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CATHERINE M. KOHL v. JOHN CARL KOHL (09/05/89)

filed: September 5, 1989.

CATHERINE M. KOHL
v.
JOHN CARL KOHL, APPELLANT. CATHERINE M. KOHL, APPELLANT, V. JOHN C. KOHL



Appeal from the Order entered in the Court of Common Pleas of Monroe County, Civil Division, No. 390 DR of 1988, No. 1542 CIVIL of 1983. Appeal from the Order entered in the Court of Common Pleas of Monroe County, Civil Division, No. 1542 Civil of 1983.

COUNSEL

Arthur L. Jenkins, Jr., Norristown, for John Carl Kohl.

James V. Fareri, Stroudsburg, for Catherine M. Kohl.

Montemuro, Tamilia and Montgomery, JJ.

Author: Tamilia

[ 387 Pa. Super. Page 370]

Catherine Kohl (hereinafter "wife") and John Kohl (hereinafter "husband") were married on September 2, 1961 and two children were born of the marriage who are now emancipated. Wife filed a complaint in divorce on August 10, 1983 and the court appointed Salvator Vito as master on April 23, 1985. Several hearings were held between June 1985 and April 1986 and wife filed her brief with the master on January 6, 1987, with husband filing his soon thereafter.

On April 11, 1988 wife petitioned for recusal of master Vito and requested a de novo hearing as Vito had not yet filed his report and in fact, was in contempt of court for failure to abide by court Orders relating to his own acrimonious divorce action. Vito did file the report on April 18, 1988 and exceptions by the parties were filed thereafter, the disposition of which is now being appealed by both parties. Additionally, wife appeals the court's denial of her petition for recusal; we will first address that issue.

Wife argues not only did the master, Vito, fail to timely render a decision in their case, but he was suffering from drug and alcohol abuse and was in the middle of his own divorce, both of which situations prejudiced her. Vito denies any prejudice was suffered by wife and she fails to point to any instance where the master acted in a biased or hostile manner toward her. Although he admits he was not in compliance with the procedural rules regarding the time for filing his report, he counters that wife's counsel did not question the delay until the master's marital difficulties were publicized, thus making it appear wife was simply trying to use the master's personal problems to her advantage to obtain an opportunity to submit new or additional evidence because she was unhappy with the report.

[ 387 Pa. Super. Page 371]

While we understand how wife could believe she was prejudiced under these circumstances, we find the trial court did not err in refusing to grant her petition for recusal. Certainly we do not condone the master's tardiness in filing his report, but the issue of whether he should have been recused because his findings and report were biased against wife must be resolved in the master's favor when, as here, no specific allegations of bias are stated or proven. The master's report and recommendations are advisory only; the trial court is required to make an independent review of the report and recommendations to determine whether they are appropriate. Goodman v. Goodman, 375 Pa. Super. 504, 544 A.2d 1033 (1988). This being the case, any possible bias on the part of the master would be reviewed by the trial court and corrected since the trial court was responsible for making the final Order.*fn1

Of the other issues raised by wife, the first is that the court erred in denying her request for alimony, alimony pendente lite and counsel fees and expenses. Under the Divorce Code,*fn2 23 P.S. § 101 et seq., alimony may be awarded by the court if the party seeking alimony lacks sufficient assets to support herself and is unable to support herself through appropriate employment. 23 P.S. § 501(a). Our review of the record discloses nothing which would cause us to find the trial court abused its discretion in finding the wife has sufficient assets on which to live and support herself and is able to supplement the award by obtaining appropriate employment. We find the trial court was correct in rejecting her claim.

Alimony pendente lite and counsel fees and expenses may be awarded in proper cases by the court upon petition by a party. 23 P.S. § 502. ...


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