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Fotopoulos v. Fotopoulos

Superior Court of Pennsylvania

May 2, 2018


          Appeal from the Order Entered June 28, 2016 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2010-FC-0234



          BOWES, JUDGE.

         James 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 affirm.

         Husband 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.

         Wife 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.

         On June 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.

         Husband 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.[1] 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.

         The 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.

         By 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.

         On 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.

         Prior 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.

         Following two days of testimony, the Master issued his report on October 1, 2014. Both parties filed exceptions.[2] 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 review:

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 ...

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