HEATHER A. FOTOPOULOS v. JAMES F. FOTOPOULOS
No. 2251 EDA 2016
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED MAY 02, 2018
2018 PA Super 107
BEFORE: BOWES, LAZARUS AND PLATT,* JJ. OPINION BY BOWES, J.
Aрpeal from the Order Entered June 28, 2016 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2010-FC-0234. * Retired Senior Judge specially assigned to the Superior Court.
Husband and Heather A. Fotopoulos (“Wife“) married on June 25, 1995, and
Wife commenced this action in divorce, custody, and equitable distribution against Husband on or about February 18, 2010. Husband countered seeking divorce, equitable distribution, custody, and alimony pendente lite (“APL“). Husbаnd did not make any claim for counsel fees. Wife filed a motion for appointment of a master for the divorce and equitable distribution actions, and Richard Betz was appointed by the court to serve as Master.
On June 12, 2012, Husband filed a petition for interim counsel fees and expert expense, which he subsequently amended. On January 22, 2013, the court granted the motion, despite noting that Husband‘s household net income exceeded Wife‘s. The сourt characterized the $7,500 award as an advance to Husband, and anticipated that Wife would be reimbursed when the marital assets were distributed.
Husband sought and received child and spousal support, and an interim custody order was entered granting the parties shared physical and legal custody of the children.1 Husband subsequently withdrew his claim for spousal support and made a claim for alimony pendente lite (“APL“) instead. After a hearing before Master Betz оn May 16, 2013, Husband was awarded $4,698 monthly for the support of himself and the three children.
The divorce proceeded. The Master ordered Husband to provide Wife with a copy of his expert report regarding his ability to engage in part-time or full-time employment. Wife opted not to have Husband submit to a physical examination.
By correspondence directed to the Master dated June 6, 2014, Wife‘s counsel requested that her expert neurologist, Martha Lusser, M.D., be permitted to testify via telephone at the hearing on June 23, 2014. Wife‘s counsel noted therein that the parties had agreed that their respective vocational experts could testify via telephone. However, Husband‘s counsel would not consent to Dr. Lusser be permitted to so testify. Wife‘s counsel represented that Dr. Lusser had requested this accommodation because she was scheduled to undergo chemotherapy that morning and the treatment would leave her too tired to travel to the courthouse to give testimony in person. Husband‘s counsel objected, alleging that his client would be seriously prejudiced if such an important witness would be permitted to testify via telephone. The Master ruled that Dr. Lusser could testify by phone, Husband filed an exception to the
On February 27, 2014, Husband filed a second petition for interim counsel fees and expenses for purposes of obtaining a medical expert. The trial court denied the petition after a conference. Husband sought de novo review, and the court held a hearing on the petition on June 23, 2014. Again, the court denied fees and expenses. That denial forms the basis for Husband‘s claim that he was forced to litigate from a disadvantaged position because he lacked the resources to obtain a medical expеrt to define his earning capacity.
Prior to the commencement of the Master‘s hearing, Master Betz held a pretrial conference where, inter alia, the parties stipulated to the telephonic testimony of their respective vocational experts. There was no discussion about the telephone testimony of Dr. Lusser at that time. At the Master‘s hearing, Husband did not introduce any testimony from a medical provider with regard to his prеsent physical condition and employability based on that condition. Rather, Husband offered the medical records and reports of his treating physicians, and the telephonic testimony of vocational expert, Dr. Robert A. Cipko. Dr. Cipko concluded, based on his review of Husband‘s medical records, some testing, and an examination, that Husband was unable to work at any gainful employment. On cross-examination, Dr. Cipko was presented with reports and records from Husband‘s treating physicians that he had not seen when he prepared his report. Those physicians opined that Husband was capable of gainful employment, albeit sedentary, and Dr. Cipko deferred to those experts.
Following two days of testimony, the Master issued his report on October 1, 2014. Both parties filed exceptions.2 After a thorough review of the record, the trial court adopted the Master‘s findings of fact. It granted Wife‘s exceptions and granted Husband‘s exceptions, in part. Preliminary Order and Decree, 9/15/15, at 1. The court did not enter a final divorce decree as there were outstanding issues involving equitable distribution. Nonetheless, Husband appealed to this Court, and we quashed the appeal as interlocutory. Husband then twice requested entry of a final divorce decree, which Wife opposed, and the court denied. When it became apparent that the marital home could not be sold until a divorce decree was entered, Wife filed a petition to amend the interim order, which was granted. Husband appealed again, complied with the trial court‘s order to file a
- Did the court bеlow commit an abuse of discretion and an error of law when it refused to make a determination that the divorce master erred when he permitted the telephone testimony of a crucial expert witness for the Plaintiff who was a physician who testified unequivocally that had she believed she was testifying in court she would have first examined the Appellant before giving an opinion?
- Did the court below commit an abuse of discretion and an error of law when it failed and refused to make an order awarding Appellant interim counsel fees and expenses so that he could retain a medical expert to testify on his behalf when the earnings and earning capacity of the parties were completely disparate?
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Did the court below commit an abuse of discretion and an error at law when the Appellant was denied his fundamental Fifth and Fourteenth Amendmеnt rights and Pennsylvania constitutional right to a fair hearing?
Appellant‘s brief at 5 (unnecessary capitalization omitted).
Husband‘s first issue is a challenge to the Master‘s authority to permit Wife‘s medical expert, Dr. Lusser, to testify via telephone, as well as his exercise of discretion in doing so. The following principles guide our review.
“Our role as an appellate court is to determine whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure.” McCoy v. McCoy, 888 A.2d 906, 908 (Pa.Super. 2005). “An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.” Smith v. Smith, 904 A.2d 15, 18 (Pa.Super. 2006) (quoting Hayward v. Hayward, 868 A.2d 554, 559 (Pa.Super. 2005)).
Husband concedes that
With the approval of the court upon good cause shown, a party or witness may be deposed or testify by telephone, audiovisual or other electronic means at a designated location in all domestic relations matters.
Wife counters that Husband did not object to Dr. Lusser‘s telephonic testimony on the ground that the Master lacked authority to make that ruling under Rulе 1930.3. Furthermore, she contends that, since “court” is not defined in
The issue Husband raises is a novel one. We note preliminarily that Husband did not allege that the Master lacked authority to rule on the admissibility of telephonic testimony when he objected to Wife‘s request. Furthermore, the local rules of Lehigh County provide that a party who is aggrieved by a ruling by a Master at a pretrial conference may seek immediate court review. Husband did not renew his objection to the testimony at the pre-trial conference or seek a ruling from the court prior to Dr. Lusser‘s testimony.
As Wife correctly points out, the rules of civil prоcedure do not define “court” or “master.” Under the Judiciary Code,
The rules of civil procedure expressly provide that court-appointed masters may presidе over hearings in equitable distribution matters. See
We are not persuaded by Husband‘s argument that the language of the Rule requiring court approval mandates that the trial court issue an order permitting telephonic testimony. Where a court order is required, the rules so state. For instance,
Husband alleges further that it was an abuse of discretion to permit this critical medical expert witness to testify via telephone, as the Master was unable to judge the witness‘s demeanor and credibility. He claims that he was unfairly prejudiced by the admission of the telephonic testimony.
The trial court found that good cause was shown for excusing the witness from physically attending the hearing. In addition, the trial court found no unfair prejudice to Husband from the presentation of the testimony via telephone. The court observed that Husband‘s own vocational expert, Dr. Cipko, testified via telephone, and that Husband did not argue that the Master and the trial court could not judge his credibility. Moreover, the court noted that Master Betz found Dr. Lusser‘s testimony credible because the physician based her opinions upon her review of Husband‘s treating physicians’ office notes and reports. The expert pointed out inconsistences between Husband‘s statements about his physical condition and cognitive test scores, and the recent medical records. Dr. Lusser‘s conclusion that Husband was capаble of working with some accommodation for ambulation was consistent with the records of his own treating physicians. We find no abuse of discretion in permitting Dr. Lusser, who was undergoing chemotherapy for cancer, to testify via telephone.
Husband‘s next claim is that the court abused its discretion when it denied his second petition for interim counsel fees and funds to retain a medical expert. He contends that the court‘s decision left him “to litigаte the merits of his equitable distribution claim and alimony claim without being able to establish his lack of an earning capacity.” Appellant‘s brief at 13. He argues that Perlberger v. Perlberger, 626 A.2d 1186 (Pa.Super. 1993) applies, and
Wife counters that the court had already awarded Husband the sum of $7,500 to obtain expert testimony and/or an expert report addressing his health and ability to work. Husband procured a vocational expert, Dr. Cipko, who rendered an opinion, based upon review of the records of Husband‘s treating physicians, that he was incapable of gainful employment. Wife maintains that Husband only sought a medical expert when he learned that she had secured one, a step she took when she became aware that Husband had withheld his treating neurologist‘s reports and notes from Dr. Cipko, until after he had authored his report.
The following principles govern whether attorney fees and other expenses should be awarded. “The purpose of an award of counsel fees is to promote fair administration of justice by enabling the dependent spouse to maintain or defend the divorce action without being placed at a financial disadvantage; the parties must be ‘on par’ with one another.” Busse v. Busse, 921 A.2d 1248, 1258 (Pa.Super. 2007) (quoting Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa.Super. 2004)). In determining whether fees should be awarded, courts examine several factors, including “the payor‘s ability to pay, the requesting party‘s financial resources, the value of the services rendered, and the property received in equitable distribution.” Smith, supra at 21 (quoting Perlberger, supra at 1207). On appeal, we will reverse a determination of counsel fees and costs only for an abuse of discretion. Id.
The record establishes the following. Husband suffered from Lupus and was receiving approximately $1,000 per month in SSD. Wife was employed and earning approximately $144,000 per year. Wife, however, was paying both spousal and child support to Husband, which resulted in Husband‘s net household income exceeding that of Wife. On January 22, 2013, Husband filed a petition for interim attorney fees and expenses to obtain an expert. His petition was granted, although the trial court labeled it an advance, and contemplated that Wife would recoup that money through the equitable distribution of marital assets.
On February 27, 2014, prior to the Master‘s hearing, Husband filed a second petition for interim counsel fees and expenses. He represented that he required fees in order to retain Michele Petri, M.D., his treating physician, to testify that he was completely disabled. After a conference, the trial court denied the motion by order dated May 1, 2014. The court recited therein that it had considered the current financial circumstances of the parties, and noted that Husband was currently receiving “over half of the parties’ total net monthly income and has already received the sum of $7,500.00, ostensibly, for the expense of expert testimony.” Order, 5/1/14, at 1 n.1.
Husband filed a written demand for a de novo review in accordance with Lehigh County Local Rule 1920.13. The hearing was held on June 23, 2014, prior to the Master‘s Hearing. The court again denied the petition, finding that Husband had not mеt his burden of demonstrating need and, specifically, that he had not demonstrated his inability to pay an expert for the Master‘s Hearing. The court found further that Husband had $60,000 in outstanding legal fees related to divorce and custody matters, that his monthly income exceeded that of Wife, and that Husband admitted that he could borrow money from family
In its September 16, 2015 Memorandum Opinion, the trial court recited the relevant factors for awarding attorney fеes and expenses, and clarified that the initial $7,500 was an advance that was to be reconciled in the distribution of the marital estate. Memorandum Opinion, 9/16/15, at 16. The court noted that, “husband‘s household income was greater than that of wife” and that he had conceded as much. Id. The court found it unclear whether the initial $7,500 advance to Husband went to pay for an expert or to pay outstanding attorney fees on the quashed custody appeal.3 Id. For all of these reasons, the court rejected Husband‘s claim that the playing field was not level.
Husband alleges that the trial court and the Master improperly refused to accept evidence of his outstanding legal fees and expenses exceeding $60,000, because some of the expenses were incurred in the custody action. He apparently claims that this obligation constituted the evidence thаt he needed attorney fees and expenses. In the same breath, he claims that, under the Divorce Code,
We find that, contrary to Husband‘s contention, the trial court considered evidence of Husband‘s outstanding legal fees when it denied his second interim petition for fees and expenses. Furthermore, while the court noted that, at the master‘s hearing, Husband failed tо differentiate between counsel fees incurred in the dismissed custody appeal and those in the divorce action, the fees were considered as proof of Husband‘s indebtedness for purposes of equitable distribution, but not as proof of a claim for counsel fees. Thus, Husband‘s claim is simply not borne out by the record.
Finally, the record supports the trial court‘s findings regarding attorney fees and expenses. Interim counsel fees аnd expenses initially were awarded to Husband to permit him to obtain expert testimony regarding his ability to work. When Husband asked a second time for interim fees and expenses to obtain expert medical testimony for the same purpose, the trial court found that he failed to make the requisite showing of need. In light of the fact that Husband had a higher net income than Wife, we find no abuse of discretion.
Husband‘s final contention is that he was denied his fundamental Fifth and Fourteenth Amendment rights, as well as his Article 1, section 1 rights under the Pennsylvania Constitution, when Wife was permitted to take Dr. Lusser‘s testimony by telephone. Appellant‘s brief at 14. Husband reiterates his claim that the master‘s ruling deprived the fact finder of the ability to assess the demeanor and credibility of this expert witness, and suggests that
In response to Husband‘s constitutional claims, the trial court noted its duty to make a complete and independent review of all of the evidence, including the weight and credibility accorded to the witnesses’ testimony. Rollman v. Rollman, 421 A.2d 755, 758 (Pa.Super. 1980). The court maintained that it did so in this case, as evidenced by the fact that it vacated
We note preliminarily that Husband‘s constitutional challenge is poorly articulated and woefully underdeveloped. Furthermore, where a party purports to challenge the constitutionality of a rule or statute,
For all of the foregoing reasons, we affirm the trial court‘s June 28, 2016 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2018