Downey v. Downey

• Decision Date: 15 November 1990
• Parties: William C. DOWNEY v. Elsie L. DOWNEY, Appellant.
• Court: Pennsylvania Superior Court

Page 674

582 A.2d 674

399 Pa.Super. 437

William C. DOWNEY v. Elsie L. DOWNEY, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 13, 1990.

Filed Nov. 15, 1990.

Elsie L. Downey, pro se.

Philip K. Core, Pittsburgh, for appellee.

Before KELLY, FORD ELLIOTT and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from an equitable distribution order entered by the trial court.

Appellant presents the following issues for review: (1) whether the trial court erred in awarding appellee 60% of the marital real property without considering: the length of separation of the parties, the length of time involved in court proceedings, the premarital assets that were used to acquire the marital real property, and appellant's contributions towards preserving and maintaining the marital property; (2) whether the trial court erred in failing to consider the effect of its equitable distribution award upon appellant; (3) whether the trial court erred in concluding that appellant has income which cannot be substantiated; (4) whether the trial court erred in concluding that the certificates of deposit were marital property, where appellee transferred the certificates to his children and made no claim to the funds for a lengthy period of time; ¹ (5) whether the trial court's order violated the Equal Rights Amendment to the Pennsylvania Constitution; and (6) whether the trial court erred in disallowing testimony regarding appellant's claim for counsel fees, and if so, whether the trial court erred in failing to appoint a master to hear this testimony. For the reasons set forth below, we affirm in part and reverse in part the order of the trial court and remand for further hearing.

Before addressing the issues raised by appellant, it is necessary to recount the relevant facts of this case. Appellant, Elsie Downey (wife) and appellee, William Downey (husband) were married in Hawaii on October 7, 1945. Following their marriage, the parties returned to Pittsburgh, Pennsylvania, where they acquired the marital property which is the subject of this dispute. Specifically, the property consisted of a parcel of land located in the Sewickley area of Pittsburgh. At the time of purchase, a house existed on the land. The parties paid a total of $7,000.00 for the property; $4,000.00 of this amount was borrowed from appellant's mother ² with the remainder of the purchase price supplied by the parties from their earnings and/or savings. ³ Later in their marriage, appellee constructed a second dwelling on the property with the assistance of his brother-in-law and general contractors who were hired to complete the remaining work. This residence cost approximately $11,000.00 to construct. The first house was thereafter used as a rental property.

Due to marital disharmony, the parties separated on July 4, 1969, and this litigation ensued. Following the parties' separation, appellee moved out of the marital residence. After he left the marital home, appellee paid some of the utility bills and taxes on the property, however, he did not significantly contribute to the preservation or maintenance of the marital property except to provide support for the parties' children. ⁴ Appellant, however, continued to reside in the marital home with the children, and continued to rent the other dwelling. During this time, appellant paid all the taxes on the property and maintained the property and the dwellings.

During the parties' marriage and period of separation, appellant was employed in various jobs at Dixmont Hospital, the Allegheny County Health Department and the Sewickley Public School System. Appellee was also continuously employed throughout the marriage and separation period, primarily at Jones & Laughlin Steel Co. (now LTV Steel Co.). Since the commencement of the divorce action, both parties have retired and receive pension and/or social security benefits.

Neither party initiated divorce proceedings until 1982 when appellee filed a divorce complaint. Throughout the next seven years, the parties engaged in discovery proceedings relating to the equitable distribution of the parties' marital property. Also during this time period, the parties engaged in litigation relating to the distribution of appellee's pension and the bifurcation of the divorce action from the equitable distribution matters. Hearings on the equitable distribution matters were finally held before the trial court in June and July, 1989. On July 12, 1989, the trial court issued its order and memorandum in support thereof, in which appellant was awarded the marital residence. However, the trial court directed appellant to pay appellee 60% of the value of the real property plus 10% simple interest. ⁵ In addition, the trial court denied the parties' requests for alimony, counsel fees and equitable distribution. The parties were thereafter divorced by decree entered on July 24, 1989.

Appellee filed exceptions to the trial court's equitable distribution order on July 31, 1989. Appellant contested the timeliness of the exceptions and filed a motion to strike appellee's request for post-trial relief. The trial court denied the motion on September 22, 1989, and subsequently found appellee's exceptions to have been timely filed. See Memorandum and Order of Trial Court, dated 1/29/90. Following the trial court's denial of appellant's motion to strike, appellant was given permission to file exceptions within ten days of the trial court's September 22, 1989 order. See Order, dated August 8, 1989. Appellant filed her motions for post-trial relief on October 10, 1989. Appellee challenged the timeliness of appellant's post-trial motions and filed a motion to strike appellant's motion for post-trial relief; appellee's motion was denied by the trial court. ⁶ On November 30, 1989, the trial court entered an order which denied both parties' post-trial motions and made final its order of July 12, 1989. Appellant thereafter filed this timely pro se appeal on December 29, 1989. Although appellant petitioned the trial court to stay the effect of its order, appellant's request was denied on February 20, 1990.

On appeal to this court, appellee filed a motion to dismiss the appeal because of appellant's failure to include the hearing transcript in the reproduced record and failure to file the designated reproduced record on appellee. Although appellee's motion was denied, he was given leave to present this issue to the panel.

Before proceeding to the merits of this appeal, we must first determine whether appellant's post-trial motions were timely filed, and if not, whether this appeal should be quashed. With respect to this issue, the Pennsylvania Supreme Court has mandated that where a trial court ignores a party's failure to file a timely request for post-trial relief and addresses the merits of the motions, an appellate court is not free to quash the appeal. See Kurtas v. Kurtas, 521 Pa. 105, 109, 555 A.2d 804, 806 (1989). In this case, the trial court denied appellee's objection to appellant's untimely post-trial motions, and reviewed the merits of appellant's post-trial motions. See Trial Court Supplemental Memorandum, dated February 9, 1990. Therefore, as directed by our Supreme Court, we are precluded from quashing the appeal on this basis.

The next preliminary matter which we must address involves appellee's motion to dismiss the appeal because of appellant's failure to comply with Rules 2154 and 2188 of the Pennsylvania Rules of Appellate Procedure. Appellee argues that the appeal should be dismissed because appellant failed to include a copy of the entire hearing transcript in the reproduced record. Further, appellee alleges that appellant's failure to serve him with a copy of the designated reproduced record prevented him from designating other parts of the record for review by this court, and did not put him on notice as to the parts of the record upon which appellant relied. We find these arguments to be without merit.

Pa.R.A.P. 2156 expressly permits an appellee to file his own supplemental reproduced record with the court where the parties are unable to cooperate on the preparation of the reproduced record. Once it became apparent to appellee that the entire transcript was not contained in the reproduced record, appellee could have supplemented the record by the addition of the transcript or any other material which he deemed to be relevant. In addition, a copy of the hearing transcript is contained in the certified record; thus, appellant's failure to include this document in its entirety in the reproduced record does not preclude us from engaging in meaningful review of the issues raised by appellant. See e.g., O'Neill v. Checker Motors, Corp., 389 Pa.Super. 430, 433, 567 A.2d 680, 681-682 (1989) (appellate court will decline to quash an appeal where effective appellate review is not precluded by the deficiencies of appellant's brief.). Accordingly, we deny appellee's motion to dismiss the appeal, and will proceed to address the issues raised by appellant.

In evaluating the propriety of an equitable distribution order entered by the trial court,

our standard of review is whether the trial court, by misapplication of law, or failure to follow proper legal procedure, abused its discretion.... Moreover, 'an abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.' ... Specifically, we measure the circumstances of the case, and the conclusions drawn by the trial court therefrom[,] against the provisions of 23 P.S. § 401(d), and the avowed objectives of the Divorce Code, that is, to 'effectuate economic justice between [the] parties ... and insure a fair and just determination of their property rights.' 23 P.S. § 102(a)(6).

Zollars v. Zollars, --- Pa.Super. ----, ----, 579 A.2d 1328, 1330 (1990) (internal citations omitted) (opinion by Kelly, J.), citing Hutnik v. Hutnik, 369 Pa.Super. 263, 266-267, 535 A.2d 151, 152 (1987) and ...