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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATRICIA A. DIMITRI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS DIMITRI :
:
Appellant : No. 313 EDA 2021
Appeal from the Order Entered December 30, 2020
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2014-09013
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 4, 2022
Marcus Dimitri (“Husband”) appeals from the order finding him in
contempt for failing to distribute funds pursuant to an equitable distribution
order. He challenges the finding of contempt and the award of counsel fees.
We conclude the trial court did not abuse its discretion in finding Husband in
contempt and in awarding counsel fees. We therefore affirm.
In April 2014, Patricia Dimitri (“Wife”) filed a complaint in divorce. In
January 2018, Husband filed a Motion for Entry of Grounds Order and
Appointment of Equitable Distribution Master to resolve the pending economic
claims. In February 2018, the court approved the grounds for divorce and
ordered that an equitable distribution hearing be scheduled.
The parties appeared before a hearing officer, who issued a report and
recommendation in November 2018. The report and recommendations
included, among other things, that Husband would transfer $222,674 from his
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Ally Bank 401(k) account to Wife1 and would transfer 60% of his Vanguard
Investment account to Wife. It further provided that the parties would sell
property they owned in Cape May and that they would share costs until
settlement on the property occurred. Husband filed exceptions to the
recommendation and requested a hearing de novo. In January 2019, the
parties reached a comprehensive agreement resolving the exceptions and
entered an agreed order. Included in the order was that the distribution of
assets was effective the date of the divorce decree and it provided that unless
set forth in the agreed order, the hearing officer’s report and recommendation
would be final. The court entered the divorce decree on January 15, 2019 and
incorporated the agreed order.
Husband did not make the transfers from his investment accounts to
Wife, and Wife filed her first petition for contempt in March 2019. The trial
court set forth the factual and procedural history of the proceedings following
this petition, which we incorporate in this Memorandum. Trial Court Opinion,
filed Aug. 23, 2021, at 3-12 (“1925(a) Op.”). We will provide a summary here.
After Wife’s first contempt petition, the parties agreed that the funds
would be revalued as of April 1, 2019, and the funds would be divided in the
same way the hearing officer had stated. Husband again did not distribute the
funds, and Wife filed a second petition for contempt in June 2019. The parties
again reached an agreement where Husband would make partial payments to
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1This was 96.8 % of the amount of money in the account. Memorandum and
Order, Dec. 30, 3030, at ¶ 4.
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Wife and the parties would engage an accountant to perform updated
calculations and to make recommendations for certain credits regarding the
Cape May property. In November 2020, when conducting a virtual triage
conference on a separate petition, the court learned that “much of the parties’
equitable distribution agreement in the prior Agreed Order had not been
followed through upon.” Id. at 5. The court issued an order directing Wife to
file a petition setting forth the enforcement issues. Wife filed a third petition
for contempt in November 2020, and Husband filed an answer. The court
conducted a hearing, at which it heard testimony from both parties.
Following the hearing, the court granted Wife’s petition for contempt
and directed Husband to effectuate transfers from his Ally Bank and Vanguard
accounts to Wife. The court ordered that the valuation date for the accounts
would October 31, 2020,2 which resulted in an increase in the amount owed
to Wife. The court further ordered Husband to pay Wife’s counsel fees in the
amount of $7,500. It further advised Husband of “the possible imposition of
sanctions, in the amount of $500 per day, should he fail to accomplish the
transfers before the close of business on January 15, 2021.” Id. at 12.
Husband complied with the order. He also filed a timely notice of appeal.
Husband raises the following issues:
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2 The Ally Bank account had increased by $130,748.32 and the Vanguard
investment account had increased by $17,231.76. Memorandum Order, Dec.
30, 2020, at ¶¶ 23-24.
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1. Is it an error of law or abuse of discretion to impose
counsel fees when no hearing was held and the certification
of fees upon which the trial court relied is not of record?
2. Is it an error of law or abuse of discretion to find a party
in contempt of orders which did not provide for a sanction
and was not supported by testimony presented?
3. Is it an error of law or abuse of discretion to accept a
valuation date which was unsupported by evidence, was
arbitrary and was contrary to the Master’s valuation date?
Husband’s Br. at 9.
In his first issue, Husband argues the court erred in awarding the
counsel fees, as fees may be awarded only upon submission of appropriate
proof. He points out the court did not hold a hearing with respect to counsel
fees, heard no testimony regarding the amount of the fees, and the
certification of fees on which the court relied is not of record.
A court may award counsel fees and costs for noncompliance with an
equitable distribution order. 23 Pa.C.S.A. § 3502(e)(7). Further, counsel fees
may be recovered by an aggrieved party where a court makes a finding of
contempt. Wood v. Geisenhemer–Shaulis, 827 A.2d 1204, 1208 (Pa.Super.
2003) (quoting Mrozek v. James, 780 A.2d 670, 674 (Pa.Super. 2001)).
“Because an award of counsel fees is intended to reimburse an innocent
litigant for expenses made necessary by the conduct of an opponent, it is
coercive and compensatory, and not punitive.” Id. We review an award of
counsel fees for an abuse of discretion. Id.
Here, the court pointed out that it sanctioned Husband for his “repeated
and continued” failure to comply with the orders. It noted Wife submitted a
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certification of fees that totaled $19,596.50 for 51 billable hours plus the costs
to file the contempt petitions. The court requested a breakdown, which it
received, and ultimately directed Husband to pay $7,500 in counsel fees and
costs. After review of the brief, the record, and the well-reasoned opinion of
the Honorable Daniel J. Clifford, we conclude the court did not abuse its
discretion and affirm on the basis of the trial court opinion. See 1925(a) Op.
at 23-24.
Husband maintains that the court could not award counsel fees without
a hearing. However, he provides no cases or other authority supporting this
proposition. Further, although Wife’s fee certification was not made part of the
record, Husband did not object to this at the hearing or in his Rule 1925(b)
statement. This claim is therefore waived. See Pa.R.A.P. 302(a) (“[i]ssues not
raised in the trial court are waived and cannot be raised for the first time on
appeal”); Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived”).
In Husband’s second issue, he argues that the court erred in finding he
acted with wrongful intent, as he allegedly was unable to act because the bank
would not release the funds without a proper order. He claims Wife “offered
no evidence at the hearing that led to [Husband’s] adjudication of contempt.”
Husband’s Br. at 15. He claims that the January 2019 order he was found to
have violated was the divorce decree, and although the decree stated the
settlement agreement was attached, it was not. He asserts the April 2019
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order did not deal with the investment funds and alleges he did not violated
the July 2019 order because it required distribution after calculation of the
amounts due and such calculations were never made. He claims Wife “offered
no testimony” and there was no evidence of a volitional act on his part.
We review an order holding a party in contempt for an abuse of
discretion. Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009). “The
court abuses its discretion if it misapplies the law or exercises its discretion in
a manner lacking reason.” Id. (citation omitted). “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.” Habjan v. Habjan, 73 A.3d 630, 637
(Pa.Super. 2013) (quoting Langendorfer v. Spearman, 797 A.2d 303, 307
(Pa.Super. 2002)).
“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.” Lachat v. Hinchcliffe, 769 A.2d 481,
489 (Pa.Super. 2001). To be punished for the contempt, the order must have
been ”definite, clear, specific – leaving no doubt or uncertainty in the mind of
the contemnor of the prohibited conduct.” Id. at 488-89 (quoting Marian
Shop, Inc. v. Baird, 670 A.2d 671, 673 (Pa.Super. 1996)) (emphasis
removed).
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Here, the trial court found Husband had a pattern of agreeing to court
orders and then disregarding the terms. It found Husband had notice of the
Orders, as they were made by agreement of the parties and made of record.
Husband also agreed that he still owed Wife money from the accounts.
Further, the court found that Husband’s actions were volitional. Although
Husband claimed he needed another court order to effectuate the transfer, he
never notified the court of this alleged requirement. In addition, although
Husband claimed Wife was responsible for the delay because she did not pay
her portion of the Cape May property mortgage and expenses, the agreed
orders were not conditional on such payment. The court further found the acts
willful. The orders had specific dates by which the payments were to be made,
and Husband failed to make the payments. After a review of the brief, record,
relevant case law, and well-reasoned trial court opinion, we conclude the court
did not abuse its discretion in finding Husband in contempt and affirm on the
basis of the trial court opinion. See 1925(a) Op. at 16-20.3
In Husband’s final issue, he claims the court erred in determining the
valuation date. He claims the court should have considered the same factors
courts use to determine the valuation of pension benefits to determine the
valuation date here.
The court made two determinations of valuation dates in this matter –
October 31, 2020, for the investment accounts and January 2020 for the Cape
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3 The correct citation for Foulk v. Foulk, cited and relied on by the trial court,
is 789 A.2d 254 (Pa.Super. 2001) (en banc).
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May property. Memorandum and Order, December 30, 2020, at ¶¶ 20-25, 35.
For the valuation date of the investment accounts, Husband requested a March
31, 2019 valuation date, while Wife asked for October 31, 2020. For the Cape
May property, Husband requested a valuation date of the present date and
Wife requested a January 2020 valuation date.
In his appellate brief, Husband argues:
At a hearing on December 2, 2020[,] the [c]ourt found the
parties agreed that March 31, 2019 and October 31, 2020
were the relevant cut off dates contended for, [Husband]
contending for the former and [Wife] for the latter. The
parties formerly agreed that April 1, 2019 was the relevant
valuation date. In the order appealed from[,] [the trial
court] found January[] 2020 to be the final cutoff date.
Husband’s Br. at 11.
Husband is confusing the two valuation dates. For the investment
accounts, the trial court did not choose a January 2020 valuation date. Rather,
it chose October 31, 2020.
The trial court found Husband waived any challenge to the October 31,
2020 valuation date, as in his 1925(b) statement he referenced the paragraph
selecting the valuation date for the Cape May property. It further found it did
not err in setting the valuation of the Cape May property as January 2020,
because Husband implied the primary purpose of the delay in transferring the
investment funds to Wife was her failure to reconcile the Cape May mortgage
and expenses, even though the funds owed to Husband “at approximately
$14,000, pale in comparison to the value of the investment funds to be
transferred to Wife.” 1925(a) Op. at 22. The court therefore selected the
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January 2020 valuation date, which was the date the parties previously agreed
to, as it was the settlement date on the property. Id.
We agree with the trial court that Husband waived any challenge to the
valuation date of the investment accounts. Further, to the extent Husband is
trying to challenge the valuation date for the Cape May property, we conclude
the claim lacks merit. After reviewing the brief, the trial court record, the
relevant case law, and the trial court’s well-reasoned opinion, we affirm on
the basis of the trial court opinion. See 1925(a) at 20-23.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/04/2022
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