Brown, J. v. Brown, P. ( 2017 )

J-A09019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JERRY BROWN, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PATTI BROWN,
Appellant No. 1321 MDA 2016
Appeal from the Decree July 12, 2016
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 13268 of 2009
BEFORE: GANTMAN, P.J., SHOGAN and OTT, JJ.
JUDGMENT ORDER BY SHOGAN, J.: FILED MARCH 28, 2017
This is an appeal from the entry of a divorce decree. We affirm.
Jerry Brown (“Husband”) and Patti Brown (“Wife”) married in
September of 1990. Husband filed a divorce complaint on September 21,
2009, and Wife filed an answer and counterclaim. Following hearings, the
appointed Master filed a Report and Recommendation (“First Report”) on
November 7, 2014, followed by an Amended Report and Recommendation
(“Amended First Report”) on November 13, 2014. Husband and Wife both
filed exceptions and amended exceptions. Oral argument on the exceptions
was scheduled for February 24, 2015.
On February 19, 2015, Wife’s counsel sought to withdraw due to a
conflict between counsel and Wife. The trial court scheduled argument on
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counsel’s petition for February 24, 2015, the date of the hearing on
exceptions. Wife’s counsel appeared on February 24, 2015, but Wife did
not. The trial court explored Wife’s notice of the hearing with counsel, who
explained Wife had notice of both hearings. Regarding his motion to
withdraw, counsel stated he gave Wife notice by United States mail, which
was not returned to him, and by text. N.T., 2/24/15, at 3. Regarding the
notice of the hearing on exceptions, counsel stated that Wife “was given mail
service, in-person service. She was provided service personally.” Id.
The trial court permitted counsel to withdraw at the hearing. Following
argument, all but two of Husband’s exceptions were granted by an order
filed March 12, 2015, wherein the court remanded to the Master for
application of the exceptions and submission of a new report. On April 28,
2015, the Master filed a Second Report and Recommendation (“Second
Report”).1 The record reveals that the Master mailed copies of the Second
Report to the parties. On May 18, 2015, the twentieth day after the filing of
the Second Report, Wife, seeking a two-week extension, filed a Motion for
Extension of Time to File Objections to the Master’s Second Report. In that
motion, Wife acknowledged receipt of the Second Report from the Master.2
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1
The trial court incorporated the Second Report into the divorce decree.
Trial Court Opinion, 10/4/16, at 3.
2
Wife alleged she was unaware of the March 12, 2015 order remanding to
the Master and opined that mail “continued to be addressed to [her] ex-
(Footnote Continued Next Page)
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The trial court held a hearing on Wife’s request on June 9, 2015, and denied
the motion for extension of time. Neither Husband nor Wife filed timely
exceptions to the Second Report.
The trial court determined that all issues were waived by Wife’s failure
to file exceptions to the Second Report and asserted that the issues included
in Wife’s Pa.R.A.P. 1925(b) statement are waived by Pa.R.A.P. 302(a)
(issues not raised in the lower court are waived and cannot be raised for the
first time on appeal). Trial Court Opinion, 10/4/16, at 4–5.
We are guided by Pa.R.C.P. 1920.55-2, which provides, in pertinent
part, “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.” “[T]his rule requires a party who is dissatisfied with a master’s
report to file exceptions to the report, or waive any such objections.”
Lawson v. Lawson, 940 A.2d 444, 450 (Pa. Super. 2007).
We agree with the trial court that all issues are waived. The Second
Report was filed April 28, 2015, and Wife had twenty days to file exceptions.
In Wife’s May 18, 2015 motion for extension of time to file exceptions, Wife
impliedly admitted having timely notice of the Second Report but asserted
_______________________
(Footnote Continued)
lawyer.” Motion for Extension of Time to File Objections to the Master’s
Second Report, 5/18/15. The record reveals that claim to be false.
Moreover, the trial court indicated that the March 12, 2015 order “was
mailed to [Wife’s] address and not her counsel since the [c]ourt was already
aware that [Wife’s] counsel was permitted to withdraw from the case.” Trial
Court Opinion, 10/4/16, at 2.
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she did not have the exhibits related to the First and Amended First Reports.
Husband’s counsel testified that Wife’s prior counsel had copies of all of the
exhibits. N.T., 6/9/15, at 10. The record also reflects that Wife’s prior
counsel represented that he gave Wife the entire case file on March 20,
2015, N.T., 6/9/15, at 11, which Wife denied. Id. at 11. The record
reveals, despite Wife’s claim otherwise, that Wife had notice of the February
24, 2015 hearing, the March 12, 2015 order remanding to the Master, and
the April 28, 2015 Second Report but failed to file exceptions. Thus, all
issues are waived. Lawson, 940 A.2d 444.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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