J-S67031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JACINTO JIMINEZ, JR.,                                IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

KIM MCKNIGHT-JIMINEZ,

                            Appellant                     No. 311 MDA 2015


                    Appeal from the Decree January 14, 2015
                 in the Court of Common Pleas of Berks County
                          Civil Division at No.: 10-7705


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED DECEMBER 08, 2015

        Appellant, Kim McKnight-Jiminez, acting pro se, appeals from the

divorce decree and order issued by the trial court on January 14, 2015.

Appellant’s appeal stems from the trial court’s dismissal of the exceptions

she filed to the report and recommendation of the special master in divorce.1

(See Appellant’s Brief, at 5).          Appellee, Jacinto Jiminez, Jr., has filed a

petition to quash. We affirm on the basis of the trial court opinion and deny

the petition to quash as moot.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  On January 14, 2015, prior to issuing the divorce decree in this matter, the
trial court issued an order dismissing Appellant’s eleven exceptions to the
report of the special master. (See Order, 1/14/15).
J-S67031-15



       In its March 18, 2015 opinion, the trial court fully set forth the relevant

facts and procedural history of this case. (See Trial Court Opinion, 3/18/15,

at 1-5).2 Therefore, we have no need to restate them here.

       Appellant raises the following issue for our review:

       [1.] Whether the trial [court] abused [its] discretion in
       depriving [Appellant] of her day in court merely because the
       mental and physical illnesses of [Appellant’s] second attorney
       rendered that attorney incapable of performing her duties within
       the initial and extended deadlines?

(Appellant’s Brief, at 4) (most capitalization omitted).

       Appellant claims that the trial court abused its discretion when it

dismissed her eleven exceptions to the report and recommendation of the

special master in divorce because she failed to file a brief in support and

entered the divorce decree and order adopting the master’s findings. (See

Appellant’s Brief, at 5, 11-13). “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


____________________________________________


2
  We note that on page three of the trial court opinion, the trial court states
“Wife contended that she was unaware that the Master’s hearing had been
rescheduled from September 24, 2013 to May 24, 2013 and thus failed to
appear at the hearing.” (Trial Ct. Op., at 3). By way of further explanation,
on April 24, 2013, the trial court issued an order scheduling the Divorce
Master’s hearing for September 24, 2013. (See Order, 4/24/13). On April
29, 2013, the trial court issued an amended order which rescheduled the
Divorce Master’s hearing for an earlier date, May 24, 2013. (See Order,
4/29/13). Both orders indicate that the court distributed a copy to Appellant
at 268 Sycamore Road, West Reading, Pennsylvania 19608.



                                           -2-
J-S67031-15



of the law or failure to follow proper legal procedure.” Biese v. Biese, 979

A.2d 892, 895 (Pa. Super. 2009) (citation and quotation marks omitted).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

that there is no merit to Appellant’s issue. The trial court properly disposes

of the question presented.           (See Trial Ct. Op., at 5-10) (finding: (1)

Appellant’s exceptions were not dismissed for failure to comply with a local

rule, but rather, were dismissed for failure to file a supporting brief 3; (2) the

trial court gave an inordinate amount of time for Appellant to file her brief

and she failed to do so; and (3) the trial court’s dismissal of Appellant’s

exceptions was not an abuse of discretion). Accordingly, we affirm on the

basis of the trial court’s opinion.

       Moreover, because we have affirmed the divorce decree on the merits

in this matter, Appellee’s petition to quash appeal is denied as moot.

       Divorce decree and order affirmed. Petition to quash denied as moot.




____________________________________________


3
   Appellant failed to timely file a supporting brief within the 15 days allotted
by the trial court order after the transcript of the hearing before the divorce
master was lodged on the record, failed to appear for the oral argument on
Appellant’s exceptions, failed to file a brief in support of those exceptions by
the extended deadline set by the trial court, and furthermore failed to ever
file a brief in support of her exceptions, whether timely or otherwise, before
the trial court dismissed the exceptions ninety-one days after Appellant’s
brief was initially due. (See Trial Ct. Op., at 5, 8-9).



                                           -3-
J-S67031-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




                          -4-
                                                                             Circulated 11/13/2015 11:47 AM
                                            S\ol 03t-\S

 JACINTO JIMINEZ, JR.,                          IN THE COURT OF COMMON PLEAS OF
                                                BERKS COUNTY, PENNSYLVANIA
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                                                                                                        '
Gregory D_. Henry, Esquire, attorney for Plaintiff, Jacinto
                                                                                                  c:- . ~·
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                                                                                                                  1


Jr.
Kathleen D. Dautrich, Esquire, attorney for Defendant, Kim McKnight
Jiminez

MEMORANDUM OPINION, SCOTT E. LASH, JUDGE                              MARCH 18,                             2015

      Defendant,      Kim McKnight Jiminez,              (hereinafter "Wife"),                               has
filed an appeal from this court's Divorce Decree entered January
14, 2015.    wife's     appeal stems from a dismissal of the exceptions
she filed to the report and recommendation of the Special Master in
divorce.    This court dismissed her exceptions for failure to appear
in argument court or file a brief to provide a basis for the
exceptions, despite this court giving her ample opportunity to do
so.    we   file      this     opinion   pursuant        to   Pennsylvania                       Rule          of
Appellate Procedure 1925(a).
      This case has an extensive procedural background, necessary to
be set forth in detail to provide an adequate overview.                                   Plaintiff,
Jacinto Jiminez,        Jr.,     (hereinafter         "Husband"),    filed a divorce
complaint on April 22, 2010.             on February 1, 2012, Husband filed a
motion for appointment of a Master and on February 2, 2012,                                                 this
court appointed Louis M.          Schucker, Esquire,          as Divorce Master.
                                                                        Circulated 11/13/2015 11:47 AM




         On April 18, 2013, wife filed a prose "Motion For Ineffective
Assistance        of counsel"    presumably        seeking    the   removal       of her
 lawyer.      Defense counsel filed a motion for leave to withdraw as
counsel      on April 23, 2013.          on May 15, 2013, the court denied
Wife's petition for ineffective assistance of counsel and granted
defense counsel leave to withdraw from this case.
         On June 17, 2013, the Master filed a report and recommendation
and a proposed decree and order.                In his report, the Master noted
that wife's counsel had filed a petition to withdraw with a hearing
scheduled for May 15, 2013.                He further observed that defense
counsel did not appear or represent Wife at the Master's hearing
scheduled and held on May 24, 2013, despite the fact that notice of
this hearing was sent to defense counsel and to Wife.                      wife failed
to      appear    at   the   hearing     or     otherwise    participate         1n     the
proceedings,       al though Husband's counsel did appear and provided
testimony and exhibits.              The Master ce rti fi ed that on June 17,
2013, he mailed a copy of his report to Husband's                      counsel and to
wife.
        on July 23,      2013,   the court        signed the proposed            divorce
decree.
        on   August    14,   2013,     Wife's    present     counsel     entered        her
appearance and filed a "Petition To vacate The Divorce Decree And
order Dated July 23, 2013 And To Remand claims To Master For Full
Hearing."        In the petition, wife alleged that she received a copy
of an order dated April 24, 2013 scheduling the Master's hearing in
her case for September 24, 2013.               The Prothonotary sent this order
to the address listed for wife 1n the divorce complaint.                       However,
                                           2
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       the distribution list on the scheduling order directed that Wife be
       served at 268 sycamore Road, west Reading, PA 19608, a non-existent
t;i    address.         subsequently,       there was an amended order of April 29,
       2013 (Wife erroneously alleged that the order was dated April 25,
       2013) scheduling a settlement conference and hearing for May 24,
       2013,     which was also sent to the non-existent address and which
      wi!fe      a 11 eged she never         received.      Wife contended       that she was
       unaware         that     the   Master's    hearing       had   been    rescheduled          from
      September 24, 2013 to May 24, 2013 and thus failed to appear at the
        I
      hear i nq , Likewise, wife never received a copy of the Master's
       report and recommendation.                 wife alleged that because the Master
      stated in his report that he believed Wife to be residing at the
      non-existent            address,     this   was     the   address      where      the     Master
      attempted to serve wife with his Report and the notice regarding
      her right to fi 1 e exceptions.                    wife did receive a copy of the
      si6ned      divorce        decree and order on July 29,                2013.         she then
      retained new counsel who filed the petition to vacate and remand.
                On August 19, 2013, the court vacated the divorce decree of
      July 23, 2013,            and remanded the matter to the Master for a further
      helri ng on the claims of divorce and di stri buti on of property.
      colnsel      and the Master met in an attempt to resolve the matter but
         I
      because no agreement could be reached, the Master held a hearing on
         I


      Ap ri 1    11,    2014,     at which ti me both parties and their counse 1
      appeared and testified.
                On June 12, 2014, the Master filed his report and proposed
         I
      di~orce decree.           on July 2, 2014, Wife filed her exceptions to the
      report, and on July 17, 2014, Husband filed his exceptions to the
                                                     3
                                                                Circulated 11/13/2015 11:47 AM




 report.
        By way of order dated July 21, 2014, this court ordered:                  1)
either party to have the Master's hearing transcribed within ten
 (10) days of the date of the order; 2) the moving party to file and
serve on the opposing party within fifteen (15) days after the
transcript was lodged a memorandum of fact and law in support of
their      exceptions;     3)    upon   receipt    of    the   memorandum,         a
responsive     memorandum could be filed within fifteen              (15)     days
thereafter;     and 4) after the time had passed for the filing and
service of memoranda, the parties should notify the court to have
the matter scheduled for argument.
        The transcript was lodged of record on September 30, 2014.               on
October 3,     2014,     Husband filed a memorandum in support of his
exceptions.     on October 16, 2014, Husband filed a Motion to Dismiss
wife's exceptions        to the Report of the Special          Master on the
grounds that wife failed to file a memorandum in support of her
exceptions within fifteen (15) days after the transcript had been
lodged as required by this Court's order of July 21, 2014.                       on
October 21, 2014, Husband filed a Motion for oral Argument upon
wife's exceptions to the report of the Special Master.              on October
23, 2014, the Court granted Husband's motion for oral argument and
scheduled argument for November 19, 2014.
     Wife failed to appear for argument. Thereafter,             her counsel
sent by facsimile a letter dated November 21, 2014, apologizing for
not attending the argument and explaining that she had been ill and
requested that the matter be rescheduled "so that my client may be
represented properly."          she also stated:   "I   would like to file a
                                        4
                                                                  Circulated 11/13/2015 11:47 AM




          brief."   A true and correct copy of this letter is marked Exhibit
1:.,.:
'\,
          "A", attached to this opinion and incorporated herein by reference
         thereto and made a part of the record in this case.
                By way of letter dated November 24, 2014, this court informed
         defense counsel that because she was not present at the scheduled
         time for argument, the court took the matter under advisement and
         would decide the case on briefs and the record.      The letter further
         stated: "I will allow you to file a brief but it will have to be in
         by December 5, 2014,   if you want it to be considered."      A true and
         correct copy of this letter is marked Exhibit "B",     attached to this
         opinion and incorporated herein by reference thereto and made a
         part of the record in this case.
               Defense counsel never filed a brief.   we note wife also failed
         to file a brief in opposition to Husband's exceptions.      Thereafter,
         on January 14,   2015, we dismissed Husband's exceptions and those of
         wife and entered the dee ree in divorce.       Wife filed neither a
         petition for reconsideration nor a petition to vacate the decree.
         Instead, wife's notice of appeal was timely filed thereafter.
               The court granted Husband's Motion to Dismiss and dismissed
         Wife's exceptions to the report of the Special Master because Wife
         failed to file a brief in support of her exceptions,      in violation
         of the court's order of July 21, 2014 and wife's     failure to file        a
         brief within the additional extension of time granted to wife, at
         her request,   as set forth in our letter of December 5, 2014.
               Initially, this court notes that wife's exceptions were not
         dismissed because she violated any local rule of court. This case
         is thus distinguishable from Everhardt v. Akerley, 665 A.2d 1283
                                            5
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 (Pa.super.    1995). In Everhardt, the defendant filed exceptions to
 the     recommendation      of   a   Domestic   Relations      Hearing        officer
 increasing Appellant's support obligation.                  Pursuant to Lebanon
county Local Rule 7, the court established a briefing schedule.
The Appellant failed to file a brief within the time period set
forth by the local rule. The court dismissed Appellant's                   exceptions
because of his failure to timely file his brief within the deadline
set forth in Local Rule 7.            on appeal, the superior Court reversed,
ho 1 ding that the court's di smi ssa 1 of the Appe 11 ant's                 brief as
being in violation of the local rule violated Pennsylvania Rule of
civil      Procedure     239(f)   which   precludes    the    trial      court      from
dismissing a proceeding based on a party's failure to comply with a
local rule.
         There is no Berks county Rule of court which mandates the
automatic dismissal of a party's exceptions upon failure to file a
brief.       Likewise,    there is no court po 1 icy that requires this
result.      Instead, we dismissed the exceptions because wife failed
to comply with our Order of July 21,               2014 and our subsequent
extension of the time within which wife could file a brief.
         This case is substantially similar to Delcamp v. Delcamp, 881
A.2d 853 (Pa.super. 2005).            In Delcamp, the wife filed exceptions
to a special master in divorce's report.              Thereafter,       the husband
fi 1 ed a petition seeking to dismiss the wife's excepti ans for
failure to comply with the Berks county Rule of civil Procedure
1920. 5 5 which    requires the excepting party to arrange for the
transcribing of the testimony of the master's                hearing for filing
with the court within ten (10) days of fi 1 i ng the excepti ans.
                                          6
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Fo 11 owing a hearing,          the court granted          husband's     petition       and
dismissed wife's exceptions.              wife appealed.        The superior court
noted that the Berks county Rule of civil Procedure 1920.55                       did not
require the automatic dismissal of an action for failure to comply
with its terms. The Rule requires that a party file a motion for
di smi ssa l before such an action can occur.                 Husband filed such a
motion,       which was granted by the court. There was not an automatic
dismissal       based upon a party's            failure to comply with a local
rule.1
         This court's       decision 1s further supported by the superior
court's       holding in Jackson v. Kassab,              812 A.2d 1233 (Pa.Super.
2002).        In that case after a bench trial, the Appellee was awarded
$141,212.38,       with interest, and the Appellants filed timely post-
trial     motions.       The trial    court sent a letter to the par ti es
informing       them of the deadlines            within which to file briefs.
However, the appellants failed to file a brief and the trial court
denied the post-trial          motions.
         on   appeal ,   the Appe 11 ants       argued    that the trial         court's
dismissal for failure to file a brief was prohibited by Pa.R.C.P.
239(f) which specifically prohibits the dismissal of a civil action
for failure to comply with a local rule other than one promulgated
under Rule of Judicial Administration 1901.                   The court held that
the key di sti ncti on was that the post-trial                      motions were        not
dismissed for failure to comply with a local rule but rather for
failure to file a supporting brief.                      Because there was not an
automatic       dismissal     pursuant to a local           rule,    the court then

  For a similar case see Ferrante v. Ferrante, 791 A.2d 399 (Pa.super.              2002).
                                            7
                                                                   Circulated 11/13/2015 11:47 AM




    focused on whether or not the trial court abused its discretion.
    The court held that the Appe 11 ants'           failure to brief and argue
    their post-trial     motions resulted in the trial court being deprived
    of its opportunity       to address        the merits of their     post-trial
    contentions.   Id.   at 1235.
         In her concurring opinion, Judge Lally-Green stated:
           [W]hen the trial court requests briefs respecting issues
           raised in a motion for post-trial relief, the parties
           are to comply with that request or risk having all
           unbriefed issues waived. As both the majority and the
           dissent so clearly stated, the trial court has the
           inherent authority to order the filing of supporting
           briefs.  If the parties fail to comply with the order,
           the result may be waiver of the unbriefed issues.
     Id. at 1235-36.
         Judge Lally-Green also noted that whether the court issues an
    order of court or makes a request by letter, the parties are to
    comply with the court's         request.     "where the court requests by
    letter that a party file a brief, whether or not the letter request
    is part of the certified record,          and the party fails to do so,        the
    trial court may consider waived the issues raised in the motion for
which the brief was requested."                Id. at 1236.2
         Except1 ons to the Master's      report af'e analogous to past        tr i   al
motions.      Here, we issued an order that required the filing of a
brief in support of wife's           exceptions and later sent a letter to
defense counsel that granted an extension of time within which to
file the brief.           It is important to note that we granted this

2
     see also Jones v. Trexler, 419 A.2d 24 (Pa.super. 1980) (counsel for
plaintiffs failed to file for argument a brief on their petition to open or to
strike the judgment until the date of argument, contrary to the court's order and
the local rules of court, there was a lack of prosecution, and the lower court
did not abuse its discretion by dismissing plaintiffs' petition to open and to
strike judgment.)
                                          8
                                                                                    Circulated 11/13/2015 11:47 AM




           extension         at     the      specific        request     of    defense      counsel.
r.. ,.;
 '\
           Nevertheless,          Wife still failed to file a brief.                   Further,      the
          decision to dismiss was entered approximately nine-one (91) days
          after wife's        brief was due, the court providing her ample time to
           respond.
                   The court's      efforts to fully adjudicate a matter in a fair and
          complete way is dependent upon written argument.                        Facts may speak
          for themselves           but arguments         don't.       They must   be     crafted      to
          thoroughly examine every issue raised in the case,                        complete with
          appropriate        references to the record,                 and citation to relevant
          legal authority.
                   Lacking    Wife's        brief,    this     Court was      left with     creating
          arguments on her behalf.                 simply put, this is not the job of the
          court.      As stated by the superior court:                   "we decline to become
          appellant's        counsel.       when     issues    are not properly          raised     and
          developed      in briefs,         when the briefs are wholly inadequate to
          present specific issues for review, a court will not consider the
          merits thereof."          Commonwealth v. Sanford, 445 A.2d              149 (Pa.super.
          1982).      Moreover,        to   proceed     with    the     adjudication     of wife's
          exceptions without her brief would not only be unfair to Husband,
          who was denied an opportunity to present a counter-argument,                              but
          also sets a precedent that briefs need not be filed with the court
          despite an order to the contrary.
                "A court has an inherent power to enforce its own orders, and
          an appellate court will not interfere with the enforcement absent
          an abuse of discretion." commonwealth v. Shaffer,                     712 A.2d 749 (Pa.
          1998).      This court gave wife an inordinate amount of time to file
                                                        9
                                                                                    Circulated 11/13/2015 11:47 AM




r.. 1,;
          her brief.   she failed to do so; her arguments are waived.                                                          our
 '\,
~!;,1;:   action was not an abuse of discretion.    Rather, wife's inaction was
· ~,
~\;       a disregard for the time parameters set by the court.                                    For these
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          reasons, wife's exceptions were dismissed.


                                               Respectfully submitted,

                                                   c=:

                                            e  - ~-----........
                                                         Lash, J.




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                                          10
           Circulated 11/13/2015 11:47 AM




Exhibit   ''A''
]OV/21/2014/FRI 04:41 PM                                    FAX No.                                 F. 002
                                                                                       Circulated 11/13/2015 11:47 AM




                                     KATHLEEN D. DAUTRICH, ESQUIRE
                                             530 Court Street, 211d'Floor
                                                Reading, PA.19601
                                                   (610) 375-6767
                                                 fax (610) 375-6762


             Hon.-Scott Lash                                      November 21, 2014

                     Re: Jimenez v, Jimenez, divorc

             VIA FACSIMILE 610-478-6832


                     I apologize for not being present at argument court for the above-captioned case.

             I have been extremely ill for over a month with extreme pain and nausea. I have been

             absent from work for days at a time. It is confusing for me to keep track of everything.

                     I would respectfully request that this matter be rescheduled so that my client may

             be represented properly. I am having some out-of-office time the first week in

             December, and I would like to file a brief.

                     Thank you for your kind attention in this matter. If you have any questions, please

             do not hesitate to give me a call.



             Sincerely,


             Kathleen D. Dautrich, Esquire
             Cc: Greg Henry, Esq
                               (DJO- $""-J.!032>
           Circulated 11/13/2015 11:47 AM




Exhibit   ''B''
                                                                                           Circulated 11/13/2015 11:47 AM




                  ..   :,~·



                                                THE COURT OF COMMON PLEAS
                                                        JUDGES' CHAMBERS
                                                        633 COURT STREET
                                                 READING, PENNSYLVANIA 19601-4319               (610) 478- 6208 EXT. 3726
SCOTT E. LASH
                                                                                                   FAX: (610) 478-6832
   JUDGE
                                                           November 24, 2014

     SENT VIA FACSIMILE
     & U.S. FIRST CLASS MAIL


     Kathleen D. Dautrich, Esquire
     530 Court Street
     Reading, PA 19601

                Re:           Jimenez v. Jimenez divorce

     Dear Kathleen:

            As you were not present at the scheduled time for argument, I took the matter under advisement
     and will decide the matter on briefs and the record .. I will allow you to file a brief but it will have to be
     in by December 5, 2014, if you want it to be considered.


                                                                 Very truly yours, ·




                                                                         . Lash



    cc: Gregory Henry, Esquire
                                                          Circulated 11/13/2015 11:47 AM




To the Prothonotary:
      Please file the original Memorandum Op1n1on and distribute
certified copies as follows regarding No. 10-7705 #1:

     Gregory D. Henry,    Esquire

     Kathleen   D. Dautrich,   Esquire

     Computer


                                         Judge Scott E. Lash
