J-A24020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HOWARD L. TRACHTMAN, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JULIA TRACHTMAN,
Appellee No. 3558 EDA 2013
Appeal from the Order Entered November 19, 2013
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2006-06095-DI
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 30, 2014
Howard L. Trachtman (Husband) appeals from the order, dated
November 18, 2013, and entered November 19, 2013, finding Husband in
contempt for his ongoing failure to comply with certain terms of the Divorce
Decree that arose from the divorce proceedings between Husband and Julia
Trachtman (Wife). We affirm.
The following recitation by the trial court summarizes the pertinent
facts and procedural history of this matter:
On January 19, 2012, the final Divorce Decree was entered in
this case disposing of all equitable distribution claims arising
from the divorce proceedings between [Husband] and [Wife].
d an Order
directing [Husband] to make certain payments on account of
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*
Retired Senior Judge assigned to the Superior Court.
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alimony and equitable distribution, as well as reimbursements
[Husband] to obtain life insurance. Specifically, the August 10,
2012 Order required [Husband] to pay [Wife] a total of $6,126
per month in alimony and support arrears through Pa.SCDU, and
to pay [Wife], through her attorney's office, the separate sum of
$2,365.81 [monthly] on account of equitable distribution, as
ordered by the Divorce Decree. Up until June 3, 2013 (when the
court's Interim Order was entered), [Husband] made average
monthly payments of $7,705.00 to Pa.SCDU, and made no
payments to [Wife], through her attorney's office, on account of
equitable distribution.
entered on June 3, 2013, directing [Husband] to pay his monthly
alimony ($5,076), support arrears ($1,050) and equitable
distribution ($2,365.81) payments through the Domestic
Relations Office through Pa.SCDU, for the simple and practical
reason that [Husband] was only making payments through
Pa.SCDU, and was not making payments as directed to [Wife]
through her attorney's office. [Husband] continued to make
average monthly payments of $7,705 through Pa.SCDU.
[Husband] did not increase his monthly payments as directed by
the June 3, 2013 Interim Order.
The undersigned heard arguments of counsel on May 24,
2013 and October 28, 2013, and conducted an evidentiary
hearing on November 7, 2013. On November 18, 2013, the
undersigned, found [Husband] in contempt of the Divorce
Decree and the August 10, 2012 Order.
Trial Court Opinion (T.C.O.), 4/10/14, at 1-2.
The November 18, 2013 order states in its entirety the following:
AND NOW, this 18th day of November, 2013, upon
consideration of the Petition for Contempt filed by [Wife] on
March 26, 2013, and after the arguments of counsel heard on
May 24, 2013 and October 28, 2013, and the evidentiary hearing
conducted on November 7, 2013, it is hereby ORDERED and
DECREED as follows:
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1. [Husband] is found to be in Willful Contempt of the Divorce
Decree and the Order of August 10, 2012.
2. Within fifteen (15) days of the entry or this Order, [Husband]
shall pay directly to [Wife] the sum of $2,289.05, representing
the balance of the reimbursement owed to [Wife] for payments
she made on account of the federal tax liability against Floor
Management Group, Inc. per the Divorce Decree. In the event
ife] is
hereby authorized to enter judgment against [Husband] in the
amount of said obligation, without prejudice to her right to
request additional sanctions for such noncompliance upon
further application to the court.
3. Within thirty (30) days of the entry of this Order, [Husband]
shall pay directly to [Wife] the sum of $46,231,82, representing
equitable distribution payments which have accrued since
February 1, 2012 through November 30, 2013 ($2,365.81 x 22
months - $5,816,00 paid to Domestic Relations as equitable
distribution from 6/1/13 - 01/13).1
failure to comply with this provision, [Wife] is hereby authorized
to enter judgment against [Husband] in the amount of said
obligation, without prejudice to her right to request additional
sanctions for such noncompliance upon further application to the
court.
1
By our Interim Order dated June 3, 2013,
[Husband] was directed to pay his monthly alimony
($5,076), arrears ($1,050) and equitable distribution
($2,365.81) payments through the Domestic
Relations Office. During the months the June 3,
2013 Order was in effective [sic], [Husband] shall
amount of $5,816, the amount he paid in excess of
the alimony and arrears obligation.
4. The Domestic Relations Office is hereby DIRECTED to add
above captioned case. This amount represents the excess
payments [Husband] made to the Domestic Relations Office as
equitable di
dated June 3, 2013, through October 31, 2013.
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5. Within fifteen (15) days of this Order, [Husband] shall pay to
Clare L. Milliner, Esquire[,] the sum of $8,277.50 on account of
attorney's fees. In th
with this provision, [Wife] is hereby authorized to enter
judgment against [Husband] in the amount of said obligation,
without prejudice to her right to request additional sanctions for
such noncompliance upon further application to the court.
6. Within fifteen (15) days of this Order, [Husband] shall pay to
[Wife] the sum of $3,090.63 on account of attorney and
accounting fees expended by [Wife] to retain Eugene Steger
Associates, P.C., tax counsel, to assist with the payment of
federal tax liability owed by Floor Management Group, Inc. In
[Wife] is hereby authorized to enter judgment against [Husband]
in the amount of said obligation, without prejudice to her right to
request additional sanctions for such noncompliance upon
further application to the court.2
2
[Wife] retained Eugene Steger & Associates, P.C., to
assist her with certain federal tax liabilities in her
name, both personally and on behalf of Floor
Management Group, Inc. She incurred a total of
$6,181.25 in fees. As [Husband] is obligated to pay
for the federal tax liabilities on behalf of Floor
Management Group, Inc., he shall be required to pay
for one-half of the fees incurred to negotiate with the
IRS an installment payment plan.
7. Effective December 1, 2013, and continuing until the
equitable distribution and federal tax liability obligations are
satisfied, [Husband] shall make monthly payments directly to
[Wife], through the office of Clare L. Milliner, Esquire, 213 E.
State St., Kennett Square, PA 19348, in the amount of
$3,925.81. This monthly amount is allocated as follows:
- On account of equitable distribution, in
monthly installments until the balance of $239,184 is
satisfied.
- On account of federal tax liabilities for
payroll taxes relating to Floor Management Group, Inc. in
72 monthly installments until the balance of $118,560 is
satisfied.
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8. Within (30) days of the entry of this Order, [Husband] shall
obtain life insurance coverage in the amount of $357,744
naming [Wife] as beneficiary. Said coverage shall remain in
effect until all obligations owed to [Wife] under the Divorce
Decree have been paid in full. In the event [Husband] is unable
to obtain coverage in said amount, [Husband] shall obtain
coverage in such amount as is available to him, naming [Wife]
as sole beneficiary. If [Husband] has existing life insurance
coverage, he shall immediately designate [Wife] as the sole
beneficiary in the amount of $357,744 or in such amount as is
available to him up to and including $357,744.
9. Until such time as [Husband] obtains the required insurance
coverage, and in the event Husband is unable to obtain
insurance, a judgment in the amount of $357,744 (representing
$239,184 equitable distribution and $118,560 federal tax
obligation) shall be entered against [Husband] in favor of [Wife].
Said judgment shall not be executed upon unless [Husband]
defaults in his payments of equitable distribution pursuant to the
Divorce Decree and this Order. Upon payment in full of the
equitable distribution award, said judgment shall be satisfied.
10. All other terms and obligations of the Divorce Decree entered
January 19, 2012 shall remain in full force and effect.
11. This Order shall supersede the Interim Order dated June 3,
2013, effective November 1, 2013.
Order, 11/18/13.
2013 order and lists the following eight issues in the section of his brief
1
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1
order as stated in his argument section.
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1. Whether the trial court erred in holding [Husband] in indirect
civil contempt in a setting where the record demonstrated a
consistent history of payment?
2. Whether the trial court erred in holding [Husband] in indirect
civil contempt when the requirements of the relevant Orders
entered have been changing?
3. Whether the trial court erred in holding [Husband] in indirect
civil contempt when the [c]ourt does not specify the violation
that constituted the contempt?
4. Whether the trial court erred in making a finding of contempt
without conducting a hearing?
5. Whether the trial court erred in changing the terms of the
Decree in Divorce?
6. Whether the trial court erred in not crediting [Husband] with
his over payment of support towards his equitable distribution
obligations?
7. Whether the trial court erred in awarding legal fees?
8. Whether the trial court erred in its order regarding life
insurance?
ief at 6.
contempt for failure to comply with a court [o]rder, our scope of
review is narrow: we will reverse only upon a showing the court
Harcar v. Harcar, 982 A.2d 1230, 1234
(Pa. Super. 2009) (quoting Hopkins v. Byes, 954 A.2d 654,
655 (Pa. Super. 2008)). We also must consider that:
Each court is the exclusive judge of contempts
against its process. The contempt power is essential
to the preservation of the court's authority and
prevents the administration of justice from falling
into disrepute. When reviewing an appeal from a
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contempt order, the appellate court must place great
reliance upon the discretion of the trial judge.
Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa. Super.
2002) (quoting Garr v. Peters, 773 A.2d 183, 189 (Pa. Super.
or exercises its discretion in a manner lack Godfrey
v. Godfrey, 894 A.2d 776, 780 (Pa. Super. 2006). Additionally,
that the burden of proof rests with the complaining party to
demonstrate, by [a] preponderance of the evidence that the
Lachat v.
Hinchliffe, 769 A.2d 481, 488 (Pa. Super. 2001). However, a
mere showing of noncompliance with a court order, or even
misconduct, is never sufficient alone to prove civil conte
Id. Moreover, we recognize that:
To sustain a finding of civil contempt, the
complainant must prove certain distinct elements:
(1) that the contemnor had notice of the specific
order or decree which he is alleged to have
disobeyed; (2) that the act constituting the
contemnor's violation was volitional; and (3) that the
contemnor acted with wrongful intent.
Stahl v. Redcay, 897 A.2d 478, 489 (Pa. Super. 2006).
Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013).
required to make to Wife pursuant to the divorce decree and subsequent
is apparent that Husband recognizes that the various orders, issued since
the time the divorce decree was entered, require him to pay those sums set
forth in the decree. However, he contends that he did not know how and to
whom the amounts were to be paid. His claim that the DRO continued to
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-decree rate is misleading at best,
particularly, his claim that he overpaid his support by $40,000, in light of the
fact that even after the DRO reduced the amount due monthly, Husband
continued to pay the pre-decree rate. The various orders issued by the
court clearly stated the amount to be paid to the DRO on account of the
alimony and arrears, the amount to be paid to Wife via her counsel relating
to equitable distribution and the amount to be paid to Wife as
reimburseme
contrary appear to be simply an attempt to confuse this Court.
Interestingly, he does not contest the amount he owes. Husband is a
sophisticated businessman. As Wife points out, Husband received copies of
all orders and had an attorney representing him throughout the proceedings,
even those proceedings that he chose not to attend.2 Husband has not
convinced this Court that his first argument has any merit.
Next, Husband asserts that a hearing is necessary before the trial
court can find him in contempt, citing Chrysczanavicz v. Chrysczanavicz,
796 A.2d 366 (Pa. Super. 2002). Husband notes his prior appeal to this
upon a conclusion that Wife had not offered evidence or testimony to
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2
Specifically, at the November 7, 2013 hearing, the court inquired of
H
9 (R.R. at 88a).
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support her allegations of contempt. See Trachtman v. Trachtman, 63
A.3d 825 (Pa. Super. 2012) (unpublished memorandum). The trial court in
the prior case acknowledged that whether the violation rose to the level of
contempt was a close call. Interestingly, the subject of the contempt
petition in the earlier appeal related to the same types of payments due Wife
from Husband in this appeal.
In the present context, Husband appears to imply that no hearing was
held, but then concedes that one was held on November 7, 2013, which he
did not attend. Husband explains that at the hearing, his counsel suggested
that Husband could testify by telephone. However, the trial court refused,
citing Pa.R.C.P. 1930.3 and the Chester County Local Rule 1930.3(a),
particularly noting that the local rule requires written requests in advance of
the hearing. See N.T., 11/7/13, at 106-108. In so ruling, the court also
Mr. Trachtman from appearing
Id. at 108. It appears that Husband
may be attempting to have this Court remand for another hearing.
However, his discussion regarding this issue does not make clear what relief
he is requesting in light of the fact that a hearing was held, at which time
Wife submitted evidence sufficient to prove contempt. Thus, we conclude
Husband
claims that the court changed the terms of the Divorce Decree, which stated
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prospectively on account of the federal tax liability within thirty days of his
receipt of documentati
the Divorce Decree).3 The change about which Husband appears to now
Id. This argument is
confusing at best.
In its opinion, the trial court explained:
Pursuant to the Divorce Decree, [Husband] was solely
responsible to pay the federal tax liability related to Floor
Management Group, Inc., and directed to reimburse Wife for any
payments within thirty days of his receipt of documentation of
such payments. Specifically, the August 10, 2012 Order directed
[Husband] to pay [Wife] $3,289.05 as reimbursement for federal
tax liability paid by [Wife]. [Husband] made a single payment of
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3
The Divorce Decree states in pertinent part that:
Husband shall be solely responsible to pay the federal tax
of $5,205 toward this liability since July 15, 2006, Husband shall
reimburse Wife for such payments, within thirty days of
addition, Husband shall reimburse Wife for any payments she
makes prospectively on account of the federal tax liability
(currently $216.15 per month), within thirty days of his receipt
of documentation of such payments. Wife shall keep Husband
reasonably informed of any communications she receives from
the I.R.S. relating to the federal tax liability.
Divorce Decree at 2 (unnumbered).
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$1,000.00 in May 2013. Therefore, the undersigned found
[Husband] in Contempt of the Divorce Decree and the August
31, 2012 Order as he failed to pay $2,289.05 as reimbursement
for federal tax liability to [Wife]. The November 18, 2013 Order,
again, directed [Husband] to pay directly to [Wife] the sum of
$2,289.05, representing the balance of the reimbursement owed
to [Wife] for the payments she made on account of the federal
tax liability.
T.C.O. at 2-3.
From our review, it becomes apparent that no change was made to the
terms of the Divorce Decree. Rather, in an attempt to enforce the Decree,
the court specified what Husband must pay to Wife, who has been and is
making paymen
pursuant to the Divorce Decree and continue to be his obligation until paid in
argument has no merit.
ssue, he asserts that the trial court erred by not
crediting overpayments of support to the DRO to his equitable distribution
ed:
Pursuant to the Divorce Decree, [Husband] was directed to
pay [Wife] equitable distribution in the amount of $245,007 over
a period of ten years (120 months) with interest calculated at
3% on the remaining balance. Specifically, [Husband] was to
pay [Wife] $2,365.81 per month beginning February 1, 2012.
This long term installment arrangement was put in place for
make a single lump sum payment to [Wife]. [Husband] has paid
a mere $5,816.00 toward equitable distribution of the
$52,047.82 he owed to [Wife] as of the time of the November
18, 2013 Order. [$2,365.81 x 22 months (February 1, 2012
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through November 30, 2013)]. Therefore, [Husband] has an
outstanding balance of $46,231.82 in equitable distribution
payments he owes to [Wife], and thus is in contempt of the
Divorce Decree.
As further explanation, [Husband] never made any direct
ordered, but rather only made alimony and support payments
through Pa.SCDU in the average amount of $7,705 per month.
In an attempt to encourage [Husband] to pay equitable
distribution, the undersigned ordered on June 3, 2013 that
[Husband] pay equitable distribution through the Domestic
Relations Office, i.e. to Pa.SCDU. [Husband] continued to pay
the exact same amount of $7,705 to Pa.SCDU as he had
previously paid, an amount which is slightly more than his
required monthly support and alimony. Therefore, during the
months the June 3, 2013 Interim Order was in effect, the court
amount of $5,816, the amount he paid in excess of the alimony
and the support arrears obligation. The fact that [Husband]
voluntarily paid more to Pa.SCDU in the preceding months from
February 1, 2012 through May 2013 is laudable, and has
properly resulted in the payment of his alimony obligation and
the reduction of his substantial support arrears obligation.
However, the court has no duty to exercise its discretion to give
(outside of the months of June 3, 2013 through November 30,
2013 when he was specifically directed to pay equitable
distribution to Pa.SCDU) to make a payment to Pa.SCDU above
his monthly obligation, and thus pay down his sizable support
separate from his obligation to make equitable distribution
payments.
that h
but also misleading. [Husband] may have paid more than his
monthly support and alimony obligation to Pa.SCDU, but his
overpayment in this regard did not even come close to his total
equitable distribution and tax liability obligations.
T.C.O. at 3-
supported by the evidence of record, we conclude that the court did not
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abuse it discretion in the conclusions it reached regarding this issue.
Husband was given credit for payments he made, even though the credit
provided to him was not necessarily applied in the manner he wished. Thus,
his fourth issue is without merit.
fe
fees to enforce an equitable distribution order.4 Specifically, Husband
discusses the requirement that he pay attorney and accounting fees related
to the taxes due to the I.R.S. from Floor Management Group, Inc., which the
discussion with the court at the November 7, 2013 hearing that reveals an
agreement had been reached between Wife and the I.R.S., which covers the
amounts Wife is required to pay to the I.R.S. That amount includes what
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4
Section 3502(e) provides in pertinent part that:
(e) Powers of the court. If, at any time, a party has failed to
comply with an order of equitable distribution, as provided for in
this chapter or with the terms of an agreement as entered into
between the parties, after hearing, the court may, in addition to
any other remedy available under this part, in order to effect
compliance with its order:
. . .
(7) award counsel fees and costs;
23 Pa.C.S. § 3502(e)(7).
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Wife owes for taxes she had herself incurred and taxes that were owed on
behalf of Floor Management Group, Inc. See N.T. at 44-50. Husband
suggests that Wife did not follow the directives in the Divorce Decree
relating to the tax liability and, therefore, he should be relieved from the
.S.
In other words, Husband claims that because Wife did not notify him about
sums paid to the I.R.S., his obligation to indemnify her never arose and that,
consequently, he should not be required to contribute to the payment for
attorney and accounting fees in that regard.
Relying on the facts adduced at the hearing, the trial court explained
that:
[Wife] has incurred certain reasonable and necessary attorney
and accounting fees for retaining Eugene Steger & Associates,
P.C., tax counsel, to assist with the payment of federal tax
liability owed by Floor Management Group, Inc. Because of
that [Husband] is obligated to pay a proportionate share of these
fees, as he is solely responsible to pay the federal tax liability
related to Floor Management Group, Inc.
T.C.O. at 3.
Our review is guided by the following:
Our standard of review of the award of counsel fees pursuant to
the Domestic Relations Code is for an abuse of discretion. See
Bowser v. Blom, 569 Pa. 609, 807 A.2d 830, 834 (Pa. 2002).
if in reaching a conclusion[,] the law is overridden or misapplied,
or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will, as shown by the
Id.
grant of counsel fees is limited ... and we will reverse only upon
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Isralsky v. Isralsky, 824 A.2d 1178,
1192 (Pa. Super. 2003) (citation omitted).
Habjan, 73 A.3d at 642 (quoting Kraisinger v. Kraisinger, 34 A.3d 168,
175 (Pa. Super. 2011)).
Our review of the record, including the testimony and discussion that
took place before the court at the hearing, reveals that Husband was aware
of the negotiations occurring between Wife and the I.R.S. and that he knew
what his responsibility was in connection with the tax liability. To now
complain that he should not be required to contribute to these fees that Wife
expended to negotiate a settlement with the I.R.S. is unreasonable since the
settlement was to his benefit. Moreover, the trial court included a separate
attempt to enforce the provisions of the Divorce Decree. She
has had to file petitions and attend numerous hearings in order
to enforce her rights established by the decree. The evidence of
record sup
awarded by the court. Frankly, the evidence of record supports
a higher amount than awarded.
T.C.O. at 6. The court did not abuse its discretion in so ruling and
thout merit.
Decree that he obtain life insurance to secure the payment to Wife of the
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amount he owes her in equitable distribution.5 Husband contends that due
to his medical history and his insufficient assets, he is unable to secure life
entered against him is an abuse of discretion. The trial court discussed this
issue, stating:
The Divorce Decree requires [Husband] to secure life
insurance with [Wife] as the beneficiary, and requires [Husband]
to provide [Wife] with written documentation of the policy
annually. [Husband] failed to obtain said life insurance.
t
[Husband] was unable to obtain life insurance due to his health
yet, even though given numerous opportunities, has failed to
provide the court with any documentation of his allegedly failed
attempts to obtain life insurance. In lieu of the life insurance,
counsel for the parties agreed to attempt to arrange for a bond
stated that [Husband] was unable to secure a bond, but
attempt to secure a bond.
The purpose of the life insurance coverage was to provide
[Husband] the opportunity to make monthly equitable
distribution payments to [Wife], rather than make one lump sum
payment, but at the same time to protect [Wife] by ensuring she
ultimately receives full payment. The November 18, 2013
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5
The Divorce Decree states:
Husband shall be required to secure life insurance with Wife as
the beneficiary in an amount equal to the equitable distribution
balance he owes Wife. The amount of life insurance in force may
be reduced annually to reflect a lower balance due. Husband
shall provide written documentation of insurance to Wife
annually in the form of a declaration from the life insurance
company.
Divorce Decree at 2 (unnumbered).
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contempt order, from which [Husband] appeals, now affords
[Husband] the following options: (1) to obtain life insurance in
the full amount; (2) if he cannot obtain coverage in the full
amount, obtain coverage in such amount as is available to him;
(3) assign any existing life insurance coverage designating
[Wife] as beneficiary in the full amount, or in such amount as is
available[;] and [] (4) if he is unable to obtain full insurance
coverage, to permit a judgment to be entered against [Husband]
in favor of [Wife]. If other options exist to protect [Wife] over
the course of the next decade, neither the court, nor counsel,
have been able to identify them.
T.C.O. at 5-6.
Husband appears to be arguing that the order from which he now
appeals changed a prior order, namely, the Divorce Decree, and that such
an action was taken by the trial court without jurisdiction in that the Divorce
Decree had been entered on January 19, 2012, almost two years earlier.
Husband contends that a tribunal loses jurisdiction to change an order once
it becomes final, i.e., thirty days after its entry, citing Maurice A. Nernberg
& Associates v. Coyne, 920 A.2d 967, 970 n.7 (Pa. Cmwlth. 2007) (stating
that a trial court must modify or rescind any previous order within thirty
days after its entry).
Reliance on Nernberg
contention that the court abused its discretion by allowing a judgment to be
entered against him and in favor of Wife. In Nernberg, the petition before
order; rather, this Court concluded that the petition sought a new order.
n attempt
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to enforce the Divorce Decree. She was not seeking a modification of the
was employing a method to enforce the Decree. See 23 Pa.C.S. §
3502(e)(1) (stating if a party fails to comply with an equitable distribution
order, the court to effectuate compliance may enter judgment).
secure life insurance and/or a bond, a judgment could be entered against
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2014
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