February 24, 2014
MICHELLE LYNN BOGOSIAN HECKMANN, Appellant
CONRAD THOMAS HECKMANN, Appellee
Appeal from the Decree Entered January 28, 2013, In the Court of Common Pleas of Delaware County, Domestic Relations Division, at No. 2010-005658.
BEFORE: GANTMAN, SHOGAN and PLATT [*] JJ.
Appellant, Michelle Lynn Bogosian Heckmann ("Wife"), appeals from the decree in divorce entered on January 28, 2013, which made final the November 19, 2012 order directing her to repay Appellee, Conrad Thomas Heckmann ("Husband"), for loans made to her during the marriage. After review, we vacate and remand for further proceedings.
The factual and procedural background of this case was set forth by the trial court as follows:
On or about October 1, 2012 [Husband] and [Wife] appeared for a full and fair hearing before this court for disposition of [Husband's] Petition for Special Relief requesting the return of certain personalty and monies loaned to [Wife]. After the hearing, this court took the matter under advisement and entered an Order granting special relief dated November 19, 2012, mandating [Wife] repay the sum of $32, 500.00 to [Husband] within ninety (90) days consistent with the evidence presented at the hearing. No equitable distribution hearing was held due to the existence of both pre-nuptial and post-nuptial agreements and the October 1, 2012 hearing dealt exclusively with the disposition of non-marital assets. On or about January , 2013 a Divorce Decree was entered separating [Wife] and [Husband] from the bonds of matrimony. On or about February 8, 2013, [Wife] filed a Nunc Pro Tunc Petition for Reconsideration of the November 19, 2012 Order mischaracterizing the Special Relief Order as an Equitable Distribution Decree. [Wife's] Nunc Pro Tunc Petition for Reconsideration of the November 19, 2012 Order was denied and a notice of appeal was subsequently filed [on February 26, 2013] relative to the November 19, 2012 Order.
Trial Court Opinion, 5/7/13, at 1-2.
On appeal, Wife raises four issues for this Court's consideration:
1. Whether the trial court abused its discretion by misapplying the law or failing to follow proper legal procedure by, pursuant to 23 Pa.C.S. 3323(f), ordering the [Wife] to make repayment of loans to [Husband] without taking sworn testimony, admitting exhibits or having exhibits or sworn affidavits attached to the Motion.
2. Whether the trial court abused its discretion by misapplying the law or failing to follow proper legal procedure by, pursuant to 23 Pa.C.S. 4105, finding the existence of a marital loan or loans.
3. Whether the trial court abused its discretion by misapplying the law or failing to follow proper legal procedure by granting equitable relief under 23 Pa.C.S. 3323(f) even though there were Pre-nuptial and Post-nuptial Agreements in the case which did not provide for reimbursement of any marital loans as the Court Ordered.
4. Whether the trial court abused its discretion by misapplying the law or failing to follow proper legal procedure by granting equitable relief in a divorce case where equitable distribution was not pled by either party.
Wife's Brief at 2.
"We review an order disposing of a petition for special relief under an abuse of discretion standard of review." Kulp v. Kulp, 920 A.2d 867, 870 (Pa.Super. 2007).
In addition, we note that, in matrimonial cases, the Divorce Code provides that
the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.
Id. (quoting 23 Pa.C.S.A. 3323(f)).
While Wife presents four issues for this Court's consideration, the crux of Wife's appeal is a challenge to the manner in which the October 1, 2012 hearing was conducted. After review, we are constrained to conclude that the trial court abused its discretion in entering the November 19, 2012 order because the hearing was deficient and provides no support for the order.
Our review of the record reveals that, at the hearing, no sworn testimony was taken and, while exhibits were marked, nothing was entered into evidence. Transcript, 10/1/12, at 21, 31. Moreover, because no testimony was taken, Wife was never afforded an opportunity to cross-examine Husband on his petition. Thus, we cannot agree with the trial court that a full and fair hearing was held, and we cannot agree that the "evidence" supports the trial court's order because there was no evidence to consider. Moreover, the trial court's conclusion that Wife waived this challenge for failing to object to Husband's unsworn pro se argument is baseless. Trial Court Opinion, 5/7/13, at 3. It is axiomatic that Wife was under no obligation to object to testimony where no testimony was given. Accordingly, we vacate the November 19, 2012 order entered in favor of Husband and remand this matter to the trial court to hold an evidentiary hearing. At that hearing, the parties shall have the opportunity to present witnesses and documentary evidence.
November 19, 2012 order vacated. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered.