Green v. Green

CONCURRING OPINION BY

BOWES, J.:

I agree with the majority’s resolution of this matter but must part company with its criticism of the use of trial aids, which I found to be appropriate in the present lawsuit.

On December 3, 2008, when this matter proceeded to a hearing on equitable distribution, the parties appeared before the trial court and represented that they had entered a marital settlement agreement. At the December 3, 2008 proceeding, the marital settlement agreement was referred to as Exhibit 1, and the parties stated that it represented the terms of the accord. Exhibit 1 was not introduced into evidence at that time, but on December 29, 2008, the court entered an order setting forth that the “parties have identified the marital and non-marital assets, have agreed to the value of the assets and have agreed to the specific distribution of the assets. The parties further agree to a 50/50 distribution of the assets.” Order of Court, 12/29/08, at 1.

Then, Wife filed a petition to enforce the marital settlement agreement on July 22, 2009, and she averred that the accord was outlined in an unexecuted document attached to her petition as Exhibit A. Exhibit A is the same document referred to as Exhibit 1 at the December 3, 2008 proceedings as it contained: 1) a complete outline of the marital assets; 2) a list of non-marital assets; 3) resolution of various miscellaneous matters; 4) a proposed fifty/fifty distribution of the marital property; and 5) with a few exceptions, an assigned value to all marital assets. As a result of Wife’s July 22, 2009 petition, a final resolution was reached as to disposition of the personalty and the parties thereafter distributed the marital real estate. Wife filed a second petition to enforce, and the record establishes that after that petition was granted, the value of only two marital assets outlined in the marital settlement agreement remained unassigned: 1) the net value of one parcel of realty containing a home with a mortgage that was distributed to husband; and 2) rental income retained by Husband and received by him after separation and before entry of the marital accord.

Nine months after resolution of Wife’s second petition, Husband filed a petition to enforce the agreement that led to entry of the order contested in the present appeal. In that document, Husband admitted that the “parties to the above-captioned action entered into a comprehensive marital settlement agreement, which was adopted as an order of court[.]” Motion to Enforce Marital Settlement Agreement, 2/4/11, at ¶ 3. In that petition, Father maintained that there had been an unequal distribu*289tion of realty and that he was entitled to a monetary distribution from Wife so as to achieve the agreed-upon fifty-fifty split of marital assets.

Since it had entertained two prior petitions to enforce the marital accord, the trial court requested trial aids. There is no indication that the trial court intended to utilize those documents as a substitute for a hearing if one became necessary due to a dispute over the value of the assets that were distributed to each party. Rather, in my view, the trial court sought the trial aids to determine if there were any outstanding issues that required resolution.

In fact, the trial aids, as filed, demonstrated that a trial was unnecessary. Wife filed a trial aid and an amended trial aid. In those documents, Wife agreed to the representation in Husband’s petition as to the net value of the parcel of real property that he received and that did not have an assigned value in the marital settlement agreement. Additionally, based upon her personal knowledge of conditions during the marriage, Wife contended that, from the date of separation until entry of the marital settlement agreement, Husband received rental income of $18,000 that was defined as a marital asset in the settlement agreement. Husband thereafter filed a trial aid. Husband did not contest that he had received the $18,000 in rental income nor did he object to the fact that, Wife was entitled to one-half that amount. Instead, in that document, Husband attempted to open various matters that already were resolved in this action.

After the trial aids were submitted, the parties appeared before the court and reaffirmed that the retirement accounts, investment accounts, and pensions were distributed equally and were no longer at issue in these divorce proceedings. Accordingly, the court was faced with the tasks of valuing and distributing the personalty and real estate. Regarding the personal property, the court observed that all matters regarding the value of those items and which party received them was determined following Wife’s first petition to enforce.

The court then turned its attention to the outstanding issues pertaining to the real estate. As noted, with respect to realty, there was only one piece that did not have an assigned value in the marital settlement agreement and that parcel was distributed to Husband. In her trial aid, Wife had agreed to Husband’s representation as to its value. Thus, the court only had to arrive at a value for rental income defined as a marital asset. The trial court used Wife’s figure of $18,000, which Husband never challenged as accurate in his trial aid or during his appearance before the trial court. Thus, the court entered the contested final order of distribution.

In this appeal challenging that order, Husband suggests that the court’s order lacked an evidentiary basis because it was not permitted to use Exhibit 1 as proof of the value of the various marital assets. I agree with the majority’s rejection of this proposition. While Exhibit 1 was not moved into evidence at the December 3, 2008 hearing, it is contained in the certified record as Exhibit A to Wife’s first petition to enforce the property settlement agreement. In his own petition to enforce the property settlement agreement, Husband admitted that the parties entered a marital settlement accord; Exhibit 1/Exhibit A is the sole document in the record that could be characterized as constituting such an agreement. As noted, the document assigned values to the marital settlement agreement to nearly all marital assets. With only two exceptions, the questions of those values were resolved by the time Husband filed his peti*290tion to enforce. The two exceptions were determined based upon the trial aids: Wife agreed to Husband’s valuation of the real estate and Husband failed to contest Wife’s calculation of rent that he received either in his trial aid or at the hearing. Accordingly, Husband’s allegation that there is no record support for the valuation of the marital assets cannot be sustained.

I disagree, however, with the majority’s aspersions on the use of trial aids. The trial court requested those documents to ascertain if it needed to adduce further evidence in this protracted matter, especially since it had resolved two prior petitions regarding distribution of the marital assets.1 The parties consented to and submitted timely and detailed trial aids. Neither the trial court nor any party herein suggested that the representations in the trial aids could be used as a substitute for competent evidence if they revealed the existence of any factual disputes, which they did not. Furthermore, contrary to the majority’s position, the trial court did not “conclude” that these trial aids became “part of the record;” they were part of the record because they were filed. In his document, Husband raised no objection to Wife’s calculation of rental income, and in hers, Wife assented to Husband’s calculation of the fair market value of the real estate distributed to him. Thus, the trial aids obviated the need for further proceedings, proved useful for judicious resolution of this matter, and conserved the court’s resources.

I further disagree with the majority’s position that, “Nothing in our rules of evidence or civil procedure contemplates the use of ‘trial aids.’” Majority Opinion at 287. The documents in question were summaries of which marital assets were distributed to which party and the values of those assets, as set forth in Exhibit 1/Ex-hibit A. They also examined unresolved questions of the values, which proved to be uncontested, of two marital assets. While labeled as a trial aid, the documents served the same function as pretrial statements, which are used consistently to parse the issues that need to be resolved at trial. Indeed, since the use of trial aids was consented to by both parties, and proved to be of beneficial assistance to the trial court. I found their use to be appropriate and a proper exercise of the trial court’s discretion in the management of this matter.

. In some measure, the trial aids herein could be compared to Summaries as contemplated by Pa.R.E. 1006.