J-A34022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CATHERINE L. WEITZEL IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK B. WEITZEL
Appellant No. 2096 MDA 2012
Appeal from the Order Entered October 16, 2012
In the Court of Common Pleas of Berks County
Civil Division at No(s): 05 - 15447
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 07, 2016
Mark B. Weitzel (“Husband”) appeals, pro se, from the order entered
October 16, 2012, in the Berks County Court of Common Pleas dismissing
his petition to hold his ex-wife, Catherine L. Weitzel (“Wife”), in contempt of
the court’s prior orders and the parties’ Post Nuptial Agreement (“PNA”). On
appeal, Husband argues the trial court abused its discretion in dismissing his
petition. We affirm.
The facts and procedural history underlying this appeal are as follows.
On November 14, 2005, Wife filed a complaint in divorce. The parties
entered into a counseled PNA on May 14, 2008, which provided, inter alia,
Husband would convey to Wife all his interest in the parties’ marital
residence, in consideration for which Wife was to secure a home equity loan
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to pay Husband $25,000.1 Post Nuptial Agreement, 5/14/2008, at ¶¶ 21,
24. The Agreement further provided that if Wife were unable to secure a
home equity loan within 90 days, she would pay Husband $10,000, followed
by $500 per month for 30 consecutive months. Id. at ¶ 24. When Wife
failed to secure a home equity loan within 90 days, Husband filed a petition
to enforce the PNA on October 17, 2008. Thereafter, a divorce decree was
entered on March 20, 2009, and the agreement was incorporated into the
decree.
Following an evidentiary hearing, on June 15, 2009, the trial court
granted Husband’s petition and directed Wife to pay Husband $10,000 within
90 days, and make 30 consecutive monthly payments of $500 thereafter.
See Order, 6/15/2009. When Wife still failed to make the requisite
payments, Husband filed a petition for contempt on October 6, 2009, which
the trial court granted after a hearing on January 13, 2010. Husband filed a
second contempt petition on June 3, 2010, claiming Wife still had not paid
him the money owed under the PNA. On October 13, 2010, the court
entered an order providing Wife with a reduced payment schedule, and
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1
We note that, on April 30, 2008, Husband was convicted of, inter alia,
aggravated indecent assault for the sexual abuse of the parties’ minor
daughter, and sentenced, on August 28, 2008, to an aggregate term of five
to 10 years’ imprisonment, followed by two years’ probation. See
Commonwealth v. Weitzel, 981 A.2d 938 (Pa. Super. 2009) (unpublished
memorandum), appeal denied, 993 A.2d 901 (Pa. 2010).
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directing her to execute a judgment note in favor of Husband’s counsel. 2
See Order, 10/13/2010.
On December 2, 2011, Husband, proceeding pro se, filed the contempt
petition that is the subject of this appeal.3 He averred that Wife’s last
payment to him, pursuant to the court’s October 2010 order, was on
November 18, 2010. He also indicated his prior attorney was no longer
representing him, and that his sister, Lisa Walker, to whom he awarded
power of attorney, would be the new payee. Walker signed the petition, and
included a verification signed by Husband. Wife filed an answer and new
matter asserting, inter alia, that Walker had no standing in the matter, and
that Wife was insolvent.4
On January 31, 2012, the trial court held a brief hearing during which
Walker, who is not an attorney, appeared for Husband. The court entered
an order in which it stated the hearing was “continued without date, to be
re-listed upon [Husband’s] request and assurance that he can and will be
personally present for the hearing.” Order, 1/31/2012. Thereafter, Husband
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2
As noted supra, Husband was serving a prison sentence at that time.
3
Husband has remained unrepresented in this appeal.
4
Specifically, Wife claimed she lost the marital home in foreclosure
proceedings, due to her inability to refinance the property because Husband
never executed the documents to remove his name from the mortgage. See
Plaintiff’s Answer to Defendant’s Petition for Contempt Containing New
Matter, 1/27/2012, at ¶ 13.
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filed two motions for the production of documents, and when Wife did not
comply, he filed a motion to compel discovery. Thereafter, on September
12, 2012, Husband filed a motion to schedule the contempt hearing, and a
request to be present via video or telephone. The court granted Husband’s
request and scheduled a hearing. Following a hearing on October 16, 2012,
at which Husband appeared via telephone, the trial court dismissed
Husband’s petition for contempt and motion to compel discovery. Husband
filed a motion for reconsideration, which the trial court denied. This timely
appeal followed.5
When reviewing the dismissal of a contempt petition, our standard of
review is well-settled:
In reviewing a trial court’s finding on a contempt petition, we are
limited to determining whether the trial court committed a clear
abuse of discretion. This Court must place great reliance on the
sound discretion of the trial judge when reviewing an order of
contempt.
P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa. Super. 2012).
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5
On November 29, 2012, the trial court ordered Husband to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Husband complied with the court’s directive and filed a concise statement on
December 20, 2012.
However, on May 3, 2013, Wife filed a Notice of Bankruptcy.
Accordingly, on May 6, 2013, this Court entered a per curiam order staying
the appeal pending the bankruptcy proceedings. See Order, 5/6/2013. The
bankruptcy stay was subsequently lifted by order entered April 24, 2015,
when this Court was notified that the United States Bankruptcy Court for the
Eastern District of Pennsylvania had dismissed the case. See Order,
4/24/2015. Wife did not file a responsive brief in this appeal.
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Husband contends the trial court abused its discretion when it
dismissed his contempt petition. Specifically, he argues the trial court
improperly considered his criminal conviction during the October 16, 2012,
contempt hearing because the conviction was unrelated to the issue of
Wife’s contempt.6 Husband’s Brief at 6-8. Further, he claims the court
demonstrated bias and ill will when it dismissed his petition. Id. at 8.
Husband also argues the trial court’s actions violated his constitutional
right to access to the courts and due process, as well as “overrode Pa. Rules
of Civil Procedure Rule 1930.3.” Id. at 10. He asserts his “incarceration
does not relieve [Wife] of her obligation to pay the agreed upon amount of
twenty-five thousand dollars ($25,000.00) in the PNA and the Lower Court’s
previous Contempt/Enforcement Orders.” Id. at 11. Moreover, he notes the
PNA was executed after he was convicted of the sexual abuse of the parties’
daughter. Husband states that, although the language of the PNA is clear,
Wife “has demonstrated a deliberate pattern of refusing to abide by the
terms of the PNA” and has, in fact, been found in contempt on three prior
occasions. Id. at 16. Accordingly, he contends the trial court abused its
discretion in dismissing his contempt petition.
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6
Husband also asserts Wife testified falsely during the proceeding regarding
the age of their daughter, and Wife’s counsel provided incorrect information
to the court regarding Husband’s sentence. Husband’s Brief at 8-9.
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The trial court stated, in its opinion, that it dismissed Husband’s
petition based on Husband’s “own dilatory behavior[.]” Trial Court Opinion,
1/2/2013, at 3. The court explained:
At the October 16, 2012 hearing, [Husband] participated
by telephone. The Court attempted to gather some information
pertaining to the parties’ background and the posture of the
case. Upon the Court’s questioning [Husband], [Husband]
demonstrated extreme reluctance and delay in answering the
Court’s questions, gave evasive answers when [he] did answer,
and at times displayed what appeared to the Court to be a
refusal to answer. Not having all day to conduct what, with
[Husband’s] cooperation, should have been a rather short
hearing and becoming increasingly frustrated with [Husband’s]
ongoing delay or refusal to answer the Court’s questions, the
Court dismissed the Petition for Contempt and Motion to Compel.
Id. at 2.
Pennsylvania Rule of Civil Procedure 1930.3 permits testimony at a
domestic relations hearing by telephone “[w]ith the approval of the court
upon good cause shown[.]” Pa.R.C.P. No. 1930.3. (emphasis supplied).
As the Rule specifically provides, telephonic testimony is acceptable only at
the discretion of the trial court. In the present case, the court found
Husband “abused his privilege of being able to participate by telephone …
[and] eroded his credibility with his answers, or lack thereof, to the Court’s
questions.” Trial Court Opinion, 1/2/2013, at 2. The court further opined:
If [Husband] wants a fair hearing, he will need to file the
appropriate petitions or motions at a time when he is, as
previously ordered, capable of being physically present for a
hearing where the Court can view his body language and
demeanor and otherwise assess his credibility and better impress
upon him the need to answer the questions that he is asked with
the truth, whole truth and no half-answers.
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Id. The trial court emphasized that its ruling did not deprive Husband of his
opportunity to obtain relief. Rather, the court explained, Husband “still has
the opportunity to present his case if and when he can arrange
transportation to be personally present.” Id.
We find no reason to disturb the ruling of the trial court. Testimony by
telephone is permitted only with court approval. Pa.R.C.P. 1930.3. When,
in the court’s discretion, Husband abused that privilege, the court was acting
within its authority when it dismissed Husband’s petition. We remind
Husband that, as the complaining party, he had the initial burden to show,
by a preponderance of the evidence, that Wife violated a court order.
Childress v. Bogosian, 12 A.3d 448, 465 (Pa. Super. 2011). Because he is
unavailable for the contempt hearing, he is unable to carry that burden.
Further, contrary to his argument, Husband is not out of court. He may still
seek to enforce the parties’ PNA when he can appear for a contempt hearing
in person.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/2016
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