Franklin, P. v. Franklin, D. ( 2016 )

J-S07017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PENNY L. FRANKLIN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENNIS J. FRANKLIN
Appellant No. 736 MDA 2015
Appeal from the Order Entered March 31, 2015
In the Court of Common Pleas of Susquehanna County
Civil Division at No(s): 2008-1154-CP
BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED MARCH 04, 2016
Dennis J. Franklin (Husband) brings this appeal from the order entered
on March 31, 2015, in the Court of Common Pleas of Susquehanna County,
and made final by the divorce decree entered July 23, 2015. The March 31,
2015 order disposed of Husband’s exceptions to the amended Master’s
Report and Recommendations, dated December 9, 2014, and directed the
Recommendations to be made an order of court. In this appeal, Husband
presents three issues: (1) “[D]id [the Master’s Report, issued on September
12, 2013,] become a final order which was binding on the court at the time
of its March 31, 2015 decision”, (2) “When the court directed the Master to
determine the amount of spousal maintenance, did the Master make that
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S07017-16
determination based on appropriate standards,” and (3) “In establishing the
amount of maintenance, should the Master have utilized a division of the
royalty payments as his basis for awarding a payment in lieu of
maintenance?” Husband’s Brief at 4. Based upon the following, we affirm
on the basis of the trial court’s opinion.
As we write primarily for the parties who are well acquainted with the
factual and procedural history, we need not discuss the background of the
case here. We proceed directly to Wife’s argument that this Court should
quash Husband’s appeal. On August 17, 2015, Wife filed an application to
quash Husband’s appeal. This Court, on October 7, 2015, denied the
application without prejudice to raise the issue to the merits panel. In her
brief, Wife has renewed her request that we quash this appeal.
When deficiencies in a brief hinder this Court’s ability to conduct
meaningful appellate review, this Court may dismiss the appeal entirely or
find certain issues to be waived. Pa.R.A.P. 2101; Irwin Union Nat. Bank
and Trust Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010). Where
breaches of the rules of appellate procedure do not prevent meaningful
review, the merits of the appeal may be addressed. See Savoy v. Savoy,
641 A.2d 596, 598 (Pa. Super. 1994).
Wife claims that Husband’s counseled brief and reproduced record are
defective for failure to comply with the Pennsylvania Rules of Appellate
Procedure. Wife notes, first, that the brief fails to include the statement of
scope and standard of review, a Rule 1925(b) averment, the trial court’s
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answers to the questions involved, Pa.R.A.P. 2116, and a copy of the trial
court’s opinion. See Pa.R.A.P. 2111(a)(3), 2111(d), 2116, and 2111(b),
respectively. Second, Wife states Husband’s statement of the case is
incomplete as Husband fails to provide references to the record, and
therefore fails to comply with Pa.R.C.P. 2117(c). Third, Wife states
Husband’s argument sections are not properly divided as required by
Pa.R.A.P. 2119, and that the argument does not set forth the place in the
record where the issue was raised or preserved, as required by Pa.R.A.P.
2119(e). Fourth, Wife faults Husband’s failure to cite to legal authority in
both his statement of jurisdiction and his argument, as mandated by
Pa.R.A.P. 2111(a)(1), 2114, and 2119(b). Finally, Wife complains not only
are the contents of the reproduced record not designated, but the
reproduced record is also wholly inadequate. Wife states Husband has
produced no transcripts and only four exhibits, and failed to provide a copy
of his own exceptions that led to the appeal, or the trial court’s opinion
regarding his exceptions. In this regard, Wife cites Pa.R.A.P. 2154.
Our review confirms Wife’s position that Husband’s brief is fraught with
violations of the Pennsylvania Rules of Appellate Procedure. However, while
this Court is greatly displeased with the brief submitted by counsel, we will
not dismiss this appeal. See Long v. Ostroff, 854 A.2d 524, 527 (Pa.
Super. 2004) (merits of appeal considered despite party violating rules of
appellate procedure where violations did not impede review). Rather, we
have reviewed the record, the arguments presented by Husband, and the
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relevant statutes, rules and case law, and conclude Husband’s claims are
meritless.1
Contrary to Husband’s position, it is clear that the Court’s March 31,
2015 order is the final, appealable order in this case, 2 and we affirm on the
basis of the trial court’s March 31, 2015 opinion, filed in support of its order
denying Husband’s exceptions and making the amended Master’s report and
recommendations of December 9, 2014 an order of court.3
____________________________________________
1
“Our standard of review when assessing the propriety of an order
effectuating the equitable distribution of marital property is whether the trial
court abused its discretion by a misapplication of the law or failure to follow
proper legal procedure.” Balicki v. Balicki, 4 A.3d 654, 662–663 (Pa.
Super. 2010) (internal citations and quotations omitted). Additionally,
“[f]ollowing divorce, alimony provides a secondary remedy and is available
only where economic justice and the reasonable needs of the parties cannot
be achieved by way of an equitable distribution.” Id. at 659.
2
See Wilson v. Wilson, 828 A.2d 376, 378 (Pa. Super. 2003) (“It is well
settled that a pre-divorce decree distributing marital property is an
interlocutory order.”); Verdile v. Verdile, 536 A.2d 1364, 1366 (Pa. Super.
1988) (“[equitable] distribution order is reviewable once rendered final by
entry of a divorce decree”).
3
In the event of future proceedings, the parties are directed to attach a
copy of the trial court’s March 31, 2015 opinion, to this memorandum.
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J-S07017-16
Order affirmed. Application to quash appeal denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2016
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Circulated 02/18/2016 12:17 PM
(
PENNY FRANKLIN : IN THE COURT OF COMMON PLEAS
Plaintiff, :OFSUSQUEHANNACOUNTY, ..
: COMMONWEALTH OF PENNS~Y,~
v. . .... ·: :,
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: CNILACTION ...
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DENNIS FRANKLIN
Defendant. : NO.: 2008 -1154 C.P. ~ :.~ i``
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ORDER ..... ~ ..... ::.-.:,
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NOW, this 31st day of March, 2015, for the reasons articulated in our acc~inpaiiying: .,
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Opinion, we dispose of the Petition before the Court, generally regarded as exceptions to the
masters' report and recommendations, and order that the recommendations of the master attached
hereto are made an Order of the Court.
For the sakeof clarity, we note that thirty-five percent (35%) of the oil and gas royalties
paid by Cabot Oil and Gas Corporation and/or its assignees, if any, in the pasJ and in the future
as to the one-third interest of Dennis Franklin as to the Brooklyn Road property shall be paid ·
. . .
now and in the future to Penny Franklin, her heirs and assigns. The balance sixty-five percent = ~
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(65%) of the one-third interest of Dennis Franklin of oil and gas royalties as to the Brooklyn
Road property shall be paid to Dennis Franklin, his heirs and assigns. U)
The $7,500.00 payment given over to Penny Franklin by Western Land Services shall. be •.: .-.~
distributed wholly to her. Likewise, the $7,500.00 payment made to Dennis Franklin by Western l;,:
Land Services shall be distributed wholly to him.
.: . COURT
..... , . '
. •'
. ··-..... , ...... .
KENNETH W. SEAMANS, S.J.
. . . .. . . .... , ... '
": -
872-CA.
PENNY FRANKLIN : IN THE COURT OF COMMON PLEAS
Plaintiff, : OF SUSQUEHANNA COUNTY, ...
: COMMONWEALTH OF PENNSYLVAN'iA
;·.-. .»
.-...
v.
: CIVIL ACTION
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DENNIS FRANKLIN ~.:~ .:··j.. ·.:::-·-~i .
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Defendant. : NO.: 2008 - 1154 C.P.
.......
·-·,
OPINION
We have been asked by submitted petitions, generally in the form of exceptiooi;to ; .. ::
.. , ...
determine whether or not a master in divorce, appointed by the Court, committed an abuse of
discretion in his determinations and resulting recommendations with respect to equitable
distribution, alimony, costs, and attorney's fees in the captioned matter. For the reasons discussed
below, we find the master did not commit an abuse of his discretion in either his feelings and/or
recommendations.
Generally, the master found the parties to be of similar ages, within six (6) years of each
other, that both worked to support the household on and off the farm and that husband had a
better chance of producing income post-divorce.
The master correctly found according to prevailing law that the gas rights and royalties of
the two real properties involved had become personal property, the parties both having executed
an oil and gas lease concerning the subterranean areas of both the. Catlin Road marital real estate
and the Brooklyn Road non-marital real estate acquired as to a one-third interest of Dennis
Franklin, husband. The record indicates that the parties together executed an oil and gas lease
concerning their interest and husband's interest in the oil and gas rights to an exploration and
developing company in 2007, one year before their separation in 2008. As such, all the oil and
gas rights leased by the parties became personal property, severed from the real properties at both
Catlin Road and Brooklyn Road.
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( (
Moreover, in that among other items recommended to be distributed to wife was an
assignment to Plaintiff Wife, her heirs and assigns of thirty-five percent (35%) of the oil and gas
royalties of Defendant Husband's one-third ownership interest in the real property known as the
Brooklyn Road property, no alimony was awarded to Wife.
That assignment was not alimony, but was a distribution of personal property which
because of the parties' execution of the oil and gas lease covering both the oil and gas interests in
2007 during their marriage and thus before their separation in 2008, it became their marital
personal property.
The master appropriately reasoned that with the proposed equitable distribution of real
and personal marital property, the division was appropriate to the parties' financial circumstances
post-separation and no support/alimony/maintenance was warranted.
We are also satisfied that the $7,500.00 payment to Plaintiff Wife by Western Land
Services was gratuitous and did not in any way diminish that right of payment or actual payment
to Defendant Husband in relation to a pipeline right of way over the Brooklyn Road real
j property.
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2