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[U] Mayercheck v. Mayercheck

Superior Court of Pennsylvania

May 31, 2013

BARBARA J. MAYERCHECK, Appellee
v.
JOSEPH MAYERCHECK, Appellant BARBARA J. MAYERCHECK, Appellant
v.
JOSEPH MAYERCHECK, Appellee

NON-PRECEDENTIAL DECISION

Appeals from the Decree Entered October 3, 2011, In the Court of Common Pleas of Westmoreland County, Domestic Relations Division, at No. 546 of 2002-D.

BEFORE: DONOHUE, SHOGAN and WECHT, JJ.

MEMORANDUM

SHOGAN, J.:

Joseph Mayercheck ("Husband") appeals from the final divorce decree entered by the trial court on October 3, 2011. Barbara J. Mayercheck ("Wife") filed a cross appeal from that same decree. After careful review, we affirm.

The record reflects this case's long and protracted history. The parties were married on November 23, 1985. Wife filed a divorce action in Westmoreland County on August 18, 1999. On January 5, 2000, Husband filed his own pro se complaint in divorce. On January 11, 2000, praecipes to withdraw the complaints in divorce were filed at both actions.

On May 23, 2000, Wife, pro se, again filed a complaint in divorce. Attached to the complaint was a document entitled "Distribution of Assets and Settlement Agreement, " also dated May 23, 2000, and containing notarized signatures of both parties.

On June 9, 2000, Wife filed a petition to withdraw the divorce petition and "Distribution of Assets and Settlement Agreement." In addition, the parties executed a document entitled, "Withdrawal of Assets, " also dated June 9, 2000.

On March 22, 2002, Wife, through counsel, filed a new complaint in divorce at No. 546 WDA 2002, with counts for alimony, alimony pendente lite, equitable property distribution, counsel fees, costs, expenses, insurance policies, and exclusive possession. Husband filed his own divorce complaint, which was ultimately dismissed in favor of proceeding with the action initiated by Wife at No. 546 WDA 2002.

On April 1, 2002, Husband, pro se, filed an answer and counterclaim to Wife's complaint. Husband's counterclaim included counts for alimony and equitable distribution, different than those included in the May 23, 2000 agreement.

Husband subsequently amended his counterclaim and filed various petitions. On February 14, 2003, Husband filed a petition to enforce the May 23, 2000 Agreement. A hearing was held on this motion on October 17, and November 3, 2003. The petition and the request for entry of a divorce decree were denied by order of court dated December 19, 2003.

Husband appealed the December 19, 2003 order. The appeal was quashed as interlocutory by order of this Court dated March 8, 2004.

By order dated February 16, 2005, Attorney H. Gervase Fajt was appointed as Master to hear the parties' divorce case. The first day of testimony was June 7, 2006. Testimony continued for twenty-three additional days with the final day of testimony being December 4, 2009. The issues before the Master included both Husband's and Wife's claims for divorce, equitable distribution, and counsel fees.

The Master filed his report and recommendation on December 17, 2010. The Master recommended the following: 1) No divorce decree be issued because neither party had filed an affidavit under 23 Pa.C.S.A. § 3301(c) or (d), or met their burden of proof on fault issues, and 2) no distribution of the parties' property be made. The report also provided for a contingent distribution of property in the event that the parties' divorce action was at issue. Master's Report, 12/17/10, at 73-76.

Wife subsequently filed an affidavit pursuant to 23 Pa.C.S.A. § 3301(d) on December 20, 2010. Husband filed a counter-affidavit on December 22, 2010.

Both parties filed exceptions to the Master's report and recommendation. The trial court ruled upon these exceptions by memorandum and order dated June 22, 2011. In that order, the court stated that, upon the filing of a praecipe to transmit the record, a final divorce decree would be entered.

On July 7, 2011, Husband filed three pleadings: a motion for leave to rescind acceptance of service and to strike the acceptance of service; a motion to strike affidavit; and a motion to dismiss the divorce action. By order dated August 24, 2011, the court denied all three motions. In response to Wife's motion for reconsideration, the court remanded the matter to the Master on September 14, 2011, to calculate the "percentage of distribution" of assets he intended to award to the parties.

An amendment to the Master's report was filed on September 29, 2011. The Master determined that the percentage of distribution was fifty-eight percent to Wife and forty-two percent to Husband. Based upon the Master's amendment, the court amended the June 22, 2011 order, making modifications in the values awarded to each party, awarding counsel fees to Wife, and entering a final divorce decree. Trial Court Order, 10/3/11.

On October 28, 2011, Husband filed a notice of appeal from the October 3, 2011 order. On November 15, 2011, Wife filed a cross appeal. Husband posted a supersedeas bond on December 30, 2011.

Husband presents the following issues for our review:
I. Did the Court err in denying Defendant's Petition to Enforce Distribution of Assets and Settlement Agreement dated May 23, 2000?
II. Did the Court err in entering the October 3, 2011 Order that Barbara J. Mayercheck, the Plaintiff, and Joseph Mayercheck, the Defendant, are hereby divorced from bonds of matrimony?
III. Did the Court err in accepting the Master's Distribution of 58% of marital assets to Wife and 42% the marital assets to Husband as modified by the October 3, 2011 Order of Court[]?

Husband's Brief at 6.

Wife counters the assertions by Husband and presents two additional ...


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