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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
SANDRA L. SPIEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEVIN J. SPIEL, :
:
Appellant : No. 2062 EDA 2017
Appeal from the Order Entered May 30, 2017
in the Court of Common Pleas of Bucks County
Family Division at No(s): 1987-63737 D
BEFORE: PANELLA, LAZARUS, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 13, 2018
Kevin J. Spiel (Husband) appeals from a May 30, 2017 order, which
allocated a portion of his future retirement benefit to his ex-wife, Sandra L.
Spiel (Wife). Upon review, we affirm.
Husband and Wife were married on September 20, 1980. They
separated in October 2003, and a complaint in divorce was filed thereafter.1
On October 31, 2011, a divorce decree was entered, which incorporated a
property settlement agreement. Relevant to this appeal, the parties agreed
that
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1 According to the trial court, the complaint was filed by Husband on March 3,
2006. Trial Court Opinion, 8/22/2017, at 1. However, at the master’s hearing,
the master stated that the divorce was filed on January 2, 2004. N.T.,
10/31/2004, at 5. In any event, it does not matter for the disposition of this
appeal.
*Retired Senior Judge assigned to the Superior Court.
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[W]ife will receive 62.5 percent of the marital portion of the
[federal government retirement accounts], [H]usband will receive
the balance of 37.5 percent of the marital portion, as well as the
nonmarital portion…. The parties agree that if [H]usband has not
yet retired by the time he is 67 and a half years old, he will pay
to [W]ife an amount equal to [W]ife’s share [of the retirement
account] as of the most recent statement.
N.T., 10/31/2011, at 5-6.
Approximately six months later, Wife filed a petition for contempt
claiming that Husband refused to sign the documentation to effectuate the
terms of this agreement. That petition was never litigated. Wife re-filed the
petition on December 15, 2016. The trial court scheduled a hearing for
January 27, 2017. Neither Husband nor his attorney appeared. The trial court
heard Wife’s testimony and argument from her attorney, and “instructed
[Wife’s] counsel to prepare a proposed [o]rder granting the relief requested
and [to] send it to the [trial court] for signature.” Trial Court Opinion,
8/22/2017, at 3. Counsel followed these instructions.
Subsequently, counsel for Husband contacted the trial court “and
explained that his failure to appear was due to his supposed confusion with
local Bucks County Court Rules and … he had every intention to appear with
[Husband] to defend against the [p]etition but had misunderstood that the
hearing would actually be conducted as scheduled.” Id. at 4. The trial court
advised counsel for Husband to file a motion for reconsideration. Counsel for
Husband “apparently had a very difficult time filing the reconsideration
paperwork.” Id. “After three failed attempts, the [t]rial [c]ourt … instructed
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its [l]aw [c]lerk to provide [] counsel with some guidance as to how to correct
the filing.” Id. The motion was filed correctly on April 11, 2017, and “out of
an abundance of caution to protect Husband’s right for an opportunity to be
heard,” the trial court granted reconsideration and scheduled a hearing for
May 18, 2017. Id. at 4-5.
Husband did not appear at the May 18, 2017 hearing, but counsel for
Husband did appear. The trial court attempted to have counsel “address the
primary purpose of the hearing, i.e., what concerns did [Husband] have with
[Wife’s] proposed [o]rder and how was the language of the proposed [o]rder
in any way inconsistent with the language of the” agreement. Id. at 5.
However, according to the trial court, “[a]fter repeated and increasingly
frustrating exchanges with [Husband’s] counsel, it became apparent that
[Husband’s] counsel was unable or unwilling to answer the fundamental
question.” Id. Counsel again claimed to have “misunderstood … the purpose
of the hearing.” Id. at 6. Accordingly, the trial court granted Wife’s “request
for her long delayed relief, and signed the proposed [o]rder. This absurd
[a]ppeal has followed.”2 Id.
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2 The trial court directed Husband to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The four-page
statement filed by Husband does not “concisely identify each ruling or error
that the appellant intends to challenge with sufficient detail to identify all
pertinent issues for the judge.” Pa.R.A.P. 1925(b)(b)(4)(ii). In fact, it does
not identify any errors at all; rather, as the trial court points out, Husband’s
statement “is seemingly a recitation of his prior [m]otion for
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On appeal, Appellant appears to present one issue: “Did the trial court
alter the parties’ contract?”3 Husband’s Brief at 3.
Our review of this issue has been substantially impeded by the failure
of Husband to request and file a transcript of either the January 27 or the May
18, 2017 hearings in compliance with Pa.R.A.P. 1911(a) (“The appellant shall
request any transcript required under this chapter in the manner and make
any necessary payment or deposit therefor[.]”).
[W]ell-settled Pennsylvania law makes clear an appellate court is
limited to considering only the materials in the certified record
when resolving an issue. Where the appellant has not made the
transcript of the proceedings at issue a part of the certified record,
we have said:
With regard to missing transcripts, the Rules of
Appellate Procedure require an appellant to order and
pay for any transcript necessary to permit resolution
of the issues raised on appeal. Pa.R.A.P. 1911(a)….
When the appellant … fails to conform to the
requirements of Rule 1911, any claims that cannot be
resolved in the absence of the necessary transcript or
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[r]econsideration,” and “is essentially one long argument attempting to
explain why the May 18, 2017 [o]rder entered by [the trial court] is potentially
not consistent with the” settlement agreement. Trial Court Opinion,
8/22/2017, at 6-7. Despite Husband’s non-compliance with Pa.R.A.P.
1925(b), the trial court filed an opinion.
3 Our rules provide that “[b]riefs and reproduced records shall conform in all
material respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they may be
suppressed, and, if the defects are in the brief or reproduced record of the
appellant and are substantial, the appeal or other matter may be …
dismissed.” Pa.R.A.P. 2101. Here, while Husband’s brief may be technically
compliant with the rules, his rambling, 20-page argument section is simply
incomprehensible. Nevertheless, due to other deficiencies in the appeal, we
will not dismiss it on this basis.
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transcripts must be deemed waived for the purpose of
appellate review.
Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014) (internal
citations omitted).
Here, there is no indication that Husband requested the transcripts, and
they are not part of the certified record. Yet, on appeal, Husband contends
primarily that the trial court erred by enforcing the agreement. The basis for
the trial court’s enforcement of the agreement was based on Wife’s testimony
on January 17, 2017, and Husband’s opposition on May 18, 2017. Thus, we
conclude that this claim cannot be reviewed without these transcripts.
Accordingly, Husband has waived his issue on appeal for failure to ensure the
inclusion of the transcripts in the certified record.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/18
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