Lead Opinion
OPINION BY
Tаnya Tecce (“Wife”) appeals the January 14, 2014 order that granted in part and denied in part her petition to enforce the trial court’s equitable distribution order. The hearing on the petition was profoundly flawed. However, we are constrained to affirm.
The trial court offered the following summary of the factual and procedural history of this matter:
Wife filed a Complaint in Divorce on July 1, 2008, which contained, inter alia, Count I Request for a No Fault Divorce Under Sectiоn 3301(c) and/or (d) of the Divorce Code, Count II Request for Equitable Distribution of Marital Property Under Section 3502(a) of the Divorce Code, and Count III Request for Spousal Support and/or Alimony Pendite [sic ] Lite and Alimony Under Section 3701 of the Divorce Code.
On January 26, 2009, [John Halley (“Husband”) ] filed his Affidavit of Consent under Section 3301(c) of the Pennsylvania Divorce Code, and on February 11, 2009, Wife did the same. The parties went before Divorce Hearing Officer Donald W. Lehrkinder, Sr., Esq. on January 19, 2010. Hearing Officer Lehrkinder filed his Report and Recommendations on November 9, 2010. Judge Durham signed an Amended Order to the Report and Recommendations on February 23, 2011 and it was filed on February 24, 2011.
On December 7, 2012, Wife filed a Prae-cipe to Transmit the Record, seeking that the Court enter a divorce decree. On January 13, 2013, [the trial court] signed a Decree and Order divorcing the parties, and it was filed on January 25, 2013.
On November 8, 2013, Wife filed a Petition for Enforcement, requesting the Court to direct Husband to sign a Deed transferring the marital residence in Wife’s name only, sо that she may sell said residence, to enforce the alimony provision of the parties’ Equitable Distribution Order, to distribute child support arrears to Wife, and for counsel fees.
The Court held a hearing on January 9, 2014 on Wife’s Petition. The hearing consisted of legal argument by counselfor both parties, and also of statements from both parties. Neither party received an oath before placing statements on the record. Husband’s counsel did not dispute that the рarties’ Equitable Distribution Order required Husband to Pay Wife alimony in the amount of $200 per month for a term of thirty months. Further, Husband’s counsel did not dispute that Husband never made said alimony payments. However, Husband’s counsel [argued that] the alimony provision of the parties’ Equitable Distribution Order is no longer enforceable against Husband.
Trial Court Opinion (“T.C.O.”), 5/5/2014, at 3-4 (footnote and citations to notes of testimony omitted).
On January 14, 2014, the trial court entered an order that: required Husband to cooperate with the sale of the marital residence, but did not order him to sign over title to Wife; found that the parties entered into a verbal agreement that Husband would keep Wife on his health insurance in exchange for Wife foregoing alimony payments; denied Wife relief with regard to child support arrears without prejudice to Wife seeking relief with the child support section of the court; and denied Wife’s request for attorney’s fees in connection with the enforcement petition.
On February 10, 2014, Wife filed a notice of appeal. On February 12, 2014, the trial court ordered Wife to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Wife timely complied. On May 5, 2014, the trial court filed its Pa.R.A.P. 1925(a) opinion.
Wife raises four issues for review:
1. Did the Trial Court abuse its discretion in failing to conduct a full evi-dentiary hearing with sworn testimony and offers and admission of documentary and other evidence, thus depriving [Wife] of a full and fair hearing on her Petition for Enforcement of the terms of the parties’ divorce?
2. Did the Trial Court abuse its discretion in depriving [Wife] of the ability to meaningfully cross-examine or otherwise challenge [Husband’s] statements, when said statements were not received under oath, and no opportunity for cross-examination was offered?
3. Was the Trial Court’s finding of an “enforceable verbal agreement” supported by the evidence, where as there was no “evidence” to considеr, and the Court based its findings on nothing more than the unsworn statements of [Husband] and his counsel?
4. Did the Trial Court abuse its discretion where the substance of [Husband’s] unsworn statements was insufficient to support the Court’s findings that [Wife] had bargained away her right to post-divorce alimony in the total aggregate amount of $6,000.00?
Wife’s Brief at 5-6.
All of Wife’s challenges relate to the method by which the trial court conducted
Rule of Evidence 603 requires that witnesses be sworn before providing testimony:
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
Pa.R,E. 603. Here, a review of the record proves that neither Husband nor Wife was administered an oath prior to providing their statements. See Notes of Testimony (“N.T.”), 1/9/2014, at 3-12. Moreover, the trial court acknowledged as much. T.C.O. at 4. “Without an administration of an oath to a witness, the taking of testimony is meaninglеss.” Commonwealth ex rel. Freeman v. Superintendent of State Corr. Inst. at Camp Hill,
The error of failing to administer an oath was compounded by the fact that neither party was subject to cross-examination.
The right of a litigant to in-court presentation of evidence is essential to due рrocess; in almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.
M.O. v. F.W.,
The trial court here purported to make credibility determinations based upon this “testimony.” T.C.O. at 7-9. It is axiomatic that credibility determinations must be based upon actual testimony. Because there was no oath, no competent testimony was presentеd to the court upon which any credibility determination could be made. Credibility and reliability of wit-. nesses are determined “in a particular manner: by testing in the crucible of cross-examination.” Cranford v. Washington,
A proceeding that is so fundamentally flawed as the one that occurred here offends fundamental fairness and demands correction. The trial court made factual findings and credibility determinations without taking testimony, without receiving evidence and without allowing cross-examination. This was plain error. Mоreover, neither party has invoked or even mentioned waiver on this appeal. And yet, we are bound by our precedents to invoke waiver sua sponte in this case. Despite the fundamental flaws in the trial court’s “hearing,” our law is clear. We may not afford relief when no objection has been
Order affirmed.
Judge PLATT joins the opinion.
Judge DONOHUE files a concurring opinion.
Notes
. Husband’s counsel sought to withdraw as counsel in a motion filed with this Court on June 23, 2014. Counsel's motion was granted and Husband was given leave to file a pro se brief. However, Husband did not file a brief and did not aрpear at oral argument.
. We note that Wife cited and appended an unpublished, non-precedential memorandum opinion of this Court in her brief. Wife’s Brief at 12-13, 14, 15. However, a non-precedential memorandum may not be cited, See 210 Pa.Code § 65.37 ( An unpublished memorandum decision shall not be relied
. We recognize that Freeman involves the rights of juveniles in delinquency proceedings, a fact of which the learned concurrence reminds us. Cone. Op. at 734-35. However, we cite Freeman for the general proposition that testimony must be sworn in compliance with Pa.R.E. 603 and 42 Pa.C.S.A. § 5901.
. At some length, the concurrence labors to set up — and then proceeds to knock down — a straw man, expounding that the taking of evidence is not required iñ all judicial proceedings. See Cone. Op. at 735-36. Without a doubt, that is true. However, when a trial court purports to make findings of fact and credibility determinations, as it did here,
. As the legendary advocate Brendan Sullivan famously observed, lawyers are not potted plants. See Commonwealth v. Ramos,
. The concurrence helpfully provides a litany of citations to additional precedents applying our waiver doctrine. See Cone. Op. at 733-34.
.Jurisdictions across the United States have held similarly; indeed, the cases are legion. See United States v. Odom,
Concurrence Opinion
CONCURRING OPINION BY
I agree with the learned Majority’s determination that Wife waived the issue she presents on appeal. I write separately because I do not share the Majority’s distaste for that result. The law is eminently clear that we are required to find waiver both because Wife failed to preserve the issue in the trial court and because she has filed a grossly deficient appellate brief.
The Supreme Court of Pennsylvania has discussed the vital importance of issue preservation as follows:
Issue preservation is foundational to proper appellate review. Our rules of appellate procedure mandate that ‘[tissues not raised in the lower court are waived and cannot be raised for the first time on appeal.’ Pa.R.A.P. 302(a). By requiring that an issue be considered waived if raised for the first time on appeal, our courts ensure that the trial court that initially hears a dispute has had an opportunity to consider the issue. Lincoln Philadelphia Realty Assoc. v. Bd. or Revision of Taxes of Philаdelphia,563 Pa. 189 ,758 A.2d 1178 , 1186 (2000). This jurisprudential mandate is also grounded upon the principle that a trial court, like an administrative agency, must be given the opportunity to correct its errors as early as possible. Wing v. Com. Unemployment Comp. Bd. of Review,496 Pa. 113 ,436 A.2d 179 , 181 (1981). Related thereto, we have explained in detail the importance of this preservation requirement as it advances the orderly and efficient use of our judicial resources. See generally Dilliplaine v. Lehigh Valley Trust Co.,457 Pa. 255 ,322 A.2d 114 , 116-17 (1974). Finally, concepts of fairness and expense to the parties arе implicated as well.
In re F.C. III,
It is axiomatic that “[i]n order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Failure to timely object to a basic and fundamental error will result in waiver of that issue.” Thompson v. Thompson,
Secondly, Wife’s appellate brief contains precisely zero citation to relevant authority. Rule of Appellate Procedure 2119(a) provides as follows:
The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part — in distinctive type or in type distinctively displayed — the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.
Pa.R.A.P. 2119(a) (emphasis added). The failure to provide discussion of and citation to relevant authority is a substantial impediment to our review; for that reason, it results in waiver of the issue. Giant Food Stores, L.L.C. v. THF Silver Spring Dev., L.P.,
Wife cites only one “authority”: an unpublished memorandum decision from this Court.
Before eventually properly applying the principles of issue preservation and waiver, the Majority dissects the lax procedure employed by the trial court; specifically, its failure to swear witnesses and allow the parties the oрportunity for cross-examination. I do not dispute that witnesses are to be sworn before testifying. Section 5901 of the Judicial Code provides that “[ejvery witness, before giving any testimony shall take an oath in the usual or common form[.]” 42 Pa.C.S.A. § 5901(a).
In this regard, the Majority quotes Commonwealth ex. rel. Freeman v. Superintendent of State Corr. Inst. at Camp Hill,
There is scant case law discussing the failure to swear a witness.
I disagree, too, with the Majority’s broad statement that a judicial proceeding must involve the presentation of evidence. Maj. Op. at 731 (“When we speak of a judicial proceeding, we speak of a hearing, not a conversation.”). There are myriad judicial proceedings that do not require the taking of testimony or reception of evidence; for instance, proceedings to resolve preliminary objections, motions for judgment on the pleadings, and motions for summary judgment. See Pa.R.C.P. 1028, 1034, 1035.2. Moreover, even in a proceeding where evidence is received, by testimony or otherwise, a party may always waive his or her right to present evidence or cross-examine witnesses; indeed, a party may choose to do so for tactical reasons. As these facets of a judicial proceeding may be waived, they cannot be, as the Majority contends, indispensable for a valid judicial proceeding.
It is of little wonder that no objection was made to the trial court’s failure to administer the oath. The transcript of the hearing leads to the inevitable conclusion that the parties were satisfied with the manner in which the trial court proceeded. The Majority correctly describes what occurred in the proceeding in question as argument, by the parties’ counsel interspersed with statements by the parties themselves. After addressing the issues raised by Wife in her petition, the trial court said, “All right, I believe I understand the parties’ positions on all three issues, so I thank you and I will take this under advisement....” N.T., 1/9/14, at 46. At no time did either party’s counsel inquire of the trial court when testimony would be taken or seek to cross-examine the adverse party as to any statement he or she made during the course of the
Simply, this Court is prohibited from addressing an issue not raised and preserved in the trial court. There should be no hesitance by our Court to recognize that prohibition and abide by it. I wholeheartedly agree with the Majority that family law attorneys and the courts before whom they appear should abide by formal rules and procedure. See Maj. Op. at 731 n. 3. And so must we. As an intermediate appellate court, we are required by rule or Supreme Court edict to find waiver in a myriad of circumstances. I am struck by the injustice I perceive as a result of the mandatory application of mandatory waiver principles in many circumstances. However, I do not share the Majority’s distaste for finding waiver in this case. Both parties were represented by counsel. No objections were lodged in the trial court. While it is troubling that trained lawyers and an experienced trial judge would allow the hearing to proceed as it did, waiver is the оnly possible outcome in this case.
For these reasons, I concur in the outcome reached by the Majority.
. Wife's counsel on appeal was not her trial counsel. Wife’s counsel on appeal was counsel to one of the parties on appeal in the unpublished memorandum decision upon which she relies in the case before us.
. Pennsylvania Rule of Evidence 603 mirrors this requirement, providing that “[b]efore testifying, a witness must give an oath or affirmаtion to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience." Pa.R.E. 603.
. In addition to the Freeman case cited by the Majority, in Dunsmore v. Dunsmore,
. The unsworn deposition testimony was offered for use at trial. The purpose for which the deposition testimony was offered is not clear from the Wenham opinion.
. In a footnote, the Majority chides the lax practice of family law attorneys and courts and encourages them to adopt formality in their practice by abiding by the Rules of Civil Procedure. Maj. Op. at 731 n. 3. I agree that to the extent some counsel and trial courts are lax, the legal profession, litigants, and the judicial system require adherence to the rules of procedure and evidence to preserve confidence in the outcome of cases. Trial courts should be diligent and trial counsel should insist, by objection to laxity, that the appropriate procedures are followed.