Barner v. Barner

• Decision Date: 01 June 1987
• Citation: 527 A.2d 122,364 Pa.Super. 1
• Parties: Harold L. BARNER, Appellant, v. Carol A. BARNER. 464 Harrisburg 1986
• Court: Pennsylvania Superior Court

Page 122

527 A.2d 122

364 Pa.Super. 1

Harold L. BARNER, Appellant, v. Carol A. BARNER.

464 Harrisburg 1986

Superior Court of Pennsylvania.

Argued Feb. 19, 1987.

Filed June 1, 1987.

Michael K. Hanna, Lock Haven, for appellant.

H. Denning Mason, III, State College, for appellee.

Before WIEAND, OLSZEWSKI and TAMILIA, JJ.

TAMILIA, Judge:

Plaintiff/appellant timely appeals from the lower court Order dismissing his exceptions to the report and recommendations of the hearing officer rendered in response to appellant's request for equitable distribution, alimony pendente lite, alimony, custody and child support, all raised in his complaint in divorce, filed July 20, 1984, and the amendment thereto. The parties received a bifurcated divorce decree on April 2, 1985 with the lower court reserving jurisdiction on the above related issues.

Although we agree with defendant/appellee, that appellant's appellate brief's statement of the case is inadequate and fails to follow the precepts mandated by Pa.R.A.P. 2117(a), we will not quash his appeal for that reason. The defects appearing in appellant's brief are not "substantial" within the meaning of Pa.R.A.P. 2101 and do not mandate our quashing the appeal.

Appellee also contends that dismissal is warranted because of appellant's failure to comply with Pa.R.C.P. 1920.55(a), which provides:

Rule 1920.55. Master's Report. Notice. Exceptions. Final Decree

(a) Within ten days after notice of the filing of the master's report has been mailed, exceptions may be filed by any party to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to entry of the final decree, leave is granted to file exceptions raising those matters. (Emphasis added).

All of appellant's exceptions are couched in the following manner: "The Hearing Officer erred in finding that:" followed by a direct quote from the master's report. (Record item # 14). Appellee claims these responses are improper as appellant failed to explain what he would have the master find in their place.

In support of his claim, appellee argues that the Supreme Court's Opinion in Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985), "implicity" approved detailed exceptions by quoting exceptions to a master's report, which stated the master's finding, the excepting party's desired finding and the general reason why the excepting party's position is correct. ¹ However, the Estep Court never addressed the issue of what constitutes a proper exception under Pa.R.C.P. 1920.55 and the fact that the Court approved of certain exceptions without comment cannot be construed to mean that those exceptions are the exclusive model for what constitutes a proper exception under Rule 1920.55.

Here, we must determine whether appellant's exceptions are drafted within the meaning of Rule 1920.55(a)'s requirement that "[e]ach exception shall set forth a separate objection precisely and without discussion." In interpreting the Rules of Civil Procedure, we are to consider the prior practice, including other rules upon the same or similar subjects, in the area governed by the rule in question. Pa.R.C.P. 127(c)(5); Union National Bank and Trust Company of Sounderton v. Walker, 315 Pa.Super. 37, 461 A.2d 623 (1983). We find that our earlier decision in Dudash v. Dudash, 313 Pa.Super. 547, 460 A.2d 323 (1983), dealing with Pa.R.C.P. 1518, is controlling in this case. Although Rule 1518 was rescinded effective January 1, 1984--as part of a series of amendments abolishing the distinction which existed in post-trial practice between actions at law and actions in equity ²--case law interpreting its provision is applicable to Pa.R.C.P. 1920.55(a) because of the great similarity in language both rules share. Former Rule 1518 provided as follows:

Rule 1518. Exceptions [Rescinded]

Within twenty (20) days after notice of the filing of the adjudication, exceptions may be filed by any party to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, to the decree nisi or in cases where requests for findings of fact or conclusions of law have been submitted by leave of court to a failure or refusal to find any matter of fact or law substantially as requested. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived, unless, prior to final decree, leave is granted to file exceptions raising these matters. (Emphasis added).

Thus the format for exceptions under the two rules is identical, as illustrated by the emphasized portions of both rules above. ³

In Nord v. Devault Contracting Company, Inc., 460 Pa. 647, 334 A.2d 276 (1975), the Supreme Court held that a general exception to an entire Order and Decree of the lower court failed to comply with Pa.R.C.P. 1518's requirement that exceptions state objections "precisely" and thus was entirely ineffective. In Dudash, supra, we expanded on this ruling by the Supreme Court in holding that exceptions which simply stated that the excepting party excepts to a particular finding of fact or conclusion of law by number, followed by a direct quote of that finding or conclusion, were adequately done under Pa.R.C.P. 1518. ⁴ We concluded, in Dudash, supra at 552, 460 A.2d at 325, that such exceptions were "separately and concisely stated with a precise reference to the matter to which objection is made" in full compliance with Pa.R.C.P. 1518's requirement.

Like former Rule 1518, Pa.R.C.P. 1920.55 requires only that each exception set forth a separate objection and that the objection be stated precisely and "without discussion". Appellant has set forth only one separate objection in each exception. In quoting the finding of fact he found objectionable, appellant could not have been more precise. Since Rule 1920.55 specifically prohibits an excepting party from discussing his objections in the exceptions, we find that by going no further appellant's exceptions are in compliance with the rule. Therefore, we find meritless appellee's argument that appellant's exceptions were insufficient. However, exceptions set forth in a more detailed format such as those used in Estep, supra, which pinpoint the exact objection and its basis without discussion or attachments, are preferable because their clarity and greater precision allows more meaningful judicial review with less risk of misconstruing the nature of the objection. We now turn to appellant's claims on appeal.

Based on the hearing officer's recommendations, the lower court awarded appellant child support from appellee in the amount of $20 per week for the support of the parties' minor child, Matthew Barner, age nine (9), and ruled that appellee has satisfied her duty to provide support for the parties' other child, Jeffrey Barner, age eighteen (18), and that no further sum is due or owing for his support. Appellant claims that the child support awarded should have been effective from the date of his filing the complaint in divorce, July 20, 1984, and not merely retroactive to the filing of his subsequent "Petition for Support," as the lower court ordered. The certified record on appeal discloses a disconcerting irregularity in the filing procedure employed by appellant below. The hearing officer and trial judge fixed the filing date of the appellant's petition for support as being May 10, 1985. As stated by the hearing officer in his report:

The Hearing Officer notes that the petition for support in this matter is dated May 10, 1985. The exact date of the filing of the document is not disclosed on the document ... Mr. Barner would thus be entitled to child support ... from May 10, 1985.

....

... Again, the support petition was filed in May of 1985. Under the Centre County practice and Rule of Civil Procedure 1910-17a, support orders become effective as of the date of filing of a support complaint. The Hearing Officer is thus, required to make the support order effective retroactive to the date of filing--May 10, 1985.... The effective date of the order for child support ... shall be May 10, 1985.

(Report and Recommendation of Hearing Officer, hereinafter "Report," at 2-3, Record item # 16). However, upon careful examination of appellant's petition in the certified record on appeal, (Record items, # 19 and 20), we are unable to find the date May 10, 1985 on any part of the petition or its attached documents. Instead, we find that the petition's verification is dated April 15, 1985; the certificate of service, signed by appellant's counsel, is dated May 7, 1985. Most importantly, the official prothonotary stamp of the lower court is dated September 4, 1986, fifty-one (51) days after appellant's notice of appeal, dated July 15, 1986, was filed.

It is well settled that an appellate court can only consider the certified record on appeal when reviewing a case. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986); Anmuth v. Chagan, 295 Pa.Super. 32, 440 A.2d 1208 (1982). Appellant's placing at issue the proper date from which the child support award should be calculated from, illuminates the discrepancy in the filing date of the petition for support. Even though the parties and the lower court do not contest the May 10, 1985 date as being the proper filing date for appellant's petition, since the certified record directly contradicts their determination, we would be justified, in accordance with Pa.R.A.P. 1926, in remanding to the lower court with instructions for that court to clarify the record and to make the record conform to the truth. Ritter, supra; Johnson v. Keystone Insurance Company, 299 Pa.Super. 187, 445 A.2d 517...