Fotopoulos, H. v. Fotopoulos, J.
185 A.3d 1047
Pa. Super. Ct.2018Background
- Husband and Wife married in 1995; three children; Wife was primary earner (~$144,000/yr); Husband received SSD and had lupus, limited income.
- Parties separated in 2010; Wife filed for divorce, custody, and equitable distribution; a Master (Richard Betz) was appointed to hear equitable distribution and related matters.
- Husband received an initial $7,500 interim award (characterized as an advance) and later APL/child support; he sought additional interim counsel fees/expenses to retain a medical expert and was denied.
- Wife’s medical expert, Dr. Lusser, sought to testify by telephone due to chemotherapy; the Master permitted telephonic testimony over Husband’s objection; the trial court later ratified that ruling.
- Master found Husband’s vocational expert (Dr. Cipko, who testified by phone) and medical records relevant; trial court adopted the Master’s findings except as modified on exceptions; Husband appealed several rulings and raised three main claims.
Issues
| Issue | Fotopoulos (Husband) Argument | Fotopoulos (Wife) Argument | Held |
|---|---|---|---|
| Whether the Master lacked authority under Pa.R.C.P. 1930.3 to permit telephonic testimony without a prior court order | Master lacked authority; Rule requires court order and telephonic testimony deprived factfinder of assessing witness demeanor; prejudiced Husband | Master had authority; Rule requires court approval and the trial court’s subsequent ratification satisfied Rule 1930.3 | Court held Master had authority to rule; trial court approval satisfied Rule 1930.3; permitting telephonic testimony was not an abuse of discretion |
| Whether the court abused its discretion by denying a second request for interim counsel fees/expenses to retain a medical expert | Denial forced Husband to litigate without medical expert proving lack of earning capacity; Perlberger requires relief where one party is left disadvantaged | Husband had previously received $7,500 advance, procured a vocational expert, had higher net household income, and failed to show need | Court found no abuse of discretion: factors (ability to pay, income, prior $7,500 advance) weighed against further award |
| Whether use of a Master and telephonic testimony violated Husband’s constitutional rights (Fifth, Fourteenth, PA Constitution) | Procedure deprived him of due process and right to fair hearing because demeanor and credibility assessment impaired | Trial court performs independent, de novo review of master’s work; statutory and rule framework for masters is constitutional; Husband waived constitutional challenge for failure to notify AG | Constitutional challenge waived for procedural failure; court also found no violation given trial court’s independent review and proper procedure |
Key Cases Cited
- McCoy v. McCoy, 888 A.2d 906 (Pa. Super. Ct.) (standard: appellate review for abuse of discretion)
- Smith v. Smith, 904 A.2d 15 (Pa. Super. Ct.) (abuse of discretion standard and counsel-fee factors)
- Hayward v. Hayward, 868 A.2d 554 (Pa. Super. Ct.) (abuse of discretion discussion)
- Perlberger v. Perlberger, 626 A.2d 1186 (Pa. Super. Ct.) (factors for awarding counsel fees to avoid unfair disadvantage)
- Busse v. Busse, 921 A.2d 1248 (Pa. Super. Ct.) (purpose of counsel-fee awards to level parties)
- Teodorski v. Teodorski, 857 A.2d 194 (Pa. Super. Ct.) (cited on counsel-fee considerations)
- Rollman v. Rollman, 421 A.2d 755 (Pa. Super. Ct.) (trial court’s duty to independently weigh credibility when reviewing a master)
- Sprague v. Sprague, 297 A.2d 133 (Pa. Super. Ct.) (masters’ proceedings are within control of common pleas court)
- Tooey v. AK Steel Corp., 81 A.3d 851 (Pa.) (procedural requirements and waiver for constitutional challenges)