Moser, B. v. Renninger, R.

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

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1

As explained infra, because Ronald R. Renninger, Sr. is deceased, the

Estate has been substituted as a party. Accordingly, we have amended the

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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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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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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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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

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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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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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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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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

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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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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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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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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

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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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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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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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