J-S19031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ANN S. BORIS                               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    VAMSIDHAR VURIMINDI                        :
                                               :
                       Appellant               :       No. 77 EDA 2017


                  Appeal from the Order December 16, 2016
             in the Court of Common Pleas of Philadelphia County
            Domestic Relations at No.: August Term 2010 No. 8575


BEFORE:      SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                  FILED MAY 30, 2018

       Husband, Vamsidhar Vurimindi, appeals pro se from the order

announcing the bifurcated divorce decree entered on December 16, 2016.1

We affirm.

       We take the following facts and procedural history from our independent

review of the record and the trial court’s April 21, 2017 opinion. Husband and

Wife, Ann S. Boris, married on October 28, 2005. On March 13, 2010, they

separated, and Wife filed a complaint in divorce on August 27, 2010. The


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1 On March 3, 2017, after issuing a rule to show cause as to the interlocutory
nature of Husband’s equitable distribution issues, and receiving Husband’s
response thereto, we entered an order advising him that only his issues
related to the divorce decree are final and appealable at this time. (See Order,
3/03/17). Therefore, we quash Husband’s equitable distribution issues
without prejudice.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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complaint required several reinstatements. The final reinstatement occurred

on June 5, 2012. Husband filed his answer and counterclaim on July 2, 2012,

seeking, inter alia, alimony and equitable distribution.

        The trial court opinion aptly details the ensuing procedural history.

              On June 5, 2013, an order approving grounds under section
        3301(d)[2] of the Divorce Code3 was entered. Divorce Master
        Dennis O’Connell held two hearings on March 26, 2014, and
        August 29, 2014. As stated in Master O’Connell’s report, it was
        necessary for [him] to abruptly conclude the second hearing as
        the result of Husband[’s] disruptive behavior and shouting of
        obscenities. The master left the record open for submission of
        additional documentation and[,] on June 19, 2015, filed his report.
        Husband filed his praecipe for a trial de novo on July 9, 2015. On
        August 26, 2015, the . . . supervising judge of family court[]
        assigned the de novo divorce hearing to the [trial court].

              Husband has been incarcerated since October 2013,
        following a determination by the criminal court that he violated
        the terms of his bail. The criminal docket shows that during the
        pendency of Husband’s criminal case, there were numerous orders
        for mental health evaluations, with [at] least one interim
        determination that was later superseded, that he was incompetent
        to stand trial. On February 7, 2014, Husband was convicted of
        two counts of stalking pursuant to 18 Pa.C.S.[A.] section
        2709.1(a[)(1]) and one count of disorderly conduct pursuant to
        18 Pa.C.S.[A.] section 5503(a)(1).

              Husband has represented himself during these divorce
        proceedings. This divorce action has been unduly protracted due
        to the high volume of filings by Husband. During the course of
        the divorce proceedings, Husband has filed in excess of twenty-
        five motions or petitions[.] . . . In addition, Husband has filed four
        appeals to the Superior Court, not including the instant appeal, all
        of which have been quashed.


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2   Irretrievable breakdown.

3   23 Pa.C.S.A. §§ 3301-3333.

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             Th[e trial] court held three hearings on Husband’s praecipe
       for a de novo trial, which were scheduled on July 25, 2016,
       December 12, 2016 and December 16, 2016.                 Wife was
       represented by counsel at each of the hearings and Husband
       proceeded as self-represented. Due to Husband’s incarceration,
       he participated by telephone at each listing and the prison limited
       the length of each of the hearings to approximately two hours. . .
       .

(Trial Court Opinion, 4/21/17, at 3-4) (record citations and unnecessary

capitalization omitted).

       On December 16, 2016, the trial court filed an order entering the divorce

decree, finding both parties have “sufficient economic protection pending

disposition of the economic matters[,]” retaining jurisdiction to determine

equitable distribution, and allowing Wife to maintain possession of the marital

home.     (Id. at 4) (unnecessary capitalization omitted).     Husband timely

appealed on January 3, 2017.4

       Husband raises ten questions for this Court’s review.

       (01) Whether [the trial court] made an error denying Husband’s
       petition to compel Wife for counseling?

       (02) Whether [the trial court] made an error in denying
       Husband’s petition to assert cross-claims?

       (03) Whether [the trial court] made an error in denying
       Husband’s petition for injunction and appoint trustee in
       receivership?

       (04) Whether [the trial court] made an error by awarding
       excusive possession of Husband’[s] properties to Wife?
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4Husband filed a timely court-ordered statement of errors complained of on
appeal on January 23, 2017. The court filed an opinion on April 21, 2017.
See Pa.R.A.P. 1925.

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       (05) Whether [the trial court] made an error in denying
       Husband’[s] motion for sanctions against Wife?

       (06) Whether [the trial court] made an error in denying
       Husband’s motion to compel Wife to provide accommodation for
       Husband?

       (07) Whether [the trial court] made an error in denying
       Husband’[s] motion for discovery, home plan, and tax returns?

       (08) Whether [the trial court] made an error in quashing
       Husband’[s] subpoenas upon Mary, NC, NT, and NCI?

       (09) Whether [the trial court] made an error by ignoring
       Husband’[s] motion to stay proceedings; and ignoring writ of
       mandamus against Divorce Master Dennis O’Connell?

       (10) Whether [the trial court] made an error entering bifurcated
       divorce decree?

(Husband’s Brief, at 2-3) (unnecessary capitalization omitted).

       Our review of the record in this matter reveals that Husband’s second

through eighth questions pertain to the equitable distribution portion of this

case. (See id. at 2-3, 15-42). Therefore, we lack jurisdiction to review those

claims, and they are quashed.5 (See supra at *1 n.1).




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5 Also, although not included in his statement of questions involved or fairly
suggested thereby, see Pa.R.A.P. 2116(a), Husband argues that Wife’s failure
“to safeguard exculpatory evidence” resulted in his criminal prosecution.
(Husband’s Brief, at 30 (unnecessary capitalization omitted); see id. at 32).
The criminal case is not before us. Therefore, we lack jurisdiction to review
this claim. (See id. at 30-32). Moreover, the argument would be waived for
Husband’s failure to include it in his statement of questions involved. See
Pa.R.A.P. 2116(a).

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      In Husband’s first issue, he argues that “[the trial court] made an error

denying [his] petition for counseling[.]” (Id. at 13 (unnecessary capitalization

omitted); see id. at 14). Husband’s issue does not merit relief.

      “Our standard of review in divorce actions is well settled. [I]t is the

responsibility of this court to make a de novo evaluation of the record of the

proceedings and to decide independently . . . whether a legal cause of action

in divorce exists.” Rich v. Acrivos, 815 A.2d 1106, 1107 (Pa. Super. 2003)

(citation and internal quotation marks omitted).

      There are only three situations that present the court with an
      opportunity to order counseling. Section 3302 of the Divorce Code
      provides:

            (a) Indignities.—Whenever indignities under section
            3301(a)(6) (relating to grounds for divorce) is the
            ground for divorce, the court shall require up to a
            maximum of three counseling sessions where either
            of the parties requests it.

            (b) Mutual consent.—Whenever mutual consent
            under section 3301(c) is the ground for divorce, the
            court shall require up to a maximum of three
            counseling sessions within the 90 days following the
            commencement of the action where either of the
            parties requests it.

            (c) Irretrievable breakdown.—Whenever the court
            orders a continuation period as provided for
            irretrievable breakdown in section 3301(d)(2), the
            court shall require up to a maximum of three
            counseling sessions within the time period where
            either of the parties requests it or may require such
            counseling where the parties have at least one child
            under 16 years of age.

      23 Pa.C.S.A. § 3302(a), (b), (c).


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           The law is clear that the trial court is under no obligation to
      order marriage counseling if no reasonable prospect of
      reconciliation exists. [See] Liberto v. Liberto, 520 A.2d 458
      (1987)[.] . . .

Id. at 1108 (case citation formatting provided).

      More specifically:

      Section [3302] must be construed in a common sense manner. It
      was intended to provide additional time and counseling where the
      possibility of reconciliation existed. It was not intended to compel
      a court to engage in futile and useless exercises, nor was it
      intended to provide a spouse with the means to delay the entry of
      a decree in divorce for no good reason.

Liberto, supra at 461 (citation omitted).

      Here, Husband concedes, “Wife opposed counselling.” (Husband’s Brief,

at 14). In spite of this concession, he maintains that there was “a reasonable

probability that counselling would have allowed Husband and Wife to reconcile

their differences[,] given that on [September 10, 2013], Wife told Husband

that she will return to [him].” (Id.). However, on September 10, 2012, after

a hearing on Husband’s petition for counseling, the trial court entered an order

denying it. (See Order, 9/10/12, at 1). In fact, four years later, after three

subsequent hearings, the trial court found that irreconcilable differences

existed where “Wife has demonstrated compelling circumstances [] for the

entry of the decree in divorce.” (Order, 12/16/16, at 1).

      The record supports the court’s finding of irreconcilable differences

where the parties had lived separate and apart for approximately two and a

half years at the time Husband’s petition for counseling was denied, and they


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were still apart six years later when the trial court granted the divorce decree.

Accordingly, under a common sense construction of section 3302, we conclude

that the court properly denied Husband’s petition for counseling where there

was no reasonable probability of reconciliation.6 See Rich, supra at 1108;

Liberto, supra at 288.

       In his ninth issue, Husband argues that the divorce master erred in

failing to grant his motion to stay the proceedings due to his incompetence.

(See Husband’s Brief, at 42-45). Husband’s claim is waived.

       We observe that:

             In instances where [divorce] claims are referred to a
       master, the provisions of Pa.R.C.P. 1920.55 govern. This rule
       requires that any objections to the master’s report . . . or to any
       matters which occurred during the hearing, are to be included in
       exceptions filed within ten days after notice of the filing of the
       master’s report is mailed. When exceptions are filed, the court is
       to hear argument on the exceptions and enter an appropriate final
       decree. . . .

             In counties where the hybrid procedure is employed and the
       matter is first heard by a master followed by a de novo trial court
       hearing, the court will disregard the master’s report. . . . The court
       then issues an order based upon the testimony heard and
       information presented in the hearing. . . .

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6 Moreover, Husband’s argument that the trial court should have dismissed
Wife’s complaint for failure to provide notice of the availability of counseling
is waived where Husband did not object to the complaint’s omission, and
instead filed an answer. (See Trial Court Docket, at 2). Indeed, Husband
fails to provide any legal authority to support his argument that such a
procedural error requires dismissal of the complaint. (See Husband’s Brief,
at 14). Finally, this oversight did not prejudice Husband where he petitioned
for counseling ten days after receiving the complaint, and the trial court held
a hearing on his request. (See Trial Court Docket, at 2).


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       . . . Because this practice requires the court to hold a de novo
       hearing after the matter has been heard before a master, the
       initial hearing becomes a nullity, as does the master’s report. . . .

Pavie v. Pavie, 606 A.2d 1207, 1209-10 (Pa. Super. 1992) (citation omitted).

       Here, after the master filed his report, the court held a thorough de novo

hearing in which it received testimony and exhibits from both parties, at the

request of Husband. (See Trial Ct. Op., at 4). Therefore, the master’s report

is a legal nullity, and Husband waived his opportunity to challenge it when he

failed to file exceptions and instead filed a praecipe for a trial de novo.7 See

Pavie, supra, at 1209.

       In his tenth issue, Husband maintains that the trial court abused its

discretion in ordering a bifurcated divorce decree. (See Husband’s Brief, at

49-53). This issue lacks merit.

             Bifurcation, the severance of divorce claims from economic
       claims, is authorized by the Divorce Code. Our Rules of Civil
       Procedure recognize that:

              ([c]) The court need not determine all claims at one
              time but may enter a decree adjudicating a specific
              claim or claims. [. . .]


____________________________________________


7 We note for sake of completeness that Husband was declared incompetent
in his criminal trial, on October 11, 2012, deemed competent on November
29, 2012, and deemed incompetent again on December 13, 2012. (See
Criminal Docket, CP-51-CR-8022-2012, at 8-9). Although the criminal docket
does not reflect when Husband was declared competent again, it does
evidence that he began filing a plethora of motions beginning on August 9,
2013, and proceeded to a trial where he was found guilty. (See id. at 12).
Therefore, from at least 2010 until October 11, 2012, and then after August
9, 2013, there is no evidence that Husband was incompetent to proceed in
this divorce matter.

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     Pa. R.C.P. 1920.52([c])[.] . . . Additionally, the Divorce Code
     contains the following recognition of the procedure:

           Bifurcation.—In the event that the court is unable for
           any reason to determine and dispose of the matters
           provided for in subsection (b) [ancillary claims] within
           30 days after the report of the master has been filed,
           it may enter a decree of divorce or annulment. Upon
           the request of either party and after a hearing, the
           court may order alimony pendente lite, reasonable
           counsel fees, costs and expenses and may make a
           temporary order necessary to protect the interests of
           the parties pending final disposition of the matters in
           subsection (b).

     23 Pa.C.S.[A.] § 3323(c). . . .

           . . . [W]hen a court considers whether to bifurcate:

                The eventual decision should be the approach
           which is fair to both parties.

                 Since the decision to bifurcate is discretionary,
           we will review lower court decisions pertaining to
           bifurcation by using an abuse of discretion standard.
           So long as the trial judge assembles adequate
           information, thoughtfully studies this information, and
           then explains his decision regarding bifurcation, we
           defer to his discretion.       In other words, this
           determination should be the result of a reflective
           examination of the individual facts of each case.

           Thus, we require not only an on-the-record analysis of
     factors, but also a finding as to whether bifurcation would be fair
     under the circumstances, prior to the entry of a decision. . . .

Savage v. Savage, 736 A.2d 633, 644-45 (Pa. Super. 1999) (case citations

and footnote omitted).

     Instantly, the court explained:

     . . . [S]o, there are a number of financial issues that I still have to
     determine how to distribute the asset.

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            However, I do believe that there are compelling
      circumstances at this time for me to enter an entry of divorce. I
      am going to enter the divorce decree today. And I am going to
      hold under advisement, I retain jurisdiction of all economic issues,
      and that under Section C point [one] of section 3323, if the moving
      party has demonstrated that compelling circumstances exist for
      the entry of the decree, and that there are sufficient economic
      protections provided for each of the parties[.] I do believe that
      exists in this case, therefore, I do decree that [Wife] and
      [Husband] are hereby divorced from the bonds of matrimony.

              . . . [I]t is a bifurcated divorce[.] . . .

(N.T. Hearing, 12/16/16, at 100-01). We do not discern an abuse of

discretion.

      The court explained its reasons for bifurcation, after having had

the benefit of three partial days of hearing testimony, and the vast

record, including all economic documentation.               The parties had been

litigating the divorce for six years, since 2010. (See id. at 104; Trial

Court Docket, at 2). The case was assigned to the trial judge, on August

2015, after five years of litigation had already occurred. The trial court

observed that, in determining the equitable distribution of the marital

assets, it would be required to consider three real estate properties, an

escrow account of approximately $75,500.00, and the marital value of

the increase or decrease in value to a corporation and a limited liability

company. (See N.T. Hearing, 12/16/16, at 99-100).

      Further, the notes of testimony support the court’s conclusion that

there were “compelling circumstances” to enter the divorce decree. (Id.


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at 100). The record reflects Husband’s undetermined release date from

prison due to his misconduct, (see N.T. Hearing, 12/12/16, at 108); his

potential deportation issues, (see id. at 17; N.T. Hearing, 12/16/16, at

97-98); and Wife’s declining health, (see N.T. Hearing, 7/25/16, at 8-

9; N.T. Hearing, 12/16/16, at 94-95). Finally, the court ensured that

its decision to bifurcate the economic issues was fair to both parties by

ordering that “neither party may enjoin, encumber, or otherwise dispose

of any of the property that is before the [c]ourt in this divorce action.”

(N.T. Hearing, 12/16/16, at 101).

      Based on the foregoing we conclude that the trial court properly

exercised its discretion when it ordered the bifurcation of the divorce

decree. See Savage, supra at 644-45. Appellant’s tenth issue lacks

merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/18




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