J-A12031-15


                                  2015 PA Super 105

BETTY A. MOSER,                                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.


RONALD R. RENNINGER, EXECUTRIX OF
THE ESTATE OF THE LATE RONALD R.
RENNINGER, SR.

                            Appellant                 No. 1065 MDA 2014


                  Appeal from the Order entered April 25, 2014,
                 in the Court of Common Pleas of Berks County,
                    Domestic Relations, at No(s): 10-20253#2


BEFORE: BOWES, DONOHUE, and ALLEN, JJ.

OPINION BY ALLEN, J.:                                   FILED MAY 01, 2015

       The Estate of Ronald R. Renninger, Sr., (“the Estate”), appeals from

the order denying its exceptions to a Master’s report which ordered the

Estate to pay spousal support to Betty A. Moser (“Wife”).1 We affirm.

       The trial summarized the pertinent facts and procedural history as

follows:

             A complaint in support was filed by [Wife] on November
       4, 2010 against Ronald Renninger (“Husband”) in which she
       assert[ed] that the parties were married on August 27, 1982.
       [The issue of whether the parties were legally married was
____________________________________________


1
  As explained infra, because Ronald R. Renninger, Sr. is deceased, the
Estate has been substituted as a party. Accordingly, we have amended the
caption.
J-A12031-15


     raised by Husband and it was ultimately determined by the
     Honorable Peter Schmehl that the parties were married,
     under common law, on June 8, 1985.]

            The parties were ordered to appear before a conference
     officer on February 2, 2011, however this conference was
     continued to March 15, 2011 and then again to May 3, 2011.
     Because the issue of the parties’ marriage was raised by
     Husband, a hearing to determine the parties’ marital status
     was scheduled before the [trial court], and as a result the
     support conference was deferred until June 28, 2011.
     Following an evidentiary hearing, [the Honorable Peter W.]
     Schmehl determined on May 13, 2011, that the parties were,
     in fact, common law husband and wife and had been such
     since June of 1985. This determination was appealed, which
     resulted in the support conference again being continued.
     The appeal was quashed [because it was from an
     interlocutory order, Moser v. Renninger, 40 A.3d 156 (Pa.
     Super. 2012),] but in the meantime, on June 14, 2012, an
     interim order of support was entered, requiring Husband to
     pay Wife support in the amount of $394.10 per month, plus
     arrears in an unspecified amount. That same day, June 14,
     2012, another order was entered which, inter alia, designated
     the matter a complex case and scheduled an evidentiary
     hearing for September 10, 2012. Further, Husband was
     ordered to produce a copy of his unemployment
     compensation information.

           Husband passed away on August 2, 2012 following an
     extended period of serious illness, before the support
     conference was scheduled to take place.

           In light of Husband’s death, the [interim] support order
     was terminated on August 3, 2012 and a hearing was
     scheduled before Judge Schmehl on September 16, 2012.
     Although Husband’s estate was not formally substituted as a
     party, the executrix of Husband’s estate, Pamela Renninger
     (“Executrix”) participated in all proceedings thereafter.
     Following several continuances, an evidentiary hearing
     eventually took place on September 23, 2013. Executrix then
     filed a Petition to Terminate/Dismiss Spousal Support/
     Alimony [pendente] lite (“APL”) in which she contend[ed] that
     the divorce abated due to the death of Husband and that
     neither the Divorce Code nor the rules governing the


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J-A12031-15


     establishment of support orders allow for the establishment of
     a support order following a party’s death.

           The parties each submitted briefs on the issue. In her
     brief Wife concedes that where grounds have not been
     established, the court is unable to address any claims which
     are dependent on the entry of a [divorce] decree (i.e.,
     equitable distribution). She contends, however, that APL and
     Spousal Support are not dependent on the entry of a
     [divorce] decree and notes that APL is not decided under the
     Divorce Code but rather is governed by the Support
     Guidelines.     Wife further concurs that the obligation of
     support terminated upon the death of Husband, however, she
     argues that she is nonetheless entitled to support from the
     date of the filing of the petition up to the date of Husband’s
     death. She points out that generating a retro-active [sic]
     support order is a routine practice and that Wife is a creditor
     under the estate, as any other.

           In her brief, Executrix argues that grounds have not
     been established and the Divorce Code does not allow for a
     claim of APL to be established posthumously.

           On June 17, 2013 Judge Schmehl considered the above
     and, following oral argument on the issues, ruled that Wife’s
     claim for spousal support could proceed, as an arrearage-only
     case, but that the claim for APL abated on the date of
     Husband’s death. He further ordered that, in the event that
     an order for Spousal Support is not entered, the arrears due
     under the interim APL order would be collectible by Wife. The
     [Estate] was also formally substituted as a party to this
     support action. The parties disagreed as to the meaning of
     the language of this June 17, 2013 order. Briefs were again
     filed. Wife’s position [was] that the June 17, 2013 order
     should be interpreted to mean that she is entitled to APL up
     to the time of Husband’s death, and, moreover, entitled to
     seek Spousal Support. Executrix counter[ed] that Wife failed
     to timely seek judicial clarification and/or reconsideration of
     the June 17, 2013 order and is therefore bound by its terms.
     The parties, however, disagree as to the meaning of the
     language of the order.

           On November 27, 2013, following a hearing before
     Custody/Support Master Karen Longenecker, Esquire,
     Findings of Fact, Conclusions of Law and a Recommendation


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J-A12031-15


     were submitted to the court, along with certain stipulations by
     the parties. After the stipulations, the only issues before the
     Master were (1) whether Husband had any additional income
     not previously considered and (2) whether there was an
     entitlement defense to Spousal Support. In fashioning her
     Recommendation, Master Longenecker heard the testimony of
     Wife, the parties’ daughter Jackie Renninger, and the
     testimony of Executrix Pamela Renninger, Husband’s
     daughter.

            Ultimately, the Master determined that Estate, through
     Executrix, did not sufficiently establish a defense to spousal
     support by proving the underlying conduct by clear and
     convincing evidence, failing to demonstrate either indignities
     or desertion as alleged by Executrix. [Master Longenecker]
     concluded that Wife was entitled to Spousal Support from the
     date of the filing of the petition through the date of Husband’s
     death, however at different charging rates based on the
     relative incomes of Husband and Wife throughout that nearly
     three-year period.

           Exceptions to the Recommendation of the Master were
     field on December 17, 2013, following which Executrix, on
     behalf of Estate, filed a Petition for an Injunction to Stay
     Enforcement of the Order for Spousal Support. On January
     24, 2014, an order was signed placing $14,114.34 in escrow
     and scheduling the matter for argument before the Honorable
     Madelyn Fudeman.

          [The Honorable James M. Bucci] heard argument in
     Judge Fudeman’s absence, and ultimately entered an order
     denying the Exceptions of the Executrix of [the Estate].

Trial Court Opinion, 8/19/14, at 1-4 (footnote omitted). This timely appeal

followed. Both the Estate and trial court have complied with Pa.R.A.P. 1925.

     The Estate raises the following issues:

        A. WHETHER THE FAILURE TO DISMISS THE SUPPORT
        CASE IS AN ERROR OF LAW AND AN ABUSE OF
        DISCRETION.

        B. THE RECORD DOES NOT SUPPORT A FINDING THAT []
        WIFE IS ENTITLED TO RECEIVE SPOUSAL SUPPORT[.]

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J-A12031-15


          C. ERROR OF LAW AND ABUSE OF DISCRETION WERE
          COMMITTED IN MISCALCULATING INCOME[.]

Estate’s Brief at 4.

       Our standard of review is well settled:

         We review spousal support cases for abuse of discretion. In
         order to overturn the decision of the trial court, we must
         find that it committed not merely an error of judgment, but
         has overridden or misapplied the law, or has exercised
         judgment which is manifestly unreasonable or the product
         of partiality, prejudice, bias or ill will as demonstrated by
         the evidence of record.
S.M.C. v. W.P.C., 44 A.3d 1181, 1185 (Pa. Super. 2012) (citation omitted).

       The Estate highlights the fact that, despite Wife’s filing of a support

action in 2010, Husband died before any support hearing was held where he

could testify, and before any support order was entered. In its first issue,

the Estate claims that the trial court should have dismissed Wife’s complaint

for support because the trial court “cannot supply a remedy to [the Estate]

under the facts and circumstances of this case.”        Estate’s Brief at 14.2

____________________________________________


2
  In the proceedings, the Estate never specifically asserted the applicability
of the Dead Man’s Statute, 42 Pa.C.S.A. section 5930, as rendering Wife
incompetent to testify as to her entitlement to spousal support. The purpose
of this statute “is to prevent the injustice which might flow from permitting
the surviving party to a transaction with a decedent, to give testimony
thereon favorable to himself and adverse to the decedent, which the latter’s
representative would be in no position to refute.” G.J.D. v. Johnson, 669
A.2d 378, 384 (Pa. Super. 1995) (citations omitted). Here, the Estate
presented testimony tending to refute Wife’s testimony regarding the
incident that led to her removal from the marital residence. See N.T.,
9/23/13, at 52-64. Moreover, as discussed infra, although the trial court
recognized the Estate’s limitations in this regard, it concluded “the difficulty
(Footnote Continued Next Page)


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J-A12031-15



According to the Estate, because “the authority for the award of APL arises

under the Divorce Code” and “the divorce has abated due to” Husband’s

death,” an order for APL “cannot be established after the death of a party to

the divorce.” Id. at 15.

      The Estate mischaracterizes the award at issue. As noted above, the

trial court entered an interim order of support, or alimony pendente lite,

during Husband’s lifetime. The parties do not dispute that such payments

terminate due to Husband’s death.                However, Husband died prior to the

entry of a final order in Wife’s separately filed support action. The issue that

arises therefore is whether Husband’s death should also abate the support

action.

      Both parties refer to the lack of appellate case law regarding this

factual circumstance.         See Estate’s Brief at 14; Wife’s Brief at 7.       In

Chaniewicz v. Chaniewicz, 257 A.2d 605, 606 (Pa. Super. 1969), this

Court agreed with the trial court that unpaid “arrearages in support of a wife

survive the death of the husband.” Here, the fact that these “arrearages”

have yet to be determined is of no significance—Wife filed her action for

support during Husband’s lifetime, and such calculation can be made. We

find support for this conclusion from several county decisions.



                       _______________________
(Footnote Continued)

in presenting rebuttal evidence cannot, alone, foreclose the rights of a long-
term spouse to support.” Trial Court Opinion, 8/19/14, at 9.



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J-A12031-15



      The reasoning in Malone v. Malone, 82 Pa.D.&C. 479, 482-87

(1952), is instructive:

            The civil obligation of a husband to support his wife is
         on the theory of an implied contract with her by reason of
         the marriage relationship. A civil action brought by a wife
         against her husband for maintenance is fundamentally an
         action based on a contract implied from the circumstances.
         . . . Why should not an action brought by a wife for
         maintenance against her husband, who dies during the
         pendency of the action, survive the death of the husband
         so that wife can recover proper maintenance from time of
         the husband’s desertion or other failure to maintain her to
         the time of the husband’s death? What good reason is
         there that the husband’s estate should not be liable for
         such maintenance? Why should his heirs, legatees or
         devisees be enriched by precluding the wife from
         recovering from his estate that which accrued to her
         during his lifetime?

                                    ***

            The question before us is: If an action brought by a
         wife against her husband . . . for maintenance is pending
         at her husband’s death, does the action survive his death
         so the wife can recover from his estate maintenance to
         which she was entitled prior to his death?

                                    ***

            [Case law] fully support[s] the proposition that a wife
         has a right to recover in a civil action against her husband
         for maintenance . . . during the pendency of the action. If
         the husband dies during the pendency of the action,
         although no order for maintenance could be then
         prospective, the wife clearly has the right to recover
         against the husband’s estate for maintenance which she
         shows should have been paid by him to her prior to his
         death. . . . It survives the death of the husband.

See also McMullen v. McMullen, 23 Pa.D.&C. 2d 105, 113 (1961) (holding

that while operation and effect of an order or decree of support of a wife


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J-A12031-15



terminates at her death, it can be enforced against her husband for any

arrearages accumulated during her lifetime).

      We therefore agree with the following rationale of the trial court:

         There is no dispute that, upon Husband’s death, the
         divorce abated.     However, at issue is Wife’s right to
         Spousal Support from the time of the filing of her petition
         in support through the date of his death. Husband and
         Wife were determined to be married from June of 1985
         through Husband’s death in 2012, a period of seventeen
         years. The complaint in support was filed while Husband
         was still alive, and an interim support order was entered
         during his lifetime. Therefore, we did not allow a support
         order to be established after Husband’s death but rather
         permitted Wife to continue her action for support. This is
         consistent with the well-established, longstanding rule that
         a surviving spouse can collect unpaid support from the
         estate of the deceased spouse. [Malone, supra]. We
         submit that it was not error to [refuse to] dismiss the case
         for support based solely on Husband’s death during the
         pendency of the case, where the case was initiated during
         his lifetime.

Trial Court Opinion, 8/19/14, at 6. Thus, the Estate’s first issue fails.

      In its second issue, the Estate claims that the trial court abused its

discretion in concluding that Wife was entitled to a support award because it

“failed to consider the testimony of the Executrix (daughter of the decedent)

regarding the separation of the parties, and the circumstantial evidence

produced at [the] hearing that [Husband] was attacked by [Wife].” Estate’s

Brief at 11. The Estate further asserts that the trial court “failed to consider

that [Husband] obtained a Protection from Abuse Order because of [Wife’s]

violent actions perpetuated against him while he was ill and dying.” Id. at



                                      -8-
J-A12031-15



11-12.    Finally, the Estate highlights Executrix’s testimony that she

personally observed several altercations between the couple, and Husband’s

inability to swallow liquids due to his illness. See id. at 12.

      The trial court, in rejecting the Estate’s claim, explained:

            We did not, as alleged by Executrix, fail to consider
         these facts. Rather, we considered them and, like the
         Master, did not find such facts to be a sufficient basis upon
         which to deny Wife’s claim for Spousal Support in the
         context of a long-term marriage.

             Executrix complains that we failed to consider the fact
         that Husband asked the police to remove Wife from the
         marital residence. While on the one hand this fact may be
         evidence of abuse, on the other hand this fact negates
         Executrix’s claims that Wife voluntarily [deserted]
         Husband. Moreover, Wife testified that the only reason
         she was asked to leave was that Husband was too
         intoxicated to drive, so it was prudent under the
         circumstances for her to leave. Apparently neither the
         police who responded to the incident nor any objective
         third-party witness that may have been able to shed some
         light onto the facts and circumstances were called to
         testify.   Executrix bears the burden of demonstrating
         Wife’s indignities by clear and convincing evidence. Like
         the Master, we feel that Executrix did not meet her
         burden, and failed to establish a defense to Spousal
         Support based on the evidence presented at the hearing.

            With respect to the defense of abuse and the issue of
         Husband seeking a PFA against Wife, we note that the
         record indicates that both Husband and Wife had sought
         PFAs against each other, both of which were ultimately
         withdrawn. Therefore, what remains is little more than
         mutual allegations of abuse by the parties. Absent a fact-
         finding hearing we will not consider the allegations
         contained in the PFA petitions, as none have been
         established by an evidentiary hearing (which hearing
         would take place during Husband’s lifetime and during
         which he would have had an opportunity to testify). The
         fact that both parties sought protective orders is indicative

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J-A12031-15


         of a troubled relationship at best and is insufficient to
         establish a defense to Spousal Support.

            Spouses owe an absolute duty of support. See 23
         Pa.C.S.A. §4321. There is an exception to this duty where
         the party seeking support has engaged in conduct that
         would constitute grounds for a fault-based divorce. See
         [23 Pa.C.S.A. § 3301]. However, this conduct must be
         established by clear and convincing evidence.            See
         Crawford v. Crawford, 633 A.2d 155 (Pa. Super. 1993).
         As the Master points out in her Findings, individual
         instances of poor behavior do not necessarily rise to the
         level of “indignities” for purposes of determining eligibility
         for Spousal Support. [See S.M.C. v. W.P.C., 44 A.2d
         1181, 1187-88 (Pa. Super. 2012) (explaining that,
         although there is not specific definition for “indignities,”
         “indignities must consist of a course of conduct or
         continued treatment which renders the condition of the
         innocent person intolerable”).] We agree with the Master
         that Executrix failed to demonstrate indignities.

             Executrix next argues that this Court failed “to consider
         the impossibility of presenting any rebuttal to (Wife’s) case
         as the Decedent (Husband) obviously cannot rebut or deny
         any allegations”. While we are sympathetic to Executrix’s
         plight in this regard, the difficulty in presenting rebuttal
         evidence cannot, alone, foreclose the rights of a long-term
         spouse to support.           If Husband were alive but
         incapacitated, Wife would be permitted to proceed despite
         the obvious difficulties relating to evidence in the nature of
         Husband’s testimony. Further, Husband/Executrix was not
         barred from presenting circumstantial evidence relating to
         the parties’ relationship.     Such third-party evidence is
         highly persuasive where the parties’ own testimony can be
         viewed as self-serving.         On balance, the fact that
         Husband/Executrix may have more difficulty establishing a
         defense to support is not, alone, an adequate basis upon
         which to totally deny Spousal Support in the context of a
         long-term marriage.

Trial Court Opinion, 8/19/14, at 7-9.




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J-A12031-15



      Our review of the record, including the testimony presented at the

evidentiary hearing and the Master’s report, supports the trial court’s

conclusions.   “[T]he master’s report and recommendation, although only

advisory, are to be given the fullest consideration, particularly on the

question of credibility of witnesses, because the master has the opportunity

to observe and assess the behavior and demeanor of the parties.” Taper v.

Taper, 939 A.2d 969 (Pa. Super. 2007). As an appellate court, we cannot

disturb these credibility determinations. Thus, Appellant’s second issue fails.

      In its final third and final issue, the Estate asserts that the Master and

the trial court committed two evidentiary errors. The Estate first argues that

the Master erred in permitting the introduction of improperly-authenticated

evidence into the record, and used this evidence to calculate Husband’s

2011 income available for support. It then asserts that the Master and the

trial court did not consider appropriately Husband’s 2011 tax returns when

calculating his income. We address these claims separately.

      In its Pa.R.A.P. 1925(a) opinion, the trial court explained the facts

surrounding the admission of the contested evidence as follows:

         The [Master’s] hearing was limited to two issues: whether
         there was an entitlement defense to spousal support and
         whether Husband had received additional income in the
         form of unemployment compensation during calendar year
         2011.     The Master addressed this issue in her
         Recommendation noting that Husband did not report any
         unemployment compensation on his 2011 income tax
         return, however, Wife submitted information that Husband
         had received $440.00 per month in unemployment
         compensation. This information was in the form of what


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J-A12031-15


           the parties and the Master referred to as an “OINC”
           screen, a printout of which was marked as [Wife’s] Exhibit
           8.

Trial Court Opinion, 8/19/14, at 9-10.3

       The trial court then cited the following exchange from the Master’s

hearing:

           [Wife’s attorney]:     In terms of exhibits, I would just
           request. . . we’ll mark this as P-8, that the Court take
           judicial notice of the PACSES records that were reflected
           on the OINC screen. Again, there was testimony regarding
           the. . . fact that [Husband] had received some
           unemployment compensation in [2011]. There have been
           two prior discovery orders. I’ve also issued a notice to
           appear which very specifically directed [Executrix] to bring
           information today which has never been provided. So
           under those circumstances we would ask the Court to take
           judicial notice of the information that was obtained through
           the OINC screen and to mark that as Exhibit P-8.

           [Estate’s attorney]: I disagree that it’s a subject. . . a
           proper subject for judicial notice. I think you have to have
           a custodian of the records testify to that to have it
           admitted as a business record. . .

           Hearing Master: So [] you are objecting to the. . .

           [Estate’s attorney]: OINC screen. Yeah.

           Hearing Master: Okay.

           [Estate’s attorney]: Yes.

           Hearing Master: I’m going to overrule the objection. The
           document that is contained in the PACSES records is
           maintained by the Pennsylvania Department of Labor and
____________________________________________


3
  “OINC” refers to a screen within a computer program used by the domestic
relations office to indicate “other income” of a party to a support action.




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J-A12031-15


         Industry Unemployment Compensation Board. It appears
         on the PACSES record and so I’ll accept it into the record
         as Exhibit P-8.

Id. at 10, citing N.T., 9/23/13, at 67-68.

      The trial court concluded, “the argument that the contents of the

‘OINC’ screen were improperly admitted by the Custody/Support Master may

have merit, to the extent that the ‘OINC’ screen does not appear to qualify

for any exception to the rule excluding hearsay evidence.”       Trial Court

Opinion, 8/19/14, at 11. Upon review of the record, in accordance with the

rules of evidence and relevant statutory provisions, we agree with the trial

court that the OINC screen print-out was not properly certified or otherwise

authenticated. Compare Commonwealth v. Visconto 448 A.2d 41, 44-45

(Pa. Super. 1982) (holding that a computer printout of unemployment

compensation payments made to the defendant were properly admitted in a

criminal prosecution for welfare fraud when the records were certified by the

Department of Unemployment Compensation Operations Chief, and a

supervisor in the local unemployment compensation office testified that he

received the documents from that person, who had legal custody of them).

      Nevertheless, as noted by the trial court, “other, independent”

evidence existed to establish that, contrary to Husband’s 2011 tax return, he

did receive unemployment compensation during 2011. Trial Court Opinion,

8/19/14, at 12. Indeed, the Estate conceded as much at the hearing, but

did not have the documentation to contradict the OINC screen print-out,

which indicated that Husband received such income for the entire year.

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J-A12031-15



Given these circumstances, we cannot conclude that the Master erred in

accepting the OINC screen print-out as “evidence” of the undisputed fact

that Husband received unemployment compensation during that year. Thus,

unlike the trial court, we discern no reason to remand this case for the

Estate to present documentation it had repeatedly failed to produce earlier in

the proceedings, and which should have been presented at the Master’s

hearing.

      Finally, the trial court found no merit to the Estate’s claim that the

Master improperly considered Husband’s 2011 tax return in calculating

Husband’s income available for support. The trial court explained:

           Husband’s tax returns were admitted into the record. Tax
           returns are a form of self-reporting. If [the Estate] is
           complaining that the Master erred in not basing her
           calculations solely on Husband’s tax returns, this issue was
           addressed at oral argument [on the Estate’s exceptions].
           We noted then, and reiterate here, that the fact that
           Husband did not include any 2011 unemployment
           compensation on his 2011 tax returns can either be
           considered circumstantial evidence that he did not receive
           unemployment compensation in 2011, or it can be
           considered evidence that Husband omitted income from his
           federal income tax return.        Executrix [], Husband’s
           daughter and designated power of attorney, testified that
           her father received “some sort of unemployment
           compensation” in 2011, and that she assisted Husband in
           completing paperwork to receive these benefits. Without
           more information as to this allegation of error, however,
           we are unable to meaningfully address the issue.

Trial Court Opinion, 8/19/14, at 12-13.




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      Our review of Executrix’s testimony at the Master’s hearing supports

the trial court’s treatment of this issue.   Additionally, we note the well-

settled proposition that “taxable income is not the same as net income used

to determine support obligations.” Darby v. Darby, 686 A.2d 1346, 1349

(Pa. Super. 1996). The Estate’s third issue is therefore without merit.

      In sum, we affirm the trial court’s order awarding Wife spousal support

from the day she filed her petition until the date of Husband’s death.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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