Kepner v. Kepner

• Decision Date: 03 June 2015
• Docket Number: No. 603 MDA 2014,J-A03013-15,603 MDA 2014
• Court: Pennsylvania Superior Court
• Parties: FRANKLIN E. KEPNER, JR. Appellant v. TINE KEPNER A/K/A ANNE KEPNER Appellee

FRANKLIN E. KEPNER, JR. Appellant v. TINE KEPNER A/K/A ANNE KEPNER Appellee

J-A03013-15

No. 603 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

JUNE 3, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Decree March 17, 2014

In the Court of Common Pleas of Columbia County

Domestic Relations at No(s): 603 MDA 2014

BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.^*

MEMORANDUM BY MUNDY, J.:

Appellant, Franklin E. Kepner, Jr., (Husband) appeals from the March 17, 2014 final decree in divorce from his bonds of matrimony with Appellee, Tine Kepner (Wife). Husband raises various challenges to the trial court's economic awards for equitable distribution, alimony, and alimony pendent lite (APL). After careful review, we affirm in part and reverse in part.

A review of the certified record discloses the following pertinent procedural history of this protracted divorce case. On February 22, 2008, Husband filed a complaint in divorce including counts for no-fault divorce and equitable distribution of marital property. Wife filed an answer and counterclaim on March 17, 2008, including, inter alia, additional counts for alimony, APL, costs and expenses, and counsel fees. On June 28, 2010,upon agreement of the parties, the trial court appointed Michael Dennehy, Esquire as special master (the master) to address the divorce, equitable distribution, alimony, APL, counsel fees, and costs and expenses issues. Hearings before the master were conducted on December 14, 2010 and February 3, 2011. On November 10, 2011, the master filed a notice of filing a master's report. Wife filed exceptions on November 30, 2011, and Husband filed exceptions on December 22, 2011.¹

Specifically, Husband took exception to the master's report for its exclusion of Wife's personal injury award from marital property in light of the new Supreme Court case of Focht v. Focht, 32 A.3d 668 (Pa. 2011) (holding that settlement proceeds received post-separation by spouse in personal injury tort action, were marital property because cause of action accrued prior to separation, overruling Pudlish v. Pudlish, 796 A.2d 346 (Pa. Super. 2002)). Husband also took exception to the master's report for its failure to provide a final date for payment of APL, for awarding Wife alimony and counsel fees in light of her substantial non-marital assets, and for its alleged failure to properly account for certain rental value and asset dissipation in determining the equitable distribution award. See Husband's Exceptions to the Report and Recommendations of Special Master Filed on November 10, 2011, 12/22/11, at ¶¶ 1-7.

On October 25, 2012, the trial court issued an order remanding the matter to the master for recalculation of equitable distribution, alimony, and APL in light of Focht. Trial Court Order, 10/25/12, at 1 ¶¶ 1-4. The trial court also sustained in part Husband's exception to the master's consideration of the factors pertaining to potential offsets and/or credits relative to the sale value of the marital residence, directing the master to consider its November 17, 2011 order on the subject. Id. at 5. The trial court overruled Husband's remaining exceptions. Id. at 4.

On September 9, 2013, the master filed a notice of filing master's report on remand.² Husband filed exceptions to the master's report on remand on September 26, 2013. Therein, Husband alleged various errors connected with the master's new APL recommendation. Husband's Exceptions to the Master's Report on Remand, 9/26/13, at ¶ 7. Wife filed exceptions to the report on September 30, 2013. Thereafter, Husband filed "counter exceptions" on October 22, 2013, reiterating, inter alia, most of his exceptions to the master's original report. Husband's Counter Exceptions to the Master's Report on Remand, 10/22/13, at ¶¶ 1-9. The trial court denied all exceptions of both parties by order filed March 7, 2014. On March 13, 2014, Wife filed a praecipe for entry of a final divorce decree. The decreewas filed on March 17, 2014. Husband filed a timely notice of appeal on April 4, 2014.³

Subsequent to the filing of the instant appeal, Wife filed a motion to quash, asserting the order appealed from was not a final order. On June 20, 2014, this Court issued a per curiam order denying Wife's motion without prejudice to present the issue before this Panel. Both parties have addressed the issue in their appellate briefs.

On appeal, Husband raises the following issues for our review.

I. Whether this appeal should be quashed in light of the [trial] court's order of March 5, 2014[,] which stated that the report and recommendation of the [m]aster are adopted as a final order of court[, i.e., "]the parties are advised of their right to file a motion for reconsideration pursuant to Pa.R.C.P. 1930.2 (b) or a notice of appeal pursuant to Pa.R.A.P. 903["?]

II. Whether the [trial] court erred in awarding [Wife] alimony in light of her substantial non-marital assets, in light of the ages of the parties and in light of the fact that the [m]aster's recommendation of November 2011 recommended alimony of one year[,] which was to terminate in November 2012[?]

III. Whether the [trial] court erred in substantially increasing []Husband's [APL] obligation retroactive to December 9, 2010 in light of Wife's substantial assets, in light of the parties ages and in light of the fact that Husband has been paying [APL] for a period of in excess of five years[?]

IV. Whether the [trial] court erred in awarding [Wife] payment toward her counsel fees given the

fact that she has substantial assets and given the fact that []Husband has been paying [APL] for in excess of five years together with medical insurance and given the further fact that the master originally ordered that [APL] was to terminate in February 2012[?]

V. Whether the [trial] court erred in regard to its order concerning non[-]marital property because its subsequent order contradicts an order of the [trial] court after [m]aster's hearing on or about November 17, 2011[?]

VI. Whether the [trial] court erred in not permitting a hearing and/or a conference on the petition to modify [APL]/support[?]

VII. Whether the [trial] court erred in not allowing the []Husband to take discovery including the deposition of the []Wife[?]

Husband's Brief at 2-3.

We initially address Wife's motion to quash. In his notice of appeal, Husband purports to appeal from the trial court's March 7, 2014 order denying the parties' exceptions to the amended master's report and finalizing the trial court's disposition of the parties' economic claims. Wife notes as follows.

An appeal to the economic claims raised in a divorce action can only be filed to the divorce decree, which is the final order. In the instant matter, Husband filed an appeal to the order disposing of the exceptions filed to the divorce master's report. For that reason alone, the instant appeal should be quashed.

Wife's Brief at 8. We agree that the March 7, 2014 order is not a final order.

Unless otherwise permitted by statute or rule, an appeal will lie only from a final order. Pa.R.A.P. 341. A final order has been defined as one which ends the litigation or disposes of the entire case. [Id.] Therefore, a pre-divorce decree distributing marital property is interlocutory. It cannot be reviewed until it has been rendered final by the entry of a decree in divorce.

Wilson v. Wilson, 828 A.2d 376, 378 (Pa. Super. 2003) (some citations omitted). However, Wife filed a praecipe for the entry of a final divorce decree on March 13, 2014, and the trial court entered the final decree on March 17, 2014. Thus, Husband's April 4, 2014 notice of appeal was filed after the entry of a final decree but merely referenced the wrong order. Accordingly, this court's jurisdiction is not implicated, and we will correct the caption to reflect an appeal from the final decree. See also Pa.R.A.P. 905(a)(5) (providing, "[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof). For these reasons, we decline to quash the appeal.

Husband's second issue asserts it was error for the trial court to award any alimony to Wife under the circumstances of the case. Husband's Brief at 16. Instantly, the trial court adopted the master's recommendation that Wife receive $1,500.00 per month in alimony from Husband for 12 months.⁴See Master's Recommendations to the Court, 11/10/11, at 1, ¶ 2; Master's Amended Recommendations to the Court, 9/9/13, 1, ¶ 2. The trial court rejected Husband's exceptions to this award. Trial Court Order, 10/25/12, at 4.

Our review of a challenge to a trial court's alimony award is subject to the following standard.

The role of an appellate court in reviewing alimony orders is limited; we review only to determine whether there has been an error of law or abuse of discretion by the trial court. Absent an abuse of discretion or insufficient evidence to sustain the support order, this Court will not interfere with the broad discretion afforded the trial court.

Smith v. Smith, 904 A.2d 15, 20 (Pa. Super. 2006) (citation omitted). "Proper exercise of discretion requires the [trial] court to apply the Divorce Code in a compassionate and reasonable manner so that the overriding goal of effectuating justice between the parties may be achieved." Edelstein v. Edelstein, 582 A.2d 1074, 1078 (Pa. Super. 1990) (citation omitted), appeal denied, 596 A.2d 157 (Pa. 1991).

We previously have explained that 'the purpose of alimony is not to reward one party and to punish the other, but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met.' Alimony 'is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor's ability to pay.' Moreover, 'alimony following a divorce is a secondary

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