HEATHER A. FOTOPOULOS
JAMES F. FOTOPOULOS Appellant
from the Order Entered June 28, 2016 In the Court of Common
Pleas of Lehigh County Civil Division at No(s): 2010-FC-0234
BEFORE: BOWES, LAZARUS AND PLATT, [*] JJ.
F. Fotopoulos ("Husband") appeals from the order
entered June 28, 2016, amending the preliminary order and
decree to permit entry of the June 6, 2016 divorce decree. We
and Heather A. Fotopoulos ("Wife") married on June
25, 1995, and three children were born of the marriage. Wife
was the breadwinner, as Husband's only income source
since 2005 consisted of Social Security Disability
("SSD") and some unprofitable business ventures.
The parties separated on February 18, 2010, although they
both remained in the marital residence until February 2013.
At that time, Wife moved close by to facilitate the shared
physical custody of the children. Although Husband wanted to
stay in the marital residence, it was initially unclear
whether that was a financially viable option, as the marital
home was mortgaged and subject to a home equity loan. The
couple's other assets included two bank accounts, an
engagement ring, a Greek coin, an Emmit Smith print, and two
cars with outstanding loans. The total value of the marital
assets was less than $100, 000.
commenced this action in divorce, custody, and equitable
distribution against Husband on or about February 18, 2010.
Husband countered seeking divorce, equitable distribution,
custody, and alimony pendente lite
("APL"). Husband did not make any claim for counsel
fees. Wife filed a motion for appointment of a master for the
divorce and equitable distribution actions, and Richard Betz
was appointed by the court to serve as Master.
12, 2012, Husband filed a petition for interim counsel fees
and expert expense, which he subsequently amended. On January
22, 2013, the court granted the motion, despite noting that
Husband's household net income exceeded Wife's. The
court characterized the $7, 500 award as an advance to
Husband, and anticipated that Wife would be reimbursed when
the marital assets were distributed.
sought and received child and spousal support, and an interim
custody order was entered granting the parties shared
physical and legal custody of the children. Husband
subsequently withdrew his claim for spousal support and made
a claim for alimony pendente lite ("APL")
instead. After a hearing before Master Betz on May 16, 2013,
Husband was awarded $4, 698 monthly for the support of
himself and the three children.
divorce proceeded. The Master ordered Husband to provide Wife
with a copy of his expert report regarding his ability to
engage in part-time or full-time employment. Wife opted not
to have Husband submit to a physical examination.
correspondence directed to the Master dated June 6, 2014,
Wife's counsel requested that her expert neurologist,
Martha Lusser, M.D., be permitted to testify via telephone at
the hearing on June 23, 2014. Wife's counsel noted
therein that the parties had agreed that their respective
vocational experts could testify via telephone. However,
Husband's counsel would not consent to Dr. Lusser be
permitted to so testify. Wife's counsel represented that
Dr. Lusser had requested this accommodation because she was
scheduled to undergo chemotherapy that morning and the
treatment would leave her too tired to travel to the
courthouse to give testimony in person. Husband's counsel
objected, alleging that his client would be seriously
prejudiced if such an important witness would be permitted to
testify via telephone. The Master ruled that Dr. Lusser could
testify by phone, Husband filed an exception to the ruling,
and the trial court overruled the exception.
February 27, 2014, Husband filed a second petition for
interim counsel fees and expenses for purposes of obtaining a
medical expert. The trial court denied the petition after a
conference. Husband sought de novo review, and the
court held a hearing on the petition on June 23, 2014. Again,
the court denied fees and expenses. That denial forms the
basis for Husband's claim that he was forced to litigate
from a disadvantaged position because he lacked the resources
to obtain a medical expert to define his earning capacity.
to the commencement of the Master's hearing, Master Betz
held a pretrial conference where, inter alia, the
parties stipulated to the telephonic testimony of their
respective vocational experts. There was no discussion about
the telephone testimony of Dr. Lusser at that time. At the
Master's hearing, Husband did not introduce any testimony
from a medical provider with regard to his present physical
condition and employability based on that condition. Rather,
Husband offered the medical records and reports of his
treating physicians, and the telephonic testimony of
vocational expert, Dr. Robert A. Cipko. Dr. Cipko concluded,
based on his review of Husband's medical records, some
testing, and an examination, that Husband was unable to work
at any gainful employment. On cross-examination, Dr. Cipko
was presented with reports and records from Husband's
treating physicians that he had not seen when he prepared his
report. Those physicians opined that Husband was capable of
gainful employment, albeit sedentary, and Dr. Cipko deferred
to those experts.
two days of testimony, the Master issued his report on
October 1, 2014. Both parties filed exceptions. After a thorough
review of the record, the trial court adopted the
Master's findings of fact. It granted Wife's
exceptions and granted Husband's exceptions, in part.
Preliminary Order and Decree, 9/15/15, at 1. The court did
not enter a final divorce decree as there were outstanding
issues involving equitable distribution. Nonetheless, Husband
appealed to this Court, and we quashed the appeal as
interlocutory. Husband then twice requested entry of a final
divorce decree, which Wife opposed, and the court denied.
When it became apparent that the marital home could not be
sold until a divorce decree was entered, Wife filed a
petition to amend the interim order, which was granted.
Husband appealed again, complied with the trial court's
order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, and the court issued its Rule
1925(a) opinion. Husband presents three questions for our
I. Did the court below commit an abuse of discretion and an
error of law when it refused to make a determination that the
divorce master erred when he permitted the telephone
testimony of a crucial expert witness for the Plaintiff who
was a physician who testified unequivocally that had she
believed she was testifying in court she would have first
examined the Appellant before giving an opinion?
II. Did the court below commit an abuse of discretion and an
error of law when it failed and refused to make an order
awarding Appellant interim counsel fees and expenses so that
he could retain a medical expert to testify on his behalf
when the earnings ...