J-A25021-14


                                  2014 PA Super 262

TANYA HELENA TECCE                                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

JOHN MICHAEL HALLY

                            Appellee                     No. 495 EDA 2014


                Appeal from the Order Entered January 14, 2014
               In the Court of Common Pleas of Delaware County
                       Civil Division at No.: 2008-008805


BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*

OPINION BY WECHT, J.:                                 Filed: November 21, 2014

       Tanya Tecce (“Wife”) appeals the January 14, 2014 order that granted

in part and denied in part her petition to enforce the trial court’s equitable

distribution order.      The hearing on the petition was profoundly flawed.

However, we are constrained to affirm.

       The trial court offered the following summary of the factual and

procedural history of this matter:

       Wife filed a Complaint in Divorce on July 1, 2008, which
       contained, inter alia, Count I Request for a No Fault Divorce
       Under Section 3301(c) and/or (d) of the Divorce Code, Count II
       Request for Equitable Distribution of Marital Property Under
       Section 3502(a) of the Divorce Code, and Count III Request for
       Spousal Support and/or Alimony Pendite [sic] Lite and Alimony
       Under Section 3701 of the Divorce Code.

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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     On January 26, 2009, [John Halley (“Husband”)] filed his
     Affidavit of Consent under Section 3301(c) of the Pennsylvania
     Divorce Code, and on February 11, 2009, Wife did the same.
     The parties went before Divorce Hearing Officer Donald W.
     Lehrkinder, Sr., Esq. on January 19, 2010. Hearing Officer
     Lehrkinder filed his Report and Recommendations on November
     9, 2010. Judge Durham signed an Amended Order to the Report
     and Recommendations on February 23, 2011 and it was filed on
     February 24, 2011.

     On December 7, 2012, Wife filed a Praecipe to Transmit the
     Record, seeking that the Court enter a divorce decree. On
     January 13, 2013, [the trial court] signed a Decree and Order
     divorcing the parties, and it was filed on January 25, 2013.

     On November 8, 2013, Wife filed a Petition for Enforcement,
     requesting the Court to direct Husband to sign a Deed
     transferring the marital residence in Wife’s name only, so that
     she may sell said residence, to enforce the alimony provision of
     the parties’ Equitable Distribution Order, to distribute child
     support arrears to Wife, and for counsel fees.

     The Court held a hearing on January 9, 2014 on Wife’s Petition.
     The hearing consisted of legal argument by counsel for both
     parties, and also of statements from both parties. Neither party
     received an oath before placing statements on the record.
     Husband’s counsel did not dispute that the parties’ Equitable
     Distribution Order required Husband to Pay Wife alimony in the
     amount of $200 per month for a term of thirty months. Further,
     Husband’s counsel did not dispute that Husband never made
     said alimony payments. However, Husband’s counsel [argued
     that] the alimony provision of the parties’ Equitable Distribution
     Order is no longer enforceable against Husband.

Trial Court Opinion (“T.C.O.”), 5/5/2014, at 3-4 (footnote and citations to

notes of testimony omitted).

     On January 14, 2014, the trial court entered an order that: required

Husband to cooperate with the sale of the marital residence, but did not

order him to sign over title to Wife; found that the parties entered into a

verbal agreement that Husband would keep Wife on his health insurance in

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exchange for Wife foregoing alimony payments; denied Wife relief with

regard to child support arrears without prejudice to Wife seeking relief with

the child support section of the court; and denied Wife’s request for

attorney’s fees in connection with the enforcement petition.

       On February 10, 2014, Wife filed a notice of appeal. On February 12,

2014, the trial court ordered Wife to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Wife timely

complied.     On May 5, 2014, the trial court filed its Pa.R.A.P. 1925(a)

opinion.1

       Wife raises four issues for review:

       1. Did the Trial Court abuse its discretion in failing to conduct a
          full evidentiary hearing with sworn testimony and offers and
          admission of documentary and other evidence, thus depriving
          [Wife] of a full and fair hearing on her Petition for
          Enforcement of the terms of the parties’ divorce?

       2. Did the Trial Court abuse its discretion in depriving [Wife] of
          the ability to meaningfully cross-examine or otherwise
          challenge [Husband’s] statements, when said statements
          were not received under oath, and no opportunity for cross-
          examination was offered?

       3. Was the Trial Court’s finding of an “enforceable verbal
          agreement” supported by the evidence, where as there was
          no “evidence” to consider, and the Court based its findings on

____________________________________________


1
      Husband’s counsel sought to withdraw as counsel in a motion filed with
this Court on June 23, 2014. Counsel’s motion was granted and Husband
was given leave to file a pro se brief. However, Husband did not file a brief
and did not appear at oral argument.




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          nothing more than the unsworn statements of [Husband] and
          his counsel?

       4. Did the Trial Court abuse its discretion where the substance of
          [Husband’s] unsworn statements was insufficient to support
          the Court’s findings that [Wife] had bargained away her right
          to post-divorce alimony in the total aggregate amount of
          $6,000.00?

Wife’s Brief at 5-6.2

       All of Wife’s challenges relate to the method by which the trial court

conducted the hearing.          After reviewing the record, we agree that the

hearing was deficient.

       Rule of Evidence 603 requires that witnesses be sworn before

providing testimony:

       Before testifying, a witness must give an oath or affirmation to
       testify truthfully. It must be in a form designed to impress that
       duty on the witness’s conscience.

Pa.R.E. 603. Here, a review of the record proves that neither Husband nor

Wife was administered an oath prior to providing their statements.          See

Notes of Testimony (“N.T.”), 1/9/2014, at 3-12.       Moreover, the trial court

acknowledged as much. T.C.O. at 4. “Without an administration of an oath

to a witness, the taking of testimony is meaningless.” Commonwealth ex.
____________________________________________


2
      We note that Wife cited and appended an unpublished, non-
precedential memorandum opinion of this Court in her brief. Wife’s Brief at
12-13, 14, 15. However, a non-precedential memorandum may not be
cited. See 210 Pa. Code § 65.37 (“An unpublished memorandum decision
shall not be relied upon or cited by a Court or a party in any other action or
proceeding” with two exceptions that do not apply here.)



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rel. Freeman v. Superintendent of State Corr. Inst. at Camp Hill, 242

A.2d 903, 908 (Pa. Super. 1968).3 Husband’s and Wife’s “testimony” was a

nullity. The lack of an oath means that there was no testimony. There was

no record evidence upon which the trial court could support its order.

       The error of failing to administer an oath was compounded by the fact

that neither party was subject to cross-examination.

       The right of a litigant to in-court presentation of evidence is
       essential to due process; in almost every setting where
       important decisions turn on questions of fact, due process
       requires an opportunity to confront and cross-examine adverse
       witnesses.

M.O. v. F.W., 42 A.3d 1068, 1072 (Pa. Super. 2012). In this case, the trial

court conducted a haphazard proceeding in which the parties’ attorneys

offered argument, peppered with interruptions by the judge and by the

parties as they ventured thoughts or provided explanations.              Neither

Husband nor Wife had the opportunity to cross-examine the other party.

While “[t]he scope of cross-examination is within the sound discretion of the

trial judge,” Cacurak v. St. Francis Med. Ctr., 823 A.2d 159, 167 (Pa.

Super. 2003), the trial court may not dispense with cross-examination

altogether.

____________________________________________


3
      We recognize that Freeman involves the rights of juveniles in
delinquency proceedings, a fact of which the learned concurrence reminds
us.   Conc. Op. at 4-5.    However, we cite Freeman for the general
proposition that testimony must be sworn in compliance with Pa.R.E. 603
and 42 Pa.C.S.A. § 5901.



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       The trial court here purported to make credibility determinations based

upon this “testimony.”           T.C.O. at 7-9.   It is axiomatic that credibility

determinations must be based upon actual testimony. Because there was no

oath, no competent testimony was presented to the court upon which any

credibility determination could be made.             Credibility and reliability of

witnesses are determined “in a particular manner: by testing in the crucible

of cross-examination.” Crawford v. Washington, 541 U.S. 36, 61 (2004).

Because neither Husband nor Wife had any opportunity to vindicate this

essential right, the trial court had no basis whatsoever upon which it could

make credibility determinations.         When we speak of a judicial proceeding,

we speak of a hearing, not a conversation.4

       However, neither party nor counsel objected to the procedure used by

the trial court during this proceeding.5          We are not free to ignore this
____________________________________________


4
      At some length, the concurrence labors to set up – and then proceeds
to knock down – a straw man, expounding that the taking of evidence is not
required in all judicial proceedings. See Conc. Op. at 6-7. Without a doubt,
that is true. However, when a trial court purports to make findings of fact
and credibility determinations, as it did here, there must be an evidentiary
basis upon which to do so.
5
        As the legendary advocate Brendan Sullivan famously observed,
lawyers are not potted plants. See Commonwealth v. Ramos, 936 A.2d
1097, 1105 (Pa. Super. 2007) (“One is reminded of the quote from Attorney
Brendan V. Sullivan in the 1987 Oliver North hearings, when, after he was
criticized for making an objection, Sullivan responded, ‘I'm not a potted
plant. I'm here as a lawyer. That's my job.’”). If and when a trial judge
begins to proceed without a record, it is incumbent on counsel respectfully to
demand such record. Lawyers and their clients are entitled to expect that
trial judges will not take offense when counsel reminds the court of its
(Footnote Continued Next Page)


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complete absence of objection. It is axiomatic that, to preserve an objection

for appeal, the objection must be raised before the trial court. See Green

v. Green, 69 A.3d 282, 288 (Pa. Super. 2013); Pa.R.A.P. 302(a). 6 Parties

may waive rights, even due process rights and other rights of constitutional

magnitude.     See Tyler v. King, 496 A.2d 16, 24 (Pa. Super. 1985).

Pennsylvania’s appellate courts have held, without apparent exception, that

the failure to object to unsworn testimony subjects a litigant to waiver. See

City of Philadelphia v. White, 727 A.2d 627, 629 (Pa. Commw. 1999);

Morra v. Com., Dep’t of Transp., Bureau of Driver Licensing, 667 A.2d

468, 469 (Pa. Commw. 1995); Godding v. Swanson, 98 A.2d 210, 213

(Pa. Super. 1953).7
                       _______________________
(Footnote Continued)

obligation to ensure that hearings proceed on a record. From time to time,
family law practitioners (and judges) are heard to complain that they are not
taken seriously, or are treated as second class citizens in our judicial
system. The best antidote to such discrimination is for family law attorneys
and judges to practice, and to demand, formality and respect for the rules of
evidence and procedure. See generally, David N. Wecht, The Discipline of
Rules, 29 Pennsylvania Family Lawyer, 138 (2007).
6
     The concurrence helpfully provides a litany of citations to additional
precedents applying our waiver doctrine. See Conc. Op. at 1-3.
7
      Jurisdictions across the United States have held similarly; indeed, the
cases are legion. See United States v. Odom, 736 F.2d 104, 114 (4th Cir.
1984); United States v. Perez, 651 F.2d 268, 273 (5th Cir. 1981) (“It has
long been the general rule that even a failure to swear a witness may be
waived.”); Williams v. Harris, 80 So. 3d 273, 278-79 (Ala. Civ. App.
2011); Harbit v. Harbit, 3 So. 3d 156, 160 (Miss. Ct. App. 2009); Brown
v. Ristich, 325 N.E.2d 533, 538 (N.Y. 1975); State v. Norman, 738 N.E.2d
403, 412 (Ohio Ct. App. 1999); Goforth v. State, 921 P.2d 1291, 1293
(Okla. Crim. App. 1996); Beck v. State, 619 S.W.2d 205, 214 (Tex. Crim.
(Footnote Continued Next Page)


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       A proceeding that is so fundamentally flawed as the one that occurred

here offends fundamental fairness and demands correction. The trial court

made    factual   findings      and    credibility   determinations   without    taking

testimony,    without      receiving     evidence    and   without    allowing   cross-

examination. This was plain error. Moreover, neither party has invoked or

even mentioned waiver on this appeal.                And yet, we are bound by our

precedents to invoke waiver sua sponte in this case.                     Despite the

fundamental flaws in the trial court’s “hearing,” our law is clear. We may

not afford relief when no objection has been made. We are constrained to

affirm the trial court’s order.

       Order affirmed.

       Judge Platt joins the opinion.

       Judge Donohue files a concurring opinion.




                       _______________________
(Footnote Continued)

App. 1986); Hanson-Metayer v. Hanson-Metayer, 70 A.3d 1036, 1047
(Vt. 2013). We acknowledge as an outlier an older common pleas court case
that holds to the contrary: DeWitt v. Oppel, 14 Pa. D & C.2d 23 (C.P.
Cumberland Cty. 1958) (stating that the reasons why an oath is required
“are so basic and fundamental to the administration of justice that we have
no difficulty in deciding that the requirement of swearing witnesses is not
one that may be waived by a party.”). Our decisional law is clear that such
leniency will no longer be brooked, if ever it was.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2014




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