Zhu, J. v. Ke, Z.
6 WDA 2017
| Pa. Super. Ct. | Oct 6, 2017Background
- Wife (Zhu) filed for divorce in Erie County in Jan 2013 (added 3301(d) count later); a master was appointed to hear issues including date of separation and equitable distribution.
- Master held hearings on date of separation in June and July 2014 and concluded the date of separation was the date the complaint was served (Feb 22, 2013); that ruling was litigated earlier and affirmed by the trial court in 2015.
- Master held an equitable distribution hearing May 25, 2016; Ke (Appellant) received notice (email and other service attempts) but did not attend or seek continuance; he routinely appeared by phone in Erie proceedings due to disability.
- Master issued a report (July 2016); Ke filed exceptions (Sept 2016) raising multiple challenges including earlier separation date (Jan 1, 2008), exclusion of evidence, and request for de novo hearing. Trial court heard exceptions (Oct 7, 2016), denied them (Nov 28, 2016), and entered final divorce decree (Dec 13, 2016).
- On appeal pro se, Ke argued (inter alia) the court abused discretion by (1) treating service-date as separation date, (2) denying a de novo hearing under Pa.R.C.P. 1920.55-3, (3) excluding his late evidence, and (4) depriving him of due process by relying only on the master’s record. The Superior Court affirmed.
Issues
| Issue | Appellant (Ke) Argument | Appellee / Trial Court Argument | Held |
|---|---|---|---|
| Proper date of separation | Parties separated Jan 1, 2008; evidence supports earlier date | Serving the divorce complaint creates a rebuttable presumption that separation occurred on service date; Ke failed to rebut | Affirmed: court found Ke did not prove intent to dissolve marriage was communicated prior to complaint; separation = service date |
| Right to de novo hearing on exceptions | Entitled to de novo trial under Pa.R.C.P. 1920.55-3; trial court should consider new evidence | Erie County adopted Pa.R.C.P. 1920.55-2 (not -3); thus only argument on exceptions and review of master’s record permitted | Affirmed: no de novo hearing required; trial court limited to evidence before the master |
| Exclusion of additional evidence filed with exceptions | Late exhibits and narrative were admissible and should have been considered | Exhibits were not presented to the master and thus not part of the record under Rule 1920.55-2; failure to appear at master’s hearing undermined exceptions | Affirmed: trial court properly refused to consider materials not in master’s record |
| Notice and failure to appear at master’s hearing | Denial of economic justice because Ke did not attend; alleged notice issues | Ke received notice (email, certified unclaimed, personal service attempt); he had opportunity to appear by phone but did not seek continuance | Affirmed: Ke’s absence and failure to cure notice/attendance waived many claims and weakened exceptions |
Key Cases Cited
- McCoy v. McCoy, 888 A.2d 906 (Pa. Super. 2005) (presumption that serving a divorce complaint establishes date parties began living separate and apart; party opposing presumption bears burden to prove earlier separation)
- Teodorski v. Teodorski, 857 A.2d 194 (Pa. Super. 2004) (appellate review of master's factual findings is for abuse of discretion)
- Sinha v. Sinha, 526 A.2d 765 (Pa. 1987) (separation requires independent intent to dissolve marriage clearly manifested and communicated)
- Colagioia v. Colagioia, 523 A.2d 1158 (Pa. Super. 1987) (pre-divorce orders of equitable distribution are interlocutory until final divorce decree)
- Cunningham v. Cunningham, 548 A.2d 611 (Pa. Super. 1988) (where county adopts Rule 1920.55-2, trial court’s review is limited to evidence presented to the master)