Washington, S. v. Hamilton, H.

J-A32012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHERRILYN D. WASHINGTON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
:
v. :
:
:
HARRY HAMILTON : No. 2036 MDA 2016
:
Appellant :
Appeal from the Order Entered November 21, 2016
In the Court of Common Pleas of Centre County
Civil Division at No(s): 04-2534
SHERRILYN D. WASHINGTON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
:
v. :
:
:
HARRY E. HAMILTON : No. 424 MDA 2017
:
Appellant :
Appeal from the Order Entered February 2, 2017
In the Court of Common Pleas of Centre County
Civil Division at No(s): 04-2534
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY OTT, J.: FILED JULY 13, 2018
Harry E. Hamilton (“Husband”) appeals, pro se, from multiple orders
dated November 21, 2016, and February 2, 2017, related to a prolonged
divorce action involving his former wife, Sherrilyn D. Washington (“Wife”).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Based on the following, we affirm. Additionally, we grant Wife’s request for
an award of counsel fees against Husband pursuant to Pa.R.A.P. 2744 and
remand for the trial court to determine the amount. We also deny Husband’s
application for special relief.
The facts and procedural history are well known to the parties.
Accordingly, we summarize as follows: On June 8, 2004, Wife filed a
complaint in divorce, alleging that the parties were married in the Bahamas
on June 1, 1996.1 On April 27, 2005, the trial court entered an order, finding
that a valid common law marriage existed between the parties as of November
7, 2000. Wife filed a petition for bifurcation of the economic issues from the
divorce action on January 17, 2013.
On July 11, 2013, the court issued a divorce decree on the grounds of
irretrievable breakdown (parties having lived separate and apart for at least
two years) pursuant to 23 Pa.C.S. § 3301(d). On August 10, 2013, Husband
filed an appeal, alleging, inter alia, the court erred by entering a divorce
decree because the parties were never married. A panel of this Court upheld
the trial court’s determination that a common law marriage existed, stating:
“[W]e find no abuse of discretion in its determination that the parties formed
a common law marriage ‘by an exchange of words in the present tense,
spoken with the specific purpose that the legal relationship of husband and
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1 In her complaint, Wife also sought, inter alia, custody of the parties’ son,
who was born in August of 2001.
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wife [was] created.’” Washington v. Hamilton, 118 A.3d 455 [857 MDA
2013, 1582 MDA 2013] (Pa. Super. 2015) (unpublished memorandum at 6),
quoting Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (Pa.
1998).2
The matter then proceeded to issues concerning separation and
equitable distribution. However, Husband filed a motion to vacate judgment
of marriage pursuant to 23 Pa.C.S. § 3332,3 and an amended petition on
November 17 and 18, 2016, respectively. In these practically identical
petitions, Husband alleged: “[P]ursuant to 23 Pa.C.S. [§] 3332, the
consequence of the deciding jurist conducting an electronic search for a
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2 Husband did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court.
3 Section 3332 provides:
A motion to open a decree of divorce or annulment may be made
only within the period limited by 42 Pa.C.S. § 5505 (relating to
modification of orders) and not thereafter. The motion may lie
where it is alleged that the decree was procured by intrinsic fraud
or that there is new evidence relating to the cause of action which
will sustain the attack upon its validity. A motion to vacate a
decree or strike a judgment alleged to be void because of extrinsic
fraud, lack of jurisdiction over the subject matter or a fatal defect
apparent upon the face of the record must be made within five
years after entry of the final decree. Intrinsic fraud relates to a
matter adjudicated by the judgment, including perjury and false
testimony, whereas extrinsic fraud relates to matters collateral to
the judgment which have the consequence of precluding a fair
hearing or presentation of one side of the case.
23 Pa.C.S. § 3332.
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marriage license in Colorado is [Husband] is denied a fair trial concerning the
establishment of a common law marriage.” Motion to Vacate Judgement [sic]
of Marriage in Case Number 04-0339 Pursuant to 23 Pa.C.S. 3332,
11/17/2016, at unnumbered 1.
On November 21, 2016, the trial court entered two orders concerning
the matter. The first (“equitable distribution order”) provided: “AND NOW,
November 21, 2016, [Husband] have [sic] been given an opportunity to
present more testimony and having failed to do so, these proceedings are
terminated and the Court will issue in due course a Final Order with regard to
equitable distribution.” Order, 11/21/2016.4 The second order (“motion to
vacate marriage judgment order”) set forth the following, in pertinent part:
“[Husband] seeks to vacate the judgment of marriage entered in this matter.
This issue has been resolved by the Appellate Courts of Pennsylvania and the
Motion to Vacate Judgment of Marriage is denied.” Order, 11/21/2016.5
Husband then filed a notice of appeal from “the order praeciped for entry in
this matter on the 21st day of November 2016,” but did not specify which order
he meant. Notice of Appeal and Under Pa.R.A.P. 2154 and 1923, 11/21/2016.
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4 The equitable distribution order was timestamped on December 5, 2016.
5 The motion to vacate marriage judgment order was also timestamped on
December 5, 2016.
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On December 1, 2016, the trial court entered a decree regarding the
outstanding economic issues and determined the parties’ date of separation
was November 2001.6 Wife filed a motion for reconsideration pursuant to
Pa.R.C.P. 1930.2 on December 27, 2016.7 The court granted Wife’s motion
on December 29, 2016, and held a hearing regarding the matter on January
25, 2017. On February 2, 2017, the court filed a “discussion” concerning
Wife’s motion for reconsideration and an amendment to its December 1, 2016,
equitable distribution decree.8 On March 6, 2017, Husband again filed a notice
of appeal from the orders entered November 21, 2016, and also included the
“order” entered February 2, 2017, “because the order for reconsideration did
not ‘expressly grant’ reconsideration and the order for reconsideration was not
entered until January 6, 2017, more than thirty (30) days after [Husband]’s
appeal of the failure to vacate the marriage finding in 04-0339.” Notice of
Appeal and Under Pa.R.A.P. 2154 and 1923, 3/6/2017.
On March 17, 2017, the trial court ordered Husband to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 9
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6 The decree was timestamped on December 5, 2016.
7 Before a decision was entered on her motion, Wife filed a notice of appeal
from the December 1, 2016, decree, which is at Docket No. 124 MDA 2017.
8 The court’s “discussion” was dated January 30, 2017. After amending its
decree, the court then dismissed Wife’s motion for reconsideration.
9 For reasons not set forth in the record, a second Rule 1925(b) order was
issued five days later.
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Husband filed a concise statement on April 12, 2017. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on April 20, 2017, concisely stating,
in relevant part:
1. Once again this Court expresses its total inability to understand
exactly what issue Harry Hamilton is raising.
2. This Court relies on its prior Orders.
1925(a) Statement, 4/20/2017.
During this time, on January 18, 2017, and in reference to the November
21, 2016, orders, this Court issued a rule to show cause as to why this appeal
should not be quashed as having been taken for an order that is not
appealable, stating: “Both November 21, 2016 orders expressly contemplate
the entry of a final order in due course, including an equitable distribution
order. Moreover, one of the orders states that [Husband] is attempting to re-
litigate issues that have been finally resolved by an appellate court.” Order,
1/18/2017. Although Husband’s response was difficult to follow, essentially,
he alleged the appeal was interlocutory but appealable as of right. See
Pa.R.A.P. 311(a)(1). On February 8, 2017, this Court entered the following
order, in relevant part:
[T]his Court obtained updated trial court docket entries and a copy
of the trial court’s December 1, 2016 order, which appears to
resolve all outstanding issues in this matter.
This Court will take no action at this time but will refer the
appealability issue to the merits panel. The January 18, 2017
show cause order is discharged. The merits panel may revisit the
issue and may find that the appeal is defective. Therefore,
[Husband] should be prepared to address the issue at oral
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argument if the panel or one of the parties raises the issue at that
time, or in his brief if the case is to be submitted on briefs.
Order, 2/8/2017. Oral argument was held in December of 2017. Husband
did not appear at that proceeding.
Turning to his brief,10 Husband’s argument focuses solely on whether
the trial court erred by failing to conduct a hearing or permit argument before
denying his motion to vacate the judgment of marriage in which he claims the
court committed an improper judicial internet search for a marriage license.11
See Husband’s Brief at 5. Specifically, he states:
The trial judge independently went outside the record and
searched for a marriage license via the internet. Judicial Cannon
2.9(c) and the comments effective while the matter w[a]s pending
appeal on July 1, 2014 make clear that a judge should not
investigate matters independently. Hamilton was denied a fair
trial on the most tenuous of issues, i.e. common law marriage.
____________________________________________
10 Like many of his other filings, Husband’s appellate brief is disjointed and
difficult to follow at times. “[A]lthough this Court is willing to construe liberally
materials filed by a pro se litigant, pro se status generally confers no special
benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d 245, 252
(Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005) (some citations
omitted). “[A]ny layperson choosing to represent himself in a legal proceeding
must, to some reasonable extent, assume the risk that his lack of expertise
and legal training will prove his undoing.” Commonwealth v. Gray, 608
A.2d 534, 550 (Pa. Super. 1992), quoting Vann v. Commonwealth
Unemployment Compensation Bd. of Review, 494 A.2d 1081, 1086 (Pa.
1985). As such, we cannot serve as Husband’s counsel and litigate his claims
for him.
11 In his motion to vacate the judgment of marriage, Husband complains the
court conducted an electronic search for a marriage license in Colorado, but
does not explain how that state is connected to the status of the parties’
marriage.
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Id. (emphasis removed).12 Other than a mere reference to Pa.R.A.P. 311,13
Husband does not discuss the appealability issue, as directed in this Court’s
February 8, 2017, order. However, we are compelled to do so.14
Because Husband does not designate which November 21, 2016, order
he is appealing, we will address them both. It is important to note that based
on Husband’s brief, he is solely interested in the court’s finding that a marriage
existed between the two parties, which concerns the motion to vacate
marriage judgment order. As indicated in this Court’s February 8, 2017, order,
the motion to vacate marriage judgment order was originally interlocutory but
became ripe for appellate review after the December 1, 2016, decree
regarding equitable distribution was entered. Upon review, it is evident that
Husband is attempting to relitigate the issue of whether he and Wife had a
common law marriage under a new theory of relief – that the court
independently went outside the record to search for a marriage license via the
internet and, therefore, he was denied a fair trial regarding the common law
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12Husband also references a “Ms. Mancino” and asserts that she should have
been joined in the action. Husband’s Brief at 6. However, he does not explain
who Mancino is or how she is relevant to the present matter.
13 See Husband’s Brief at 3.
14 “[T]his Court has the power to inquire at any time, sua sponte, whether an
order is appealable.” Bloome v. Alan, 154 A.3d 1271, 1273 (Pa. Super.
2017), quoting Estate of Considine v. Wachovia Bank, 966 A.2d 1148,
1151 (Pa. Super. 2009).
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marriage issue. The claim of whether the parties had a common law marriage
has been previously litigated and decided by the trial court, as well as upheld
by a panel of this Court. See Washington, supra. Husband did not file a
petition for allowance of appeal with the Pennsylvania Supreme Court.
Accordingly, Husband is collaterally estopped15 from challenging the court’s
finding that the parties had a common law marriage, and we find the court did
not err in denying Husband’s motion to vacate the judgment of marriage.
With respect to the remaining November 21, 2016, order, which is the
the equitable distribution order, and the February 2, 2017, discussion and
amended decree, we note Husband’s appeal does not challenge any aspect of
these decisions. Accordingly, he has abandoned any such challenge to the
equitable distribution award and waived his argument for the purposes of this
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15
Collateral estoppel seeks to preclude a litigant from raising an
issue which has previously been determined and applies if (1) the
issue decided in the prior case is identical to the one presented in
the later case; (2) there was a final judgment on the merits; (3)
the party against whom the plea is asserted was a party or in
privity with a party in the prior case; (4) the party or person privy
to the party against whom the doctrine is asserted had a full and
fair opportunity to litigate the issue in the prior proceeding; and
(5) the determination in the prior proceeding was essential to the
judgment.
Melat v. Melat, 602 A.2d 380, 384 (Pa. Super. 1992). Here, the issues from
the earlier decision and the present appeal are essentially identical, there was
a final judgment on the merits, the parties are the same, Husband had a full
and fair opportunity to litigate the issue in the prior proceedings, and the
determination in the prior proceeding was essential to the judgment.
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appeal. See Pa.R.A.P. 2119(a); see also In re W.H., 25 A.3d 330, 339 (Pa.
Super. 2011) (“[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”) (citations
omitted), appeal denied, 24 A.3d 364 (Pa. 2011).
Having concluded that Husband either attempted to relitigate a
previously decided claim or waived potential equitable distribution arguments,
we now turn to the issue regarding the award of counsel fees against Husband
under Section 2744.
Section 2744 provides:
In addition to other costs allowable by general rule or Act of
Assembly, an appellate court may award as further costs damages
as may be just, including
(1) a reasonable counsel fee and
(2) damages for delay at the rate of 6% per annum in
addition to legal interest,
if it determines that an appeal is frivolous or taken solely for delay
or that the conduct of the participant against whom costs are to
be imposed is dilatory, obdurate or vexatious. The appellate court
may remand the case to the trial court to determine the amount
of damages authorized by this rule.
Pa.R.A.P. 2744.
Wife complains she is entitled to: (1) attorney’s fees for time spent by
counsel preparing the appellate brief and attending oral argument; (2)
damages for delay based on Husband’s allegedly vexatious conduct, and (3)
a no appeal order, which would prevent Husband from appealing, or a
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condition to appeal order, which would allow for Husband to appeal but require
him to pre-fund the attorney’s fees for Wife’s counsel in any future appeal.
We note a letter notifying Husband of the oral argument date was sent
out on October 23, 2017, approximately six weeks prior to the oral argument
proceeding. Given Husband’s failure to attend oral argument, and failure to
provide notice of his absence that would have obviated the need for Wife’s
counsel to attend, we use our discretion to award counsel fees based on
Husband’s essentially frivolous appeal and his dilatory and vexatious conduct.
Thus, we remand for the trial court to determine the amount of counsel fees.
With respect to Wife’s remaining requests for relief, we decline to grant them
at this time.
Lastly, with respect to Husband’s “application for special relief – re-
instatement or re-hearing, extension to reconsider and consolidation of
appeals,” he claims he was not aware of the oral argument because he was
focused on recovering from an unexplained incident and he was not checking
to see if he had received any mail regarding his appeal. See Husband’s
Application for Special Relief, 1/2/2018, at 1-2.16 Husband seeks an extension
so that he can make an appropriate response or reply. See id. at 3, 7.
However, we note Husband filed a prior appeal with this Court and multiple
documents regarding the present appeal, including requests for extensions of
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16 Husband also indicates he was trying to save the family home during this
time. Id. at 2.
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time. He was also notified six weeks prior to oral argument of the proceeding.
Based on these circumstances and our disposition in this appeal, we deny
Husband his requested relief.
Orders affirmed. Case remanded for proceedings consistent with this
memorandum. Wife’s application for relief granted, in part, and denied, in
part. Husband’s application for relief denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/18
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