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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
TRACEY OSBORNE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WESLEY OSBORNE, : No. 553 WDA 2017
:
Appellant :
Appeal from the Order, March 13, 2017,
in the Court of Common Pleas of Lawrence County
Civil Division at No. 11099 of 2010 C.A.
BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2017
Wesley Osborne (“Husband”) appeals the order of the Court of
Common Pleas of Lawrence County that found Husband in contempt of court
and entered an award against Husband in favor of Tracey Osborne (“Wife”)
in the amount of $37,055.38, permitted Wife to reduce the award to
judgment, ordered Husband to pay Wife the costs of reducing the monetary
award to judgment and all reasonable attorney fees and costs necessary to
collect on the judgment, sentenced husband to a term of 30 days in the
Lawrence County Jail unless Husband paid the sum of $9,980.38 by April 13,
2017, and ordered Husband to pay each monthly alimony payment and each
payment when due on the First Commonwealth Bank commercial loan. The
trial court also ordered that failure to make payments as they come due on
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alimony and the bank loan could result in additional contempt findings and
orders. After careful review, we affirm.
The trial court set forth the following relevant findings of fact:
1. Testimony on the Petition for Contempt and
Enforcement was closed on January 3, 2017.
2. On September 30, 2014, an Order of Court
was entered equitably dividing the marital
property and awarding alimony.
3. On June 16, 2015 an Order of Court was
entered by Judge John Hodge. This Order was
not appealed and became a final Order of
Court. Therefore, all matters determined by
the Court pursuant to the June 16, 2015 Order
of Court are final and res judicata
in so much as identical issues were raised in
the current Contempt Petition.
4. The June 16, 2015 Order contained the
following orders:
a. That [H]usband pay [W]ife’s
attorney fees in the amount of
$5,100.00 no later than June 30,
2015;
b. That [H]usband pay $6,000.00 for
back alimony from June 1, 2014 to
June 1, 2015;
c. That [H]usband continue to pay
$500.00 per month from July 1,
2015 until May 31, 2022;
d. “That [H]usband shall pay and
provide proof of satisfaction of the
First Commonwealth Commercial
Loan, in keeping with the Court’s
Order of September 30, 2014 at
paragraph 5.”
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e. That [H]usband return to [W]ife
the following properties at a value
that the Court included as follows:
Harley Davidson Sportster
Motorcycle (during the Contempt
proceedings now before the Court,
[W]ife and [H]usband both agreed
to a value for the Harley Davidson
Sportster of $6,000.00)
$14,000.00 -- Mortisse 3 horse
slant stock trailer
$75.00 -- portable welder
$1,500.00 -- Ford tractor
$200.00 -- Husqvarna rototiller
$200.00 --3 point hitch scraper blade
$600.00 -- bale chopper
$2,500.00 -- dump trailer, dual axle
$1,000.00 -- Stone water trough
$1,000.00 -- cut and spilt wood
Stove
Refrigerator
Washer and dryer.
5. [W]ife has paid $5,392.88 on the First
Commonwealth loan that [H]usband was
ordered to pay in the June 16, 2015 Order of
Court. [H]usband in his brief has argued that
the First Commonwealth loan was a loan that
[W]ife was obligated to pay pursuant to the
September 30, 2014 Order. That issue has
already been determined by Judge Hodge’s
June 16, 2015 Order of Court and the issue is
res judicata. [H]usband therefore is
responsible for the payment of the First
Commonwealth commercial loan and the
payments by [W]ife must be reimbursed by
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[H]usband. According to the documents
provided to the Court pursuant to the Court
Order of September 8, 2016, the First
Commonwealth Bank loan is listed as account
number [] and had an original balance of
$50,000.00; with a balance as of August 2016
of $6,360.90. The total owed by [Husband] to
[Wife] for monies she paid on the loan is
$5,392.88. The remaining balance must still
be paid by [Husband] to the First
Commonwealth Bank.
6. After commencement of the contempt
proceedings, and pursuant to the October 17,
2016 Order of Court, [H]usband was allowed to
refinance one parcel of property and use the
proceeds to pay $5,900.00 in attorney fees
and $14,500.00 toward past due alimony. In
addition, [W]ife’s brief notes that [H]usband
has since paid an additional $1,000.00 in
alimony. Therefore, the attorney fees ordered
by the June 16, 2015 Order of Court have been
paid in full and $15,500.00 in alimony
payments have been made for the period of
time from 6/1/14 through the date of this
Order.
7. The total amount of alimony that should have
been paid for the period of time from 6/1/14
through 3/1/17 is as follows:
a. Pursuant to the June 16, 2015
Order of Court alimony owed for
the period from 6/1/14 to 6/1/15 is
$6,000.00.
b. Alimony owed from 7/1/15 to
3/1/17 at $500.00 per month,
21 months x $500.00 per month
= $10,500.00.
Total alimony due from 6/1/14 to
3/1/17: $16,500.00 ($6,000.00
+ 10,500.00).
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8. The total amount of alimony owed by
[H]usband to [W]ife as of March 1, 2017 is as
follows:
total alimony due from 6/1/14
to 3/1/17 $16,500.00
minus alimony paid - 15,500.00
alimony due and owing to [W]ife
from [H]usband as of 3/1/17 $ 1,000.00
9. [H]usband is in Contempt of Court for not
returning to [W]ife the following items of
personal property with values as already
determined by the June 16, 2015 Order of
Court or by stipulation of parties as to values:
Harley Davidson Sportster Motorcycle (during
the Contempt proceedings now before the
Court, [W]ife and [H]usband both agreed to a
value for the Harley Davidson Sportster of
$6,000.00)
$14,000.00 -- Mortisse 3 horse slant stock
trailer
$75.00 -- portable welder
$1,500.00 -- Ford tractor
$200.00 -- Husqvarna rototiller
$200.00 -- 3 point hitch scraper blade
$600.00 -- bale chopper
$2,500.00 -- dump trailer, dual axle
$1,000.00 -- Stone water trough
$1,000.00 -- cut and split wood
Stove
Refrigerator
Washer and dryer.
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Total $27,075.00 (the Court has not assigned a
value to the stove, refrigerator, washer or
dryer as no testimony as to the value of those
items has been produced.)
10. The Court finds that [H]usband had the ability
to pay the sums of money due and the ability
to return the items as ordered by the Court in
the June 16, 2015 Order of Court and willfully
failed to do so. [H]usband has available to him
certain parcels of property, some of which
were unencumbered and which had value
sufficient to satisfy his obligations under the
Court Order. [H]usband did not make a good
faith effort to sell the properties. In one
instance, a property appraised in 2010 with a
value of $60,000.00 was offered for sale by
[H]usband at $495,000.00.
11. [W]ife has incurred reasonable attorney fees in
the amount of $3,587.50 (20.50 hrs x
$175.00) in order to enforce the divorce
settlement agreement and pursue the
contempt proceedings against [H]usband.
Trial court findings of fact and order of court, 3/13/17 at 1-5.
Husband filed a notice of appeal. On April 12, 2017, the trial court
directed Husband to file a statement of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(b). On May 2, 2017, Husband filed his
Rule 1925(b) statement. On June 6, 2017, the trial court issued an opinion
pursuant to Rule 1925(a) which stated that Husband’s issues were
addressed in the findings of fact and order of court of March 13, 2017.
On appeal, Husband raises the following issues for this court’s review:
[1.] Whether the [trial c]ourt erred in finding
[Husband] in Contempt of Court for violation of
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the September 30, 2014 and June 16, 2015
Orders of Court?
[2.] Whether the [trial c]ourt erred in awarding
[Wife] counsel fees?
[3.] Whether the [trial c]ourt erred in finding that
[Husband] has the ability to pay the sums of
money due and ability to return the items of
personal property and that [Husband] willfully
failed to do so?
[4.] Whether the [trial c]ourt erred in finding
[Husband] responsible for payment of the First
Commonwealth Commercial Loan and that
payment by [Wife] must be reimbursed by
[Husband] and that [Husband] must pay the
remaining balance?
[5.] Whether the [trial c]ourt erred in sentencing
[Husband] to a term of incarceration?
[6.] Whether the [trial c]ourt erred in finding
[Husband] did not make a good faith effort to
sell certain properties?
Husband’s brief at 6.
This court’s review of a civil contempt order is limited to a
determination of whether the trial court abused its discretion. Bold v. Bold,
939 A.2d 892, 894-895 (Pa.Super. 2007). “If a trial court, in reaching its
conclusion, overrides or misapplies the law or exercises judgment which is
manifestly unreasonable, or reaches a conclusion that is the result of
partiality, prejudice, bias or ill will as shown by the evidence of record, then
discretion is abused.” Gates v. Gates, 967 A.2d 1024, 1028 (Pa.Super.
2009).
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In order to establish that a party is in civil contempt, there must be
proof by a preponderance of the evidence that the contemnor had notice of
the specific order that he or she is alleged to have disobeyed, that the act
that constituted the contemnor’s violation was volitional, and that the
contemnor acted with wrongful intent. Harcar v. Harcar, 982 A.2d 1230,
1235 (Pa.Super. 2009).
On July 20, 2016, Wife petitioned for contempt on the basis that
Husband had failed to pay Wife $5,900 in attorney fees, failed to pay
$500 per month in alimony, failed to return to Wife the personal property
listed in the court orders of September 30, 2014, and June 16, 2015, and
failed to provide satisfaction of the First Commonwealth Bank commercial
loan.
Initially, Husband contends that the trial court erred in finding him in
contempt for violating the September 30, 2014 and June 16, 2015 orders of
court.1 Husband acknowledges that he failed to comply with the court
orders but asserts that the failure was not volitional and that he did not act
with wrongful intent. Husband asserts that he does not have the present
1
It is somewhat difficult to address the issues Husband raises because he
has not complied with Rule 2119(a) of the Pennsylvania Rules of Appellate
Procedure in that Husband has not divided the argument section of his brief
into as many parts as there are questions to be argued and has not included
headings to identify individual arguments. However, because this court can
render meaningful appellate review, we will address the issues presented.
See Commonwealth v. Vealey, 581 A.2d 217 (Pa.Super. 1990), petition
for allowance of appeal denied, 592 A.2d 1300 (Pa. 1991).
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ability to comply with the orders and that he attempted to do so. Husband
argues that he has limited income that has prevented him from complying
with the trial court’s orders. He argues that his personal income is quite
variable as he only averages between $24,000-$32,000 per year from his
trapping business which is his sole source of income. (Notes of testimony,
9/8/16 at 65.) Appellant also testified that his storage business was
operating at a loss. (Id. at 69.) Further, he asserts that he has attempted
to liquidate all of his real estate holdings that are not tied into existing loans
but has been unable to do so. (See id. at 50-63.)
However, the trial court found that the amount Husband owed to Wife
was $37,055.38 which consisted of $1,000 in past due alimony payments,
$27,075 in personal property, $5,392.88 for payments Wife made on the
First Commonwealth Bank commercial loan, and $3,587.50 in attorney fees.
The record reflects that Husband owns 11 different parcels of land. Some of
these are owned with his parents, some are encumbered by loans, and some
he owns free and clear. (Id. at 92-93.) The trial court determined that
Husband did not make a good faith effort to sell the properties to satisfy his
obligations to Wife. For example, one property was valued in a
2010 appraisal at $60,000, but Husband listed it for sale at $495,000. (Id.
at 26.)
If the alleged contemnor is unable to perform and has in good faith
attempted to comply with the court order, then contempt is not proven.
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Sinaiko v. Sinaiko, 664 A.2d 1005, 1010 (Pa.Super. 1993). The
contemnor has the burden to prove the affirmative defense that he lacks the
ability to comply. Commonwealth ex rel. Ermel v. Ermel, 469 A.2d 682,
683 (Pa.Super. 1983). The defense of impossibility of performance is
available to a party in a contempt proceeding if the impossibility to perform
is not due to the actions of that party. Commonwealth Dept. of Envtl.
Resources v. Pennsylvania Power Co., 316 A.2d 96, 103 (Pa.Cmwlth.
1974).
Here, the trial court did not credit Husband’s testimony that he did not
have the present ability to comply with the earlier court orders. The trial
court, as fact-finder, determines the credibility of any witnesses and the
weight accorded their testimony. Mescanti v. Mescanti, 956 A.2d 1017,
1019-1020 (Pa.Super. 2008). Consequently, the record supports the trial
court’s factual determinations, and Husband failed to meet his burden.
Husband next contends that the trial court erred when it awarded Wife
counsel fees because Husband lacked the ability to pay.
Sanctions for civil contempt can be imposed for one
or both of two purposes: to compel or coerce
obedience to a court order and/or to compensate the
contemnor’s adversary for injuries resulting from the
contemnor’s noncompliance with a court order.
Attorney’s fees and other disbursements
necessitated by the contemnor’s noncompliance may
be recovered by the aggrieved party in a civil
contempt case. 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
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punitive, counsel fees are a proper element of a civil
contempt order.
Rhoades v. Pryce, 874 A.2d 148, 152, (Pa.Super. 2003), appeal denied,
844 A.2d 1297 (Pa. 2004), quoting Mrozek v. James, 780 A.2d 670, 674
(Pa.Super. 2001).
Here, the trial court had the authority to award attorney fees. As we
have already determined that the trial court did not abuse its discretion
when it found that Husband had the ability to pay, his argument, that the
trial court should not have awarded attorney’s fees because he lacked the
ability to pay, has no merit.
Appellant next contends that the trial court erred when it found that he
had the ability to pay the sums of money due and the ability to return the
items of personal property and that he willfully failed to do so. This court
has already determined that the trial court did not err when it determined
that he had the ability to pay. As to whether he had the ability to return the
items of personal property, which made up the bulk of the amount due,
appellant argued that most of the items were business equipment that he
was awarded and were not intended to be returned to the Bedford Farm
property now owned by Wife.
The June 16, 2015 order of the trial court set forth the items that
Husband was to return to Wife. Husband did not appeal that order. That
final order is binding upon Husband. He cannot now argue that he is not
required to return those items to Wife or to pay for their value. Husband
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cannot now argue that this court find that he has no obligation to comply
with the 2015 order. See J.S. by and ex rel. H.S. v. Bethlehem Area
Sch. Dist., 794 A.2d 936, 939 (Pa.Cmwlth. 2002). As to the motorcycle,
Husband testified that the motorcycle was customized for him, sat in a
garage for ten years, and became damaged so that it was not in condition to
give to Wife. (Notes of testimony, 9/8/16 at 76-77.) It is not Husband’s
decision whether or not Wife should receive the motorcycle. He was ordered
to do so by the trial court.
Husband next contends that the trial court erred when it found that he
was responsible for the payments on the First Commonwealth Bank
commercial loan and that he must reimburse Wife for payments she made
on the loan and that Husband must pay the remaining balance.
The September 30, 2014 order is confusing in that in Paragraph 3, the
trial court stated that Wife shall assume full obligation for the First
Commonwealth Bank commercial loan. In Paragraph 4, the trial court did
not list a First Commonwealth Bank commercial loan in the list of loans for
which Husband shall assume full obligation. Yet, in Paragraph 5, the trial
court stated that Husband was to “satisfy the First Commonwealth
Commercial loan within one hundred twenty (120) days.” (Trial court
opinion, 9/30/14 at 24, ¶ 5.) In the June 16, 2015 order, the trial court
ordered Husband to pay and provide proof of satisfaction of the
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First Commonwealth Bank commercial loan as set forth in the September 30,
2014 order.
Husband did not appeal the June 16, 2015 order that directed him to
pay the First Commonwealth Bank commercial loan. The trial court noted in
the March 13, 2017 order that the issue is decided by the doctrine of
res judicata.
“The doctrine of res judicata bars repetitious litigation of the same
cause of action.” Taylor v. Shiley Inc., 714 A.2d 1064, 1066 (Pa.Super.
1998), appeal denied, 735 A.2d 1270 (Pa. 1999).
A final valid judgment upon the merits by a court of
competent jurisdiction bars any future suit between
the same parties or their privies on the same cause
of action. The purpose of the doctrine is to minimize
the judicial energy devoted to individual cases,
establish certainty and respect for court judgments,
and protect the party relying on the previous
adjudication from vexatious litigation.
Id. quoting Dempsey v. Cessna Aircraft Co., 653 A.2d 679, 681
(Pa.Super. 1995) (en banc) (internal quotation marks omitted).
In keeping with these purposes, the doctrine must
be liberally construed and applied without technical
restriction. Furthermore, we note that the
application of res judicata requires the concurrence
of four conditions between the present and prior
actions: 1) identity of issues; 2) identity of causes of
action; 3) identity of parties or their privies; and
4) identity of the quality or capacity of the parties
suing or being sued.
Yamulla Trucking & Excavating Co., Inc. v. Justofin, 771 A.2d 782, 784
(Pa.Super. 2001), appeal denied, 784 A.2d 119 (Pa. 2001).
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This court agrees with the trial court that Husband had the opportunity
to litigate this issue. When a final judgment was reached on the merits that
he was obligated to pay the First Commonwealth commercial loan, Husband
did not appeal. The litigation of this issue is barred by the doctrine of
res judicata.
Husband next contends that the trial court erred when it sentenced
him to a term of incarceration. He argues that he is unable to comply with
the order and that a term of incarceration is an infliction of punishment and
not a means to enforce compliance. He further argues that having him
serve a term of incarceration would only further hinder his ability to comply
with the orders because he would have a loss of income and possibly the
loss of his business entirely as he is a sole proprietor. Husband’s whole
argument is centered around his belief that he lacked the ability to pay the
amount ordered. As this court has already determined that the trial court
did not abuse its discretion when it found that Husband did not lack the
ability to pay, this issue is without merit.2
Wife asserts that this appeal is frivolous and intended to delay the
distribution of assets to her. Pursuant to Pa.R.A.P. 2744, Wife argues that
she is entitled to a remand for the purpose of determining reasonable
attorney’s fees to be awarded in Wife’s favor and against Husband for
2
Husband also contends that the trial court erred in finding that he did not
make a good faith effort to sell certain properties. This court has already
addressed this issue.
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attorney’s fees accrued on her appeal to this court. Wife raises this
argument in her discussion of Husband’s failure to comply with the
Pennsylvania Rules of Appellate Procedure. Because we could render
meaningful appellate review, we will not remand for attorney’s fees.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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Osborne, T. v. Osborne, W.
Combined Opinion