Opinion
J-S55023-19 No. 1132 WDA 2018
01-23-2020
VONDA PROBST v. RANDALL L. PROBST Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated July 10, 2018
In the Court of Common Pleas of Cambria County Civil Division at No(s): No. 2015-5129 BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J. MEMORANDUM BY McLAUGHLIN, J.:
Retired Senior Judge assigned to the Superior Court.
Randall L. Probst ("Husband") appeals from the order denying his Motion for Reinstatement of Divorce Exceptions. We affirm on the basis of the trial court opinion.
Vonda Probst ("Wife") filed a complaint in divorce against Husband in 2015. Trial Court Opinion, filed 12/19/2018, at 1. A divorce Master conducted a hearing on April 20 and 21, 2016, at which Wife was represented by counsel and Husband proceeded pro se. Id . The Master filed his Report and Recommendation in November 2017, and Husband filed timely Exceptions to the Master's Report and Recommendation. Id. at 2.
The trial court held argument on Husband's Exceptions in January 2018, at which it ordered Husband to request the transcripts of both the Master's hearing and the argument on the Exceptions. Id. Husband requested the transcripts. Id. In March and April of 2018, the court notified Husband that he was required to pay transcript fees of $1,630.50. Id. at 2 n.2. On April 20, 2018, as Husband had not paid the transcript fees, and the trial court was unable to review the merits of Husband's Exceptions without the transcripts, the trial court dismissed Husband's Exceptions without prejudice. Id. at 2. The trial court also adopted the Master's recommended order, and entered a final divorce decree. Id.
A transcript of the argument and the court's order are not included in the certified record.
Husband subsequently retained counsel, and, in June 2018, filed a Motion for Reinstatement of Divorce Exceptions. Id. The court held a hearing, and denied the Motion. Id .
At the hearing, Husband's counsel stated Husband intended to wait for the trial court's ruling on the Motion before paying for the transcripts. N.T., 7/9/18, at 3.
Husband filed the instant appeal, raising a sole issue:
Husband has paid the transcript fees while the case has been pending on appeal. Tr. Ct. Op. at 3.
Whether the trial court erred in denying Husband's Motion for Reinstatement of Divorce Exceptions, as Husband was entitled to relief nunc pro tunc according to the controlling precedents?Husband's Br. at 3 (italics added). Husband argues the trial court erred in denying his Motion for Reinstatement of Divorce Exceptions because (1) he was self-represented during the proceedings below, (2) he has mental health issues, and (3) the cost of the transcripts was prohibitively high. Id. at 8. Husband contends these were "unique and exceptional circumstances" and that he was not negligent in failing to pay the transcript fees. Id .
Wife did not file a brief, and this Court issued a per curiam order granting Wife's counsel's request to withdraw.
In its opinion, the trial court explained that in civil cases, nunc pro tunc relief is generally afforded where there are circumstances outside of a party's control, such as a breakdown in court operations. Tr. Ct. Op. at 3-4. The court further explained that nunc pro tunc relief may also be warranted after a showing of "extraordinary circumstances," and that this determination is within the discretion of the trial court. Id. at 4-5 (citing Woods v. Cicierski , 937 A.2d 1103 (Pa.Super. 2007) and Freeman v. Bonner , 761 A.2d 1193 (Pa.Super. 2000)). The court then found that Husband failed to show he is entitled to nunc pro tunc relief for the following reasons: Husband was self-represented, and therefore the power to comply with the court's order to pay for the transcript fees was within Husband's, and not counsel's, control; Husband did not request in forma pauperis status to establish his inability to pay for the transcripts; and Husband provided no "evidence to support his vague mental health defense, despite his claim that these problems caused his inability to pay for transcripts." Id. at 5.
The trial court did not abuse its discretion in denying Husband's Motion. Husband does not, on appeal, or before the court below, elaborate regarding what his mental health issues entail, or why he was unable to afford to pay the transcript fees. The fact that Husband did not have counsel during the divorce proceedings does not excuse his failure to obtain the transcripts. See Blatz v. Blatz , 603 A.2d 666, 668 (Pa.Super. 1992).
After a review of the record and the applicable law, we affirm on the well-reasoned opinion of the Honorable Linda Rovder Fleming, which we adopt and incorporate herein. See Tr. Ct. Op. at 1-5.
As we conclude the trial court did not abuse its discretion in finding Husband failed to present unique and exceptional circumstances, we need not address Husband's argument regarding the merit of his Exceptions or his contention that reinstatement of his Exceptions would not prejudice Wife.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/23/2020
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