Equitable Distribution

Equitable Distribution Order Was Enforced Because The Trial Court Proceeding Was Profoundly Flawed And No Objections Were Made.

In the equitable distribution appellate case of Tecce v. Hally, PICS Case No. 14-1924 (Pa. Super, Nov. 21, 2014) the Honorable David N. Wecht, writing on behalf of the Pennsylvania Superior Court, ruled that the trial court hearing that granted an order to enforce an equitable distribution order was profoundly flawed as to the taking of evidence.  The trial court’s order was affirmed.

Appellant filed for divorce in 2008, requesting a no fault divorce, equitable distribution of marital property under 3502(a) and spousal support under 3701. On Jan. 13, 2013, the court signed a decree and order divorcing the parties. On Nov. 8, 2013, appellant filed a petition for enforcement requesting the court to order husband to sign a deed transferring the marital residence to wife’s name so that she could sell the residence to enforce the alimony provision of the parties’ equitable distribution order and distribute child support arrears to wife. Husband’s counsel argued that the alimony provision of the equitable distribution order was no longer enforceable against the husband. The trial court entered an order requiring the husband to cooperate with the sale for the residence, but (1) did not order him to sign title over to wife, (2) found that the parties had verbally agreed that husband would keep wife on his health insurance in exchange for wife foregoing alimony payments, (3) denied wife relief with regard to child support arrears and (4) denied wife’s request for attorney fees. Wife appealed challenging the methods by which the trial court conducted the hearing.

A review of the record showed that the hearing was deficient. Rule of Evidence 603 required that witnesses be sworn before providing testimony but a review of the record showed that neither appellant nor appellee was administered an oath prior to providing their statements. Thus, appellant’s and appellee’s testimony was a nullity. The lack of an oath meant that there was no testimony and no record evidence upon which the trial court could support its order.

Furthermore, neither party was subject to cross-examination. However, neither party nor counsel objected to the procedure used by the trial court and the court could not ignore the complete absence of objection. An objection had to be raised before the trial court to be preserved. Pennsylvania courts have held that failure to object to unsworn testimony subjected a litigant to waiver.

The proceeding in the trial court was fundamentally flawed when the trial court made factual findings and credibility determinations without taking testimony, without receiving evidence and without allowing cross-examination. However, the law clearly established that the court could not afford relief when no objection had been made. Precedent required the court to invoke waiver sua sponte. Trial court affirmed.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 37 PLW 1179 (December 9, 2014)

Filed Under: Family Law: Equitable Distribution

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