Brady, R. v. Brady, L.

J-A25006-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RANDY ALLEN BRADY IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
LISA MARIE BRADY
Appellee No. 500 MDA 2019
Appeal from the Order Entered March 4, 2019
In the Court of Common Pleas of York County
Civil Division at No: 2016-FC-2068-15
BEFORE: STABILE, J., MCLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 24, 2019
Appellant, Randy Allen Brady (“Husband”), appeals from the March 4,
2019 order entered by the Court of Common Pleas of York County. For the
reasons stated below, we affirm.
The factual and procedural background was set forth by the trial court
as follows.
Husband married Lisa Marie Brady (“Wife”) on August 15, 1981,
and separated on August 30, 2016. A Divorce Decree was entered
on September 28, 2018. The economic resolution in this matter
was reached in a Report and Recommendation of the Divorce
Master (“Report”) on August 20, 2018. At that time, no
exceptions were filed to the Report, nor was an appeal pursued.
On September 26, 2018, the [trial court] entered an Order and
Decree which adopted the Report as a final order of the [trial
court] (“Final Order”).
The Report dealt with many of the issues related to the separation
of the parties. Relevant to the current appeal, however, is the
issue related to a loan given by Husband’s parents in 2008, which
was alleged to be for approximately $98,000. Husband was
J-A25006-19
seeking a credit for the loan or that the balance be considered in
the overall distribution as a deduction of the estate. Wife had
argued to the Divorce Master that Husband should not be given a
credit for his payments towards the loan as he hadn’t [paid]
anything outside of interest payments and “there is no reason to
believe that this debt will be collectable.” The Divorce Master
specifically considered the loan as solely Husband’s in determining
the percentage distribution of assets. On page 12 of the Report,
the Divorce Master wrote:
“The Master notes that Husband will likely continue to
make interest payments on the debt from his father.
Whether or not this debt ever gets repaid is unknown,
but if anyone is going to be ‘on the hook’ for this debt,
it will be Husband. Husband will likely be in a better
position financially in the future, but Wife has already
received a significant amount of liquid assets which
she can use to bolster her economic situation. This
factor slightly favors Husband.”
The Divorce Master then proceeded to recommend a 52/48
division of marital assets in favor of Wife. An even more favorable
division for Wife would have been made had the Divorce Master
not considered that Husband was solely responsible for this loan
to his parents.
Initially, this matter came before the [trial court] as a Petition for
Special Relief filed on February 19, 2019. In Wife’s petition, she
alleged that Husband and Husband’s parents were colluding to
undermine the specific terms of the Final Order, as Husband’s
parents filed a separate lawsuit against Wife for debt collection on
the $98,000 loan. Husband and Husband’s parents are all
represented by the same counsel. As a result of the petition, Wife
was looking for an order that made Husband solely liable for the
loan to his parents, indemnified Wife from any claim related to
that amount, and held Husband responsible for attorney fees to
this action.
The matter proceeded to be heard in Motions Court on February
27, 2019. At that time, the [trial court] ruled that the Divorce
Master had already assigned the debt in the Report on page 12
when the Divorce Master stated that “Husband is on the hook for
the debt.” So the [trial court] ordered that Husband was
responsible for “all of Wife’s attorney’s fees now or in the future
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that she may incur to defend against any actions by his parents
with regard to this debt, and he shall hold her harmless for any
judgment or settlement that may be issued to his parents related
to this debt.”[1]
Trial Court Opinion, 5/28/19, at 1-3 (citations to the Report omitted).
On March 4, 2019, Husband, after the motions court proceeding, filed
an Answer to the petition for special relief and raised new matter.2 On March
6, 2019, Husband filed a motion for reconsideration of the February 27, 2019
order, which the trial court denied on March 13, 2019, after a hearing. This
appeal followed.
On appeal, Appellant raises four issues, all related to the loan from
Husband’s parents and addressed by the Divorce Master and the trial court.3
As explained below, they are waived.
____________________________________________
1 The order concluding the February 27, 2019 hearing (granting Wife’s petition
for special relief) was docketed on March 4, 2019.
2 In new matter, Husband stated that his parents were not parties to the
divorce action.
3 The issues are:
I. Did the trial court abuse its discretion and/or err when it did
not allow any testimony or presentation of evidence on
Appellee’s petition for special relief?
II. Did the trial court abuse its discretion and/or err when it
assigned attorney’s fees to Appellant without the legal
authority to do so?
III. Did the trial court abuse its discretion and/or err in assigning
unsecured debt to Appellant when the Divorce Master
refused to assign the debt to either party and stated that it
was unsecured debt?
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Appellant did not file exceptions to the Report. “[F]ailure to file timely
exceptions [ ] result[s] in a waiver of [appellate] claims of error in our
[C]ourt.” Sipowicz v. Sipowicz, 517 A.2d 960, 963 (Pa. Super. 1986); see
also Pa.R.C.P. 1920.55-2(b). Moreover, Appellant did not appeal the Final
Order entered September 26, 2018.4 Finally, Appellant did not raise any
issues, let alone any of those currently on appeal, at the February 27, 2019
hearing. As noted above, the hearing was held to address Wife’s petition for
special relief. While the hearing was brief, there is no indication that Appellant
asked the trial court to address any issue or for the opportunity to answer the
petition. Appellant did nothing. In sum, the issues are raised for the first
time on appeal. As such, they are waived. See Pa.R.A.P. 302(a).
____________________________________________
IV. Did the trial court abuse its discretion and/or err when it
ruled on the Appellee’s petition for special relief deciding res
judicata applies when [Husband’s parents] were not parties
to the divorce action?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
4 It is undisputed that the September 26, 2018 order is final, as defined in
Pa.R.A.P. 341, see Appellant’s Brief at 1. Similarly, it is well-stablished that,
in order to preserve the right to appeal a final order of the trial court, a notice
of appeal must be filed within 30 days after the entry of that order, see
Pa.R.A.P. 903(a). Appellant failed to do so.
-4-
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Even if we were to conclude that the issues are not waived, we would
have found the issues without merit for the reasons provided by the trial court
in its May 28, 2019 opinion.5
Appellant first argues that the trial court erred for not allowing the
introduction of evidence on Wife’s special petition. The trial court noted, and
we agree, that Appellant did not raise any new matter at the February 27,
2019 hearing necessitating the introduction of additional evidence, and that
the only matter contested pertained to the loan, which it had been disposed
of in a final order. We add that Appellant’s allegation that the trial court did
not allow any testimony from either party and did not allow the presentation
of any evidence is unsupported in the record. Indeed the record does not
show any request from Husband, let alone one that was denied by the trial
____________________________________________
5 A trial court has broad discretion when fashioning an award of equitable
distribution. See Dalrymple v. Kilishek, 920 A.2d 1275, 1280 (Pa. Super.
2007). Specifically,
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. We do not
lightly find an abuse of discretion, which requires a showing of
clear and convincing evidence. This Court will not find an “abuse
of discretion” unless the law has been “overridden or misapplied
or the judgment exercised” was “manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill will, as shown by the
evidence in the certified record.”
Balicki v. Balicki, (internal quotation marks and citations omitted).
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court. Notably, Appellant provided no citation to the record supporting his
unsubstantiated allegations. See Husband’s Brief at 10.
Next, Appellant alleges that awarding Wife attorney’s fees in connection
with the suit brought by Husband’s parents was an error because there was
no factual finding or legal support. The trial court explained that the award
was appropriate because the loan was assigned to Husband, Husband was
also responsible for attorney fees Wife incurred while defending from suit from
Husband’s parents. We agree with the trial court’s analysis and conclusions.
See Trial Court Opinion, 5/28/19, at 6.
Next, Appellant claims the trial court erred in assigning an unsecured
debt to Appellant when the Divorce Master refused to do so. As noted by the
trial court, the allegation is devoid of any merit. In fact, the Divorce Master
clearly assigned the debt to Appellant. Id. (quoting page 12 of the Report).
The claim is therefore without merit.
Finally, Appellant claims that the trial court erred in finding that the
doctrine of res judicata applied to Husband’s parents’ suit. The trial court
noted that it would allow Husband’s parents to proceed against Husband for
the loan. It merely barred any action against Wife with regards to the loan
because it was not assigned to her. Id. We discern no error or abuse of
discretion in the trial court’s analysis and conclusions.
Order affirmed.
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J-A25006-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2019
-7-
Circulated 11/25/2019 02:15 PM
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IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
RANDY ALLEN BRADY, Case No. 20 l 6-FC-002068-15
Plaintiff 20 l 6-FC-002068-02
v.
LISA MARIE BRADY, CIVIL ACTION - LAW
Defendant
APPEARANCES:
For Plaintiff: John J. Mooney, III, Esquire
For Defendant: Thomas D. O'Shea, Esquire
OPINION IN SUPPORT OF ORDER PURSUANT TO THE AMENDED Pa.R.A.P. No.
1925(a) STATEMENT OF ERRORS
Appellant, Randy Allen Brady ("Husband"), appeals to the Superior Court of
Pennsylvania the Order filed by this Court on March 4, 2019. Wife filed a Statement of
Matters Complained of on April 22, 2019, in which Husband raised four ( 4) issues. The
reasons for this Court's Order are set forth at length in an Opinion filed on March 4, 2019.
Pursuant to Pa.R.A.P. No. 1925(a)(2)(ii), the Court issues the following additional Opinion to
address the specific issues raised.
PROCEDURAL HISTORY
Husband married Lisa Marie Brady ("Wife") on August 15, 1981 and separated on
August 30, 2016. A Divorce Decree was entered on September 28, 2018. The economic
resolution in this matter was reached in a Report and Recommendation of the Divorce Master
("Report") on August 20, 2018. At that time, no exceptions were filed to the Report, nor was
any appeal pursued. On September 26, 2018, the Court entered an Order and Decree which
adopted the Report as a final order of the Court ("Final Order").
..
) )
The Report dealt with many of the issues related to the separation of the parties.
Relevant to the current appeal, however, is the issue related to a loan given by Husband's
parents in 2008, which was alleged to be for approximately $98,000. Husband was seeking a
credit for the loan or that the balance be considered in the overall distribution as a deduction
of the estate. Wife had argued to the Divorce Master that Husband should not be given a
credit for his payments towards the loan as he hadn't made anything outside of interest
payments and "there is no reason to believe that this debt will be collectable." (Report, page
9.) The Divorce Master specifically considered the loan as solely Husband's in determining
the percentage distribution of assets. Id. On page 12 of the Report, the Divorce Master
wrote:
"The Master notes that Husband will likely continue to make interest
payments on the debt from his father. Whether or not this debt ever gets
repaid is unknown, but if anyone is going to be "on the hook" for this
debt, it will be Husband. Husband will likely be in a better position
financially in the future, but Wife has already received a significant
amount of liquid assets which she can use to bolster her economic
situation. This factor slightly favors Husband."
The Divorce Master then proceeded to recommend a 52/48 division of marital assets in favor
of Wife. An even more favorable division for Wife would have been made had the Divorce
Master not considered that Husband was solely responsible for this loan to his parents.
Initially, this matter came before the Court as a Petition for Special Relief filed on
February 19, �O 19. In Wife's petition, she alleged that Husband and Husband's parents were
colluding to undermine the specific terms of the Final Order, as Husband's parents filed a
separate lawsuit against Wife for debt collection on the $98,000 loan. Husband and
Husband's parents are all represented by the same counsel. As a result of the petition, Wife
) )
was looking for an order that made Husband solely liable for the loan to his parents,
indemnified Wife from any claim related to that amount, and held Husband responsible for
attorney fees related to this action.
The matter proceeded to be heard in Motions Court on February 27, 2019. At that
time, the Court ruled that the Divorce Master had already assigned the debt in the Report on
page 12 when the Divorce Master stated that "Husband is on the hook for the debt." So the
Court ordered that Husband was responsible for "all of Wife's attorney's fees now or in the
future that she may incur to defend against any actions by his parents with regard to this debt,
and he shall hold her harmless for any judgment or settlement that may be issued to his
parents related to this debt."
On March 4, 2019, Husband, after the Motions Court proceeding, filed an Answer to
the Petition for Special Relief and raised New Matter. In his Answer, Husband indicated that
the Report doesn't have any effect on Husband's parents' action against Wife, as Wife also
received the loan for Husband's parents. Husband further denied that the percentage of
division in the Equitable Distribution action would have been favorable to Wife if not for the
debt. Husband stated that the Report never assigned the debt nor did it make any decision
regarding creditors for the debt. He further denied any collusion with his parents to
undermine the Court's order, despite the fact that Husband and his parents are all represented
by the same attorney. Husband indicated that he found Wife's remedy to be inappropriate. In
the New Matter, Husband stated that his parents were not parties to the divorce action, and
that they have the same status as any creditor to the parties. Husband argued that the Report
) )
never assigned the debt. Husband then sought reimbursement for the counsel fees he incurred
defending this petition.
On March 6, 2019, Husband proceeded to file a Motion for Reconsideration of the
February 27, 2019 order. It his Motion, Husband echoed the above issues from his Answer
and New Matter. Husband then argued that this Court erred in their order from Motions Court
since relief was granted without a hearing being held, transcript reviewed, or formal answer
considered. Husband requested a hearing for more testimony to be heard, the previous
transcript to be considered, and the Divorce Master to be subpoenaed.
The parties were brought back to Motions Court for the Motion for Reconsideration to
be heard. At that time, the Court issued an order stating, as between Husband and Wife, the
matter was res judicata, as no exceptions were ever filed by Husband to the Report, nor was
any appeal taken then. Therefore, all issues had already been heard by the Court and had not
been preserved.
In summary, Husband failed to timely act after the completion of the Divorce Master's
Report. Had he filed exceptions or appealed in a timely fashion after the completion of the
Report, Husband would not be in the predicament he is today. However, Husband did not act
then, and is now looking to take a second bite at the apple. Husband cannot have his counsel
represent his parents and attempt to seek the money from Wife for which Husband was
already ordered to be responsible. Husband was made responsible for the loan on the record
within the Report. His parent's interest is intact as they may seek relief from Husband.
Any further description of the procedural history is described above.
) )
SCOPE AND ST AND ARD OF REVIEW
A trial court has broad discretion when fashioning an award of equitable distribution.
Dalrymple v. Kilishek, 920 A.2d 1275, 1280 (Pa.Super.2007). The standard of review for 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." Smith v. Smith, 904
A.2d 15, 19 (Pa.Super.2006). To find an abuse of discretion there must be clear and
convincing evidence. Id. An "abuse of discretion" is not found unless the law has been
"overridden or misapplied or the judgment exercised" was "manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill will, as shown by the evidence in the certified
record." Wang v. Feng, 888 A.2d 882, 887 (Pa.Super.2005). Furthermore, it is within the
discretion of the trial court to weigh the evidence and decide credibility so long as it is
supported by the evidence. Sternlicht v. Sternlicht, 822 A.2d 732, 742 (Pa.Super.2003).
DISCUSSION
The reasons for this Court's Order already appear of record in the previously filed
orders. The Court's decision is consistent with the weight of the evidence provided and now
it supplements that decision with the following to address each additional issue raised.
1. The first issue raised by Husband is whether this Court erred or abused its discretion
when it "it did not allow any testimony or presentation of evidence on Appellee's Petition for
Special Relief." However, as is clear by the record and the Report, that no new matter had
been raised and that the issues before the Cou11 had already been previously dealt with at the
Divorce Master's proceeding. Therefore, this issue should be dismissed.
) )
2. The second issue raised is whether this Court erred or committed an abuse of
discretion when it "assigned attorney's fees to Appellant without the legal authority to do so."
It was requested and then ordered by the Court that, because the loan had already been
assigned to Husband by the Divorce Master, Husband would need to indemnify Wife. Any
indemnification in this matter would include attorney fees that Wife would incur. Currently
both Husband and his parents are represented by the same attorney, so clearly that is cause for
an additional issue if his parents shall proceed with an action against him. As such, this issue
should be dismissed against Wife.
3. The third issue raised is whether this Court erred or abused its discretion by "assigning
unsecured debt to Appellant when the Divorce Master refused to assign the debt to either
party and stated that it was unsecured debt." Again, the Divorce Master clearly assigned the
debt on page 12 of the Report.
"The Master notes that Husband will likely continue to make interest
payments on the debt from his father. Whether or not this debt ever gets
repaid is unknown, but if anyone is going to be "on the hook" for this
debt, it will be Husband. Husband will likely be in a better position
financially in the future, but Wife has already received a significant
amount of liquid assets which she can use to bolster her economic
situation. This factor slightly favors Husband." (emphasis added.)
It is in the record. The Divorce Master did not assign a dollar for dollar credit, but rather
considered it in the percentage for distribution. Whether or not that was the correct course of
action is now res judicata, as there were not any exceptions filed to the Report, nor was there
an appeal. Therefore, this issue should be dismissed.
4. The fourth issue raised is whether this Court erred or abused its discretion when it
"ruled on the Appellee's Petition for Special Relief deciding res judicata applies when
) )
Camille C. Brady and Donald R. Brady were not parties to the divorce action." As previously
stated, the loan has already been assigned to Husband. The Court will absolutely allow
Husband's parents to proceed against Husband for the debt. However, no action shall be
proceeded against Wife with regards to the loan, because it was not assigned to her. As such,
this issue should be dismissed.
BY 1/H� �ou;J
��····
Dated: May 28, 2019 KATHLEEN J. PRENDERGAST, JUDGE
The Prothonotary is directed to serve copies of this order on Counsel for the parties and
the Agency, as required by law.