Zhu, J. v. Ke, Z. ( 2017 )

J-S49042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JIAN LI ZHU IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ZHAOJIN DAVID KE
Appellant No. 6 WDA 2017
Appeal from the Order December 13, 2016
In the Court of Common Pleas of Erie County
Civil Division at No(s): 10255-2013
BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 06, 2017
Appellant, Zhaojin David Ke, appeals pro se from the order of the Erie
County Court of Common Pleas entering a final decree in divorce. Appellant
challenges the November 28, 2016 order of the court denying his exceptions
and affirming the report and recommendations of the master. We affirm.
The trial court summarized the procedural posture of this case as
follows:
[Appellee]-wife Jian Li Zhu (“Zhu”), filed her Complaint
in Divorce (“Complaint”), on January 31, 2013 requesting
a 3301(c)[1] [mutual consent] divorce and equitable
distribution. The complaint was later amended to add a
count for a divorce under section 3301(d) [irretrievable
breakdown]. The divorce Master, Mary Alfieri Richmond,
Esquire (“Master”), was appointed in March of 2014.
Master’s hearings solely on the issue of date of separation
*
Former Justice specially assigned to the Superior Court.
1
23 Pa.C.S. § 3301(c).
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were held on June 16 and July 9, 2014. The report
resulting from those hearings was filed November 3, 2014.
The Master concluded that the date of separation coincided
with the date the Complaint was served on [Appellant],
that being February 22, 2013. [Appellant] filed exceptions
to the Master’s report on date of separation on November
24, 2014, which were dismissed by Memorandum Opinion
and Order of the Honorable Stephanie Domitrovich on
February 2, 2015. [Appellant] sought to appeal Judge
Domitrovich’s Order, but the appeal was denied as
interlocutory.[2]
The Master’s hearing on equitable distribution issues
was held on May 25, 2016 (“Master’s Hearing”). The
Report and docket indicate that [Appellant] was served
notice of the hearing, including notice of permission to
attend the hearing by telephone,[fn1] by regular mail,
certified mail, and personal service. There is no indication
the regular mail was retuned. The certified mail was
“unclaimed.” The affidavit of personal service indicates
that an adult male who refused to identify himself was
served by hand delivery at [Appellant’s] address on May 4,
2016 by a process server. In his Exceptions, [Appellant]
admits having received notice of the hearing by email,
which has been [Appellant’s] preferred method of
communication on procedural matters throughout these
proceedings, so apparently it was sent to him via email as
well. Also, the Master points out that [Appellant] must
have received the hearing notice because he attached a
copy of it to a pleading he filed with the Pennsylvania
Supreme Court styled as mandamus action on May 16,
2
See Caplan v. Caplan, 713 A.2d 674, 675 (Pa. Super. 1998) (granting
motion to quash appeal based upon claim that “the order establishing the
date of the marriage as part of a divorce action is interlocutory and not a
final order under Pa.R.A.P. 341”).
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2016[3] (that action was denied by the Supreme Court on
July 25, 2016).[4]
[fn1]
[Appellant] is allegedly disabled and lives in
Philadelphia, Pennsylvania. He is routinely granted
permission to attend court proceedings in Erie
County by telephone.
Nevertheless, [Appellant] did not attend the Master’s
Hearing on May 25th, or seek to continue or reschedule it.
The two-hour hearing commenced after a delay of one-half
hour to allow additional time for [Appellant] to call, and
concluded upon presentation of testimony and evidence by
[Appellee], who appeared, represented by counsel.
Though [Appellant] disputes virtually every
recommendation made by the Master in his 26-page
Exceptions,[5] he does not raise the issue of improper
notice, nor does he make any effort to explain his failure to
appear at the Master’s Hearing.
Trial Ct. Op., 11/28/16, at 1-2.
On October 7, 2016, a hearing was held on the exceptions filed by
Appellant to the master’s report and recommendation. Following the hearing
on the exceptions, the trial court dismissed the exceptions and approved the
Master’s Report. Id. at 2. The trial court issued a decree in divorce on
December 13, 2016. This timely appeal followed. Appellant filed a court-
3
See Application for Extraordinary Relief in the Nature of Action in
Mandamus and Prohibition, 5/16/16, at Ex. 31.
4
The Pennsylvania Supreme Court entered a Per Curiam Order denying the
Application for Extraordinary Relief. Zhoajin David Ke, Pet’r v. Court of
Common Pleas of Erie County, Resp’t, 59 WM 2016 Pa. 2016).
5
We note the Master’s report was filed on July 18, 2016, and served on July
28, 2016. Appellant was granted an extension of time to file exceptions until
September 5, 2016. He filed his exceptions on September 2, 2016.
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ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal.6
The trial court’s Pa.R.A.P. 1925(a) opinion incorporated its November 28,
2016 opinion.
Appellant raises the following issues for our review:
1. Whether the trial court abused its discretion by
deliberately denying [Appellant] economic justice just
because [Appellant] failed to attend the [M]aster’s third
hearing, as conceded by the trial court.
2. Whether it was logically and physically possible─when
[Appellee] “resides in Erie County and [Appellant] has
resided primarily in Philadelphia since January 2008”─for
the parties to be “still acting as a marital unit by taking on
DAILY activities synonymous with a healthy marital
relationship,” as the trial court fictitiously insisted in its
2/2/2015 “Memorandum Opinion” at 9 with respect to the
parties’ date of separation.
6
Appellant raised forty-five allegations of error in his Rule 1925(b)
statement and nine issues in his brief. We endorse the following:
With a decade and a half of federal appellate court
experience behind me, I can say that even when we
reverse a trial court it is rare that a brief successfully
demonstrates that the trial court committed more than one
or two reversible errors. I have said in open court that
when I read an appellant’s brief that contains ten or twelve
points, a presumption arises that there is no merit to any
of them. I do not say that this is an irrebuttable
presumption, but it is a presumption nevertheless that
reduces the effectiveness of appellate advocacy. Appellate
advocacy is measured by effectiveness, not
loquaciousness.
Andaloro v. Armstrong World Indus., Inc., 799 A.2d 71, 83-84 (Pa.
Super. 2002) (citation omitted).
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3. Whether the trial court abused its discretion by
indiscriminately embracing the Rule 3301 definition of
“date of separation” when there is sufficient evidence
pointing to January 1, 2008[,] as the date of separation.
4. Whether the trial court abused its discretion by using
multiple valuation dates for [Appellant] but a single
valuation date for [Appellee] without providing a shred of
justification.
5. Whether the trial court abused its discretion by
excluding [Appellant’s] probative evidence filed on the
docket.
6. Whether the trial court abused its discretion by denying
[Appellant] a de novo hearing on his Exceptions when he
asked for it.
7. Whether the trial court abused its discretion by refusing
to review all of the Exceptions item by item at the hearing
on the Exceptions.
8. Whether there is any statute or caselaw providing that .
. . Erie County is exempted from Pa.R.C.P. 1920.55-3 with
respect to a hearing de novo on Exceptions before the trial
court.
9. Whether the trial court abused its discretion by willfully
depriving [Appellant] of his due process and equal
protection rights in refusing to conduct a de novo hearing
on asset distribution.
Appellant’s Brief at 5.7
7
Although Appellant raises nine questions presented, the argument section
of his brief is not divided accordingly and his analysis of each question is not
clearly delineated, in contravention of Pennsylvania Rule of Appellate
Procedure 2119(a). See Pa.R.A.P. 2119(a) (“The argument shall be divided
into as many parts as there are questions to be argued”); see also
Commonwealth v. Kane, 10 A.3d 327 (Pa. Super. 2010). “The brief must
support the claims with pertinent discussion, with references to the record
and with citations to legal authority. . . . [W]hen defects in a brief impede
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We address issues two and three together because they are
interrelated. Appellant contends “facts clearly point to January 1, 2008 as
the clear-cut date of separation . . . .” Id. at 28. He claims the master
erred in finding the date of separation to be the date the complaint in
divorce was served. Id.8
Where the parties dispute the date of final separation, “[o]ur standard
of review is one of an abuse of discretion. Absent an abuse of discretion, the
trial court’s findings of fact, if supported by credible evidence of record, are
our ability to conduct meaningful appellate review, we may . . . find certain
issues to be waived.” Kane, 10 A.3d at 331; see PHH Mortg. Corp. v.
Powell, 100 A.3d 611, 615 (Pa. Super. 2014) (refusing to quash appeal
despite numerous violations of appellate briefing rules). We decline to
quash. See id., 100 A.3d at 615.
Although this Court is willing to liberally construe materials
filed by a pro se litigant, pro se status confers no special
benefit upon the appellant. To the contrary, any person
choosing to represent himself in a legal proceeding must,
to a reasonable extent, assume that his lack of expertise
and legal training will be his undoing.
In re Ullman, 995 A.2d 1207, 1211-12 (Pa. Super. 2010) (citations
omitted).
8
In its opinion in response to Appellant’s exceptions to the divorce Master’s
report regarding equitable distribution, the trial court dismissed the
exception to the date of separation. The court opined: “Date of separation
was previously litigated before the Master, and affirmed by trial court,
therefore it is not subject to challenge here.” Trial Ct. Op., 11/28/16, at 6.
However, since the decree in divorce has been entered, the order
establishing the date of separation is appealable. See e.g., Colagioia v.
Colagioia, 523 A.2d 1158, 1160 (Pa. Super. 1987) (holding “a pre-divorce
order of equitable distribution is interlocutory and cannot be reviewed until
rendered final by the entry of a divorce decree”).
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binding upon a reviewing court.” Teodorski v. Teodorski, 857 A.2d 194,
197 (Pa. Super. 2004).
In McCoy v. McCoy, 888 A.2d 906 (Pa. Super. 2005), this Court
opined:
the date on which the parties begin living separate and
apart, is established upon the filing and serving of a
divorce complaint, unless an earlier date can be
substantiated through the presentation of evidence
confirming an earlier date. A presumption . . . is a
procedural device which not only permits an inference of
the ‘presumed’ fact, but also shifts to the opposing party
the burden of producing evidence to disprove the
presumed fact. Failure to meet this burden of production
will normally result in [a decision] . . . in favor of the party
invoking the presumption. In short, [t]he party
attempting to rebut the presumption has the burden of
proof.
Id. at 912 (citations and quotation marks omitted).
Separate and apart is defined by statute as follows: “Cessation of
cohabitation, whether living in the same residence or not. In the event a
complaint in divorce is filed and served, it shall be presumed that the parties
commenced to live separate and apart not later than the date that the
complaint was served.” 23 Pa.C.S. § 3103. Furthermore,
“[t]here must be an independent intent on the part of one
of the parties to dissolve the marital union” and “the intent
must be clearly manifested and communicated to the other
spouse.” Sinha v. Sinha, [ ] 526 A.2d 765[, 767] ([Pa.]
1987).
McCoy, 888 A.2d at 910. In McCoy, this Court concluded:
Here, Husband, as the party with the burden of proof
because he opposes the presumed fact, needed to prove
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that either he or Wife had the “independent intent . . . to
dissolve the marital union” and that the intent was “clearly
manifested and communicated to the other spouse.”
Sinha, 526 A.2d at 767. Although both the master and
the trial court found that the marriage had not been a
particularly good one, neither found evidence that would
support a finding that an intent to dissolve the marriage
had been communicated by one spouse to the other prior
to the filing of the divorce complaint by Wife. Following
our review of the record, we must agree. Accordingly, we
conclude that Husband has failed to carry this burden of
proof that the parties’ separation occurred prior to the date
Wife filed and served the divorce complaint. Husband has
not rebutted the presumption.
Id. at 912 (footnote omitted).
Instantly, the trial court opined:
After review of testimony and evidence received by the
Master at the two Master’s Hearings held June 16th and
July 9th 2014, . . . this [court] finds [Appellant’s]
Exceptions regarding the parties’ date of separation are
without merit. The testimony and evidence submitted by
[Appellee] at both Master’s hearings contradicted
[Appellant’s] allegations of an unhappy marital
relationship. [Appellee] produced several photographs . . .
of herself and [Appellant] in seemingly good company from
2005 to 2011, including the parties together in their
garden, sharing a meal at their kitchen table, together with
their son at Presque Isle State Park, kayaking together,
working on [Appellant’s] federal discrimination lawsuit
against Edinboro University together, and leaving St.
Vincent’s Hospital together after [Appellant’s] surgery.
Although [Appellant] claims those photographs are not
indicative of a happy marital relationship and are simply
the parties “putting on the appearance of a married family
unit,” others outside of the parties’ family unit could easily
conclude the parties were in a happy marital relationship.
In addition, at the time [Appellant] was filing and
preparing his two lawsuits─one for medical malpractice
against several medical providers in August of 2007 and
one for discrimination against Edinboro University in
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September 2008─he listed [Appellee] as his wife (for a loss
of consortium claim in the medical malpractice lawsuit)
and listed 533 Indiana Drive, Erie, Pennsylvania 16505 as
his address. Also, during his discrimination lawsuit against
Edinboro University, [Appellee] frequently accompanied
[Appellant] to trial and was introduced by him as his wife.
[Appellant] even admitted signing Verifications in his
lawsuits affirming he and [Appellee] were still married. As
[Appellant’s] discrimination lawsuit was in September
2008, eight (8) months after [Appellant] claimed he
“clearly lived separate and apart from [Appellee,]” this
evidence again contradicted [Appellant’s] allegations of an
unhappy marital relationship and is in opposition to
[Appellant’s] contention that the parties’ date of separation
was January 1st, 2008.
* * *
Finally, there is substantial testimony indicating the
parties never seriously discussed a divorce until [Appellee]
filed her Complaint for divorce on February 1st, 2013.
* * *
Therefore, while [Appellant], by and through his actions
after moving to Philadelphia in 2008, may have had an
independent intent to dissolve the marital union, the fact
the parties never seriously discussed divorce until
[Appellee] filed her Complaint for Divorce undoubtedly
shows [Appellant’s] intent was not clearly manifested and
communicated to [Appellee].
Trial Ct. Op., 2/2/15, at 7-10 (citations omitted).
The trial court found “the Master properly concluded the parties’ date
of separation was February 22nd, 2013, which is the date [Appellant] was
served with [Appellee’s] Complaint for Divorce, as this conclusion was
pursuant to statutory and case law and supported by the testimony and
evidence on the record.” Id. at 10. We agree no relief is due.
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In the case sub judice, Appellant testified on cross-examination, inter
alia, as follows at the first Master’s hearing on the issue of the date of
separation:
Q: . . . After you claim that you were maritally separated
and your marriage was over, you’re doing yard work [at
533 Indiana Drive] and staying there for a while, even
though you’re trying to tell us that you made it clear to
[Appellee] that you were no longer married? Are you
saying that that happened?
A. I never said marriage was over. Okay.
Q. You never said─
A. I said we stopped cohabitation December 31, 2003. I
never say we were like [sic] no longer married or
whatever.
N.T., 6/16/14, at 73.
At the second Master’s hearing in relation to the date of separation,
Appellant testified as follows, reproduced verbatim:
[Master:] Mr. Ke, let me back up a little so that I’m clear
on one point. [Appellee] testified that the night before she
left Philadelphia in May of 2012 that you and she had a
discussion about divorce.
A: Yeah.
Q: It’s my understanding that your testimony is that
discussion never took place, correct?
A: That’s right.
Q: And it’s my understanding from your testimony that
you and your wife did have that type of discussion in
February of 2013; is that correct?
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A: No. I will not say discussion, because she had file a
divorce complaint already. She wanted settle with me
peacefully. She said, I live here. I would like to have]
house. I said, okay. Go ahead have house. That was
[sic] kind of discussion I was talking about. Not discussion
about whether we should stay in the marriage, we should
divorce each other. Not anything like that.
Q: And that type of─that discussion took place after she
filed the divorce complaint?
A: Yeah. After. Because divorce was filed on February
1st.
Q: Of 2013?
A: Yeah. After that─after that, I think, we─I don’t
remember if I e-mail her first or she e-mail me first.
Q: And that’s when the two of you─
A: I can find out easily. I can find out easily.
Q: No, that’s all right. My understanding from what you’re
testifying to is that that discussion about the mechanics of
the divorce were first─
A. Not about divorce. I already─I file answer,[9] you know.
In the same month I said, I agree to divorce 100 percent.
N.T., 7/9/14, 231-32.
Following our review of the record, the evidence does not support a
finding that an intent to dissolve the marriage had been communicated by
Appellant to Appellee prior to the filing of the complaint in divorce. See
McCoy, 888 A.2d at 910, 912. Appellant had the burden of proof and has
9
Appellant filed his answer to the complaint in divorce on March 18, 2013.
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not rebutted the presumption that the serving of the complaint in divorce
established the date on which they began living separate and apart. See id.
at 912. We find no abuse of discretion by the trial court. See Teodorski,
857 A.2d at 197. Accordingly, there is no merit to Appellant’s claim that
January 1, 2008, was the date of separation.
We address the remaining issues together because they are
interrelated. Appellant claims that the trial court “erred by not giving [him]
a hearing de novo on his Exceptions.” Appellant’s Brief at 35.10 Appellant
avers the court “erred by excluding [his] admissible evidence and admitting
[Appellee’s] false testimony, proven so in [Appellant’s] Exceptions . . . .”
Id. at 36. He maintains the court erred in holding it was “limited to the
evidence presented before the Master.” Id. at 41. Appellant contends he
was entitled to a de novo hearing pursuant to Pa.R.C.P. 1920.55-3. Id. at
40, 42. Appellant claims he was deprived of economic justice. Id. at 45,
47.
10
We note that Appellant mischaracterizes footnote two of the trial court
opinion. The court stated as follows:
The Pennsylvania Rules of Civil Procedure provide
alternative hearing procedures for matters referred to
Masters. Pa.R.C.P. 1920.55-3 contemplates de novo
review at the trial court level if exceptions are filed.
Pa.R.C.P. 1920.55-2, which is adopted in Erie County,
calls for a hearing on the record at the Master’s level, and
argument only on any exception before the trial court.
See: Official note to Pa.R.C.P. 1920.55-1.
Trial Ct. Op., 11/28/16, at 3 n.2 (emphasis added).
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Our review is governed by the following principles: “The interpretation
and application of a Pennsylvania Rule of Civil Procedure presents a question
of law. Accordingly, to the extent that we are required to interpret a rule of
civil procedure, our standard of review is de novo, and our scope of review is
plenary.” Keller v. Mey, 67 A.3d 1, 5 (Pa. Super. 2013) (citation omitted).
Pennsylvania Rule of Civil Procedure 1920.55-1 provides as follows:
(a) Matters referred to a master for hearing shall proceed
as prescribed by Pa.R.C.P. No. 1920.55-2 unless the court
by local rule adopts the alternative procedure of Pa.R.C.P.
No. 1920.55-3.
(b) The president judge or the administrative judge of
Family Division of each county shall certify that all divorce
proceedings which are referred to a master in that county
are conducted in accordance with either Pa.R.C.P. No.
1920.55-2 or Pa.R.C.P. No. 1920.55-3. The certification
shall be filed with the Domestic Relations Procedural Rules
Committee . . . .
Pa.R.C.P. No. 1920.55-1. The explanatory comment to the rule provides:
The 1995 amendments created alternative procedures for
appeal from the recommendation of a master in divorce.
Pa.R.C.P. No. 1920.55-1 states that, if the court chooses
to appoint a master, the exceptions procedure set forth in
proposed Pa.R.C.P. No. 1920.55-2 will be used unless the
court has, by local rule, adopted the alternative procedure
of proposed Pa.R.C.P. No. 1920.55-3.[11]
11
Rule 1920.55-3 provides:
(a) No record shall be made of the hearing in proceedings
held pursuant to this rule.
(b) After the conclusion of hearing, the master shall:
(1) file the report within;
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In lieu of continuing the practice of including in the Note a
67-county list identifying the hearing procedure selected
by the local county court, the list can now be found on the
Domestic Relations Procedural Rules Committee website.
Pa.R.C.P. 1920.55-1, Cmt.
Rule 1920.55-2, adopted in Erie County, provides as follows:
(a) After conclusion of the hearing, the master shall:
(1) file the record and the report within;
(i) twenty days in uncontested actions or;
(i) twenty days in uncontested actions or;
(ii) thirty days in contested actions; and
(2) immediately serve upon counsel for each party, or, if
unrepresented, upon the party, a copy of the report and
recommendation, and written notice of the right to
demand a hearing de novo.
(c) Within twenty days of the date the master’s report is
mailed or received, whichever occurs first, any party may
file a written demand for a hearing de novo. If a demand
is filed, the court shall hold a hearing de novo and enter a
final decree.
(d) If no demand for de novo hearing is filed within the
twenty-day period, the court shall review the report and
recommendation and, if approved, shall enter a final
decree.
(e) No Motion for Post-Trial Relief may be filed to the final
decree.
Pa.R.C.P. 1920.55-3.
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(ii) thirty days from the last to occur of the receipt of
the transcript by the master or close of the record in
contested actions; and
(2) immediately serve upon counsel for each party, or, if
unrepresented, upon the party, a copy of the report and
recommendation and written notice of the right to file
exceptions.
(b) Within twenty days of the date of receipt or the date of
mailing of the master’s report and recommendation,
whichever occurs first, any party may file exceptions to the
report or any part thereof, to rulings on objections to
evidence, to statements or findings of fact, to conclusions
of law, or to any other matters occurring during the
hearing. Each exception shall set forth a separate
objection precisely and without discussion. Matters not
covered by exceptions are deemed waived unless, prior to
entry of the final decree, leave is granted to file exceptions
raising those matters.
(c) If exceptions are filed, any other party may file
exceptions within twenty days of the date of service of the
original exceptions. The court shall hear argument on the
exceptions and enter a final decree.
(d) If no exceptions are filed, the court shall review the
report and, if approved, shall enter a final decree.
(e) No Motion for Post-Trial Relief may be filed to the final
decree.
Pa.R.C.P. 1920.55-2. “[I]n counties in which no new hearing is held before
the trial court, the trial court is limited to the evidence presented
before the master.” Cunningham v. Cunningham, 548 A.2d 611, 613
(Pa. Super. 1988) (emphasis added).
Instantly, the trial court opined:
The respective roles of the Master and the trial court under
Rule 1920.55-2, are for the Master to create the
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evidentiary record and make recommendations, and for
the trial court to review the Master’s recommendations and
hear argument on any exceptions to same.
* * *
In light of this [c]ourt’s standard of review,
[Appellant’s] failure to appear at the Master’s Hearing
presents an insurmountable challenge to his Exceptions,
which are based largely, if not exclusively, on a written
narrative of facts and sixty-three exhibits submitted for the
first time with his Exceptions. The narrative and exhibits
were not offered or admitted at the time of the Master’s
hearing and are not properly the part of the Masters record
under review.
Trial Ct. Op., 11/28/16, at 3.
In the case sub judice, the complaint for divorce was filed in Erie
County. Therefore, the procedures set forth in Rule 1920.55-2 were
applicable. Consequently, Appellant was not entitled to a de novo hearing
on his exceptions to the Master’s report. See Pa.R.C.P. 1920.55-2(c); see
also Cunningham, 548 A.2d at 613. The trial court was limited to the
evidence presented to the Master.12 See id. We discern no error of law by
the trial court. See Keller, 67 A.3d at 5. Accordingly, we affirm the order
of the trial court.
Order affirmed. Motion for Leave to File Addendum denied.13
12
Given our resolution of this issue, we need not address any other claims
raised by Appellant.
13
Appellant asks this Court to determine whether the Master abused her
discretion in the rate she charged for the third Master’s hearing.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2017
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