Moser, B. v. Renninger, R.

J-A12031-15
2015 Pa. Super. 105
BETTY A. MOSER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD R. RENNINGER, EXECUTRIX OF
THE ESTATE OF THE LATE RONALD R.
RENNINGER, SR.
Appellant No. 1065 MDA 2014
Appeal from the Order entered April 25, 2014,
in the Court of Common Pleas of Berks County,
Domestic Relations, at No(s): 10-20253#2
BEFORE: BOWES, DONOHUE, and ALLEN, JJ.
OPINION BY ALLEN, J.: FILED MAY 01, 2015
The Estate of Ronald R. Renninger, Sr., (“the Estate”), appeals from
the order denying its exceptions to a Master’s report which ordered the
Estate to pay spousal support to Betty A. Moser (“Wife”).1 We affirm.
The trial summarized the pertinent facts and procedural history as
follows:
A complaint in support was filed by [Wife] on November
4, 2010 against Ronald Renninger (“Husband”) in which she
assert[ed] that the parties were married on August 27, 1982.
[The issue of whether the parties were legally married was
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1
As explained infra, because Ronald R. Renninger, Sr. is deceased, the
Estate has been substituted as a party. Accordingly, we have amended the
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raised by Husband and it was ultimately determined by the
Honorable Peter Schmehl that the parties were married,
under common law, on June 8, 1985.]
The parties were ordered to appear before a conference
officer on February 2, 2011, however this conference was
continued to March 15, 2011 and then again to May 3, 2011.
Because the issue of the parties’ marriage was raised by
Husband, a hearing to determine the parties’ marital status
was scheduled before the [trial court], and as a result the
support conference was deferred until June 28, 2011.
Following an evidentiary hearing, [the Honorable Peter W.]
Schmehl determined on May 13, 2011, that the parties were,
in fact, common law husband and wife and had been such
since June of 1985. This determination was appealed, which
resulted in the support conference again being continued.
The appeal was quashed [because it was from an
interlocutory order, Moser v. Renninger, 40 A.3d 156 (Pa.
Super. 2012),] but in the meantime, on June 14, 2012, an
interim order of support was entered, requiring Husband to
pay Wife support in the amount of $394.10 per month, plus
arrears in an unspecified amount. That same day, June 14,
2012, another order was entered which, inter alia, designated
the matter a complex case and scheduled an evidentiary
hearing for September 10, 2012. Further, Husband was
ordered to produce a copy of his unemployment
compensation information.
Husband passed away on August 2, 2012 following an
extended period of serious illness, before the support
conference was scheduled to take place.
In light of Husband’s death, the [interim] support order
was terminated on August 3, 2012 and a hearing was
scheduled before Judge Schmehl on September 16, 2012.
Although Husband’s estate was not formally substituted as a
party, the executrix of Husband’s estate, Pamela Renninger
(“Executrix”) participated in all proceedings thereafter.
Following several continuances, an evidentiary hearing
eventually took place on September 23, 2013. Executrix then
filed a Petition to Terminate/Dismiss Spousal Support/
Alimony [pendente] lite (“APL”) in which she contend[ed] that
the divorce abated due to the death of Husband and that
neither the Divorce Code nor the rules governing the
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establishment of support orders allow for the establishment of
a support order following a party’s death.
The parties each submitted briefs on the issue. In her
brief Wife concedes that where grounds have not been
established, the court is unable to address any claims which
are dependent on the entry of a [divorce] decree (i.e.,
equitable distribution). She contends, however, that APL and
Spousal Support are not dependent on the entry of a
[divorce] decree and notes that APL is not decided under the
Divorce Code but rather is governed by the Support
Guidelines. Wife further concurs that the obligation of
support terminated upon the death of Husband, however, she
argues that she is nonetheless entitled to support from the
date of the filing of the petition up to the date of Husband’s
death. She points out that generating a retro-active [sic]
support order is a routine practice and that Wife is a creditor
under the estate, as any other.
In her brief, Executrix argues that grounds have not
been established and the Divorce Code does not allow for a
claim of APL to be established posthumously.
On June 17, 2013 Judge Schmehl considered the above
and, following oral argument on the issues, ruled that Wife’s
claim for spousal support could proceed, as an arrearage-only
case, but that the claim for APL abated on the date of
Husband’s death. He further ordered that, in the event that
an order for Spousal Support is not entered, the arrears due
under the interim APL order would be collectible by Wife. The
[Estate] was also formally substituted as a party to this
support action. The parties disagreed as to the meaning of
the language of this June 17, 2013 order. Briefs were again
filed. Wife’s position [was] that the June 17, 2013 order
should be interpreted to mean that she is entitled to APL up
to the time of Husband’s death, and, moreover, entitled to
seek Spousal Support. Executrix counter[ed] that Wife failed
to timely seek judicial clarification and/or reconsideration of
the June 17, 2013 order and is therefore bound by its terms.
The parties, however, disagree as to the meaning of the
language of the order.
On November 27, 2013, following a hearing before
Custody/Support Master Karen Longenecker, Esquire,
Findings of Fact, Conclusions of Law and a Recommendation
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were submitted to the court, along with certain stipulations by
the parties. After the stipulations, the only issues before the
Master were (1) whether Husband had any additional income
not previously considered and (2) whether there was an
entitlement defense to Spousal Support. In fashioning her
Recommendation, Master Longenecker heard the testimony of
Wife, the parties’ daughter Jackie Renninger, and the
testimony of Executrix Pamela Renninger, Husband’s
daughter.
Ultimately, the Master determined that Estate, through
Executrix, did not sufficiently establish a defense to spousal
support by proving the underlying conduct by clear and
convincing evidence, failing to demonstrate either indignities
or desertion as alleged by Executrix. [Master Longenecker]
concluded that Wife was entitled to Spousal Support from the
date of the filing of the petition through the date of Husband’s
death, however at different charging rates based on the
relative incomes of Husband and Wife throughout that nearly
three-year period.
Exceptions to the Recommendation of the Master were
field on December 17, 2013, following which Executrix, on
behalf of Estate, filed a Petition for an Injunction to Stay
Enforcement of the Order for Spousal Support. On January
24, 2014, an order was signed placing $14,114.34 in escrow
and scheduling the matter for argument before the Honorable
Madelyn Fudeman.
[The Honorable James M. Bucci] heard argument in
Judge Fudeman’s absence, and ultimately entered an order
denying the Exceptions of the Executrix of [the Estate].
Trial Court Opinion, 8/19/14, at 1-4 (footnote omitted). This timely appeal
followed. Both the Estate and trial court have complied with Pa.R.A.P. 1925.
The Estate raises the following issues:
A. WHETHER THE FAILURE TO DISMISS THE SUPPORT
CASE IS AN ERROR OF LAW AND AN ABUSE OF
DISCRETION.
B. THE RECORD DOES NOT SUPPORT A FINDING THAT []
WIFE IS ENTITLED TO RECEIVE SPOUSAL SUPPORT[.]
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C. ERROR OF LAW AND ABUSE OF DISCRETION WERE
COMMITTED IN MISCALCULATING INCOME[.]
Estate’s Brief at 4.
Our standard of review is well settled:
We review spousal support cases for abuse of discretion. In
order to overturn the decision of the trial court, we must
find that it committed not merely an error of judgment, but
has overridden or misapplied the law, or has exercised
judgment which is manifestly unreasonable or the product
of partiality, prejudice, bias or ill will as demonstrated by
the evidence of record.
S.M.C. v. W.P.C., 44 A.3d 1181, 1185 (Pa. Super. 2012) (citation omitted).
The Estate highlights the fact that, despite Wife’s filing of a support
action in 2010, Husband died before any support hearing was held where he
could testify, and before any support order was entered. In its first issue,
the Estate claims that the trial court should have dismissed Wife’s complaint
for support because the trial court “cannot supply a remedy to [the Estate]
under the facts and circumstances of this case.” Estate’s Brief at 14.2
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2
In the proceedings, the Estate never specifically asserted the applicability
of the Dead Man’s Statute, 42 Pa.C.S.A. section 5930, as rendering Wife
incompetent to testify as to her entitlement to spousal support. The purpose
of this statute “is to prevent the injustice which might flow from permitting
the surviving party to a transaction with a decedent, to give testimony
thereon favorable to himself and adverse to the decedent, which the latter’s
representative would be in no position to refute.” G.J.D. v. Johnson, 669
A.2d 378, 384 (Pa. Super. 1995) (citations omitted). Here, the Estate
presented testimony tending to refute Wife’s testimony regarding the
incident that led to her removal from the marital residence. See N.T.,
9/23/13, at 52-64. Moreover, as discussed infra, although the trial court
recognized the Estate’s limitations in this regard, it concluded “the difficulty
(Footnote Continued Next Page)
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According to the Estate, because “the authority for the award of APL arises
under the Divorce Code” and “the divorce has abated due to” Husband’s
death,” an order for APL “cannot be established after the death of a party to
the divorce.” Id. at 15.
The Estate mischaracterizes the award at issue. As noted above, the
trial court entered an interim order of support, or alimony pendente lite,
during Husband’s lifetime. The parties do not dispute that such payments
terminate due to Husband’s death. However, Husband died prior to the
entry of a final order in Wife’s separately filed support action. The issue that
arises therefore is whether Husband’s death should also abate the support
action.
Both parties refer to the lack of appellate case law regarding this
factual circumstance. See Estate’s Brief at 14; Wife’s Brief at 7. In
Chaniewicz v. Chaniewicz, 257 A.2d 605, 606 (Pa. Super. 1969), this
Court agreed with the trial court that unpaid “arrearages in support of a wife
survive the death of the husband.” Here, the fact that these “arrearages”
have yet to be determined is of no significance—Wife filed her action for
support during Husband’s lifetime, and such calculation can be made. We
find support for this conclusion from several county decisions.
_______________________
(Footnote Continued)
in presenting rebuttal evidence cannot, alone, foreclose the rights of a long-
term spouse to support.” Trial Court Opinion, 8/19/14, at 9.
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The reasoning in Malone v. Malone, 82 Pa.D.&C. 479, 482-87
(1952), is instructive:
The civil obligation of a husband to support his wife is
on the theory of an implied contract with her by reason of
the marriage relationship. A civil action brought by a wife
against her husband for maintenance is fundamentally an
action based on a contract implied from the circumstances.
. . . Why should not an action brought by a wife for
maintenance against her husband, who dies during the
pendency of the action, survive the death of the husband
so that wife can recover proper maintenance from time of
the husband’s desertion or other failure to maintain her to
the time of the husband’s death? What good reason is
there that the husband’s estate should not be liable for
such maintenance? Why should his heirs, legatees or
devisees be enriched by precluding the wife from
recovering from his estate that which accrued to her
during his lifetime?
***
The question before us is: If an action brought by a
wife against her husband . . . for maintenance is pending
at her husband’s death, does the action survive his death
so the wife can recover from his estate maintenance to
which she was entitled prior to his death?
***
[Case law] fully support[s] the proposition that a wife
has a right to recover in a civil action against her husband
for maintenance . . . during the pendency of the action. If
the husband dies during the pendency of the action,
although no order for maintenance could be then
prospective, the wife clearly has the right to recover
against the husband’s estate for maintenance which she
shows should have been paid by him to her prior to his
death. . . . It survives the death of the husband.
See also McMullen v. McMullen, 23 Pa.D.&C. 2d 105, 113 (1961) (holding
that while operation and effect of an order or decree of support of a wife
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terminates at her death, it can be enforced against her husband for any
arrearages accumulated during her lifetime).
We therefore agree with the following rationale of the trial court:
There is no dispute that, upon Husband’s death, the
divorce abated. However, at issue is Wife’s right to
Spousal Support from the time of the filing of her petition
in support through the date of his death. Husband and
Wife were determined to be married from June of 1985
through Husband’s death in 2012, a period of seventeen
years. The complaint in support was filed while Husband
was still alive, and an interim support order was entered
during his lifetime. Therefore, we did not allow a support
order to be established after Husband’s death but rather
permitted Wife to continue her action for support. This is
consistent with the well-established, longstanding rule that
a surviving spouse can collect unpaid support from the
estate of the deceased spouse. [Malone, supra]. We
submit that it was not error to [refuse to] dismiss the case
for support based solely on Husband’s death during the
pendency of the case, where the case was initiated during
his lifetime.
Trial Court Opinion, 8/19/14, at 6. Thus, the Estate’s first issue fails.
In its second issue, the Estate claims that the trial court abused its
discretion in concluding that Wife was entitled to a support award because it
“failed to consider the testimony of the Executrix (daughter of the decedent)
regarding the separation of the parties, and the circumstantial evidence
produced at [the] hearing that [Husband] was attacked by [Wife].” Estate’s
Brief at 11. The Estate further asserts that the trial court “failed to consider
that [Husband] obtained a Protection from Abuse Order because of [Wife’s]
violent actions perpetuated against him while he was ill and dying.” Id. at
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11-12. Finally, the Estate highlights Executrix’s testimony that she
personally observed several altercations between the couple, and Husband’s
inability to swallow liquids due to his illness. See id. at 12.
The trial court, in rejecting the Estate’s claim, explained:
We did not, as alleged by Executrix, fail to consider
these facts. Rather, we considered them and, like the
Master, did not find such facts to be a sufficient basis upon
which to deny Wife’s claim for Spousal Support in the
context of a long-term marriage.
Executrix complains that we failed to consider the fact
that Husband asked the police to remove Wife from the
marital residence. While on the one hand this fact may be
evidence of abuse, on the other hand this fact negates
Executrix’s claims that Wife voluntarily [deserted]
Husband. Moreover, Wife testified that the only reason
she was asked to leave was that Husband was too
intoxicated to drive, so it was prudent under the
circumstances for her to leave. Apparently neither the
police who responded to the incident nor any objective
third-party witness that may have been able to shed some
light onto the facts and circumstances were called to
testify. Executrix bears the burden of demonstrating
Wife’s indignities by clear and convincing evidence. Like
the Master, we feel that Executrix did not meet her
burden, and failed to establish a defense to Spousal
Support based on the evidence presented at the hearing.
With respect to the defense of abuse and the issue of
Husband seeking a PFA against Wife, we note that the
record indicates that both Husband and Wife had sought
PFAs against each other, both of which were ultimately
withdrawn. Therefore, what remains is little more than
mutual allegations of abuse by the parties. Absent a fact-
finding hearing we will not consider the allegations
contained in the PFA petitions, as none have been
established by an evidentiary hearing (which hearing
would take place during Husband’s lifetime and during
which he would have had an opportunity to testify). The
fact that both parties sought protective orders is indicative
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of a troubled relationship at best and is insufficient to
establish a defense to Spousal Support.
Spouses owe an absolute duty of support. See 23
Pa.C.S.A. §4321. There is an exception to this duty where
the party seeking support has engaged in conduct that
would constitute grounds for a fault-based divorce. See
[23 Pa.C.S.A. § 3301]. However, this conduct must be
established by clear and convincing evidence. See
Crawford v. Crawford, 633 A.2d 155 (Pa. Super. 1993).
As the Master points out in her Findings, individual
instances of poor behavior do not necessarily rise to the
level of “indignities” for purposes of determining eligibility
for Spousal Support. [See S.M.C. v. W.P.C., 44 A.2d
1181, 1187-88 (Pa. Super. 2012) (explaining that,
although there is not specific definition for “indignities,”
“indignities must consist of a course of conduct or
continued treatment which renders the condition of the
innocent person intolerable”).] We agree with the Master
that Executrix failed to demonstrate indignities.
Executrix next argues that this Court failed “to consider
the impossibility of presenting any rebuttal to (Wife’s) case
as the Decedent (Husband) obviously cannot rebut or deny
any allegations”. While we are sympathetic to Executrix’s
plight in this regard, the difficulty in presenting rebuttal
evidence cannot, alone, foreclose the rights of a long-term
spouse to support. If Husband were alive but
incapacitated, Wife would be permitted to proceed despite
the obvious difficulties relating to evidence in the nature of
Husband’s testimony. Further, Husband/Executrix was not
barred from presenting circumstantial evidence relating to
the parties’ relationship. Such third-party evidence is
highly persuasive where the parties’ own testimony can be
viewed as self-serving. On balance, the fact that
Husband/Executrix may have more difficulty establishing a
defense to support is not, alone, an adequate basis upon
which to totally deny Spousal Support in the context of a
long-term marriage.
Trial Court Opinion, 8/19/14, at 7-9.
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Our review of the record, including the testimony presented at the
evidentiary hearing and the Master’s report, supports the trial court’s
conclusions. “[T]he master’s report and recommendation, although only
advisory, are to be given the fullest consideration, particularly on the
question of credibility of witnesses, because the master has the opportunity
to observe and assess the behavior and demeanor of the parties.” Taper v.
Taper, 939 A.2d 969 (Pa. Super. 2007). As an appellate court, we cannot
disturb these credibility determinations. Thus, Appellant’s second issue fails.
In its final third and final issue, the Estate asserts that the Master and
the trial court committed two evidentiary errors. The Estate first argues that
the Master erred in permitting the introduction of improperly-authenticated
evidence into the record, and used this evidence to calculate Husband’s
2011 income available for support. It then asserts that the Master and the
trial court did not consider appropriately Husband’s 2011 tax returns when
calculating his income. We address these claims separately.
In its Pa.R.A.P. 1925(a) opinion, the trial court explained the facts
surrounding the admission of the contested evidence as follows:
The [Master’s] hearing was limited to two issues: whether
there was an entitlement defense to spousal support and
whether Husband had received additional income in the
form of unemployment compensation during calendar year
2011. The Master addressed this issue in her
Recommendation noting that Husband did not report any
unemployment compensation on his 2011 income tax
return, however, Wife submitted information that Husband
had received $440.00 per month in unemployment
compensation. This information was in the form of what
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the parties and the Master referred to as an “OINC”
screen, a printout of which was marked as [Wife’s] Exhibit
8.
Trial Court Opinion, 8/19/14, at 9-10.3
The trial court then cited the following exchange from the Master’s
hearing:
[Wife’s attorney]: In terms of exhibits, I would just
request. . . we’ll mark this as P-8, that the Court take
judicial notice of the PACSES records that were reflected
on the OINC screen. Again, there was testimony regarding
the. . . fact that [Husband] had received some
unemployment compensation in [2011]. There have been
two prior discovery orders. I’ve also issued a notice to
appear which very specifically directed [Executrix] to bring
information today which has never been provided. So
under those circumstances we would ask the Court to take
judicial notice of the information that was obtained through
the OINC screen and to mark that as Exhibit P-8.
[Estate’s attorney]: I disagree that it’s a subject. . . a
proper subject for judicial notice. I think you have to have
a custodian of the records testify to that to have it
admitted as a business record. . .
Hearing Master: So [] you are objecting to the. . .
[Estate’s attorney]: OINC screen. Yeah.
Hearing Master: Okay.
[Estate’s attorney]: Yes.
Hearing Master: I’m going to overrule the objection. The
document that is contained in the PACSES records is
maintained by the Pennsylvania Department of Labor and
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3
“OINC” refers to a screen within a computer program used by the domestic
relations office to indicate “other income” of a party to a support action.
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Industry Unemployment Compensation Board. It appears
on the PACSES record and so I’ll accept it into the record
as Exhibit P-8.
Id. at 10, citing N.T., 9/23/13, at 67-68.
The trial court concluded, “the argument that the contents of the
‘OINC’ screen were improperly admitted by the Custody/Support Master may
have merit, to the extent that the ‘OINC’ screen does not appear to qualify
for any exception to the rule excluding hearsay evidence.” Trial Court
Opinion, 8/19/14, at 11. Upon review of the record, in accordance with the
rules of evidence and relevant statutory provisions, we agree with the trial
court that the OINC screen print-out was not properly certified or otherwise
authenticated. Compare Commonwealth v. Visconto 448 A.2d 41, 44-45
(Pa. Super. 1982) (holding that a computer printout of unemployment
compensation payments made to the defendant were properly admitted in a
criminal prosecution for welfare fraud when the records were certified by the
Department of Unemployment Compensation Operations Chief, and a
supervisor in the local unemployment compensation office testified that he
received the documents from that person, who had legal custody of them).
Nevertheless, as noted by the trial court, “other, independent”
evidence existed to establish that, contrary to Husband’s 2011 tax return, he
did receive unemployment compensation during 2011. Trial Court Opinion,
8/19/14, at 12. Indeed, the Estate conceded as much at the hearing, but
did not have the documentation to contradict the OINC screen print-out,
which indicated that Husband received such income for the entire year.
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Given these circumstances, we cannot conclude that the Master erred in
accepting the OINC screen print-out as “evidence” of the undisputed fact
that Husband received unemployment compensation during that year. Thus,
unlike the trial court, we discern no reason to remand this case for the
Estate to present documentation it had repeatedly failed to produce earlier in
the proceedings, and which should have been presented at the Master’s
hearing.
Finally, the trial court found no merit to the Estate’s claim that the
Master improperly considered Husband’s 2011 tax return in calculating
Husband’s income available for support. The trial court explained:
Husband’s tax returns were admitted into the record. Tax
returns are a form of self-reporting. If [the Estate] is
complaining that the Master erred in not basing her
calculations solely on Husband’s tax returns, this issue was
addressed at oral argument [on the Estate’s exceptions].
We noted then, and reiterate here, that the fact that
Husband did not include any 2011 unemployment
compensation on his 2011 tax returns can either be
considered circumstantial evidence that he did not receive
unemployment compensation in 2011, or it can be
considered evidence that Husband omitted income from his
federal income tax return. Executrix [], Husband’s
daughter and designated power of attorney, testified that
her father received “some sort of unemployment
compensation” in 2011, and that she assisted Husband in
completing paperwork to receive these benefits. Without
more information as to this allegation of error, however,
we are unable to meaningfully address the issue.
Trial Court Opinion, 8/19/14, at 12-13.
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Our review of Executrix’s testimony at the Master’s hearing supports
the trial court’s treatment of this issue. Additionally, we note the well-
settled proposition that “taxable income is not the same as net income used
to determine support obligations.” Darby v. Darby, 686 A.2d 1346, 1349
(Pa. Super. 1996). The Estate’s third issue is therefore without merit.
In sum, we affirm the trial court’s order awarding Wife spousal support
from the day she filed her petition until the date of Husband’s death.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2015
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