Mackie, T. v. Mackie, D. ( 2019 )

J-A26029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS MACKIE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DIANE MACKIE : No. 442 WDA 2019
Appeal from the Order Entered February 20, 2019
In the Court of Common Pleas of Washington County Civil Division at
No(s): No. 2013-6350
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 26, 2019
Thomas Mackie (“Husband”) appeals from the order, entered in the
Court of Common Pleas of Washington County, holding him in contempt of
court for failure to comply with the court’s equitable distribution orders and
enjoining him from disposing of any portion of his American Airlines 401(k)
plan for pilots. Upon careful review, we affirm.
The trial court set forth the facts of this matter as follows:
This divorce has such a long, agonizing, and tortured history . . .
with which the Superior Court is familiar. . . . Importantly, the
Superior Court [affirmed] the trial court’s . . . equitable
distribution order. [Husband] filed a petition for allowance of
appeal with the Pennsylvania Supreme Court, but that Court
denied the request. Thereafter, [Wife] sought enforcement of the
trial court’s equitable distribution order.
On May 16, 2018, [Wife] filed a rule to show cause why [Husband]
should not be held in contempt [of] the court[’]s April 26, 2017
order of equitable distribution. Among other things, [Wife]
claimed that [Husband] had failed to distribute the $157,700 the
trial court awarded her from [Husband’s] Northrup Grumman
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Savings Plan. The trial court scheduled a hearing for June 28,
2018.
[Wife] and [Husband’s] counsel appeared at the hearing;
[Husband] did not appear.1 The trial court proceeded and
concluded that [Husband] was not in contempt of the equitable
distribution order because the April 26, 2017 order required [Wife]
to draft the [Qualified Domestic Relations Order (“QDRO”)] for the
Northrup Grumman Savings Plan. Thereafter, [Wife] drafted a
QDRO and presented it to the trial court for approval. On August
21, 2018, the trial court approved the QDRO.
1 [Husband], who lives in the state of California, has failed
to appear at other equitable distribution enforcement
hearings. As a result, the trial court issued bench warrants
against [him] on May 11, 2018 and July 9, 2018. The
warrants remain outstanding. Further, the trial court found
[Husband] in contempt for failing to comply with equitable
distribution orders regarding his military pension . . . as well
as his failure to pay [Wife’s] counsel fees from the equitable
distribution order and her $15,035.18 share of the [parties’]
G-Force Leadership, L.L.C. asset.
On October 26, 2018, [Wife] then filed a second rule to show
cause why [Husband] should not be held in contempt [of] the
court[’]s April 26, 2017 order of equitable distribution. The trial
court scheduled a hearing for November 27, 2018. At that
hearing, [Wife] produced a letter from Fidelity Investments, the
plan administrator for [Husband’s] Northrup Grumman Savings
Plan, dated September 21, 2018[.] Critically, the plan
administrator stated, “[a]ccording to our records, the Participant
was eligible to be in the Plan, but our records indicate that there
are no assets in the account to segregate. Therefore, as there are
no assets in the account to assign to the Alternate Payee, there
will be no review of this order, and our file on this matter is
considered closed.” As a consequence, the trial court issued an
order on December 6, 2018 finding [Husband] in contempt for
depleting the mar[ital] asset because a QDRO could not issue
against the account. Further, the trial court directed the
Washington County Prothonotary to enter judgment against
[Husband] and in favor of [Wife] in the amount of $157,700, plus
legal interest as of December 6, 2018. Finally, the trial court
imposed a $2,000.00 fine against [Husband] which was to be paid
within 30 days.
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On January 23, 2019, [Wife] filed [a] rule to show cause why
[Husband] shall not be held in contempt for failure to comply with
the December 22, 2014 order of court. According to [that] order,
both parties were ordered not to dissipate any “marital funds and
assets,” including the Northrup Grumman Savings Plan, pending
equitable distribution. The trial [court] scheduled a hearing for
February 15, 2019.[1] [Wife] and [Husband’s] counsel appeared
for the hearing; [Husband] did not appear.
The trial court found two reasons why [Husband] was in contempt
for noncompliance with the December 6, 2018 order: failing to
pay the $2,000.00 fine, and dissipating/sequestering the Northrup
Grumman Savings Plan in violation of the December 22, 2014
order. As a result, the trial court issued an order on February 19,
2019 . . . enjoining [Husband] from disposing [of] any portion of
the moneys that had been his American Airlines 401(k) Plan for
Pilots . . . until further order of court. The trial court also ordered
[Husband] to draft a QDRO for the Alternate Payee in the amount
of $157,700, plus the legal rate of interest from December 6,
2018. The trial court directed that this be completed within 30
days. If [Husband] did not comply within 30 days, a $500 per
month fine would be imposed until a QDRO was submitted for
court approval. [Husband], pro se, filed a notice of appeal on
March 22, 2019 regarding the trial court’s February 19, 2019
order.
Trial Court Opinion, 4/1/19, at 2-3 (citations, unnecessary capitalization and
footnote omitted).
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1 We note that Husband failed to order the transcription of the notes of
testimony from the February 15, 2019 hearing and, as such, they are not
included in the certified record on appeal. It is an appellant’s responsibility to
supply this Court with a complete record for purposes of review. Pa.R.A.P.
1911(a). This Court could dismiss this appeal or find waiver of Husband’s
claim based upon his failure to include the necessary transcript in the certified
record. See Pa.R.A.P. 1911(d); Cade v. McDanel, 679 A.2d 1266, 1268–69
(Pa. Super. 1996) (“[A] failure by ... appellant to insure that the original record
certified for appeal contains sufficient information to conduct a proper review
constitutes a waiver of the issue[s] sought to be examined.”). However,
because we are able to resolve Husband’s claim without reference to the notes
of testimony, we decline to dismiss the appeal.
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On appeal, Husband asserts that the trial court erred in finding him in
contempt of court. Specifically, Husband argues that, by order dated
December 6, 2018, the trial court had already held him in contempt for the
depletion of the Northrop Grumman account, entered judgment in favor of
Wife, and imposed a fine for his intentional non-compliance. Husband asserts
that the court improperly based its finding of contempt on the December 22,
2014 order, in which the court had precluded either party from dissipating
assets pending equitable distribution. Husband claims that, because equitable
distribution had long since occurred, and because he never dissipated any
assets while equitable distribution was pending, a finding of contempt based
on that order was improper as that order “has no application to events
occurring in 2018 and 2019, post-equitable distribution.” Brief of Appellant,
at 17. Husband further argues that the court’s second basis for the instant
finding of contempt—Husband’s failure to pay the $2,000 fine assessed in the
contempt order of December 6, 2018—was insufficient to support the
“excessive” sanction imposed in the order now under review. For the following
reasons, Husband is entitled to no relief.
“In considering an appeal from a contempt order, great reliance
must be placed upon the discretion of the trial judge.” Marian
Shop, Inc. v. Baird, [] 670 A.2d 671, 673 ([Pa. Super.] 1996).
Accordingly, “appellate review of a finding of contempt is limited
to deciding whether the trial court abused its discretion.” Lachat
v. Hinchliffe, 769 A.2d 481, 487 (Pa. Super. 2001).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it misapplies
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the law or exercises its discretion in a manner lacking
reason. Similarly, the trial court abuses its discretion if it
does not follow legal procedure.
Id. (citation omitted).
Bold v. Bold, 939 A.2d 892, 894–95 (Pa. Super. 2007).
In proceedings for civil contempt of court, the general rule is that
the burden of proof rests with the complaining party to
demonstrate that the defendant is in noncompliance with a court
order. Lachat [769 A.2d at 489] (citations omitted). To sustain
a finding of civil contempt, the complainant must prove, by a
preponderance of the evidence, that: (1) the contemnor had
notice of the specific order or decree which he is alleged to have
disobeyed; (2) the act constituting the contemnor’s violation was
volitional; and (3) the contemnor acted with wrongful intent. Id.MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012).
We begin by noting our agreement that a purported violation of the
December 22, 2014 order, precluding either party from dissipating assets
pending equitable distribution, cannot form the basis for the court’s finding of
contempt on February 19, 2019. Equitable distribution was finalized on April
26, 2017. Thus, any subsequent dissipation of assets is not a violation of the
December 2014 order. Moreover, in making its finding of contempt, the court
does not cite any dissipation of assets that occurred prior to equitable
distribution as a basis for its finding.2
However, Husband does not dispute that he failed to pay the $2,000
fine imposed in the December 6, 2018 order. Indeed, Husband concedes that
____________________________________________
2 Wife averred in her petition for contempt that Husband dissipated the
Northrup Grumman account on August 22, 2018, over one year after the
equitable distribution order was entered. See Petition for Contempt, 1/23/19,
at ¶ 12.
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his “failure to pay that fine might form the basis of a contempt finding on
February 19, 2019.” Brief of Appellant, at 16. Particularly in light of
Husband’s ongoing contemptuous conduct throughout the pendency of this
matter, we are unable to conclude that the trial court abused its discretion by
holding Husband in contempt for his failure to pay the fine imposed in the
December 6, 2018 order. Husband was aware of the order, which was
definite, clear, and specific, and he admits that he failed to pay the fine
ordered. See MacDougall, supra. Moreover, we do not find excessive a fine
of $500 for each month in which Husband remains in violation of the court’s
order that he draft and submit to the court a QDRO with respect to his
American Airlines 401(K). Such a requirement simply enables Wife to finally
collect funds she has long been due pursuant to the court’s equitable
distribution order and requires Husband to do no more than that which he was
already obligated to do. Husband need only fulfill his obligations to avoid
paying the fine.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2019
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