J-S67031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JACINTO JIMINEZ, JR., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KIM MCKNIGHT-JIMINEZ,
Appellant No. 311 MDA 2015
Appeal from the Decree January 14, 2015
in the Court of Common Pleas of Berks County
Civil Division at No.: 10-7705
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 08, 2015
Appellant, Kim McKnight-Jiminez, acting pro se, appeals from the
divorce decree and order issued by the trial court on January 14, 2015.
Appellant’s appeal stems from the trial court’s dismissal of the exceptions
she filed to the report and recommendation of the special master in divorce.1
(See Appellant’s Brief, at 5). Appellee, Jacinto Jiminez, Jr., has filed a
petition to quash. We affirm on the basis of the trial court opinion and deny
the petition to quash as moot.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
On January 14, 2015, prior to issuing the divorce decree in this matter, the
trial court issued an order dismissing Appellant’s eleven exceptions to the
report of the special master. (See Order, 1/14/15).
J-S67031-15
In its March 18, 2015 opinion, the trial court fully set forth the relevant
facts and procedural history of this case. (See Trial Court Opinion, 3/18/15,
at 1-5).2 Therefore, we have no need to restate them here.
Appellant raises the following issue for our review:
[1.] Whether the trial [court] abused [its] discretion in
depriving [Appellant] of her day in court merely because the
mental and physical illnesses of [Appellant’s] second attorney
rendered that attorney incapable of performing her duties within
the initial and extended deadlines?
(Appellant’s Brief, at 4) (most capitalization omitted).
Appellant claims that the trial court abused its discretion when it
dismissed her eleven exceptions to the report and recommendation of the
special master in divorce because she failed to file a brief in support and
entered the divorce decree and order adopting the master’s findings. (See
Appellant’s Brief, at 5, 11-13). “Our standard of review when assessing the
propriety of an order effectuating the equitable distribution of marital
property is whether the trial court abused its discretion by a misapplication
____________________________________________
2
We note that on page three of the trial court opinion, the trial court states
“Wife contended that she was unaware that the Master’s hearing had been
rescheduled from September 24, 2013 to May 24, 2013 and thus failed to
appear at the hearing.” (Trial Ct. Op., at 3). By way of further explanation,
on April 24, 2013, the trial court issued an order scheduling the Divorce
Master’s hearing for September 24, 2013. (See Order, 4/24/13). On April
29, 2013, the trial court issued an amended order which rescheduled the
Divorce Master’s hearing for an earlier date, May 24, 2013. (See Order,
4/29/13). Both orders indicate that the court distributed a copy to Appellant
at 268 Sycamore Road, West Reading, Pennsylvania 19608.
-2-
J-S67031-15
of the law or failure to follow proper legal procedure.” Biese v. Biese, 979
A.2d 892, 895 (Pa. Super. 2009) (citation and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, we conclude
that there is no merit to Appellant’s issue. The trial court properly disposes
of the question presented. (See Trial Ct. Op., at 5-10) (finding: (1)
Appellant’s exceptions were not dismissed for failure to comply with a local
rule, but rather, were dismissed for failure to file a supporting brief 3; (2) the
trial court gave an inordinate amount of time for Appellant to file her brief
and she failed to do so; and (3) the trial court’s dismissal of Appellant’s
exceptions was not an abuse of discretion). Accordingly, we affirm on the
basis of the trial court’s opinion.
Moreover, because we have affirmed the divorce decree on the merits
in this matter, Appellee’s petition to quash appeal is denied as moot.
Divorce decree and order affirmed. Petition to quash denied as moot.
____________________________________________
3
Appellant failed to timely file a supporting brief within the 15 days allotted
by the trial court order after the transcript of the hearing before the divorce
master was lodged on the record, failed to appear for the oral argument on
Appellant’s exceptions, failed to file a brief in support of those exceptions by
the extended deadline set by the trial court, and furthermore failed to ever
file a brief in support of her exceptions, whether timely or otherwise, before
the trial court dismissed the exceptions ninety-one days after Appellant’s
brief was initially due. (See Trial Ct. Op., at 5, 8-9).
-3-
J-S67031-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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JACINTO JIMINEZ, JR., IN THE COURT OF COMMON PLEAS OF
BERKS COUNTY, PENNSYLVANIA
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Gregory D_. Henry, Esquire, attorney for Plaintiff, Jacinto
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Kathleen D. Dautrich, Esquire, attorney for Defendant, Kim McKnight
Jiminez
MEMORANDUM OPINION, SCOTT E. LASH, JUDGE MARCH 18, 2015
Defendant, Kim McKnight Jiminez, (hereinafter "Wife"), has
filed an appeal from this court's Divorce Decree entered January
14, 2015. wife's appeal stems from a dismissal of the exceptions
she filed to the report and recommendation of the Special Master in
divorce. This court dismissed her exceptions for failure to appear
in argument court or file a brief to provide a basis for the
exceptions, despite this court giving her ample opportunity to do
so. we file this opinion pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a).
This case has an extensive procedural background, necessary to
be set forth in detail to provide an adequate overview. Plaintiff,
Jacinto Jiminez, Jr., (hereinafter "Husband"), filed a divorce
complaint on April 22, 2010. on February 1, 2012, Husband filed a
motion for appointment of a Master and on February 2, 2012, this
court appointed Louis M. Schucker, Esquire, as Divorce Master.
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On April 18, 2013, wife filed a prose "Motion For Ineffective
Assistance of counsel" presumably seeking the removal of her
lawyer. Defense counsel filed a motion for leave to withdraw as
counsel on April 23, 2013. on May 15, 2013, the court denied
Wife's petition for ineffective assistance of counsel and granted
defense counsel leave to withdraw from this case.
On June 17, 2013, the Master filed a report and recommendation
and a proposed decree and order. In his report, the Master noted
that wife's counsel had filed a petition to withdraw with a hearing
scheduled for May 15, 2013. He further observed that defense
counsel did not appear or represent Wife at the Master's hearing
scheduled and held on May 24, 2013, despite the fact that notice of
this hearing was sent to defense counsel and to Wife. wife failed
to appear at the hearing or otherwise participate 1n the
proceedings, al though Husband's counsel did appear and provided
testimony and exhibits. The Master ce rti fi ed that on June 17,
2013, he mailed a copy of his report to Husband's counsel and to
wife.
on July 23, 2013, the court signed the proposed divorce
decree.
on August 14, 2013, Wife's present counsel entered her
appearance and filed a "Petition To vacate The Divorce Decree And
order Dated July 23, 2013 And To Remand claims To Master For Full
Hearing." In the petition, wife alleged that she received a copy
of an order dated April 24, 2013 scheduling the Master's hearing in
her case for September 24, 2013. The Prothonotary sent this order
to the address listed for wife 1n the divorce complaint. However,
2
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the distribution list on the scheduling order directed that Wife be
served at 268 sycamore Road, west Reading, PA 19608, a non-existent
t;i address. subsequently, there was an amended order of April 29,
2013 (Wife erroneously alleged that the order was dated April 25,
2013) scheduling a settlement conference and hearing for May 24,
2013, which was also sent to the non-existent address and which
wi!fe a 11 eged she never received. Wife contended that she was
unaware that the Master's hearing had been rescheduled from
September 24, 2013 to May 24, 2013 and thus failed to appear at the
I
hear i nq , Likewise, wife never received a copy of the Master's
report and recommendation. wife alleged that because the Master
stated in his report that he believed Wife to be residing at the
non-existent address, this was the address where the Master
attempted to serve wife with his Report and the notice regarding
her right to fi 1 e exceptions. wife did receive a copy of the
si6ned divorce decree and order on July 29, 2013. she then
retained new counsel who filed the petition to vacate and remand.
On August 19, 2013, the court vacated the divorce decree of
July 23, 2013, and remanded the matter to the Master for a further
helri ng on the claims of divorce and di stri buti on of property.
colnsel and the Master met in an attempt to resolve the matter but
I
because no agreement could be reached, the Master held a hearing on
I
Ap ri 1 11, 2014, at which ti me both parties and their counse 1
appeared and testified.
On June 12, 2014, the Master filed his report and proposed
I
di~orce decree. on July 2, 2014, Wife filed her exceptions to the
report, and on July 17, 2014, Husband filed his exceptions to the
3
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report.
By way of order dated July 21, 2014, this court ordered: 1)
either party to have the Master's hearing transcribed within ten
(10) days of the date of the order; 2) the moving party to file and
serve on the opposing party within fifteen (15) days after the
transcript was lodged a memorandum of fact and law in support of
their exceptions; 3) upon receipt of the memorandum, a
responsive memorandum could be filed within fifteen (15) days
thereafter; and 4) after the time had passed for the filing and
service of memoranda, the parties should notify the court to have
the matter scheduled for argument.
The transcript was lodged of record on September 30, 2014. on
October 3, 2014, Husband filed a memorandum in support of his
exceptions. on October 16, 2014, Husband filed a Motion to Dismiss
wife's exceptions to the Report of the Special Master on the
grounds that wife failed to file a memorandum in support of her
exceptions within fifteen (15) days after the transcript had been
lodged as required by this Court's order of July 21, 2014. on
October 21, 2014, Husband filed a Motion for oral Argument upon
wife's exceptions to the report of the Special Master. on October
23, 2014, the Court granted Husband's motion for oral argument and
scheduled argument for November 19, 2014.
Wife failed to appear for argument. Thereafter, her counsel
sent by facsimile a letter dated November 21, 2014, apologizing for
not attending the argument and explaining that she had been ill and
requested that the matter be rescheduled "so that my client may be
represented properly." she also stated: "I would like to file a
4
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brief." A true and correct copy of this letter is marked Exhibit
1:.,.:
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"A", attached to this opinion and incorporated herein by reference
thereto and made a part of the record in this case.
By way of letter dated November 24, 2014, this court informed
defense counsel that because she was not present at the scheduled
time for argument, the court took the matter under advisement and
would decide the case on briefs and the record. The letter further
stated: "I will allow you to file a brief but it will have to be in
by December 5, 2014, if you want it to be considered." A true and
correct copy of this letter is marked Exhibit "B", attached to this
opinion and incorporated herein by reference thereto and made a
part of the record in this case.
Defense counsel never filed a brief. we note wife also failed
to file a brief in opposition to Husband's exceptions. Thereafter,
on January 14, 2015, we dismissed Husband's exceptions and those of
wife and entered the dee ree in divorce. Wife filed neither a
petition for reconsideration nor a petition to vacate the decree.
Instead, wife's notice of appeal was timely filed thereafter.
The court granted Husband's Motion to Dismiss and dismissed
Wife's exceptions to the report of the Special Master because Wife
failed to file a brief in support of her exceptions, in violation
of the court's order of July 21, 2014 and wife's failure to file a
brief within the additional extension of time granted to wife, at
her request, as set forth in our letter of December 5, 2014.
Initially, this court notes that wife's exceptions were not
dismissed because she violated any local rule of court. This case
is thus distinguishable from Everhardt v. Akerley, 665 A.2d 1283
5
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(Pa.super. 1995). In Everhardt, the defendant filed exceptions to
the recommendation of a Domestic Relations Hearing officer
increasing Appellant's support obligation. Pursuant to Lebanon
county Local Rule 7, the court established a briefing schedule.
The Appellant failed to file a brief within the time period set
forth by the local rule. The court dismissed Appellant's exceptions
because of his failure to timely file his brief within the deadline
set forth in Local Rule 7. on appeal, the superior Court reversed,
ho 1 ding that the court's di smi ssa 1 of the Appe 11 ant's brief as
being in violation of the local rule violated Pennsylvania Rule of
civil Procedure 239(f) which precludes the trial court from
dismissing a proceeding based on a party's failure to comply with a
local rule.
There is no Berks county Rule of court which mandates the
automatic dismissal of a party's exceptions upon failure to file a
brief. Likewise, there is no court po 1 icy that requires this
result. Instead, we dismissed the exceptions because wife failed
to comply with our Order of July 21, 2014 and our subsequent
extension of the time within which wife could file a brief.
This case is substantially similar to Delcamp v. Delcamp, 881
A.2d 853 (Pa.super. 2005). In Delcamp, the wife filed exceptions
to a special master in divorce's report. Thereafter, the husband
fi 1 ed a petition seeking to dismiss the wife's excepti ans for
failure to comply with the Berks county Rule of civil Procedure
1920. 5 5 which requires the excepting party to arrange for the
transcribing of the testimony of the master's hearing for filing
with the court within ten (10) days of fi 1 i ng the excepti ans.
6
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Fo 11 owing a hearing, the court granted husband's petition and
dismissed wife's exceptions. wife appealed. The superior court
noted that the Berks county Rule of civil Procedure 1920.55 did not
require the automatic dismissal of an action for failure to comply
with its terms. The Rule requires that a party file a motion for
di smi ssa l before such an action can occur. Husband filed such a
motion, which was granted by the court. There was not an automatic
dismissal based upon a party's failure to comply with a local
rule.1
This court's decision 1s further supported by the superior
court's holding in Jackson v. Kassab, 812 A.2d 1233 (Pa.Super.
2002). In that case after a bench trial, the Appellee was awarded
$141,212.38, with interest, and the Appellants filed timely post-
trial motions. The trial court sent a letter to the par ti es
informing them of the deadlines within which to file briefs.
However, the appellants failed to file a brief and the trial court
denied the post-trial motions.
on appeal , the Appe 11 ants argued that the trial court's
dismissal for failure to file a brief was prohibited by Pa.R.C.P.
239(f) which specifically prohibits the dismissal of a civil action
for failure to comply with a local rule other than one promulgated
under Rule of Judicial Administration 1901. The court held that
the key di sti ncti on was that the post-trial motions were not
dismissed for failure to comply with a local rule but rather for
failure to file a supporting brief. Because there was not an
automatic dismissal pursuant to a local rule, the court then
For a similar case see Ferrante v. Ferrante, 791 A.2d 399 (Pa.super. 2002).
7
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focused on whether or not the trial court abused its discretion.
The court held that the Appe 11 ants' failure to brief and argue
their post-trial motions resulted in the trial court being deprived
of its opportunity to address the merits of their post-trial
contentions. Id. at 1235.
In her concurring opinion, Judge Lally-Green stated:
[W]hen the trial court requests briefs respecting issues
raised in a motion for post-trial relief, the parties
are to comply with that request or risk having all
unbriefed issues waived. As both the majority and the
dissent so clearly stated, the trial court has the
inherent authority to order the filing of supporting
briefs. If the parties fail to comply with the order,
the result may be waiver of the unbriefed issues.
Id. at 1235-36.
Judge Lally-Green also noted that whether the court issues an
order of court or makes a request by letter, the parties are to
comply with the court's request. "where the court requests by
letter that a party file a brief, whether or not the letter request
is part of the certified record, and the party fails to do so, the
trial court may consider waived the issues raised in the motion for
which the brief was requested." Id. at 1236.2
Except1 ons to the Master's report af'e analogous to past tr i al
motions. Here, we issued an order that required the filing of a
brief in support of wife's exceptions and later sent a letter to
defense counsel that granted an extension of time within which to
file the brief. It is important to note that we granted this
2
see also Jones v. Trexler, 419 A.2d 24 (Pa.super. 1980) (counsel for
plaintiffs failed to file for argument a brief on their petition to open or to
strike the judgment until the date of argument, contrary to the court's order and
the local rules of court, there was a lack of prosecution, and the lower court
did not abuse its discretion by dismissing plaintiffs' petition to open and to
strike judgment.)
8
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extension at the specific request of defense counsel.
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Nevertheless, Wife still failed to file a brief. Further, the
decision to dismiss was entered approximately nine-one (91) days
after wife's brief was due, the court providing her ample time to
respond.
The court's efforts to fully adjudicate a matter in a fair and
complete way is dependent upon written argument. Facts may speak
for themselves but arguments don't. They must be crafted to
thoroughly examine every issue raised in the case, complete with
appropriate references to the record, and citation to relevant
legal authority.
Lacking Wife's brief, this Court was left with creating
arguments on her behalf. simply put, this is not the job of the
court. As stated by the superior court: "we decline to become
appellant's counsel. when issues are not properly raised and
developed in briefs, when the briefs are wholly inadequate to
present specific issues for review, a court will not consider the
merits thereof." Commonwealth v. Sanford, 445 A.2d 149 (Pa.super.
1982). Moreover, to proceed with the adjudication of wife's
exceptions without her brief would not only be unfair to Husband,
who was denied an opportunity to present a counter-argument, but
also sets a precedent that briefs need not be filed with the court
despite an order to the contrary.
"A court has an inherent power to enforce its own orders, and
an appellate court will not interfere with the enforcement absent
an abuse of discretion." commonwealth v. Shaffer, 712 A.2d 749 (Pa.
1998). This court gave wife an inordinate amount of time to file
9
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her brief. she failed to do so; her arguments are waived. our
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reasons, wife's exceptions were dismissed.
Respectfully submitted,
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Exhibit ''A''
]OV/21/2014/FRI 04:41 PM FAX No. F. 002
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KATHLEEN D. DAUTRICH, ESQUIRE
530 Court Street, 211d'Floor
Reading, PA.19601
(610) 375-6767
fax (610) 375-6762
Hon.-Scott Lash November 21, 2014
Re: Jimenez v, Jimenez, divorc
VIA FACSIMILE 610-478-6832
I apologize for not being present at argument court for the above-captioned case.
I have been extremely ill for over a month with extreme pain and nausea. I have been
absent from work for days at a time. It is confusing for me to keep track of everything.
I would respectfully request that this matter be rescheduled so that my client may
be represented properly. I am having some out-of-office time the first week in
December, and I would like to file a brief.
Thank you for your kind attention in this matter. If you have any questions, please
do not hesitate to give me a call.
Sincerely,
Kathleen D. Dautrich, Esquire
Cc: Greg Henry, Esq
(DJO- $""-J.!032>
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Exhibit ''B''
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THE COURT OF COMMON PLEAS
JUDGES' CHAMBERS
633 COURT STREET
READING, PENNSYLVANIA 19601-4319 (610) 478- 6208 EXT. 3726
SCOTT E. LASH
FAX: (610) 478-6832
JUDGE
November 24, 2014
SENT VIA FACSIMILE
& U.S. FIRST CLASS MAIL
Kathleen D. Dautrich, Esquire
530 Court Street
Reading, PA 19601
Re: Jimenez v. Jimenez divorce
Dear Kathleen:
As you were not present at the scheduled time for argument, I took the matter under advisement
and will decide the matter on briefs and the record .. I will allow you to file a brief but it will have to be
in by December 5, 2014, if you want it to be considered.
Very truly yours, ·
. Lash
cc: Gregory Henry, Esquire
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To the Prothonotary:
Please file the original Memorandum Op1n1on and distribute
certified copies as follows regarding No. 10-7705 #1:
Gregory D. Henry, Esquire
Kathleen D. Dautrich, Esquire
Computer
Judge Scott E. Lash