Stepien, C. v. Diaz, S. ( 2022 )

J-S38018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTIAN STEPIEN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SUZANNE M. DIAZ F/K/A SUZANNE :
M. STEPIEN :
: No. 1179 EDA 2022
Appellant :
Appeal from the Order Entered April 12, 2022
In the Court of Common Pleas of Carbon County
Civil Division at 15-1186
BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 22, 2022
Suzanne M. Diaz, f/k/a Suzanne M. Stepien (Appellant), appeals from
the order denying her request for reconsideration and reinstating a prior order
directing her to pay to Appellee, Christian Stepien (Father), “the sum of
$1998.75 … to reimburse [Father] for unnecessary expended attorneys fees.”
Order, 11/29/21, at 2 (footnote omitted). We affirm.
Appellant and Father are the divorced parents of two children. The trial
court recounted the case history as follows:
Th[e parties’] custody action began on June 10, 2015, with
the filing of a custody complaint by [Father]. Many years and
many filings have come and gone during these contentious
custody proceedings. The latest modification of custody filing
occurred on February 7, 2020, when [Father] sought a
modification of primary physical custody. After not resolving the
matter before the Hearing Officer, the matter was scheduled for a
Pre-Trial Conference with the undersigned on July 1, 2020. When
this conference did not result in a resolution, it was thereafter
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scheduled for a Custody Trial on November 3, 2020. In the
meantime, what brings this matter to the [Superior] Court seven
years after this began is the filing on July 9, 2020, of [Appellant’s]
“Motion for Mental Health Assessment of [Father] Pursuant to
Pa.R.C.P. 1915.8.” As a result, on September 2, 2020, a hearing
was held on the Motion for the Mental Health Assessment. At that
hearing, over the objection of [Father], [Appellant] presented
testimony, including from the two [] children[,] outlining a number
of incidents which called into question the mental stability of
[Father]. After this hearing, the parties were given the
opportunity to lodge legal memorandums in support of their
respective positions. Thereafter, on September 30, 2020, this
Court granted [Appellant’s] request and directed that a
psychological evaluation be performed on [Father]. This order
also set forth the time and expense parameters for how this
evaluation was to occur.
On November 3, 2020, the Custody Trial began, however, it
did not conclude that day and a second day was set aside “for the
purpose of taking testimony relating to the mental health
evaluation of [Father].” The second day set aside for this expert
testimony was January 26, 2021. On this date, [Appellant] made
an oral motion to vacate the September 30, 2020, Order
pertaining to the mental health evaluation as “she no longer
wishes to pursue her request that [Father] undergo a mental
health evaluation.” A final order was thereafter issued on February
16, 2021, on [Father’s] Petition for Modification.
Thereafter, on April 20, 2021, [Father] filed a Motion for
Sanctions. In that motion, [Father] argued that he should be
awarded attorney fees based upon the fact that [Appellant] filed
the motion to have him evaluated, which he vigorously defended,
and then after [Father] complied with his obligations under the
Order, [Appellant] abandoned this part of her defense of the
Petition for Modification of Custody filed by [Father]. [Father]
believes that he is entitled to these fees pursuant to 23 Pa.C.S.A.
§ 5339 and 42 Pa.C.S.A. § 2503.
[Appellant] argued that [Father] is not entitled to attorney
fees as a result of her failure to abandon the mental health
evaluation which she claimed was done purely for financial
reasons. In so arguing, she claimed that [Father] cannot recover
attorney fees since the order on which he relies had been vacated
several months earlier.
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[The trial court conducted a contempt hearing on August 11,
2021.]
On November 29, 2021, this [c]ourt issued an order
granting [Father’s] Motion for Sanctions and awarded him
$1,998.75, the counsel fees expended by [Father] in defense of
[Appellant’s] Motion for the Mental Health Evaluation. In a
footnote to that order, this [c]ourt briefly explained our rationale
for finding in favor of [Father].
On December 9, 2021, [Appellant] filed a Motion for
Reconsideration pursuant to Pa.R.C.P. 1930.2, which we expressly
granted on December 16, 2021, pending further hearing and
argument. [Father] filed an answer to this Motion for
Reconsideration arguing that not only did the motion have no
merit but that the Motion for Reconsideration should have been
filed pursuant to Pa.R.A.P. 1701(b)(3) and not Pa.R.Civ.P.1930.2,
as the latter does not permit post-trial relief in domestic matters
and it also makes reference to motions for reconsideration being
filed pursuant to the above referenced appellate rule.
On April 12, 2022, this [c]ourt denied further relief to
[Appellant] on her Motion for Reconsideration and reinstated the
Order of November 29, 2021, requiring her to reimburse [Father]
the sum of $1,998.75. Thereafter, on May 3, 2022, [Appellant]
filed the instant appeal. Pursuant to our order directing its filing,
[Appellant] filed a timely concise statement of matters complained
of on appeal.
Trial Court Opinion, 6/30/22, at 1-5 (footnotes omitted).
Appellant presents the following questions for review:
A. WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW,
ABUSED ITS DISCRETION OR OTHERWISE RULED IMPROPERLY
IN DISREGARDING ITS ORDER OF JANUARY 24, 2021,
VACATING ITS PRIOR ORDER OF SEPTEMBER 30, 2020, UPON
WHICH THE TRIAL COURT EXPRESSLY RELIED IN ITS
SUBSEQUENT ORDER OF NOVEMBER 29, 2021, IMPOSING A
MONETARY SANCTION UPON [APPELLANT] FOR HER ALLEGED
FAILURE TO COMPLY WITH THE TERMS OF THAT VACATED AND
THEREFORE NON-EXISTENT PRIOR ORDER OF SEPTEMBER 30,
2020[?]
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1. WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW, ABUSED ITS DISCRETION OR OTHERWISE RULED
IMPROPERLY IN ORDERING [APPELLANT] TO PAY A
MONETARY SANCTION WITHOUT ADJUDICATING
[APPELLANT] TO HAVE BEEN IN CONTEMPT OF THE
PREVIOUSLY VACATED ORDER DATED SEPTEMBER 30,
2020 (TO WHICH IT SPECIFICALLY REFERS IN ITS
SANCTIONING ORDER OF NOVEMBER 29, 2021), OR TO
OTHERWISE CITE ANY SPECIFIC LEGAL BASIS FOR ITS
IMPLIED AUTHORITY TO IMPOSE SUCH A SANCTION
UPON [APPELLANT][?]
B. WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW,
ABUSED ITS DISCRETION OR OTHERWISE RULED IMPROPERLY
IN RETROACTIVELY REEVALUATING THE “INCOME AND
ASSETS” AVAILABLE TO [APPELLANT] FOR THE UP-FRONT
PAYMENT OF ANY COSTS FOR [FATHER’S] MENTAL HEALTH
ASSESSMENT, AS DIRECTED IN ITS PREVIOUSLY VACATED
ORDER OF SEPTEMBER 30, 2020, BY IMPUTING AN
INHERITANCE WHICH HAD BEEN RECEIVED BY [APPELLANT’S]
CURRENT HUSBAND, CONTRARY TO THE PRINCIPLES OF
ESTABLISHED PENNSYLVANIA LAW[?]
C. WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW,
ABUSED ITS DISCRETION OR OTHERWISE RULED IMPROPERLY
IN RETROACTIVELY DETERMINING THAT [APPELLANT] FAILED
TO SUFFICIENTLY “INVESTIGATE THE CONSEQUENCES OF
HER MOTION IN THE EVEN[T] THE COURT GRANTED IT,
INCLUDING ANY COSTS ASSOCIATED THEREWITH”,
CONTRARY TO THE TERMS OF ITS VACATED ORDER OF
SEPTEMBER 30, 2020, UPON WHICH THE TRIAL COURT
NEVERTHELESS CONTINUED TO CITE AND RELY IN ITS
SANCTIONING ORDER OF NOVEMBER 29, 2021[?]
Appellant’s Brief at 22-23.
In each of her issues, Appellant claims the trial court erred and abused
its discretion in granting Father’s motion for sanctions.1 “Our standard of
____________________________________________
1 The trial court observed:
(Footnote Continued Next Page)
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review of an award of counsel fees is well-settled: we will not disturb a trial
court’s determination absent an abuse of discretion. A trial court has abused
its discretion if it failed to follow proper legal principles or misapplied the
law.” Moyer v. Leone, 260 A.3d 245, 252 (Pa. Super. 2021) (citation
omitted). “If the record supports a trial court’s finding of fact that a litigant
violated the conduct provisions of the relevant statute providing for the award
of attorney’s fees, such award should not be disturbed on appeal.” Kulp v.
Hrivnak, 765 A.2d 796, 799 (Pa. Super. 2000).
In response to Father’s petition to modify custody, Appellant filed a
motion requesting that Father undergo a mental health assessment.2
According to Father:
As part of defending against [Appellant’s] motion, [] Father
had to expend significant resources, including preparing with
____________________________________________
Interestingly, [Appellant] does not complain that the [c]ourt erred in
awarding these fees on the basis that her conduct was not obdurate,
vexatious, repetitive or in bad faith. “Issues not raised in the trial court
are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a). Accordingly, for purposes of this [a]ppeal, this critical issue is
waived.
Trial Court Opinion, 6/30/22, at 12.
2 “The court may order the child(ren) and/or any party to submit to and fully
participate in an evaluation by an appropriate expert or experts. The order …
may be made … upon the motion of a party with reasonable notice to the
person to be examined, or by agreement of the parties. The order shall specify
the place, manner, conditions and scope of the examination and the person
or persons by whom it shall be made and to whom distributed.” Pa.R.C.P.
1915.8.
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counsel, legal research, preparing a memorandum of law, and
preparation for and attendance at the hearing.
Additionally, and perhaps more unfortunate, [] Father
endured [Appellant’s] tactic to present the Children as witnesses
in this hearing.
On or about October 1, 2020, the trial court granted
[Appellant’s] motion for a mental evaluation. []
At all times, [] Father complied with the Order. However,
[Appellant] ultimately failed to pay the required deposit for
the evaluation.
Counsel for [Appellant] admitted this fact in open court. []
As her counsel admitted, … [Appellant] was fully aware of
her obligation to make the required deposit and nonetheless failed
to do so.
As a result, no evaluation occurred.
[Appellant’s] actions in failing to follow the court’s order and
failing to make the required deposit resulted in needless time and
expense to [the trial court] and to [] Father.
By failing to abide by [the trial court’s] order, [Appellant’s]
actions are willful, wanton, unreasonable, obdurate, vexatious,
and/or in bad faith.
Pursuant to 23 Pa.C.S.A. § 5339, Pennsylvania law,
specifically the Custody Act, permits an award of counsel fees
against a party, or his counsel, for conduct which is obdurate,
vexatious, repetitive or in bad faith.
Father’s Motion for Sanctions, 4/20/21, at 2 (paragraph numbers omitted,
emphasis added).
The Custody Act provides that “a court may award reasonable interim
or final counsel fees, costs and expenses to a party if the court finds that the
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conduct of another party was obdurate, vexatious, repetitive or in bad faith.”
23 Pa.C.S.A. § 5339.
Appellant first assails the award of counsel fees on the basis that the
trial court vacated the order granting her motion for the mental health
assessment. See Appellant’s Brief at 45. This argument is disingenuous
insofar as the trial court vacated the September 30, 2020, order, “upon
consideration of the oral motion of [Appellant] … that she no longer wishes to
pursue her request[.]” Order, 1/26/21. Also, Father filed his motion for
sanctions before the trial court vacated the order. The trial court explained:
All of the actions that [Father] based his motion on occurred prior
to that order being vacated. Therefore, [Father] was within his
rights to seek counsel fees and the [c]ourt was correct in finding
that the award of counsel fees was for [Appellant’s] conduct prior
to [when] the order was vacated[.]
Trial Court Opinion, 6/30/22, at 8. The record supports the trial court’s
determination. Thus, we discern no merit to Appellant’s first issue.
Appellant next claims the trial court erred by “retroactively reevaluating”
her income and assets available to pay her share of Father’s mental health
assessment. Appellant’s Brief at 54. Appellant specifically faults the court’s
determination that “it was appropriate to inquire into [Appellant’s] income and
assets, including her husband’s recent inheritance[.]” Trial Court Opinion,
6/30/22, at 10. Appellant maintains the trial court improperly considered her
husband’s inheritance because her husband is not a party to this case, and
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“under no obligation to spend any part of his inheritance on [Father’s] mental
health evaluation.” Appellant’s Brief at 56 (italics in original).
At the contempt hearing, Appellant testified that Father’s mental health
evaluation cost $2,500, and she was responsible for the amount not covered
by insurance. N.T., 8/11/21, at 64-65. Appellant learned that insurance
would not cover any portion of the evaluation. Id. She admitted she did not
pay the $2,500. Id. at 65. However, in the year after Appellant filed the
motion requesting the mental health assessment, she purchased a new home
and new car. Id. Appellant testified she and her husband “were able to
afford” the new home and car because her husband’s “aunt passed away and
there was an inheritance” of “150,000 maybe, something like that.” Id. at
68. Appellant also testified that she works from home and earns “$48,000 a
year.” Id. at 71. Appellant stated she did not proceed with the evaluation
because she “couldn’t afford it.” Id. at 72.
The trial court emphasized that “part of, if not the main reason
[Appellant] abandoned the issue of [Father’s] mental health status for the
trial, was her claimed inability to pay the costs of the assessment in
accordance with the order of September 30, 2020.” Trial Court Opinion,
6/30/22, at 9. The court continued:
With these financial obligations in mind and knowing full well what
her responsibilities would include, [Appellant] pressed forward.
Once she abandoned this process and [Father] filed the Motion for
Sanctions, it was appropriate for the [c]ourt to determine if
[Appellant was] credible in her assertion that she could not afford
the costs associated with her request. Accordingly, it was
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appropriate to inquire into her income and assets, including her
husband’s recent inheritance in determining whether her intent to
abandon this process was financially motivated or something else.
Therefore, inquiring into and determining that financial distress
was not present when the September 30, 2020, Order was issued,
was proper.
Id. at 10. The record supports the trial court’s analysis. Again, we discern no
error.
Finally, Appellant argues the trial court erred by
retroactively determining that [Appellant] failed to sufficiently
‘investigate the consequences of her motion in the event the court
granted it, including any costs associated therewith,’ contrary to
the terms of its vacated order [granting the mental health
assessment], upon which the trial court nevertheless continued to
cite and rely [on] in its sanctioning order of November 29, 2021.
Appellant’s Brief at 57-58.
Appellant’s argument is a page and a half in length and lacks citation to
any legal authority. Moreover, it is not persuasive. As the trial court stated,
“a party must be cognizant of any action they take during litigation; it could
have consequences.” Trial Court Opinion, 6/30/22, at 11. The court opined:
Questioning a person’s mental health status, especially in custody
cases, is a precarious thing to do. Additionally, placing minor
children on a witness stand to testify as to their emotional and
mental state as a result of a claimed mental health deficiency in
the other parent could be dangerous insofar as the impact on
those children is concerned. To succeed, regardless of these
impacts, in having a court grant the motion for a mental health
assessment, then benefits that party at trial if it is determined that
the other party does in fact have such a mental health deficiency.
In the case sub judice, [Father] vehemently opposed the granting
of this motion. Further, he objected to [Appellant] having the
children testify for the very reasons noted herein. [Appellant]
should have been cognizant of these impacts prior to pursuing this
assessment. Further, she should have been equally cognizant of
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the consequences of the abandoning of this issue and the
assessment after subjecting the children and [Father] to this
process.
Id. at 11-12 (underline in original).
The trial court’s analysis demonstrates that it properly exercised its
discretion. Accordingly, there is no merit to Appellant’s final issue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2022
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