Judges Opinions, — October 2, 2013 11:35 — 0 Comments

Brophy vs. Brophy No. 2006-20273

Domestic Relations – Discovery – Alimony – Marital Misconduct – Date of Separation.

  1. Marital misconduct may not be considered in a claim for equitable distribution of marital property.  However, a court may consider marital misconduct, along with other relevant factors, in determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment.
  2. The marital misconduct of the parties from the date of final separation is not to be considered.
  3. The Court concluded that Interrogatories Nos. 1 through 33 and 97 through 101 pertained to economic issues relevant to economic matters raised in this divorce action.  To the extent she had already not done so, the Court directed Plaintiff to provide full and complete responses to these inquiries.
  4. Since Interrogatories Nos. 95 and 96 dealt with matters related solely to the tort and custody matters, the Court did not require Plaintiff to respond to these questions.
  5. The Court found that the possible fabrication of false allegations of sexual abuse of the parties’ child and the communication of such false allegations to other individuals and entities and which may result in the alienation of a party’s relationship with his or her child could potentially constitute marital misconduct which would be relevant and may be considered in Wife’s claim for alimony in this action.  Consequently, the Court held that discovery of communications regarding that subject matter are relevant and subject to discovery between the parties.
  6. The Could ordered that the discovery of communications of this kind must be limited to the time prior to the date of final separation.

Defendant’s Motion to Compel and for Sanctions and Plaintiff’s Motion for Protective Order, Request for Sanctions and for Counsel Fees.  C.P. of Lebanon County, Civil Action-Law, No. 2006-20273.

John J. Connelly, Jr., Esquire, for Plaintiff

Demosthenes Lorandos, Esquire, for Defendant

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION

 

LAURA L. BROPHY                                      :           NO. 2006-20273

:

v.                                                         :

:

KEVIN L. BROPHY                                       :

 

ORDER OF COURT

 

AND NOW, this 16th day of September, 2013, it appearing that the caption set forth on the Opinion of the Court entered August 28, 2013 was incorrect, it is hereby Ordered that said Opinion is VACATED and replaced with the Amended Opinion dated September 16, 2013.

BY THE COURT:

 

                                                                        ___________________________, P.J.

                                                                        JOHN C. TYLWALK

 

JCT/jah

Cc:  John J. Connelly, Jr., Esquire

Demosthenes Lorandos, Esquire

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

LAURA L. BROPHY                                      :           NO. 2006-20273

:

v.                                                         :

:

KEVIN L. BROPHY                                       :

 

APPEARANCES:

 

JOHN J. CONNELLY, JR., ESQUIRE                    FOR LAURA BROPHY

JAMES, SMITH, DIETTERICK

   & CONNELLY, LLP

 

 

DEMOSTHENES LORANDOS, EQUIRE             FOR KEVIN L. BROPHY[1]

 

 

AMENDED OPINION, TYLWALK, P.J., SEPTEMBER 16, 2013.

 

Plaintiff Kevin L. Brophy (“Husband”) and Defendant Laura Brophy (“ Wife”) were married on February 5, 1995.  They had two children born during the marriage, a son on August 14, 1999, and a daughter on March 5, 2001.  They had previously separated in 2005 and Wife instituted this action seeking divorce on March 29, 2006.  They reconciled in July 2006 and resided together until approximately September 9, 2008 when Wife left the marital home with the children and moved to Chester County, Pennsylvania.   The parties indicate that Wife led Husband to believe that she was going to her mother’s home to care for her during an illness.  Husband alleges that Wife returned to the marital home on several occasions after leaving on September 9, 2008 and engaged in sexual relations with him until September 19, 2008.

Wife indicates that she removed herself and the children from the marital home due to allegations that Husband had inappropriate sexual contact with the parties’ daughter.  The parties related that Children and Youth Services of Lebanon County conducted an investigation of the allegations and that criminal charges were filed against Husband.    The parties further indicate that Children and Youth determined the allegations to be unfounded.  The criminal charges were nolle prossed on November 25, 2009.[2]

In 2010, Husband filed a civil tort action against Wife.[3]  On December 27, 2010, Husband served Interrogatories on Wife in that tort action and Wife served her Answers to those on January 26, 2011.  An action for custody of the parties’ children was also pending in Chester County, where Wife resided with the children.[4]

On May 24, 2011, Wife filed a Petition Raising Additional Claims, including equitable distribution of marital property, alimony, counsel fees and expenses in this divorce action.  On June 17, 2011, Husband filed an Answer opposing Wife’s Petition.  On June 23, 2011, Husband served his first set of Interrogatories and Request for Production of Documents in this divorce action on Wife.  The Interrogatories consisted of approximately one hundred and one (101) questions and the Request for Production of Documents sought discovery of forty-nine (49) documents.  On August 15, 2011, Husband served his first Request for Admissions in this divorce action on Wife.  Wife indicates that she answered all inquiries which she considered to be pertinent to the issues regarding the divorce, but objected to other inquiries which she felt were relevant only to matters relevant to the custody and tort litigations.

On August 26, 2011, Husband filed a Motion to Compel and for Sanctions in this action in which he complains of Wife’s responses to both the tort and divorce Interrogatories.   He complains that Wife’s Answers to the tort Interrogatories were inadequate and that all inquiries in the divorce Interrogatories are relevant to Wife’s request for alimony in this divorce action.  Wife responded to that Motion on September 16, 2011, asserting that she had answered all questions which were pertinent to the divorce action and that the unanswered inquiries were relevant only to the custody and civil tort actions.

Wife filed a Motion for Protective Order on September 9, 2011 in this action asking that Husband be precluded from seeking any discovery related to the custody and civil tort actions.  She argues that various information sought by Husband in his Interrogatories, Request for Production of Documents and Request for Admissions is not relevant to the divorce and that his queries should be limited to matters regarding the economic claims of this case.    Husband responded to that Motion on September 23, 2011.  He argues that the matters raised in his Interrogatories are relevant to Wife’s claim for alimony in this divorce action.

Marital misconduct may not be considered in a claim for equitable distribution of marital property.   Perlberger v. Perlberger, 626 A.2d 1186 (Pa. Super. 1993).  However, a court may consider marital misconduct, along with other relevant factors, in determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment; however, the marital misconduct of the parties from the date of final separation is not to be considered.  Id.  The Divorce Code of 1980 at Section 3701[5] provides, in part, as follows:

§ 3701. Alimony

(b) Factors relevant.–In determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including:

 

 (14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony, except that the court shall consider the abuse of one party by the other party. As used in this paragraph, “abuse” shall have the meaning given to it under section 6102 (relating to definitions).

 

 

23 Pa.C.S.A. §3701(b)(14).

Husband’s complaints regarding the insufficiency of Wife’s responses to Interrogatories served upon her in the tort action are not properly before us in this divorce action.  Thus, we will not address his arguments regarding discovery in that litigation here.[6]

Interrogatories Nos. 1 through 33, and 97 through 101 do pertain to economic issues relevant to economic matters raised in this divorce action.  Thus, to the extent she has not done so already, Wife will be directed to provide full and complete responses to these inquiries.

Interrogatories Nos. 95 and 96 deal with matters related solely to the tort and custody matters.  Thus, Wife is not required to respond to these questions.

In Interrogatories Nos. 34 through 94, Husband poses questions regarding the communications Wife may have had with various individuals and entities regarding the allegations that Husband had sexually abused the parties’ daughter.  Apparently, his position is that these communications were false and thus constituted marital misconduct on the part of Wife. Wife argues that Husband’s discovery requests are overly broad as encompassing matters which were relevant only in the tort and the former custody litigation.    We find that the possible fabrication of false allegations of sexual abuse of the parties’ child and the communication of such false allegations to other individuals and entities and which may result in the alienation of a party’s relationship with his or her child could potentially constitute marital misconduct which would be relevant and may be considered in Wife’s claim for alimony in this action.  Hence, discovery of communications regarding that subject matter are relevant and subject to discovery between the parties.  However, in keeping with the provisions of Section 3701, the discovery of such communications must be limited to the time prior to the date of final separation.  It appears that the parties are in disagreement as to whether the date of final separation should be considered September 9, 2008 or September 19, 2008.   Hence, we will permit discovery as to any such communications made prior to or on September 19, 2008 as the date of separation is yet to be determined.  Any communications made after that date are simply irrelevant to any claims in this action.[7]

Thus, with regard to those Interrogatories regarding these communications:

(a.)  Wife is required to provide full and complete responses to Interrogatories Nos. 1 through 42, 73 through 75 and 97 through 101;

(b.)  To the extent that inquiries may include some communications made prior to or on September 19, 2008, Wife is required to provide full and complete responses to Interrogatories Nos. 43 through 45, 49 through 51, 55 through 60, 64 through 66, and 76 through 94; and

(c.)  Wife is not required to provide a response to Interrogatories Nos. 46 through 48, 50 through 54, 61 through 63, 67 through 72 and 95 through 96.

Defendant will likewise be precluded from obtaining information sought in his Request for Production of Documents and Request for Admissions which pertain to allegations of such marital misconduct on the part of Wife after the parties separated on September 19, 2008 and we will enter an Order to that effect.



[1] Demosthenes Lorandos, Esquire is appearing pro hace vice.  Plaintiff’s former local counsel, Paul J. Esposito, Esquire, filed Plaintiff’s Motion to Compel and appeared at Oral Argument.  On May 9, 2013, we granted Esposito’s Motion to Withdraw Appearance of Counsel.   No other local attorney has entered his or her appearance on behalf of Plaintiff in this action as of this date.

[2] See Commonwealth v. Kevin Lewis Brophy, Court of Common Pleas of Lebanon County – Criminal Division, No. CP-38-CR-919-2009.

[3] In Brophy v. Brophy, Court of Common Pleas of Lebanon County, No. 2010-02200, Husband asserts causes of action in Intentional Infliction of Emotional Distress, Defamation, Wrongful Use of Civil Proceedings, Malicious Prosecution and Abuse of Process.

[4] The custody action was withdrawn by Husband.

[5] 23 Pa.C.S.A. §3701.

[6] On October 11, 2012, we entered an Order regarding a Motion to Compel filed by Husband in the tort matter.

[7] We also note that Section 3701 provides that circumstances involving abuse by one of the parties may be considered when fashioning an award of alimony and that Wife had initiated Protection From Abuse proceedings against Husband after she and the children moved out of the marital home.  However, as that action was dismissed, we will not require her to provide responses to those Interrogatories regarding the allegations involved in that proceeding.

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