J-S90017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.M.R-H. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
M.E.R.
Appellee No. 1771 EDA 2016
Appeal from the Order Entered May 2, 2016
In the Court of Common Pleas of Montgomery County
Domestic Relations at No(s): 2006-21976
BEFORE: OTT, J., SOLANO, J., and JENKINS, J.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 16, 2016
Appellant, K.M.R-H., appeals from the May 2, 2016 order finding her in
contempt of the trial court’s June 19, 2015 order, and directing her to pay
$1,500, plus 6% per annum interest from August 19, 2015, until January
20, 2016, as well as $1,540 in counsel fees. We affirm.
The parties are the divorced parents of a minor child, and have
engaged in ongoing litigation. On May 20, 2015, M.E.R., who is the child’s
father, filed an Emergency Petition for Immediate Relief and for Contempt to
Enforce Court’s Orders. The trial court held a hearing on June 12, 2015, and
on June 19, 2015, granted M.E.R.’s petition. Specifically, the trial court
found Appellant in contempt of three prior court orders, and directed
Appellant to “resume therapy appointments with the child” and “continue
with family and reunification therapy.” The trial court also ordered Appellant
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to “reimburse [M.E.R.] $1,5000.00 [sic] within sixty (60) days of the date of
this Order due to [Appellant] taking the child as a tax exemption for
calendar year 2013 in violation of the parties’ June 26, 2008 Divorce Decree
and June 10, 2008 Property Settlement Agreement.” Trial Ct. Order,
6/19/15. The trial court subsequently noted, “the extra zero in the figure as
stated in the June 19, 2015 order was a typographical error. [M.E.R.]’s
counsel stated ‘yes, we agree its $1,500.00 . . . no one has ever asserted it
was anything other than $1,500.00.’ N.T. 3-4.” Trial Ct. Op., 8/5/16, at 2.
On December 2, 2015, M.E.R. filed another emergency petition in
which he sought, among other things, to compel Appellant to reimburse him
the $1,500 ordered by the trial court on June 19, 2015. The trial court held
a hearing on April 21, 2016. In an order dated April 29, 2016, and docketed
May 2, 2016, the trial court found Appellant in contempt of the June 19,
2015 order, and again directed her to pay M.E.R. $1,500, with 6% per
annum interest from August 19, 2015, until January 20, 2016, as well as
$1,540 in counsel fees. Appellant filed a pro se motion for reconsideration,
but the trial court did not act on it and it therefore was deemed denied by
operation of law. See Pa. R. Civ. P. 1930.2(b).
On May 27, 2016 Appellant, through counsel, filed a timely notice of
appeal, and on June 21, 2016, she responded to the trial court’s order
directing her to file a Pa.R.A.P. 1925(b) statement. The Rule 1925(b)
statement raised the following five issues:
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1. The Lower Court abused its discretion when it found
Appellant in contempt of its June 19, 2015 Order after
[M.E.R.] failed to demonstrate by a preponderance of the
evidence that the alleged violation was volitional.
2. The Lower Court abused its discretion when it found
Appellant in contempt of its June 19, 2015 Order after
[M.E.R.] failed to demonstrate, by a preponderance of the
evidence, that Appellant acted with wrongful intent in
making payments to [M.E.R.] to satisfy the June 19, 2015
Order.
3. The Lower Court abused its discretion when it found that the
June 19, 2015 Order was sufficiently definite, clear and
specific, and left no doubt or uncertainty in the mind of the
Appellant, so as to justify a finding of contempt thereof.
4. The Lower Court abused its discretion when it found
Appellant in contempt of an Order seeking to enforce an
illegal provision of the parties’ Property Settlement
Agreement relating to the issue of income tax exemptions.
5. The Lower Court abused its discretion when it ordered
Appellant to pay counsel fees to [M.E.R.]’s counsel when
[M.E.R.] failed to establish by a preponderance of the
evidence that Appellant’s conduct was obdurate, dilatory or
vexatious.
Appellant’s Concise Statement of Matters Complained of on Appeal, 6/21/16,
at 1-2.
On appeal, Appellant presents the following four issues for our review:
1. Is [Appellant] entitled to a reversal of the Trial Court’s Order
finding her in contempt of its June 19, 2015 Order when
[M.E.R.] failed to provide any evidence demonstrating
[Appellant] intended to violate the Trial Court’s Order when
she made payments to [M.E.R.], which [M.E.R.] accepted,
and where the entire amount due and owing to [M.E.R.] was
paid in full prior to the hearing?
2. Is [Appellant] entitled to a reversal of the Trial Court’s Order
finding her in contempt of the June 19, 2015 [Order], when
that Order contains the incorrect amount of the 2015 child tax
credit, which [Appellant] was ordered to pay to [M.E.R.]?
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3. Is [Appellant] entitled to a reversal of the Trial Court’s Order
finding her in contempt of the June 19, 2015 Order when the
June 19th Order required [Appellant] to pay $1,5000.00 [sic]
to [M.E.R.] when the child tax credit was only $1,000 in 2015,
and where [M.E.R.] is not permitted under Federal Law to
take the parties’ minor child as a tax credit for 2015, despite
the language in the parties’ Property Settlement Agreement
permitting [M.E.R.] to take the deduction in odd-numbered
years, since [M.E.R.] did not have primary custody of the
child at the time he was seeking to take the deduction?
4. Is [Appellant] entitled to a reversal of the Trial Court’s Order
requiring [her] to pay [M.E.R.]’s counsel fees, when [M.E.R.]
failed to present evidence demonstrating that [Appellant’s]
acts of making payments to [M.E.R.] and relying on a prior
agreement of the parties, which [Appellant] was waiting to be
signed, were obdurate, dilatory or vexatious?
Appellant’s Brief at 4-5.
Preliminarily, we note that Appellant’s second and third issues, which
pertain to the order that Appellant reimburse the amount of the child tax
exemption, are waived. Appellant’s second issue is not properly before us
because Appellant failed to raise it in her Pa.R.A.P. 1925(b) statement of
errors complained of on appeal. Pa.R.A.P. 1925(b)(4)(vii) (issues not
included in the Statement are waived); see also Glynn v. Glynn, 789 A.2d
242, 248–49 (Pa. Super. 2001) (en banc) (because appellant failed to raise
the issue in his Statement of Matters Complained of on Appeal, he waived
issue for purposes of appellate review). Moreover, Appellant’s second and
third issues both are not properly before us because, as M.E.R. observes,
Appellant waived “any issue regarding the reimbursement of $1,500.00”
because she did not appeal the June 19, 2015 order which originally
provided for the reimbursement “due to [Appellant] taking the child as a tax
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exemption for calendar year 2013 in violation of the parties’ . . . Property
Settlement Agreement.” M.E.R.’s Brief at 10. The June 19, 2015 contempt
order was final and appealable. Glynn, 789 A.2d at 246 (an order finding a
party in contempt for failure to comply with a prior order of court is final and
appealable if sanctions are imposed). Because Appellant failed to appeal at
that time, she is bound by that order and cannot reopen that matter now.
With regard to Appellant’s first issue, in which she claims that her
actions fail to support a finding of contempt, “[o]ur scope and standard of
review are familiar: ‘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) (citations omitted), appeal
denied, 97 A.3d 793 (Pa. 2014).
To sustain a finding of civil contempt, the complainant must prove by a
preponderance of the evidence: “(1) that the contemnor had notice of the
specific order or decree which [she] 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), appeal denied, 918 A.2d 747 (Pa. 2007).
Appellant does not dispute that she had notice of the June 19, 2015
order. Rather, she maintains that her “actions in not paying the full amount
of $1,500.00” were not “volitional or done with wrongful intent.” Appellant’s
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Brief at 14. In support of her argument, Appellant references six separate
$25.00 checks she remitted to M.E.R.,1 and claims that although she had the
funds to pay the full $1,500, she did not do so because she was waiting for
the court to rule on her pro se motion for reconsideration. Appellant’s Brief
at 13. Appellant also asserts that the parties, through counsel, agreed in
January of 2016 that her $1,500 payment to M.E.R. would be offset by funds
owed from M.E.R. to Appellant for the child’s unreimbursed medical
expenses. Id. at 14.
In rejecting Appellant’s argument and expressly finding her actions to
be volitional and with wrongful intent, the trial court noted that it had given
Appellant no authority to modify the terms of is June 19, 2015 order
directing her payment of $1,500 within 60 days, and that her pro se status
at that time did not absolve Appellant of responsibility for complying with the
order as written. Trial Ct. Op., 8/5/16, at 6-9. See also Wilkins v.
Marsico, 903 A.2d 1281, 1284–85 (Pa. Super. 2006), appeal denied, 918
A.2d 747 (Pa. 2007) (pro se status is not an excuse for failing to adhere to
court rules and confers no special benefit). The trial court also determined
that there was no evidence M.E.R. told Appellant she could pay him in
$25.00 increments or delay full payment for more than 60 days, particularly
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1
At the advice of counsel, M.E.R. did not cash the checks. N.T., 4/21/16, at
5-6, 67.
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because any purported agreement in January of 2016 would have been “six
months after she was required to pay [M.E.R.] the $1,500.00.” Trial Ct. Op.,
8/5/16, at 8.
Our review reveals no abuse of discretion by the court. M.E.R.
testified he did not receive $1,500 by August 18, 2015, as required by the
June 19, 2015 order, and that he never agreed to accept the $1,500 in $25
increments. N.T., 4/21/16, at 4, 6. M.E.R. also testified that he did not
receive the $25 incremental payments until “several days after August 15 th,”
and that the first check he received was dated August 15, 2015. Id. at 5, 9-
10. The last $25 check was dated January 3, 2016. Id. at 6. M.E.R.
stated:
I realize there was an attempt at damage control [by
Appellant], and to pay me what she should have done within the
60 days, and I did not accept that type of payment.
N.T., 4/21/16, at 23.
Appellant conceded that the June 19, 2015 order required her to pay
M.E.R. $1,500 by August 18, 2015. N.T., 4/21/16, at 27, 54. She said that
she remitted the $25 payments to M.E.R. as “good faith” while she waited
for the court to decide her reconsideration motion. Id. at 28. In addition,
she testified: “the fact that [M.E.R.] kept each check, and did not mail them
back to me, he kept each payment, I took that as he was accepting the
payments, and he never told me otherwise.” Id. at 33, 59. When
specifically asked to answer “yes or no” as to whether she paid M.E.R.
$1,500 on or before the sixty day deadline, Appellant responded: “No,
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because I filed reconsideration.” Id. at 56. She also confirmed that her
ability to pay “was never a factor.” Id. at 57.
After hearing from the parties and their counsel, the court concluded
that Appellant’s arguments “as to why she did not comply with the order are
not credible, nor reasonable, nor are they supported by the evidence of
record at the April 21, 2016 hearing.” Trial Ct. Op., 8/5/16, at 11. Based
on our review, we find no abuse of discretion in the trial court’s conclusion.
Although Appellant may have thought it reasonable to forego paying the full
$1,500 that the trial court ordered while she awaited a decision on her
motion for reconsideration, and although she also might have thought it
reasonable to make $25 installment payments in the interim, the fact
remains that the order expressly directed payment of the full $1,500 within
60 days. Appellant knew what the order required; she simply decided to do
something different because she apparently believed her own course of
action was a better one than what the court directed. Appellant had no
authority to make such a unilateral modification of the trial court’s order,
and she therefore may be charged with a deliberate violation of the order in
taking such action.
In her fourth and final issue, Appellant contends that the trial court
erred in awarding counsel fees even though she claims her actions were not
obdurate, vexatious, or dilatory. Once again, Appellant supports her
argument with the assertion that she was acting in good faith by making the
$25 payments. She references the pendency of her motion for
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reconsideration, and her January 2016 negotiations with M.E.R. regarding
the child’s unreimbursed medical expenses. Appellant’s Brief at 19-20.
The trial court noted that it awarded counsel fees pursuant to 42
Pa.C.S. § 2503(7). Trial Ct. Op., 8/5/16, at 10. The statute states:
The following participants shall be entitled to a reasonable
counsel fee as part of the taxable costs of the matter:
…
(7) Any participant who is awarded counsel fees as a sanction
against another participant for dilatory, obdurate or vexatious
conduct during the pendency of a matter.
42 Pa.C.S. § 2503(7).
In addressing a trial court’s award of counsel fees, our review of a trial
court’s order is limited solely to determining whether the trial court palpably
abused its discretion in making the fee award. Thunberg v. Strause, 682
A.2d 295, 299 (Pa. 1996) (citing In re Estate of Liscio, 638 A.2d 1019,
1021 (Pa. Super. 1994), appeal denied, 652 A.2d 1324 (Pa. 1994)).
It is within the sole province of the trial court to weigh the
evidence presented and assess the credibility of the witnesses.
Palladino v. Palladino, 713 A.2d 676, 678 (Pa. Super. 1998).
On appeal, this Court will not disturb the trial court’s assessment
of either the husband’s or the wife’s credibility. Brotzman–
Smith v. Smith, 437 Pa. Super. 509, 650 A.2d 471, 474
(1994).
Sternlicht v. Sternlicht, 822 A.2d 732, 742 n.8 (Pa. Super. 2003) (noting
that if Section 2503(7) applied to request for counsel fees, the court would
nonetheless have denied award), affirmed, 876 A.2d 904 (Pa. 2005);
accord In re Barnes Found., 74 A.3d 129, 135 (Pa. Super. 2013), appeal
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denied, 80 A.3d 774 (Pa., Nov. 27, 2013), cert. denied, 134 S. Ct. 2301
(2014).
Here, the trial court found Appellant’s conduct to be “not only
obdurate, but dilatory and vexatious as well,” explaining:
[Appellant] had no justifiable reason for refusing to pay
[M.E.R.] the $1,500.00 within sixty (60) days she owed
him under the terms of the court’s June 19, 2015 order.
[Appellant] testified that she had the financial ability to do
so. Furthermore the reasons [Appellant] presented to the
court for her non-payment were not reasonable. Instead,
[Appellant] chose to wait until the compliance date of the
court’s June 19, 2015 order had passed, then she
proceeded to provide [M.E.R.] with six $25.00 checks on a
sporadic basis. The evidence presented to the court at the
April 21, 2016 hearing supports by a preponderance of the
evidence the court’s finding that [Appellant] acting in a
dilatory, vexatious and obdurate manner with regard to
the June 19, 2015 order.
Trial Ct. Op., 8/5/16, at 11.
As detailed above, our review of the record comports with the trial
court’s conclusions. We therefore find no error or abuse of discretion in the
award of attorney’s fees, and affirm the trial court’s May 2, 2016 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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