach the merits of this issue because the argument
section of Husband’s brief consists of general statements unsupported by
any discussion or analysis of relevant legal authority. See Husband’s Brief
at 21-31. While Husband’s brief does contain scant reference to case law,
see id. at 25, 29, 31, it completely lacks any discussion or developed
analysis relevant to the issue. See Coulter, 94 A.3d at 1088-89.
Accordingly, we conclude that Husband’s lack of analysis precludes our
review of this issue. See id.
Next, Husband contends that he was denied counsel and “forced to
represent himself due to the trial court’s repeated failure to provide him due
process, opposing counsel’s unethical conduct, and the failure of all
attorneys to challenge rogue judges.” Husband’s Brief at 31-32 (emphasis
in original).
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Again, Husband’s brief is devoid of meaningful discussion of, or citation
to, relevant legal authority regarding this issue. See Husband’s Brief at 31-
32. Accordingly, we conclude that Husband’s lack of analysis precludes our
review of this issue. See Coulter, 94 A.3d at 1088-89.
Husband finally contends that his due process rights were violated as
he was denied a fair and just decision. Husband’s Brief at 32-36. Husband
cites to this Court’s prior Opinion, wherein a panel of this Court remanded
this matter to the trial court “for further proceedings to dispose of the
parties’ claim [for equitable distribution] conclusively[,]” and stated “we
urge the trial court to provide a detailed explanation for its [equitable
distribution] decision.” Id. at 32 (citing Barnhart, 68 A.3d 354
(unpublished memorandum at 4). Husband contends that “no hearings were
conducted that identified these assets or the values[,] because the trial
court, [M]aster, and [Wife] disagreed with this [] Court’s decision.”
Husband’s Brief at 32. Husband asserts that, in his July 23, 2014 Findings
and Decree, Judge Creany erred by adopting Judge Leahey’s Opinion,
despite Judge Leahey’s later recusal from the proceedings. Id. at 34.8
Husband claims that the trial court also erred by adopting Master Gvozdich’s
Report and Recommendation because Husband’s exceptions to the Master’s
8
Here, Husband has appealed the trial court’s July 23, 2014 Decree, which
did not adopt Judge Leahey’s December 29, 2010 Opinion and Order.
Rather, in its July 23, 2014 Decree, the trial court adopted the April 23,
2010 Master’s Report and Recommendation. Thus, we conclude that this
argument lacks merit.
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Report and Recommendation were heard by Judge Leahey, who later
recused. Id. at 34-35. Husband argues that Judge Creany’s subsequent
determination that Judge Leahey’s decision was just and fair is tainted. Id.
at 35. Husband points out that he has requested “[Judge] Creany[,] as well
as the other judges in the Court of Common Pleas[, to] recuse [themselves
from] all [of Husband’s] matters.” Id. Husband contends that the July 23,
2014 Decree from which he appeals is “the same Order that was considered
deficient in the previous appeal.” Id. at 36.
In its July 23, 2014 Findings, the trial court provided a detailed review
of Master Gvozdich’s April 23, 2010 Report and Recommendation. See Trial
Court Findings, 7/23/14, at 2-6. In so doing, the trial court discussed the
factors set forth in 23 Pa.C.S.A. 3502(a), which are to be considered by the
trial court in fashioning an equitable distribution award, and identified the
place in the Master’s Report and Recommendation where each such factor
was addressed and discussed. See Trial Court Findings, 7/23/14, at 3-6.
Based on his independent review of the Master’s Report and
Recommendation, Judge Creany determined that Master Gvozdich had
properly applied each of the section 3502(a) factors. See id. at 6. Judge
Creany further determined that, because most of the factors weighed in
favor of Wife, the asset split of 64% to Wife and 36% to Husband was
appropriate. See id.
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Moreover, as noted above, Husband refused to participate in the March
12, 2014 status conference, or to inform the trial court at that status
conference of the outstanding issues and matters for which Husband sought
a hearing. Thus, we conclude that Husband cannot fault the trial court for
failing to conduct hearings on issues that Husband refused to identify.
Accordingly, we conclude that this issue lacks merit.
In his second issue, Husband contends that Judge Creany erred by
failing to recuse himself. Husband’s Brief at 36. Husband cites Rule 2.11 of
the Judicial Code of Conduct, and cites briefly from three cases. Id. at 36-
37.
Husband makes no effort to analogize or compare the cited cases to
his circumstances. See id. When issues are not properly raised and
developed in briefs, a court will not consider the merits thereof. See
Hercules v. Jones, 609 A.2d 837, 840 (Pa. Super. 1992) (holding that
“without any argument linking the definition to the facts of this case, this
Court is unable to address appellant’s phantom argument and we find the
issue to be waived.”). Further, we decline to become Husband’s counsel.
See Coulter, 94 A.3d at 1089. Accordingly, we conclude that Husband is
not entitled to relief.
In his third issue, Husband contends that the trial court erred by failing
to equitably distribute the marital property. Husband’s Brief at 37-39. In
support of this contention, Husband asserts that the trial court failed to hold
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additional hearings, as directed by this Court on remand. Id. at 39. In the
alternative, Husband argues that the trial court “fail[ed] to provide notice,
hearings, impartial jurists, and the resultant decisions.” Id. Husband claims
that “these fatal errors are sufficient to warrant new hearings before an
appointed impartial tribunal.” Id.
Husband has failed to identify any item of marital property that was
not equitably distributed, or the manner in which the trial court allegedly
failed to equitably distribute such property. See id. at 37-39. Accordingly,
we conclude that Husband’s failure to develop this argument in any
meaningful fashion precludes our review of this issue. See Coulter, 94 A.3d
at 1088-89.9
In his fourth issue, Husband contends that the trial court erred by
failing to bifurcate the action. Husband’s Brief at 39. Husband asserts that
he filed a Petition to Bifurcate in 2009, which Wife opposed. Id. Husband
claims that the trial court denied the Petition, without explanation. Id. at
40. Husband argues that there was no logical reason that the matter could
not have been bifurcated at that time. Id.
The decision whether to sever or bifurcate is entrusted to the
discretion of the trial court, which is in the best position to evaluate the
necessity for taking such measures. Ball v. Bayard Pump & Tank Co., 67
9
Even if we were to attempt to address Husband’s claim, we have already
addressed each of the arguments raised by Husband in support of his third
issue. Accordingly, based on our prior discussion, we would have concluded
that this issue lacks merit.
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A.3d 759, 767 (Pa. 2013). For that reason, a trial court’s decision on a
motion to bifurcate will generally not be disturbed absent an abuse of
discretion. See Gallagher v. Pa. Liquor Control Bd., 883 A.2d 550, 557
(Pa. 2007).
Here, Husband has failed to develop this argument in any meaningful
fashion. See Coulter, 94 A.3d at 1088-89. Accordingly, we conclude that
Husband’s failure to develop this argument precludes our review of this
issue. See id.10
10
Even if we had addressed this issue, we would have concluded that it
lacked merit. Our review of the record discloses that, when Husband
presented his Petition to Bifurcate, Master Gvozdich had not yet issued his
Report and Recommendation regarding equitable distribution. At the
hearing conducted by the trial court on Husband’s Petition to Bifurcate,
Husband sought bifurcation of the action on the basis that his youngest child
had attained school age, and Husband felt that Wife “should have had
gainful employment … [However, s]he has chosen to wait to become
employed so she could stay home and live a lifestyle that she chooses
instead of working to support the children as she should be required.” N.T.
(Petition to Bifurcate), 11/16/09, at 2. The trial court expressed its concern
that an order granting bifurcation and a subsequent entry of a divorce
decree, prior to the conclusion of the equitable distribution proceedings,
could be detrimental to the parties. See id. at 5. The trial court was
particularly concerned with the possibility that, when the Master’s
recommendations were issued, they might be appealed by one or both of the
parties, thereby prolonging the equitable distribution proceedings. See id.
Wife’s counsel vehemently opposed bifurcation on the basis that (1) Wife did
not have sufficient funds to pay her medical coverage; (2) there were no
QDRO’s; (3) IRAs and pensions had not been separated; and (4) the parties’
joint real estate would be turned into tenancies in common, potentially
resulting in liens on such properties if Husband was not keeping up with the
mortgages. See id. at 6-7. Thus, based on our review of the record, we
cannot conclude that the trial court abused its discretion in declining to grant
Husband’s Petition, given the status of the equitable distribution proceedings
at the time the Petition was presented and argued.
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In his final issue, Husband contends that he is entitled to counsel fees.
Husband’s Brief at 40. Husband asserts that, although the matter of custody
is not at issue in this appeal, “the failure of the trial court and [Wife’s]
counsel [to] obey the rules concerning custody negatively impacted the
matter of divorce.” Id. Husband claims that custody hearings conducted by
Hearing Officer Ralph J. Trofino were “illegitimate,” and “significantly
contributed to the delay and increased costs in this case.” Id. at 42.
Husband argues that he has “filed numerous verified complaints regarding
the misconduct and corruption within the trial court (judges, hearing officers,
master, and opposing counsel[),]” and claims that “the conduct of the trial
court was obdurate, vexatious, and dilatory.” Id. at 42-43.
As we have indicated previously, no custody rulings are presently
before us in this appeal. Husband has elected to appeal the trial court’s
equitable distribution rulings, not its custody rulings. Thus, this claim is not
properly before us.11
Motion to Quash denied. Decree affirmed.
11
Even if this issue was properly before us, Husband has failed to identify
the manner in which he raised the issue of counsel fees before the trial
court, and how the issue was passed upon by the trial court. See Pa.R.A.P.
2117(c). Husband has also failed to identify the place in the record where
he raised the issue of counsel fees before the trial court. See Pa.R.A.P.
2119(c). Notably, Husband’s reference to the March 12, 2014 status
conference reflects, at best, a request for court costs, not counsel fees. See
Husband’s Brief at 42. Thus, we conclude that Husband is not entitled to
relief on appeal. See Pa.R.A.P. 302(a).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2015
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