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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAROL L. SBARBARO-MORTELLITI,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

STEPHEN MORTELLITI,

                         Appellant                   No. 1165 EDA 2014


                Appeal from the Order Entered March 11, 2014
              In the Court of Common Pleas of Delaware County
                    Domestic Relations at No(s): 07-9317

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.

MEMORANDUM BY OLSON, J.:                              FILED JULY 06, 2016

      Appellant, Stephen Mortelliti (“Husband”), appeals pro se1 from the

order entered on March 11, 2014. We affirm.

      The relevant factual background and procedural history of this case is

as follows.    On March 28, 1987, Husband married Carol L. Sbarbaro-

Mortellitti (“Wife”). Shortly thereafter, Husband set up what the trial court

titled the Stephen Mortelliti Profit Sharing Account (“the PSA”). The PSA was

a profit-sharing plan as that term is used in the Internal Revenue Code. Cf.

26 C.F.R. § 1.401–1 (discussing profit-sharing plans).        Husband also

established a retirement account at Merrill Lynch.




1
  Husband is licensed to practice law in this Commonwealth. During the
course of the trial court proceedings, Husband ceased being represented by
counsel and began representing himself.
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      On July 26, 2007, the parties separated. The next day, Wife filed for

divorce. In early 2011, the Honorable John L. Braxton, a senior judge of the

Court of Common Pleas of Philadelphia County, was specially assigned to

preside over the divorce proceedings. On February 7, 2011, a hearing was

held on a petition for contempt filed by Wife. In that petition, Wife alleged

that Husband violated prior discovery orders.

      Husband and his counsel failed to appear for that hearing. Eventually,

the trial court contacted Husband and directed him to appear that afternoon

so the hearing could continue in his presence.          At the conclusion of the

morning portion of the hearing, however, at which neither Husband nor his

counsel were present, Wife’s counsel asked to go off-the-record.              That

request was granted. Nothing further appears on the record until Husband

appeared that afternoon.

      On March 18, 2011, Husband filed a motion seeking Judge Braxton’s

recusal. In that motion, he argued that the off-the-record conversation held

on   the   morning    of   February   7,   2011   was   a   prohibited   ex   parte

communication.       He argued that such ex parte communication required

Judge Braxton to recuse himself from the instant proceedings. A hearing on

Husband’s recusal motion was held that same day. At the conclusion of the

hearing, the trial court denied Husband’s recusal motion.

      On September 23, 2011, the trial court bifurcated the divorce

proceedings. See 23 Pa.C.S.A. § 3323(c.1). On October 18, 2011, the trial



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court issued a divorce decree dissolving the matrimonial bond between

Husband and Wife. Thereafter, a hearing was held before a special master

regarding the equitable distribution of the parties’ property. On February 2,

2012, the hearing officer filed a report and recommendation.

       Wife   filed   an   appeal   of    the   hearing   officer’s   report   and

recommendation and requested a de novo hearing before the trial court. A

multi-day hearing ensued.      On March 11, 2014, the trial court issued an

amended final order equitably distributing the parties’ property. This timely

appeal followed.2

       Husband presents three issues for our review:

    1. Whether the [trial c]ourt abused its discretion when it denied
       Husband’s motion for recusal where it engaged in ex parte
       communications with Wife’s attorney?

    2. Whether the [trial c]ourt abused its discretion with regard to the
       [PSA] where it (a) valued the asset at $373,434.00 even though
       the record indicates that its value at the date of separation was
       only $22,940.00; (b) failed to factor in the joint marital debt
       owed on the account in the amount of $327,003.00; and (c)
       included the amount of $22,940.00 which was already included
       as a marital asset in the Merrill Lynch Profit Sharing Account?

    3. Whether the [trial c]ourt abused its discretion where it failed to
       account for the rental value of the marital home during Wife’s
       exclusive possession of it?

Husband’s Brief at 8.


2
  On April 17, 2014, the trial court ordered Husband to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On May 6, 2014, Husband filed his concise statement.
On July 25, 2014, the trial court issued its Rule 1925(a) opinion. All issues
raised on appeal were included in his concise statement.


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      In his first issue, Husband argues that the trial court erred by not

recusing. “We review the trial court’s denial of the recusal motion for abuse

of discretion.” Becker v. M.S. Reilly, Inc., 123 A.3d 776, 778 (Pa. Super.

2015) (citation omitted).       “A party seeking recusal bears the burden of

producing evidence to establish bias, prejudice, or unfairness which raises a

substantial   doubt   as   to   the    jurist’s      ability   to   preside        impartially.”

Commonwealth v. Watkins, 108 A.3d 692, 734 (Pa. 2014) (citations

omitted). When

      considering a recusal request, the jurist must first make a
      conscientious determination of his or her ability to assess the
      case in an impartial manner, free of personal bias or interest in
      the outcome. The jurist must then consider whether his or her
      continued involvement in the case creates an appearance of
      impropriety and/or would tend to undermine public confidence in
      the judiciary. This is a personal and unreviewable decision that
      only the jurist can make.         In reviewing a denial of a
      disqualification motion, we recognize that our judges are
      honorable, fair[,] and competent.

Commonwealth. v. Orie Melvin, 103 A.3d 1, 23 (Pa. Super. 2014)

(citation and internal ellipsis omitted).

      Husband     argues    that      the    trial    court    engaged        in     ex   parte

communication with Wife’s counsel. He further contends that the ex parte

communication, when viewed as part of the broader record, evidences bias.

Notably, in his statement of questions presented, Husband only argues that

the trial court erred in denying his recusal motion because of the ex parte

communication. See Husband’s Brief at 8. Thus, although we may view the

record as a whole, including the trial court’s statements made in open court,


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when determining if the trial court exhibited bias in light of the alleged ex

parte communication, see Commonwealth v. Stivala, 645 A.2d 257, 264

(Pa. Super. 1994), appeal denied, 655 A.2d 513 (Pa. 1994), we may not

reverse the trial court’s decision if no ex parte communication took place.

See Pa.R.A.P. 2116(a).

      We conclude that the trial court did not engage in prohibited ex parte

communications with Wife’s counsel. Throughout the pendency of this case,

the Code of Judicial Conduct provided that:

      Judges should accord to all persons who are legally interested in
      a proceeding, or their lawyers, full right to be heard according to
      law, and, except as authorized by law, must not consider ex
      parte communications concerning a pending proceeding.

Pennsylvania Code of Judicial Conduct, Canon 3A.(4) (West 2012) (emphasis

added).3    In this case, the trial court stated that the off-the-record

conversation with Wife’s counsel did not concern the pending proceeding.

N.T., 3/18/11, at 10. Husband presented no evidence at the recusal hearing

to suggest that the off-the-record conversation between the trial court and

Wife’s counsel concerned the merits of this case. As no prohibited ex parte

communication occurred, we ascertain no abuse of discretion in the trial

court’s denial of the recusal motion.



3
  In 2014, the former Code of Judicial Conduct was repealed and a new Code
of Judicial Conduct was promulgated. See 44 Pa.B. 455 (Jan. 25, 2014). As
the notice of appeal in this case was filed prior to the new Code of Judicial
Conduct’s effective date, all citations are to the former Code of Judicial
Conduct.


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      In his second issue, Husband argues that the trial court erred in its

calculation of the PSA’s value.      First, Husband argues that the evidence

established the PSA’s value was $22,940.00. Second, Husband argues that

the trial court ignored the fact that the PSA was encumbered by a significant

amount of debt. Finally, he argues that a portion of the PSA was already

included in the marital estate as part of another asset.     “Our standard of

review when assessing the propriety of an order effectuating the equitable

distribution of marital property is whether the trial court abused its

discretion by a misapplication of the law or failure to follow proper legal

procedure.” Morgante v. Morgante, 119 A.3d 382, 386 (Pa. Super. 2015)

(citation omitted).

      As this Court has explained:

      The Divorce Code does not specify a particular method of valuing
      assets. Thus, the trial court must exercise discretion and rely on
      the estimates, inventories, records of purchase prices, and
      appraisals submitted by both parties. When determining the
      value of marital property, the court is free to accept all, part or
      none of the evidence as to the true and correct value of the
      property.

Childress v. Bogosian, 12 A.3d 448, 456 (Pa. Super. 2011) (internal

alterations, quotations marks, and citations omitted).

      Husband first argues that the trial court erred by finding that the PSA

was worth $373,434.00. To the extent that Husband challenges the gross

valuation of the PSA, this argument is waived because the argument section




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of Husband’s brief contains no development of this claim.      See Pa.R.A.P.

2119(a).

     Next, Husband argues that the net value of the PSA was $22,940.00.

He argues that the difference – approximately $350,000 – was debt that he

and Wife owed to the PSA. In essence, Husband argues that the trial court

erred by not including the approximately $350,000.00 in loans taken from

the PSA as marital debt.    Generally, debts accrued prior to separation are

marital debts; however, a debt accrued prior to separation may be a non-

marital debt where the other spouse did not take part in incurring the debt

and received no benefit therefrom. See Harasym v. Harasym, 614 A.2d

742, 746 (Pa. Super. 1992).

     We conclude that the record supports the trial court’s finding that the

debt owed to the PSA was non-marital debt. At trial, Wife produced bank

records for the PSA along with the PSA balance sheets. These documents

showed that there was less than $100.00 in the PSA bank account at the

time of separation. Husband testified that he and Wife took approximately

$350,000.00 in loans from the PSA.     N.T., 3/18/11, at 36.    On the other

hand, the administrator of the PSA testified that he was unaware of any

loans taken from the PSA.     N.T., 4/26/12, at 111. Wife testified that she

never authorized or approved any loans taken from the PSA and that she

never received any benefit from such loans.      Id. at 151.    Furthermore,

Husband failed to produce any written promissory notes.        The trial court



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credited Wife’s testimony, together with the lack of promissory notes, over

Husband’s testimony. “Credibility determinations are for the trier of fact. As

long as sufficient evidence exists in the record to support the credibility

findings, this Court may not overturn those findings.” In re Merlo, 58 A.3d

1, 16 (Pa. 2012) (citation omitted). As sufficient evidence exists to support

the trial court’s credibility determinations, the trial court did not abuse its

discretion in finding that the PSA loans were non-marital debt.

      Next, Husband argues that $22,940.00 in the PSA was double

counted.   Specifically, he argues that the value of the PSA included the

$22,940.00 in the Merrill Lynch account.        At the equitable distribution

hearing, Husband testified that the Merrill Lynch account balance was

included in the value of the PSA. There was no testimony or evidence to the

contrary. In essence, the trial court found Husband’s testimony not credible

and determined that the Merrill Lynch account balance was not included in

the value of the PSA.

      It is well-settled that a trial “judge may reject . . .     uncontradicted

testimony where, for any reason[], its credibility is doubtful.”        V-Tech

Servs., Inc. v. St., 72 A.3d 270, 280 (Pa. Super. 2013). In this case, the

trial court explained its rationale for finding that Husband’s testimony lacked

trustworthiness, i.e., Husband was unable to produce any documentary

evidence that showed the Merrill Lynch account balance was included in the

PSA’s balance.   As such, we ascertain no abuse of discretion in the trial



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court’s decision to count the Merrill Lynch account separately from the PSA

account.

      In his final issue, Husband argues that the trial court erred in not

granting him a credit for the time Wife was the sole occupant of the marital

residence. For a period of over four years after separation, Wife had sole

use and enjoyment of the marital residence.        Husband argues that he is

entitled to a credit equal to one-half of the rental value of the property over

that time period.    Wife, on the other hand, argues that Husband was not

entitled to such a credit because of repair expenses for the marital residence

that she incurred.

      As this Court has explained:

      [T]he general rule is that the dispossessed party is entitled to a
      credit for the fair rental value of jointly held marital property
      against a party in possession of that property[; however,] the
      party in possession is entitled to a credit against the rental value
      for payments made to maintain the property on behalf of the
      dispossessed spouse. . . . [W]hether the rental credit is due and
      the amount thereof is within the sound discretion of the [trial
      court.]

Lee v. Lee, 978 A.2d 380, 385-386 (Pa. Super. 2009) (citation omitted).

      In this case, the trial court “found that any credit owed to [Husband]

was offset by [Wife’s] maintenance of the marital residence during her

occupancy and [Wife’s] extensive efforts to prepare the marital residence for

sale absent the assistance of [Husband].” Trial Court Opinion, 7/25/14, at

17.   This finding is supported by the record.    Wife testified regarding the

substantial work she undertook after Husband departed from the marital


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residence. N.T., 6/21/12, at 33-34. As such, the trial court did not abuse

its discretion in failing to grant Husband a credit for one-half of the rental

value of the marital residence for the time he was dispossessed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/6/2016




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