In the area of family law, there are many different types of proceedings that occur. However, when one of the proceedings is a record hearing, if an objection is not made to a particular issue, it is waived on appeal.

In the recent case of Tecce v. Hally, 2014 Pa. Super. 262 (November 21, 2014), the trial court's order was appealed based on the method by which the trial court conducted its hearing on the matter. Because the appellant did not make objections to the procedure on the record, the trial court's decision was upheld.

The pertinent facts of the Tecce case are as follows: The parties divorced and an equitable distribution hearing officer's recommendation, after a divorce hearing, was made a part of the parties' divorce decree. Approximately a year after the parties' divorce decree was entered, Tanya Tecce filed a petition for enforcement "requesting the court to direct husband to sign a deed transferring the marital residence in wife's name only, so that she may sell said residence, to enforce the alimony provision of the parties' equitable distribution order, to distribute child support arrears to wife, and for counsel fees." The trial court held a hearing on Tecce's petition. According to the opinion: "The hearing consisted of legal argument by counsel for both parties, and also of statements from both parties. Neither party received an oath before placing statements on the record." At the hearing, the attorney for defendant John Michael Hally did not dispute that the parties' equitable distribution order required Hally to pay Tecce in the amount of $200 per month for a term of 30 months. He also did not dispute that Hally never made alimony payments to Tecce. "However, husband's counsel [argued that] the alimony provision of the parties' equitable distribution order is no longer enforceable against husband."

After the hearing, the court entered an order and required Hally to cooperate with the sale of the marital residence but did not order Hally to sign a new deed transferring title to Tecce. The opinion further explained that the trial court "found that the parties entered into a verbal agreement that husband would keep wife on his health insurance in exchange for wife forgoing alimony payments." The trial court also denied Tecce's claim regarding child support arrears without prejudice to Tecce seeking the relief with the child support section of the court. The trial court denied Tecce's attorney fees claim as well.

Tecce appealed the trial court's order and raised four issues on appeal. As stated in the Superior Court's opinion: "All of wife's challenges relate to the method by which the trial court conducted the hearing." Specifically, Tecce focused on the trial court not holding a full evidentiary hearing and without sworn testimony with the ability to "meaningfully cross-examine or otherwise challenge Hally's statements."

According to the opinion, the record reflects that neither Tecce nor Hally were administered an oath prior to providing their statements. In citing its prior decision in the case of Commonwealth ex rel. Freeman v. Superintendent of State Correctional Institution at Camp Hill, 242 A2d. 903 (Pa. Super. 1968), the state Superior Court stated, "Without an administration of an oath to a witness, the taking of testimony is meaningless." As such, according to the Superior Court, Tecce and Hally's testimony was a nullity. The Superior Court further stated, "The lack of an oath means that there was no testimony. There was no record evidence upon which the trial court could support its order."

According to the Superior Court, the trial court could not make credibility determinations where actual testimony had not occurred. However, the main issue in this case is that neither party, through their counsel, objected to the procedure that was used by the trial court. The Superior Court, in the opinion, reiterated that in order for an objection to be preserved for appeal, the objection must be raised before the trial court. "Pennsylvania appellate courts have held, without apparent exception, that the failure to object to unsworn testimony subjects a litigant to waiver," the court said. The Superior Court was very critical of the trial court and stated, "A proceeding that is so fundamentally flawed as the one that occurred here offends fundamental fairness and demands correction. The trial court made factual findings and credibility determinations without taking testimony, without receiving evidence and without allowing cross-examination. This was plain error." Although neither party on appeal raised the issue of waiver, the Superior Court held that it is bound "by our precedents to invoke waiver sua sponte in this case." Therefore, because no objection was made at the trial court level, the appellate court's doors closed and the trial court's order was affirmed.

This case is very important for family law practitioners. It is not uncommon for a family law attorney to find herself or himself in a courtroom involved in the type of proceeding that occurred in the Tecce case where no testimony is taken. This type of procedure is more prevalent in some counties as opposed to others. However, if an objection is not made on the record to the method of the proceeding and/or the fact that neither party was administered the oath, an appeal based on those issues will fail. Therefore, regardless of the common practice of some courts or the preference of a judge, the practitioner must be mindful of preserving those objections on the record when such a situation arises.

Failure to Object to Court Procedure Waives Issue on Appeal.pdf

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book "Pennsylvania Child Custody Law, Practice, and Procedure." Bertin is a former chair of the family law section of the Philadelphia Bar Association, the current co-chair of its custody committee, and treasurer of the family law section of the Pennsylvania Bar Association and a member of its executive committee.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

Reprinted with permission from the March 10, 2015 edition of THE LEGAL INTELLIGENCER © 2015 ALM Media Properties, LLC.  All rights reserved.  Further duplication without permission is prohibited.  For information, contact 877-257-3382, or visit #201-03-15-01