Savage v. Savage

736 A.2d 633

Gail L. SAVAGE, Appellant, v. John F. SAVAGE, Appellee.

Superior Court of Pennsylvania.

Argued June 16, 1999.

Filed August 4, 1999.

John J. Connelly, Jr., Harrisburg, for appellant.

Robin Levengood, Reading, for appellee.

Before DEL SOLE, STEVENS, JJ., and CIRILLO, President Judge Emeritus: CIRILLO, President Judge Emeritus:

¶ 1 Gail L. Savage ("Wife") appeals from the February 17, 1998 order of the Court of Common Pleas of Berks County bifurcating the parties' claim for divorce from their economic claims, issuing a decree in divorce, and reserving jurisdiction over all economic and ancillary issues. We affirm the bifurcated divorce decree. However, we find it necessary to remand because the trial court took certain actions without jurisdiction during the pendency of this appeal.

¶ 2 This is a lengthy, procedurally complex, and contentious divorce action. The parties were married in 1974. Wife filed a complaint in divorce twenty years later through her first attorney in this matter. The complaint stated the no-fault ground of irretrievable breakdown,¹ the fault ground of indignities to herself as the innocent and injured spouse,² and included claims for divorce, equitable distribution, counsel fees, costs and expenses, alimony pendente lite (APL), alimony, and interim relief. The case was immediately assigned to the Honorable Peter W. Schmehl of the Berks County Court of Common Pleas, who has presided over the case ever since. John F. Savage ("Husband") accepted service through his attorney and then filed an answer, new matter, and counterclaim. He contested that the marriage was irretrievably broken, and though he effectively admitted indignities, he contested who was at fault. Marital counseling was requested by neither party at that or any other time.

¶ 3 A summary of the extensive proceedings prior to bifurcation follows. The first interim order was issued immediately after the complaint was filed; it prohibited Husband from dissipating marital assets or changing insurance coverage.³ A hearing was held three months later at which the parties resolved this matter by stipulation. The following month Wife petitioned for contempt, and a second attorney entered his appearance as co-counsel for Wife. The contempt matter was then also resolved by agreement.

¶ 4 This pattern was thereafter repeated. Through a third attorney,⁴ Wife petitioned for special relief regarding Husband's payment of the mortgage delinquency on the marital residence where she was living. Husband agreed to pay the mortgage delinquency after a hearing. Noting the completion of discovery, Husband next moved for appointment of a special master;⁵ one was appointed, but Wife petitioned to vacate the appointment, stating Husband had misrepresented the completeness of discovery. Wife then petitioned for contempt, averring that mortgage foreclosure proceedings had commenced. The parties resolved the contempt by agreement that Husband would pay the mortgage delinquency in exchange for a credit at equitable distribution, that Wife would make the monthly mortgage payments, and that discovery was not yet complete.

¶ 5 A named partner from the same firm as Wife's third lawyer then entered his appearance for Wife. This fourth attorney acted as co-counsel with her third attorney.⁶ For no apparent reason, a different Master was then appointed to replace the first. His appointment was immediately vacated and a third Master appointed.⁷ Proceedings finally commenced before this third Master, who held approximately 12 hearings over the next 11 months simultaneously with the following proceedings in the trial court.

¶ 6 On October 8, 1997, Wife filed an emergency petition for contempt of an unknown nature.⁸ The petition was apparently related to an incident during which Wife had intentionally driven and crashed into the vehicle in which Husband and the parties' daughter were riding, at a time when a protection from abuse order was in effect preventing contact between Wife and Husband.⁹ The court entered an order requiring Husband to provide Wife a car for a week while her damaged one was being repaired.¹⁰ It appears Wife was later convicted of criminal charges and placed on probation as a result of this incident.¹¹

¶ 7 Husband then filed a petition to bifurcate claims under Pa.R.C.P.1920.52(c), together with a proposed bifurcation order and divorce decree, eventually granted (with modifications) and before us today. It had been three years and ten months since Wife had filed the complaint in divorce. The court soon issued an order staying the decision on Husband's petition to bifurcate, however, pending resolution of the issue of Wife's legal competency.

¶ 8 At this time, the court placed in the record a memorandum stating that the Master had earlier approached the bench with his concern that Wife might not be able fully to comprehend the case's economic matters, nor to negotiate a fair agreement, due to potential mental and emotional problems which had shown themselves during several Master's hearings.¹² Upon inquiry, the court received acknowledgements from counsel for both sides that such might well be the case. The court stated that all such opinions had been offered, in its opinion,

with the best interests and welfare of Mrs. Savage rising above all other considerations. Counsel for the parties advised that a settlement of all outstanding issues, equitable distribution, support, etc., was on the table. All counsel believed the settlement proposal to be fair but were very concerned about anything that Mrs. Savage might agree to if indeed she was incapacitated. The Court, in its continuing concern here and in an attempt to resolve this matter, appointed Attorney Ralli Holden to review the proposed settlement, with her sole purpose being to satisfy herself, and thereafter the Court, that it was a fair and appropriate settlement with regard to Mrs. Savage, or not so.

Before evaluating its fairness, however, after speaking with Wife, Attorney Holden also expressed concerns about Wife's competence. According to the court, she stated that "any decision she would make with regard to the fairness of the agreement or lack thereof would be the product of a sui juris¹³ individual." The court therefore stayed all proceedings, including the Master's, and ordered Robert Sadoff, M.D., a forensic psychiatrist, to perform a psychiatric evaluation of Wife. Dr. Sadoff's report¹⁴ revealed that Wife suffered from an anxiety disorder with panic attacks and post-traumatic stress disorder (PTSD) possibly triggered by the spousal abuse she alleged had occurred and by her potentially inappropriate psychiatric institutionalization and treatment in the 1960's, among other causes. He stated that she was in need of intensive and long-term treatment and noted the agreement of other specialists as to this diagnosis. However, Dr. Sadoff concluded that Wife was legally competent, stating:

It is my opinion, within reasonable medical certainty that Ms. Savage is mentally competent to proceed legally. She understands the nature and consequences of her current legal situation and she can work with counsel in preparing her case, and she is well oriented, and her memory is not impaired.

He recommended that the court be sensitive to the fact that Wife was likely to panic or become anxious periodically and that the court at these times allow her to rest. Upon receipt of this report, the court found the competency matter resolved, allowed the Master's hearings to recommence, and scheduled a hearing on bifurcation.¹⁵

¶ 9 Bifurcation was thus to have been taken up at the January 6, 1998 scheduled hearing. However, on that date it became clear that the parties had negotiated a partial settlement of the economic claims. They therefore used the hearing to place on the record, before the court, those paragraphs as to which they agreed, and those they would need to negotiate further. One of the provisions was Wife's receipt of a $100,000.00 advance on equitable distribution from Husband, and the record indicates Husband did deliver this sum to Wife at that time. However, the terms of the agreement turned out to be unacceptable to the parties, and the matter was soon rescheduled for further hearings by the Special Master.

¶ 10 Since the bifurcation petition was still outstanding, further proceedings were then scheduled, but Wife soon moved for a continuance because she intended to attend an inpatient treatment facility for PTSD for several weeks on the recommendation of her physician. The hearing on bifurcation was rescheduled for February 17, 1998 to accommodate her.

¶ 11 The bifurcation hearing occurred on February 17, 1998. It is this proceeding and the order entered at its close which is before us on appeal.

¶ 12 A review of the transcript and the record reveals that at the beginning of the hearing, the court was handed a petition to withdraw from both attorneys for Wife (her third and fourth).¹⁶ Counsel had informed Wife prior to the hearing that they would be withdrawing. Wife initially responded that she was not prepared to represent herself, did not have other counsel, and opposed withdrawal; she also requested another continuance.¹⁷ Counsel for Husband opposed Wife's attorneys' withdrawal because it would further delay the resolution of the case. He also represented that a follow-up Master's hearing was scheduled for three weeks following this bifurcation hearing, and that, after four years, there was finally a real possibility of fully settling the case at that hearing.

¶ 13 The court determined that due to the already extensive delays in the case, the bifurcation hearing would be held without further continuance. It offered Wife the choice of having her attorneys represent her at the proceeding or of representing herself. Wife chose to "wing it," as she said, but stated that she did not know the law and could not find another attorney.¹⁸ The court then...