Washington, S. v. Hamilton, H. ( 2018 )

J-A32013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHERRILYN D. WASHINGTON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HARRY E. HAMILTON : No. 124 MDA 2017
Appeal from the Order Entered December 1, 2016
In the Court of Common Pleas of Centre County
Civil Division at No(s): 04-2534
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 12, 2018
Sherrilyn D. Washington (“Wife”) appeals from the trial court’s equitable
distribution order entered December 1, 2016, and as amended by the court
on February 1, 2017. A divorce decree was previously entered on July 11,
2013, between Wife and Harry E. Hamilton (“Husband”).1 Wife challenges
various aspects of the equitable distribution decision. Based on the following,
we affirm.
The facts and procedural history are well known to the parties.
Accordingly, we summarize as follows: On June 8, 2004, Wife filed a
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 Retired Senior Judge assigned to the Superior Court.
1 Husband represented himself at the trial court level and in this appeal.
However, he did not file an appellee’s brief.
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complaint in divorce, alleging that the parties were married in the Bahamas
on June 1, 1996.2 On April 27, 2005, the trial court entered an order, finding
that a valid common law marriage existed between the parties as of November
7, 2000. Wife filed a petition for bifurcation of the economic issues from the
divorce action on January 17, 2013.
On July 11, 2013, the court issued a divorce decree on the grounds of
irretrievable breakdown (parties having lived separate and apart for at least
two years) pursuant to 23 Pa.C.S. § 3301(d). On August 10, 2013, Husband
filed an appeal, alleging, inter alia, the court erred by entering a divorce
decree because the parties were never married. A panel of this Court upheld
the trial court’s determination that a common law marriage existed, stating:
“[W]e find no abuse of discretion in its determination that the parties formed
a common law marriage ‘by an exchange of words in the present tense,
spoken with the specific purpose that the legal relationship of husband and
wife [was] created.’” Washington v. Hamilton, 118 A.3d 455 [857 MDA
2013, 1582 MDA 2013] (Pa. Super. 2015) (unpublished memorandum at 6),
quoting Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (Pa.
1998).3
____________________________________________
2 In her complaint, Wife also sought, inter alia, custody of the parties’ son,
who was born in August of 2001.
3 Husband did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court.
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The matter then proceeded to issues concerning separation and
equitable distribution. However, Husband filed a motion to vacate judgment
of marriage pursuant to 23 Pa.C.S. § 3332, and an amended petition on
November 17 and 18, 2016, respectively.4
On November 21, 2016, the trial court entered two orders concerning
the matter. The first (“equitable distribution order”) provided: “AND NOW,
November 21, 2016, [Husband has] been given an opportunity to present
more testimony and having failed to do so, these proceedings are terminated
and the Court will issue in due course a Final Order with regard to equitable
distribution.” Order, 11/21/2016.5 The second order (“motion to vacate
marriage judgment order”) set forth the following, in pertinent part:
“[Husband] seeks to vacate the judgment of marriage entered in this matter.
This issue has been resolved by the Appellate Courts of Pennsylvania and the
Motion to Vacate Judgment of Marriage is denied.” Order, 11/21/2016.6
Husband then filed a notice of appeal from “the order praeciped for entry in
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4 In these practically identical petitions, Husband alleged: “[P]ursuant to 23
Pa.C.S. [§] 3332, the consequence of the deciding jurist conducting an
electronic search for a marriage license in Colorado is [Husband] is denied a
fair trial concerning the establishment of a common law marriage.” Motion to
Vacate Judgement [sic] of Marriage in Case Number 04-0339 Pursuant to 23
Pa.C.S. 3332, 11/17/2016, at unnumbered 1.
5 The equitable distribution order was timestamped on December 5, 2016.
6 The motion to vacate marriage judgment order was also timestamped on
December 5, 2016.
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this matter on the 21st day of November 2016,” but did not specify which order
he meant. Notice of Appeal and Under Pa.R.A.P. 2154 and 1923, 11/21/2016.
On December 1, 2016, the trial court entered a decree7 regarding the
outstanding economic issues, stating:
This litigation has been the most frustrating challenge this
Judge has faced in a fifty year legal career. Husband has
inundated the Court (and the Appellate Courts) with petitions and
appeals. Husband has refused to accept decisions affirmed by the
Appellate Courts and has refused to cooperate with this Judge in
establishing values for the limited marital assets in dispute. As
noted in a previous order, we have accepted the calculations of
value made by Wife as a sanction for Husband’s lack of
cooperation. Because Wife has waived any claim for permanent
alimony, the only issue before us is equitable distribution.
By Order entered April 27, 2005, Judge David Grine of this
Court found that “A valid common law marriage existed between
Plaintiff and Defendant as of November 7, 2000.” Our preliminary
task, therefore, is to determine the date of separation. Husband
contends there was no separation, because the parties were in
effect “separated” on November 7, 2000 the date Judge Grine
determined their marriage began. Wife contends the date of
separation was 2004, when she filed for divorce.
While Wife testified that she filed for divorce in 2004
because “she found out about [Husband’s other son] for sure,”
she acknowledged that the parties stopped marital relations after
the birth of their son … on August [], 2001. It is clear to us based
on a fair consideration of all the testimony, that Wife stopped any
voluntary relationship with Husband after the birth of Husband’s
other son … on September [], 2001, less than a month after the
birth of the parties’ child. While Husband apparently “dropped in”
from time to time at the Lemont home, we accept Husband’s
representation that those visits were solely for the purpose of
seeing the parties’ son. We find, therefore, that this date of
separation is November 2001.
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7 The decree was timestamped on December 5, 2016.
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MARITAL ASSETS
A. PERSONAL PROPERTY
Wife continued to reside in the Lemont property for several
years after the date of separation. When she left that property,
she took with her what personal property she believed
appropriate. No attempt was made to value items of personal
property and presumably such property no longer exists.
B. LEMONT REAL ESTATE
Husband owns a property in Lemont, Centre County,
Pennsylvania. Because of Husband’s refusal to cooperate in
attempting to value assets, we have accepted Wife’s submission
with respect to the valuation. Wife calculates the increase in the
value of the Lemont property between 2000 and 2004 at Forty
Thousand Five Hundred Two Dollars ($40,502.00). Because we
have found the marriage only lasted one year for equitable
distribution purposes, we value the Lemont property at Ten
Thousand One Hundred Twenty-Five Dollars ($10,125.00).
C. NEW JERSEY PROPERTY
Similarly, with respect to the home in Long Branch, New
Jersey, Wife calculated the four year increase in value at Twenty-
Three Thousand Nine Hundred Thirty-Five Dollars ($23,935.00).
We value the Long Branch property at Five Thousand Nine
Hundred Eighty-Four Dollars ($5,984.00).
D. NFL PENSION
Husband’s career in the NFL ended prior to the date of
marriage. As best we understand the evidence, Husband did not
begin receiving benefits until after the date of separation. No
definitive evidence was presented with regard to any increase in
value between 2000 and 2001 in Husband’s NFL Pension. Because
of the brief length of the marriage, we find Wife is not entitled to
any portion of Husband’s pension or any future recovery under
pending concussion litigation.
STATUTORY FACTORS
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1. As previously discussed, we are bound by Judge Grine’s
determination that the marriage occurred on November 7, 2000
and we have found that the separation occurred in the fall of 2001.
2. Wife was not previously married. It is unclear from the record
how many times Husband has been married; in fact, it appears
Husband may well have been married to several different women
during his marriage to Wife.
3. Wife is fifty-one (51) years of age, a graduate of Penn State
University with serous health issues linked to the stress caused by
this litigation. Wife is a paraprofessional in the State College
School District earning Thirteen Thousand Dollars ($13,000.00)
per year with vision, dental and medical insurance. Wife also
receives an Eight Hundred Thirty-Six Dollar ($836.00) per month
military pension. Husband is approximately fifty-two (52) years
of age, in good health and receives at least Two Thousand One
Hundred Ninety-Three Dollars and Thirty-Four Cents ($2,193.34)
per month as an NFL Pension. Husband receives health insurance
through the Federal Government and has an earning capacity of
at least Seventy-Five Thousand Dollars ($75,000.00) per year
based upon his prior positions with the United States. We reject
as totally unproven, Husband’s contention that he is incapable of
continuing his career with the United States or securing similar
employment.
4. Wife was the homemaker while she resided in Lemont with the
parties’ child. Husband made virtually no contribution toward the
marriage.
5. Husband is an attorney who perhaps is and certainly could be
employed earning significant income. Wife is currently a teacher’s
assistant but it is unclear why she has not been able to advance
in her chosen field.
6. Both parties have health insurance through their employers.
Husband has an outstanding claim through the NFL concussion
litigation to substantially increase his income and could increase
his income should he chose [sic] to return to the workforce
assuming he has not currently done so.
7. Wife did not contribute to the marital property which is the
subject of this distribution, both pieces of real estate having been
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owned by Husband prior to the marriage. Husband has
“dissipated” the marital assets by prolonging this litigation.
8. No property has been “set–apart” to the other party.
9. It is difficult to understand Husband’s “standard of living” based
upon his refusal to forthrightly answer any questions posed to
him. Wife’s standard of living is significantly lower currently,
mainly because she now has six year old twin daughters residing
with her.
10. Wife’s economic circumstances are dire. Husband’s economic
circumstances are much better than he acknowledges.
11. While Wife make[s] a brief argument regarding federal
income tax, we are not satisfied any evidence has been presented
as to the tax effect of any distribution.
12. No expense of sale will be incurred by Wife
13. Currently Husband has temporary custody of the parties’
child, age 14.
While Wife argues otherwise, we are only able to calculate
marital assets for distribution purposes in the amount of Eleven
Thousand One Hundred Nine Dollars ($11,109.00). While Wife
has suggested awarding her sixty-five percent (65%) of those
marital assets, we believe she is entitled to one hundred percent
(100%) of those assets based upon Husband’s conduct
throughout this litigation resulting in substantial delay in the
receipt by Wife of her equitable share. We will, therefore, award
Wife the sum of Eleven Thousand One Hundred Nine Dollars
($11,109.00). We decline to even consider awarding Wife a share
of the real estate because the testimony suggest[s] Husband may
no longer own those parcels or they may be so encumbered as to
render them valueless or, with respect to the New Jersey property,
may have been significantly reduced in value as a result of actions
by third parties. Armed with a judgment in her favor against
Husband, Wife may attempt to enforce that judgment in any
manner she believes appropriate, including seeking a QDRO or a
contempt order.
ALIMONY
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Wife has waived any claim for permanent alimony.
COUNSEL FEES
While counsel for Wife is apparently acting pro se, whatever that
means in the context of this litigation, we believe Wife and her
counsel are entitled to an award of attorney’s fees solely because
Husband’s actions, including many appeals to the Appellate
Courts, have been clearly frivolous, and raised issues that had no
arguable legal merit. Attributing an hourly rate of One Hundred
Twenty -Five Dollars ($125.00) per hour, which we believe to be
the minimum charged by a Centre County attorney for domestic
litigation, and believing Wife’s counsel must have at least one
hundred (100) hours of time spent solely because of Husband’s
delay tactics, we award Wife Twelve Thousand Two Hundred Fifty
Dollars ($12,250.00) in attorney’s fees. This amount may be
reduced in the event the Supreme Court awards counsel fees
pursuant to Wife’s petition to that Court.
NOW this 1st day of December, 2016, IT IS HEREBY ORDERED and
DECREED as follows:
1. By way of equitable distribution, Wife is awarded Eleven
Thousand One Hundred Nine Dollars ($11,109.00) together
with interest at the rate of six percent (6%) per annum from
today’s date.
2. Wife is awarded counsel fees in the amount of Twelve
Thousand Two Hundred Fifty Dollars ($12,250.00) together
with interest at the rate of six percent (6%) per annum from
today’s date.
3. Any alimony pendente lite order currently in effect shall
terminate thirty (30) days from today’s date or, in the event
Husband files further appeals, thirty (30) days from any final
order of the Appellate Courts.
4. This Court retains jurisdiction for enforcement purposes.
5. All outstanding motions filed by Husband are
DISMISSED/DENIED.
Decree Re: Economic Issues, 12/1/2016, at 1-7.
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Wife filed a motion for reconsideration pursuant to Pa.R.C.P. 1930.2 on
December 27, 2016. The court granted Wife’s motion on December 29, 2016,
and held a hearing regarding the matter on January 25, 2017. On February
2, 2017, the court filed a discussion concerning Wife’s motion for
reconsideration and an amendment to its December 1, 2016, equitable
distribution decree.8
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8 The court’s “discussion” was dated January 30, 2017. In the “discussion,”
the court acknowledged a typographical error in the December 1, 2016 Order
and corrected the award amount to Wife in paragraph one of the order to
$16,109.00. Additionally, the court stated:
2. We have carefully considered all of the evidence presented by
[Wife] with regard to the date of separation. As noted with regard
to other valuations and arguments, we have accepted everything
[Wife] has presented to us with regard to the date of separation
including the additional materials set forth in her Motion for
Reconsideration. Notwithstanding this additional material, we
remain satisfied that the date of separation was November, 2001,
resulting in a “marriage” of approximately one (1) year.
3. As previously noted, [Husband]’s career in the NFL did not
span the course of the marriage. Nor did [Husband] receive
benefits during the course of the marriage. Nor are we satisfied
[Wife] has presented us evidence which would enable us to value
any equitable share of the pension during the course of the
marriage. Finally, we note [Wife]’s exhibit, an email from Michael
L. Junk to [Wife]’s counsel dated November 30, 2015, in which he
notes that “[Husband]’s pension did not increase in value between
2000 and 2004, and he could never ‘cash-out’ his pension during
that timeframe.” Based on the Junk communication alone, we
believe [Wife] is not entitled to any portion of the NFL Pension.
4. With regard to military pensions and federal pensions, once
again, albeit through no fault of [Wife], the evidence with regard
to these pensions is woefully lacking. We do note however, that
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Before a decision was rendered on her motion, Wife filed this appeal
from the December 1, 2016, decree.9
On appeal, Wife raises the following issues:
1. Did the Trial Court abuse its discretion, misapply the law, and
fail to follow proper legal procedure when the Trial Court first
enters an order stating that “based on Wife’s agreement ... the
date of separation is 2004,” (the date Wife filed her Complaint in
Divorce), continues to affirm throughout the litigation that the
separation date to be used for valuing marital property is 2004,
and then later determines that the date of separation is November
2001, based on the sexual separation between Husband and Wife
following the birth of Husband’s son with his paramour?
2. Did the Trial Court abuse its discretion and misapply the law
when it failed to include the increase in value of Husband’s NFL
Pension during the marriage as marital property pursuant to
Section 3501(a)?
3. Did the Trial Court abuse its discretion and misapply the law
when it ignored the record establishing Husband’s right to a
military pension and federal pension and failed to distribute those
assets, which were earned during the marriage?
____________________________________________
[Husband] denied on several occasions during these lengthy
proceedings, that he is receiving or entitled to any military pension
or federal pension.
Discussion Regarding Wife’s Motion for Reconsideration and Amendment to
Decree, 2/2/2017, at unnumbered 1-2 (emphasis in original).
9 Husband also filed two notices of appeal in this matter, which are at Docket
Nos. 2036 MDA 2016 and 424 MDA 2017.
With respect to her appeal, the court did not order Wife to file a concise
statement of errors complained of on appeal under Pa.R.A.P. 1925(b). The
trial court issued a Pa.R.A.P. 1925(a) statement, relying on its December 1,
2016, decree and February 2, 2017, “discussion” regarding Wife’s motion for
reconsideration and amendment to decree.
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4. Did the Trial Court abuse its discretion and fail to follow proper
legal procedure when it refused to enforce an order for Contempt
against Husband and to use its powers to gain Husband’s
compliance with discovery after he failed to provide information
relating to his apparent military pension and federal pension?
Wife’s Brief at 10-12.
The following principles guide our review:
Our standard of review in assessing the propriety of a
marital property distribution is whether the trial court
abused its discretion by a misapplication of the law or failure
to follow proper legal procedure. An abuse of discretion is
not found lightly, but only upon a showing of clear and
convincing evidence.
Smith v. Smith, 2006 PA Super 175, 904 A.2d 15, 18 (Pa. Super.
2006) (quoting McCoy v. McCoy, 2005 PA Super 411, 888 A.2d
906, 908 (Pa. Super. 2005))…. [I]n the context of an equitable
distribution of marital property, a trial court has the authority to
divide the award as the equities presented in the particular case
may require. Mercatell, 854 A.2d at 611. “In determining the
propriety of an equitable distribution award, courts must consider
the distribution scheme as a whole. We measure the
circumstances of the case against the objective of effectuating
economic justice between the parties and achieving a just
determination of their property rights.” Morgante v. Morgante,
2015 PA Super 145, 119 A.3d 382, 387 (Pa. Super. 2015) (quoting
Biese v. Biese, 2009 PA Super 142, 979 A.2d 892, 895 (Pa.
Super. 2009)). “[A] master’s report and recommendation,
although only advisory, is to be given the fullest consideration,
particularly on the question of credibility of witnesses, because the
master has the opportunity to observe and assess the behavior
and demeanor of the parties.” Moran v. Moran, 2003 PA Super
455, 839 A.2d 1091, 1095 (Pa. Super. 2003).
Cook v. Cook, __ A.3d __, 2018 PA Super 117, *20 (Pa. Super. May 4, 2018).
In her first argument, Wife initially complains:
In this case, the Trial Court abused its discretion and
misapplied the law and failed to follow proper legal procedure
when it first asked Wife for her agreement on a date of separation
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of 2004 and entered an order on June 19, 2015, finding that the
date of separation was 2004. Throughout the litigation, the Trial
Court confirmed with Wife her agreement that the date of
separation was 2004. Then, the date of separation was changed
to 2001 in the final order. This is inherently unfair, misleading,
and inexplicable.
Wife’s Brief at 25-26.
By way of background, on June 19, 2015, the trial court held a hearing
on the equitable distribution of the parties’ marital property. See N.T.,
6/19/2015, at 4. Wife did not attend the hearing due to a medical issue but
her counsel was present. Husband also made an appearance. A review of the
testimony reveals the date of separation was not discussed at the hearing.
Thereafter, the court entered an order, which stated, in pertinent part:
NOW, June 19, 2015, this Order is entered to attempt to
clarify various issues prior to a full evidentiary hearing on the
question of equitable distribution and alimony.
…
3. Based upon Wife’s agreement that the date of separation is
2004, all valuations should be based upon a marriage in 2000 and
a separation in 2004.
…
The Centre County Court Administrator shall schedule a
further one-day hearing on the issue of custody and a separate
one-day hearing on the issue of equitable distribution.
Order, 6/19/2015, at unnumbered 1-2.
Contrary to Wife’s argument, it is obvious the June 19, 2015, order was
not intended to be a final order and did not provide a clear finding regarding
the date of separation. Rather, the court merely asked that valuations be
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based on Wife’s opinion that the date of separation was in 2004, but the court
did not explicitly determine the date of separation at that time. Rather, the
court relied on Wife’s own testimony, as well as Husband’s testimony, when it
found the date of separation was November, 2001, in its December 1, 2016,
decree. See generally N.T, 5/4/2016; see also Trial Court Opinion,
12/1/2016 (“It is clear to us based on a fair consideration of all the
testimony, that Wife stopped any voluntary relationship with Husband after
the birth of Husband’s other son … on September [], 2001, less than a month
after the birth of the parties’ child. While Husband apparently ‘dropped in’
from time to time at the Lemont home, we accept Husband’s representation
that those visits were solely for the purpose of seeing the parties’ son.”)
(emphasis added). Accordingly, this issue fails.
Next, in a continuation of her first issue, Wife claims:
The [t]rial [c]ourt abused its discretion and misapplied the law
when it failed to find that the date of separation was the date that
Wife filed her complaint in divorce and instead found that the date
of separation was the date when the [t]rial [c]ourt believed that
Wife stopped having sexual relations with Husband.
Wife’s Brief at 27. Moreover, Wife states:
Husband and Wife held themselves out publicly as a married
couple until the time that Wife filed a complaint in divorce against
Husband on June 8, 2004. Wife testified that they went on ski
trips, vacations, and they celebrated important life events
together, and Wife cared for and maintained the home. Wife also
prepared meals, did laundry and paid bills while Husband came
home from his military service as he was able. However, as the
custody litigation shows, Husband and Wife also held themselves
out as a married couple to the Courts in pursuing the custody
litigation related to Wife’s minor niece[.]
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Between 1999 and 2004, Husband and Wife were involved
in custody litigation involving Wife’s minor niece. Throughout the
litigation, Husband and Wife held themselves out to be a married
couple. Husband and Wife filed complaints where they
represented that they were “Harry Hamilton and Sherrilyn
Hamilton” and “Aunt” and “Uncle” of the minor child. They
appeared in Court and the Court recognized them as “Mr. and Mrs.
Hamilton” and recognized Harry Hamilton as “the husband of
Sherrilyn Hamilton.” In 2005, after Wife had filed her complaint
in divorce, Wife stopped pursuing the litigation for custody of her
niece. In December 2005, the Superior Court of Pennsylvania
recognized in its opinion that wife, “Aunt,” was not an appellant in
the instant appeal and that she had filed a complaint in divorce
and custody against “Uncle” in June 2004.
Id. at 30-31.
When the date of final separation is in dispute,
[o]ur standard of review is one of an abuse of discretion. “Absent
an abuse of discretion, the trial court’s findings of fact, if
supported by credible evidence of record, are binding upon a
reviewing court.” Wellner v. Wellner, 699 A.2d 1278, 1280 (Pa.
Super. 1997) (citations omitted). Only property acquired “prior
to the date of final separation” is marital property and therefore
subject to equitable distribution. 23 Pa.C.S. § 3501–02.
The date of final separation revolves around the definition of
“separate and apart.”
The Divorce Code defines “separate and apart” as follows:
“Complete cessation of any and all cohabitation, whether
living in the same residence or not.” 23 Pa.C.S. § 3103. In
Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945(1984), this court held that “cohabitation” means “the
mutual assumption of those rights and duties attendant to
the relationship of husband and wife.” Id., at 47, 483 A.2d
at 948.
Thus, the gravamen of the phrase “separate and apart”
becomes the existence of separate lives not separate roofs
(citations omitted). This position follows the trend of
Pennsylvania case law in which a common residence is not
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a bar to showing that the parties live separate and apart
... Flynn v. Flynn, 341 Pa.Super. 76, 81, 491 A.2d 156,
159 (1985). Compare Mackey v. Mackey, 376 Pa.Super.
146, 545 A.2d 362 (1988) (where parties had private living
quarters, no public social life together, and had ceased
sexual relations, the parties lived “separate and apart”
despite the fact that they resided in the same house) with
Britton v. Britton, 400 Pa.Super. 43, 582 A.2d 1335(1990) (where parties jointly purchased a townhouse,
shared a joint checking account, had a social life as
husband and wife, share the same bedroom and resumed
sexual relations, the court found the parties were not living
“separate and apart.”).
Wellner, 699 A.2d at 1281 (quoting Schmidt v. Krug, 425
Pa.Super. 136, 624 A.2d 183, 185 (1993) and Gordon v.
Gordon, 436 Pa.Super. 126, 647 A.2d 530, 534 (1994) rev’d on
other grounds, 545 Pa. 391, 681 A.2d 732 (1996)).
Teodorski v. Teodorski, 857 A.2d 194, 197-98 (Pa. Super. 2004) (footnote
omitted).
The Divorce Code specifically addresses the date of separation. See 23
Pa.C.S. § 3103. This Court has previously stated:
We are also aware that the definition of “separate and apart”
found at 23 Pa.C.S. § 3103 was amended on November 29, 2004,
and became effective January 28, 2005. Prior to the 2004
amendment, the term “separate and apart” was defined as:
“[c]omplete cessation of any and all cohabitation, whether living
in the same residence or not.” Notably, “[s]ection 5(1) of Act
2004-175 provides that “the amendment of the definition of
‘separate and apart’ ... shall apply to complaints served before,
on or after the effective date of this paragraph.” 23 Pa.C.S. § 3103
Historical and Statutory Notes. Therefore, the fact that the
complaint in the instant case was served prior to the amendment
is of no moment; the amendment applies. The amended definition
reads as follows:
Cessation of cohabitation, whether living in the same
residence or not. In the event a complaint in divorce is filed
and served, it shall be presumed that the parties
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commenced to live separate and apart not later than the
date that the complaint was served.
23 Pa.C.S. § 3103 (as amended in 2004 with effective date as of
January 28, 2005).
The new version of the definition contains specific language
pertaining to a presumption that the date of separation, i.e., the
date on which the parties begin living separate and apart, is
established upon the filing and serving of a divorce complaint,
unless an earlier date can be substantiated through the
presentation of evidence confirming an earlier date. “A
presumption ... is a procedural device which not only permits an
inference of the ‘presumed’ fact, but also shifts to the opposing
party the burden of producing evidence to disprove the presumed
fact. Failure to meet this burden of production will normally result
in [a decision] ... in favor of the party invoking the presumption.”
Commonwealth v. Slaybaugh, 468 Pa. 618, 364 A.2d 687, 689
(1976). In short, “[t]he party attempting to rebut the presumption
has the burden of proof.” CW v. LV, 788 A.2d 1002 (Pa. Super.
2001).
McCoy v. McCoy, 888 A.2d 906, 911-912 (Pa. Super. 2005).
Turning to the present matter, the presumption for the date of
separation was June 8, 2004, the date Wife filed the complaint. See 23
Pa.C.S. § 3103. Therefore, to rebut the presumption, the burden shifted to
Husband to disprove this presumed fact. See McCoy, supra. At the June
19, 2015 hearing, Husband testified his “date of separation would have to
occur the day after the Court [found] a marriage started,” and he had not
lived with Wife since 2000. N.T., 6/19/2015, at 18, 20. At a subsequent
hearing on May 4, 2016, Wife testified she believed the parties’ separation
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occurred in 2004 when she moved out of Husband’s Lemont, Pennsylvania,
residence. N.T., 5/4/2016, at 15-17.10
Husband argued the parties’ “separation occurred immediately after or
practically immediately after the execution of the affidavit” of marriage. Id.
at 43. When the court asked Wife to respond to Husband’s assertion, she
stated she filed her divorce complaint in 2004 and indicated the following: “I
was still living in the martial home. He was still coming and going. We were
still a married couple.” Id. at 44. The following exchange then occurred:
[Husband]: So is it your testimony today that our disagreements
had nothing to do with the fact that I was away from any home in
State College and spending time with [my paramour and my son
from that relationship]?
____________________________________________
10 Prior to that time, Wife described her marital lifestyle as follows:
I was pretty much the caretaker of the home. I did the dishes,
repairs that had to be done. If I could do them, I did them, called
in a repairman if I could not.
I kept the landscaping on the outside of the home up, did the snow
removal, cut the grass, cooked and cleaned, was raising my son,
teaching him the morals of life, teaching him his ABCs, 123s,
riding his bike, tying his shoes, baking him cookies, you know.
When I knew Mr. Hamilton would be coming home, his meal would
be waiting on the table. A typical – I would think a typical, you
know, like you do for your husband.
…
We went to the park. We went on bike rides. We’d do vacations
to the beach, trips to Wilkes-Barre to the ski lodge in the
wintertime, traveling.
N.T., 5/4/2016, at 28-29.
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[Wife]: [Husband], when you created your other family and I had
my son, okay, my focus was no longer on you. My focus was on
raising my son and taking care of me the best way I knew how.
So I’m not sure where you’re trying to go with this, but I
could care less about your other family, and that’s just a fact. My
concerns were then for my son that I gave birth to.
[Husband]: So your testimony is that there were no
disagreements about my spending time away from State College
and with [my paramour and my other son]? That’s your
testimony, that there were no disagreements you and I had?
[Wife]: I’m not going to sit here and say that I might not have
been angry and upset about it, but at the same token, I’m going
to testify I had no idea where you were, whether you were with
them, whether you were with another woman or another woman,
because you just had multiple women, and by the time I found
out I was pregnant, I was going to raise my child and take care of
my own.
So I can’t tell you where you were and who you were with
and on what day. I can’t sit here and say how many children you
have.
[Husband]: And is it your testimony that it didn’t matter to you,
you were going to have my dinner prepared every time I came to
the house you were living in; is that your testimony?
[Wife]: That was when I was in love with you. That was when I
was doing my wifely duties, as I had my son, to keep my son and
my marriage at that time still intact until I went through the
proceedings that I needed to go through the proceedings with.
So it is my testimony that yes, you came home, I had
dinner. I had to fix dinner. I had to fix dinner for my son. I had
to fix dinner for myself. So if your dinner was ready, your dinner
was ready. I was still being a good wife.
Id. at 46-48. Lastly, Wife acknowledged she ceased marital relations with
Husband after learning about the birth of his other son in 2001. Id. at 50-51.
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As noted above, the court found the following:
It is clear to us based on a fair consideration of all the testimony,
that Wife stopped any voluntary relationship with Husband after
the birth of the Husband’s other son … on September [], 2001,
less than a month after the birth of the parties’ child. While
Husband apparently “dropped in” from time to time at the Lemont
home, we accept Husband’s representation that those visits were
solely for the purposes of seeing the parties’ son. We find,
therefore, that this date of separation is November 2001.
Trial Court Opinion, 12/1/2016, at 2.
Keeping our standard of review in mind, we agree with the trial court’s
conclusion. Husband bears the burden of proof because he opposed the
presumed fact that the date of separation occurred when Wife filed the divorce
complaint and therefore, he needed to demonstrate that either he or Wife
possessed the “independent intent … to dissolve the marital union” and that
the intent was “clearly manifested and communicated to the other spouse.”
Sinha v. Sinha, 526 A.2d 765, 767 (Pa. 1987). The trial court found
Husband’s evidence credible, which was within its discretion. See Teodorski,
supra. Additionally, the court accepted Wife’s own admissions as credible.
The record demonstrates that regardless of certain appearances, the parties
were living separate lives despite being under the same roof at certain points
during the marital time at issue. Accordingly, the trial court did not abuse its
discretion in finding Husband and Wife were living “separate and apart” in
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2001, and therefore, the November 2001 date of separation was proper.11
See Teodorski, supra.Next, Wife complains the trial court “abused its discretion and
misapplied the law when it failed to include the increase in value of Husband’s
NFL [p]ension during the marriage as marital property pursuant to Section
3501(a).” Wife’s Brief at 33. Specifically, she states:
Although Husband’s benefit from the NFL Plan was a result of his
playing time before the marriage and, therefore, the benefit is not
in and of itself marital property, any increase in value of the NFL
Pension during the marriage is marital property under Section
3501(a) of the Marital Code.
…
Thus, any increase in value of the NFL pension during the marriage
is clearly marital property that is subject to equitable division.
Wife’s Brief at 34.
Marital property is defined, in pertinent part, as follows:
(a) General rule. — As used in this chapter, “marital property”
means all property acquired by either party during the marriage
____________________________________________
11 To the extent Wife argues the fact that the parties were involved in a
custody litigation involving her minor niece is proof that the parties still held
themselves out as a married couple until 2005, we disagree. First, Wife does
not point to any place in the record that she presented this allegation to the
court, even though she alleges in her December 27, 2016, motion for
reconsideration that she was prepared to do so. See Wife’s Motion for
Reconsideration Pursuant to Pa.R.C.P. 1930.2, 12/27/2016, at 3, ¶ 6.
Furthermore, she never requested to introduce this testimony after Husband
presented his rebuttal position that 2001 was the date of separation at the
May 4, 2016, hearing. Lastly, none of the proceedings in custody was ever
made part of this record. The trial court acted within its province by denying
Wife’s motion for reconsideration.
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and the increase in value of any nonmarital property acquired
pursuant to paragraphs (1) and (3) as measured and determined
under subsection (a.1). However, marital property does not
include:
(1) Property acquired prior to marriage or property acquired
in exchange for property acquired prior to the marriage.
23 Pa.C.S. § 3501(a)(1).12
As noted above, the trial court found the following:
Husband’s career in the NFL ended prior to the date of marriage.
As best we understand the evidence, Husband did not begin
receiving benefits until after the date of separation. No definitive
evidence was presented with regard to any increase in value
between 2000 and 2001 in Husband’s NFL Pension. Because of
the brief length of the marriage, we find Wife is not entitled to any
portion of Husband’s pension or any future recovery under
pending concussion litigation.
Decree Re: Economic Issues, 12/1/2016, at 3. In its subsequent explanation,
the court further stated:
____________________________________________
12 Moreover, the Divorce Act provides:
(a.1) Measuring and determining the increase in value of
nonmarital property.--The increase in value of any nonmarital
property acquired pursuant to subsection (a)(1) and (3) shall be
measured from the date of marriage or later acquisition date to
either the date of final separation or the date as close to the
hearing on equitable distribution as possible, whichever date
results in a lesser increase. Any decrease in value of the
nonmarital property of a party shall be offset against any increase
in value of the nonmarital property of that party. However, a
decrease in value of the nonmarital property of a party shall not
be offset against any increase in value of the nonmarital property
of the other party or against any other marital property subject to
equitable division.
23 Pa.C.S. § 3501(a.1). The statute requires there to be an offset between
the increase and decrease in non-marital property of a party.
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As previously noted, [Husband]’s career in the NFL did not span
the course of the marriage. Nor did [Husband] receive benefits
during the course of the marriage. Nor are we satisfied [Wife] has
presented us evidence which would enable us to value any
equitable share of the pension during the course of the marriage.
Finally, we note [Wife]’s exhibit, an email from Michael L. Junk to
[Wife]’s counsel dated November 30, 2015, in which he notes that
“[Husband]’s pension did not increase in value between 2000 and
2004, and he could never ‘cash-out’ his pension during that
timeframe.” Based on the Junk communication alone, we believe
[Wife] is not entitled to any portion of the NFL Pension.
Discussion Regarding Wife’s Motion for Reconsideration and Amendment to
Decree, 2/2/2017, at unnumbered 1-2 (emphasis in original).
The November 30, 2015, email from Michael Junk, counsel to the NFL
Plan, to Wife’s counsel (“the Junk email”) stated, in pertinent part:
1. I can’t determine the amount of benefits you think [Wife] is
entitled to. I assumed you’d present all of these arguments to a
court and a court would tell the Plan exactly what to do.
2. Even putting aside the present-day-value, interest, and
damages components of your equations, your proposed
calculation regarding the value of [Husband]’s pension benefits is
not possible. As we discussed on the phone the other week,
[Husband]’s pension did not increase in value between 2000 and
2004, and he could never “cash out” his pension during that
timeframe.
3. [Husband] has two pension benefits under the terms of the
Bert Bell/Pete Rozelle NFL Player Retirement Plan. One is called
his “Benefit Credit” Pension. The other is called his “Legacy
Credit” pension. I address them in turn below.
4. Benefit Credit pension. The value of [Husband]’s Benefit Credit
pension is/was determined based on several factors, including (i)
his years of service in the NFL, (ii) the number of his years of
service in the NFL, and (iii) the dollar value assigned to each of
his years of service under the terms of the Plan. Between 2000
and 2004, the value of his Benefit Credit pension did not change.
He could not “cash it out” between 2000 and 2004.
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On July 5, 2006, [Husband] received an “Early Payment Benefit”
(i.e., an advance payment) on his Benefit Credit pension. The
amount paid to him in July 2006 was $49,461.96. The Early
Payment Benefit is the actuarial equivalent of 25% of the value of
the Player’s Benefit Credit pension. He could have elected that
Early Payment Benefit in December 2000. Had he done so, the
lump-sum payment at that time would’ve been $24,209.06. He
could’ve elected that Early Payment Benefit in June 2004. Had he
done so, the lump-sum payment at that time would’ve been
$41,369.64.
[Husband] is in pay status on the remainder of his Benefit Credit
pension. [Husband] elected to receive these payments in what
we call a Social-Security-adjusted payment form. His first
monthly payment [was] issued on 2/1/2015 in the amount of
$2,193.34. It will be payable in that amount until 11/1/24, and it
will then reduce to $263.34 on 12/1/24, payable in that amount
for the remainder of [Husband]’s lifetime. If [Wife] obtained a
QDRO, I believe she would be entitled to receive a portion of this
monthly payment; she cannot now change the form of payment
because payments have already started.
5. Legacy Credit pension. The value of [Husband]’s Legacy Credit
pension is based on (i) his years of service in the NFL, (ii) the
number of his years of service in the NFL, and (iii) the Legacy
Credit/dollar value assigned to each of his years of service under
the terms of the Plan. Between 2000 and 2004, the value of the
Legacy Credit pension did not change.
[Husband] has not yet elected to receive his Legacy Credit
pension. In October, I was told that the monthly Legacy Credit
payment to [Husband] would be approximately $724.90,
depending upon the form of the election and assuming he elected
to receive it beginning November 1, 2015. Because [Husband] is
not in pay status for the Legacy Credit pension, I believe [Wife]
could obtain a QDRO that would give her a portion of this pension
benefit that she could elect to take, on her own, in the future.
Wife’s Trial Memorandum in Support of Her Request for Equitable Distribution,
9/15/2016, at Exhibit B.
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Wife argues Section 4 of the email negates Section 2, which the trial
court relied on in its determination. See Wife’s Brief at 35. In support of this
assertion, she states:
Note that Section 4 of the email states that Husband could have
elected an early payout benefit in 2000, and if he had done so, he
would have received $24,209.06. It also states that he could have
elected an early payout benefit in 2004, and if he had done so, he
would have received $41,369.64. Thus, the early payout benefit
clearly increased in value between 2000 and 2004. And,
notwithstanding the statement in Section 2 of the Junk email to
the effect that there was no increase in value from the perspective
of the NFL, there was an actual economic increase in value
between 2000 and 2004. In fact, in every case in which there is
a deferral in a payment of a pension the recipient is expecting an
increase in value, reflecting the earning of interest or profit as a
result of the time value of money. Further, the statement in the
Junk email to the effect that “he could never cash-out his pension
during that time frame” is obviously not referring to the early
payout benefit.
Id. at 35-36.
We disagree for several reasons. First, the Junk email explicitly, and on
multiple occasions, stated Hamilton’s pension did not increase in value
between 2000 and 2004, let alone between 2000 and 2001, and he was not
permitted to “cash out” his pension during that timeframe. Moreover, we are
guided by the following:
As we must defer to the legislature as the policy making body, we
conclude that the holding in Berrington [v. Berrington, 633
A.2d 589 (Pa. 1993),] no longer controls regarding the use of the
salary at time of separation. Instead, we honor the legislature’s
unequivocal intention to utilize the coverture fraction to provide
economic justice between the parties, as discussed by the
Superior Court in Holland [v. Holland, 588 A.2d 58 (Pa. Super.
1991)]:
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A delayed distribution of pension benefits requires the non-
employed spouse to wait until some indefinite time in the
future to receive the marital share. To compensate for this
postponement of benefit, that spouse is permitted to enjoy
increases in value occasioned by continued employment of
the worker. Also, the employed spouse increases the non-
marital share of the benefits since continuing service
enlarges the denominator. Further, later year wage
increases are a product of experience and longevity which
were developed during the marriage. The [employee-
spouse] . . . can look forward to the benefits which accrue
from a vested pension. His former spouse is entitled to
share in any increase in value of the marital share which
may occur by [the employee-spouse’s] continued
employment.
Holland, 588 A.2d at 60. Accordingly, rather than using the
salary at the time of separation, courts instead should allocate the
pension “between its marital and nonmarital portions solely by use
of a coverture fraction.” 23 Pa.C.S. § 3501(c). Thus, the non-
employee spouse “is permitted to enjoy increases in value
occasioned by continued employment of the worker.”
Holland, 588 A.2d at 60. In the simplest of cases, the
determination of the marital portion of a defined benefit pension
will entail a straightforward application of the coverture fraction
to the final total value of the pension, even though the value has
increased due to years of postseparation employment.
Smith v. Smith, 938 A.2d 246, 258-259 (Pa. 2007) (emphasis added).
Turning to the present matter, the Junk email indicates there are three
factors that determined the value of Husband’s pension: (1) his years of NFL
service; (2) the number of his years of service in the NFL; and (3) the dollar
value assigned to those years of service. Accordingly, because Husband was
no longer serving in the NFL when he was married to Wife, those factors would
have not changed during that time, and there would have not been any
potential for an “increase” in the pension calculation as there was no
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“continued employment” by Husband. See Holland, supra. Therefore, there
was no value to be applied to the equitable distribution total from Section
3501(a)(1) regarding Husband’s pension. Additionally, while Husband may
have taken an advanced payment on the pension in 2006, this was post-date
of separation and does not qualify as an actual distribution of the pension. As
such, Wife’s second argument fails.
Third, Wife claims the court “abused its discretion and misapplied the
law when it ignored the record establishing Husband’s apparent right to a
military pension and federal pension and failed to distribute those assets,
which were earned during the marriage.” Wife’s Brief at 38. She states that
both of Husband’s pensions “are defined-benefit pensions, and therefore,
should be distributed pursuant to the coverture fraction method” as set forth
in 23 Pa.C.S. § 3501(c)(2).13 Id. at 39.
____________________________________________
13 Section 3501(c)(2) provides:
(c) Defined benefit retirement plans. — Notwithstanding
subsections (a), (a.1) and (b):
…
(2) In the case of the marital portion of a defined benefit
retirement plan being distributed by means of an immediate
offset, the defined benefit plan shall be allocated between its
marital and nonmarital portions solely by use of a coverture
fraction. The denominator of the coverture fraction shall be the
number of months the employee spouse worked to earn the
accrued benefit as of a date as close to the time of trial as
reasonably possible and the numerator shall be the number of
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A review of the record reveals the following: At the June 19, 2015,
hearing, the following exchange occurred between the trial court and
Husband:
THE COURT: Are you receiving a pension from the government at
all?
[Husband]: No, Your Honor.
THE COURT: That’s because you’re still employed; is that right?
[Husband]: I have let them know that I plan to leave. I put in
for a leave without pay.
N.T., 6/19/2015, at 40.
Thereafter, at the May 4, 2016, hearing, Husband testified he has
worked as attorney for the federal government since 1995 at various agencies.
N.T., 5/4/2016, at 58. Husband indicated he was unemployed at the time of
the hearing. Id.14 Further, at the time of his departure, he was making
____________________________________________
such months during which the parties were married and not finally
separated. The benefit to which the coverture fraction is applied
shall include all postseparation enhancements up to a date as
close to the time of trial as reasonably possible except for
enhancements arising from postseparation monetary
contributions made by the employee spouse, including the gain or
loss on such contributions
23 Pa.C.S. § 3501.
14 Husband testified his unemployment was the result of the following:
“Because I thought it was best to be at home for my son after Children and
Youth came to the home, because I believe that I began to suffer the effects
of chronic traumatic encephalopathy, effecting [sic] memory and recall, and I
believe [that] I was … somewhat forced out of employment because I was not
keeping pace.” N.T., 5/4/2016, at 59.
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approximately $75,000.00 a year. When asked by the court if he was
receiving a pension, Husband responded: “I’m receiving health benefits, and
I believe it’s $500 a month. That would be where the $2,700 figure came
from, the combined income.” Id. at 59. Subsequently, the following
questioning occurred between Wife’s counsel and Husband:
Q. And on June 22, 2015, Judge Williamson asked you to provide
information regarding your pensions.
Have you provided any information or brought any
information today regarding the value of your pensions with the
government or the Army?
A. Well, I have seen your file sitting next to me, and I know that
you provide – you have gotten them through subpoena and other
ways.
What I did do during the discovery process was say that this
information is available. This information is public knowledge, and
at any time, you can come to any one of the homes and go
through, because as much work that I have you would have trying
to get it.
Specifically, I wrote letters, I wrote one letter Judge
Williamson suggested on March 1st that I come to him for help.
That help I provided in the form of asking that a certified question
be sent to the Supreme Court regarding proceeding forward in this
matter.
That was the help I requested when I informed everyone on
March 1st that I sent a letter, because he asked for something for
the Eastern District. I did not get a reply. I still have not gotten
a reply.
I believe that the Fifth Amendment stay that was in place
November 4, 2013 covered me from the Fifth Amendment that I
raised at that time to provide some of the other information.
Q. So when did you stop working for the Army?
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A. Probably right around the time your client and her family
reported bigamy [in regards to him] to the Department of the
Army and began making a lot of phone calls.
That pretty much put me in a status as a lawyer, as a JAG,
in a -- I’ll say be seen and not heard or be heard and not seen
status.
My understanding having changed from active duty in 2000,
a month and 35, 40 days of the execution of the affidavit. When
I left active duty, I then entered reserve status.
…
I’m not receiving any money, though. They don’t pay you
when you’re in that status….
[THE COURT]: Why don’t you get paid for reserve status
anymore?
[Husband]: Again, Your Honor, because I believe that since the
pending investigation and upon muted advice, if you will, right
now I’m in a seen and not heard or heard and not seen until the
litigation concludes, which it doesn’t seem like it is, because that
bigamy aspect still looms….
Id. at 68-70.
In addressing this issue, the trial court concisely opined:
With regard to military pensions and federal pensions, …
albeit through no fault of [Wife], the evidence with regard to these
pensions is woefully lacking. We do note however, that [Husband]
denied on several occasions during these lengthy proceedings,
that he is receiving or entitled to any military pension or federal
pension.
Discussion Regarding Wife’s Motion for Reconsideration and Amendment to
Decree, 2/2/2017, at unnumbered 2.
In response to the trial court, Wife claims:
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This statement is contrary to the record. On June 19, 2015,
Husband testified that he was entitled to a Federal Government
pension, having worked as an attorney/advisor for the federal
government since 1995. He testified that he makes $79,000
annually and he is at a GS-12 level. Further, he stated that he
had been employed by the US Army for what appears to be at
least 20 years.
Wife’s Brief at 39-40.15
Based on the lack of evidence, we are constrained to find the trial court
did not abuse its discretion by a misapplication of the law or a failure to follow
proper legal procedure. See Smith, supra. Indeed, the record is deficient
with any financial information regarding Husband’s federal government and
military pensions. Further, based on Husband’s testimony, it is unclear
whether he is eligible for these pensions because of his prior actions. We
acknowledge Wife did take numerous steps to obtain this information from
Husband; however, “[t]he failure of the appellant to ensure that the original
record certified for appeal contains sufficient information to conduct a proper
review may constitute a waiver of the issues sought to be examined.”
Stewart v. Owens-Corning Fiberglas, 806 A.2d 34, 37 n.3 (Pa. Super.
2002). Absent these financial documents, we cannot conduct a meaningful
appellate review with regard to Husband’s two pensions, which remain
speculative. We reiterate that “a trial court has the authority to divide the
____________________________________________
15 Wife asks this Court to order the trial court to, if legally possible, request
the federal government and United States Army to stop making portion
payments to Husband, determine the status of these pensions, and determine
the marital pension of any pension. Id. at 40.
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award as the equities presented in the particular case may require.” Cook,
__ A.3d at __, 2018 PA Super 117, *20. Here, the trial court awarded Wife
100% of the marital assets, instead of her requested 65% portion, due to
Husband’s behavior throughout this litigation. Therefore, one could
reasonably infer the court did take the lack of pension evidence into
consideration when awarding Wife the full amount of marital assets.
Accordingly, Wife’s third argument fails.
Lastly, Wife argues the trial court “abused its discretion and failed to
follow proper legal procedure when it refused to enforce an order for
[c]ontempt against Husband and to use its powers to gain Husband’s
compliance with discovery after he failed to provide information relating to his
apparent military pension and federal pension.” Wife’s Brief at 40-41.
Specifically, she states:
Discovery for information necessary to represent Wife in the
equitable distribution hearings was requested as early as February
20, 2009. Despite multiple requests and court orders, Husband
never provided any requested information. Husband was initially
ordered on October 17, 2011, to “respond to all discovery requests
within 20 days.” Husband never provided the requested
information. Husband was again ordered to respond to discovery
requests on August 23, 2013. Despite a Superior Court Opinion
affirming the August 23, 2013 Order of the Court of Common Pleas
of Centre County holding Husband in contempt of a discovery
order and ordering Husband to respond to all outstanding
discovery requests within 30 days or serve a 30-day period of
incarceration, Husband never complied with any court orders for
discovery. On May 8, 2015, Wife filed a Motion for Sanctions for
Non-compliance with Order of Court and Motion to Enforce
Contempt Order of August 28, 2013. In the [t]rial [c]ourt’s June
4, 2015 Order, it states that it will consider this Motion at the
hearing on June 18, 2015. Judge Williamson notes in his June 19,
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2015 Order, that he will “hold in abeyance any effort to incarcerate
Husband” and cautions Husband that he must comply with the
rest of the [o]rder requesting discovery. Judge Williamson further
ordered Husband to provide values of assets based on Wife’s
agreement that the date of separation is 2004. On September 15,
2016, the [t]rial [c]ourt determined that it would “not be
appropriate” to incarcerate Husband because he did file objections
years ago but did not “file anything that helps this Court to move
this case forward in 14 years.” Ultimately, Husband never
cooperated, and the Trial Court stated that it “accepted the
calculations of value made by Wife as a sanction for Husband’s
lack of cooperation.”
Id. at 41-43 (citation omitted).
With respect to this issue, we are guided by the following:
The power to punish for contempt, including the power to inflict
summary punishment, is a right inherent in the courts and is
incidental to the grant of judicial power under the Constitution.
Colbert v. Gunning, 368 Pa. Super. 28, 533 A.2d 471, 472
(Pa.Super. 1987). The court may order civil or criminal contempt.
The characteristic that distinguishes civil from criminal
contempt is the ability of the contemnor to purge himself of
contempt by complying with the court’s directive. If he is
given an opportunity to purge himself before imposition of
punishment, the contempt order is civil in nature. If the
purpose of the order is to punish despite an opportunity to
purge, the order is criminal in nature. Id.A court may exercise its civil contempt power to enforce
compliance with its orders for the benefit of the party in whose
favor the order runs but not to inflict punishment. Id. A party
must have violated a court order to be found in civil contempt.
[Goodman v. Goodman, 383 Pa. Super. 374, 556 A.2d 1379,
1391 (Pa. Super. 1989)]. The complaining party has the burden
of proving by a preponderance of evidence that a party violated a
court order. C.R. by the Guardian of her Estate, Dunn v. The
Travelers, 426 Pa. Super. 92, 626 A.2d 588, 592 (Pa.Super.
1993). However, a showing of non-compliance is not sufficient in
itself to prove contempt. Wetzel v. Suchanek, 373 Pa. Super.
458, 541 A.2d 761, 762 (Pa. Super. 1988). If the alleged
contemnor is unable to perform and has in good faith attempted
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to comply with the court order, contempt is not proven. Id.(emphasis in original). The alleged contemnor has the burden of
proving the affirmative defense that he has the present inability
to comply with the court order. Commonwealth ex rel. Ermel
v. Ermel, 322 Pa. Super. 400, 469 A.2d 682, 683 (Pa.Super.
1983). A court cannot impose a coercive sentence conditioned on
the contemnor’s performance of an act which is incapable of
performance. Crozer-Chester Medical Center v. Moran, 522
Pa. 124, 560 A.2d 133, 137 (Pa. 1989). To impose civil contempt
the trial court must be convinced beyond a reasonable doubt from
the totality of evidence presented that the contemnor has the
present ability to comply with the order. Wetzel, 541 A.2d at
764.
Sinaiko v. Sinaiko, 664 A.2d 1005, 1009 (Pa. Super. 1995) (internal
quotation marks and parallel citations removed). See also Lachat v.
Hinchliffe, 769 A.2d 481, 487 (Pa. Super. 2001) (citations modified).
We emphasize the trial court “may exercise its civil contempt power to
enforce compliance with its orders[,]” but is not required to do so. Sinaiko,
664 A.2d at 1009. Turning to the present matter, the trial court acted within
its discretion when it refused to enforce the order for contempt against
Husband. Again, we can infer from the 100% amount of marital assets
awarded to Wife that the court chose a different method than enforcing the
contempt order, but was still penalizing Husband for his acrimonious and
obdurate actions. As such, Wife’s final claim is without merit.
Order affirmed.
Judge Dubow joins this memorandum.
Judge Strassburger files a concurring memorandum.
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J-A32013-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/12/2018
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