Anderson v. Anderson

DISSENTING OPINION BY

BOWES, J.:

¶ 1 Contrary to the majority, I believe the trial court’s decision to recalculate the special master’s recommended equitable distribution by including the appreciated value of Wife’s premarital antiques was an abuse of discretion. There is no doubt that the appreciation of premarital property during the marriage is considered marital property for the purposes of calculating an equitable distribution order. Smith v. Smith, 439 Pa.Super. 283 , 653 A.2d 1259 (1995) (marital property includes increase in value of non-marital property during marriage); 23 Pa.C.S. § 3501. However, I agree with Wife’s contention that the special master properly disregarded the appreciated value of the antiques because Husband was barred, pursuant to Pa. R.C.P. 1920.33(d)(1), from introducing evidence regarding the antiques at the master’s hearing.

¶ 2 Rule 1920.33 provides, in pertinent part as follows:

Rule 1920.33. Joinder of Related Claims. Distribution of Property. Enforcement

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(b) Within the time required by order of court or written directive of the master or, if none, at least sixty days before the scheduled hearing on the claim for the determination and distribution of property, each party shall file and serve upon the other party a pre-trial statement. The pre-trial statement shall include the following matters, together with any additional information required by special order of the court:

(1) a list of assets, which may be in chart form, specifying

(i) the marital assets, their value, the date of the valuation, whether any portion of the value is non-marital, and any hens or encumbrances thereon, and

(ii) the non-marital assets, their value, the date of the valuation, and any liens or encumbrances thereon;

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(d)(1) A party who fails to comply with a requirement of subdivision (b) of this rule shall, except upon good cause shown, be barred from offering any testimony or introducing any evidence in support of or in opposition to claims for the matters not covered therein.

Pa.R.C.P. 1920.38. Thus, where a party fails to disclose items in his pretrial statement, the rule bars the admission of evidence in support' of or in opposition to the undisclosed items unless there is good cause for the failure. 3 The apparent rationale underlying the rule is to alert the parties to all the possible issues, to eliminate surprise, and to allow the master to effectuate the fairest possible distribution. See Box v. Box, 25 Pa. D. & C.3d 219 (1983).

¶ 3 Wife’s argument concerns the following facts. After Wife filed the divorce complaint, Husband filed an inventory of property pursuant to Pa.R.C.P. 1920.33(a). The inventory purported to list all property owned or possessed by either party as of the date Wife filed the divorce complaint; however, the inventory did not include Wife’s antiques or the value of their appreciation. Thereafter, on January 4, 2000, Husband filed a pretrial statement that did not disclose the antiques or their appreciation as required by Pa.R.C.P. 1920.33(d)(1). Instead, Husband merely referred the court to the inventory he filed previously.

¶4 During the Master’s hearing, Husband attempted to establish that wife’s antiques appreciated in value by $30,000 over the course of the marriage. Under the guise of cross-examination, Husband sought to introduce a 1979 document wherein an expert appraised the antiques at $10,000. Following Wife’s objection, the master barred the actual appraisal document from evidence but allowed testimony concerning the substance of the appraisal. Wife confirmed that the antiques were appraised at $10,000 in 1979, nearly four years prior to the marriage. Later, Husband again attempted to demonstrate the value of appreciation by introducing a 1998 loan application wherein the parties estimated the value of the antiques to be $40,000. This valuation was based upon unconfirmed speculation where the parties obviously had an interest in inflating the value on the loan application. The master did not expressly declare that this aspect of Husband’s claim was barred by Rule 1920.33. Instead, the master’s recommendation simply omitted the $30,000 appreciation from the equitable distribution calculation.

¶ 5 Considering the rule’s underlying rationale, I cannot agree with the majority’s conclusion that as a matter of fairness Rule 1920.33 should be nullified under the facts of this case. Instead, I would find that irrespective of Wife’s omission, Husband, as the party seeking the benefit of the antiques’ appreciation, was required under the rule to give notice that his claim sought to establish the antiques’ appreciated value.

¶ 6 There is a dearth of precedent regarding this issue. However, Wife referred this Court to several cases from the various courts of common pleas that support her position. Those cases consistently have held that Rule 1920.33 bars the introduction of evidence of matters that are not disclosed in the pretrial statement. See, e.g., Otteni v. Otteni, 45 Pa. D. & C.3d 40 (1987) (party may testify about the val *833 ue of marital assets but can not introduce evidence of valuation where the party has failed to comply with Pa.R.C.P. 1920.38); Box, supra (Rule 1920.33 filing requirements are mandatory and cannot be waived); Falasco v. Falasco, 14 Pa. D. & C.4th 123 (1992) (where a party fails to comply with Rule 1920.33, she will be precluded from entering evidence regarding the value of property and from contradicting other party’s evidence).

¶ 7 Herein, Husband surprised Wife during the master’s hearing with repeated attempts to introduce evidence supporting a claim he failed to disclose, without good cause, in his pretrial statement. Since this aspect of Husband’s claim was not disclosed until cross-examination, the attempted valuation denied Wife the opportunity to prepare for the claim, much less present expert testimony to rebut Husband’s assertion. This inequity was exacerbated by the trial court’s reliance on the questionable method husband employed to evaluate the antiques, and the subjective valuation reflected in the loan application.

¶ 8 Conceding that the parities estimated the antiques’ value at $40,000 on the 1998 loan application, and notwithstanding their interest in inflating the antiques’ worth therein, the valuation is unreliable because neither party is a qualified appraiser. If husband had properly listed the antiques on his pretrial statement, the parties either could have stipulated to their value or disputed their value and procured a professional appraiser. Moreover, an appraiser likely would have been able to determine the value of the antiques as of the date of the marriage, thereby alleviating the trial court’s need to assume that de minimis appreciation occurred during the nearly four-year period between the 1979 appraisal and the parties’ marriage in 1983.

¶ 9 I believe that Husband was barred from raising the appreciation claim at the hearing, and the master properly omitted the antiques’ appreciated value from the equitable distribution. Therefore, I would find that the trial court abused its discretion in disregarding the master’s determination and including the amount in its calculation. Implicitly, the trial court accepted, and the majority affirms, Husband’s calculated ambush regarding a claim that neither party gave notice was in dispute. As I conclude that Husband’s tactics run contrary to the letter of the law, I must dissent. See Wiley v. Snedaker, 765 A.2d 816 (Pa.Super.2000) (discussing Pa.R.C.P. 212.2, purpose of pretrial statement is to prevent surprise).

. Husband does not raise any allegations of good cause for his failure to comply with Rule 1920.33(b).