Geshury, A. v. Geshury, A.J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ARIELA GESHURY IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
AMOTZ J. GESHURY
Appellant No. 131 EDA 2016
Appeal from the Order December 10, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2006-10717
BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED MARCH 08, 2017
Appellant, Amotz J. Geshury, appeals from the order entered
December 10, 2015, dismissing his petition for contempt and awarding
Appellee, Ariela Geshury, attorney’s fees in the amount of $24,341.25. We
affirm.
We adopt the following factual and procedural history from the trial
court’s opinion, which in turn is supported by the record. See Trial Court
Opinion (TCO), 5/19/16, at 1-7. The parties were married on May 25, 1980.
They jointly owned a bartending school, Crown Food and Beverage Institute,
Inc., also known by its fictitious name, Mixology Wine Institute
(“Crown/Mixology”). Appellee managed the daily operations of the business
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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while Appellant oversaw finances, filed tax returns, and handled regulatory
issues.
In May 2006, Appellee filed a complaint in divorce. On June 8, 2006,
the court ordered that: (1) the parties were to grant one another immediate
and continued access to all financial records of their business; (2) neither
party was to alienate, dissipate, or transfer marital assets, including the
business; and (3) all checks written on any business account had to be
signed by all parties. On February 6, 2008, with the parties’ agreement, the
court modified its previous order, clarifying that Appellee would continue to
be responsible for the daily operation of the business and Appellant would
continue to manage the books, including debt, licensing, and accounting.
In August 2008, the parties appeared before an equitable distribution
master with their completed marital settlement agreement. The marriage
was dissolved by divorce decree on September 15, 2008; the decree
incorporated the marital settlement agreement. The agreement provided
that: (1) the June 2006 order would remain in effect; (2) the business would
continue to operate without changes to ownership; (3) all assets of the
business were to remain in the business; (4) all company liabilities would
remain the responsibility of both parties; (5) Appellee would continue the
role of managing the business; and (6) Appellant would continue to assist
with accounting, maintenance, and regulatory issues.
However, both the situation between the parties and the business
degraded. Appellant did not adequately perform his duties or timely file tax
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returns. Appellant took draws from the business, requesting they not be
classified as salary, and demanded that checks be written to him. As a
result of Appellant’s actions, the company owed significant unpaid taxes to
the City of Philadelphia, the state of New Jersey, and federal liens. Appellee
paid the entirety of these debts from her personal funds. During their
marriage, Appellant would not allow Appellee to hire an accountant. As a
result of Appellant’s actions, Appellee hired independent accountants for tax
returns prepared for the years 2010 through 2014. Still, Appellant refused
to cooperate with the accountants or provide requested information.
The financial situation of the company continued to deteriorate. It
operated with outdated equipment, owed significant back rent, and Appellee
paid employees with personal funds. Although at one time Crown/Mixology
operated five locations, by November 2014, its sole remaining school ceased
enrolling students. Appellee decided it was not feasible to continue
operating the business. She offered Crown/Mixology to Appellant in October
2014. Appellant responded that he was in Israel and requested to discuss
the issue at a later time. However, Appellant never gave Appellee a
definitive response.
Finally, Appellee closed Crown/Mixology. All of the old equipment was
scrapped. Appellee began a new business, Aqua Vitae, which opened in
September 2014. Appellee also accepted a loan from her new husband to
cover Crown/Mixology’s debts. She has been repaying that loan.
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On May 19, 2015, Appellant filed a petition for contempt, claiming that
Appellee had violated the marital settlement agreement by: (1) closing
Crown/Mixology without cause and opening an identical business; (2) failing
to provide Appellant with continued access to the financial accounts of the
business; and (3) failing to pay her portion of the marital debt. Appellee
filed a response in opposition, requesting a demurrer and attorney’s fees.
The trial court heard argument and testimony on the petition on
October 21, October 22, and December 9, 2015. Appellant testified in
support of his petition. Appellee, the parties’ sons, and two accountants
testified in opposition. At the conclusion of the hearings, the court found
Appellant had come before the court with unclean hands, dismissed his
petition, and awarded attorney’s fees to Appellee.
Appellant filed a motion for reconsideration, which the trial court
denied. Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court issued a responsive opinion.
On appeal, Appellant raises the following questions for our review:
I. Whether the lower court abused its discretion and erroneously
disregarded substantial evidence in not finding [Appellee] in
contempt of the order?
II. Whether the lower court erroneously determined [Appellant]
acted with unclean hands?
III. Whether the lower court erred in awarding [Appellee]
attorney’s fees for [Appellant’s] good faith filing of the petition
for contempt?
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Appellant’s Brief at 5 (unnecessary capitalization omitted).
We review a contempt order for an abuse of discretion. See Harcar
v. Harcar, 982 A.2d 1230, 1234 (Pa. Super. 2009). In this context, we
place a “great reliance” on the discretion of the trial judge. Langendorfer
v. Spearman, 797 A.2d 303, 307 (Pa. Super. 2002).
First, Appellant claims that the court abused its discretion and
disregarded evidence when it found that Appellee was not in contempt of the
parties’ marital settlement agreement. See Appellant’s Brief at 11-12.
Appellant suggests a number of reasons the court erred, including: (1)
Appellee was responsible for handling the taxes and returns, and he was
only required to “assist” with the books; (2) Appellee controlled the
operations and limited his access to financial information; and (3) Appellee
acted with unclean hands in closing Crown/Mixology and opening a similar
business. Id. at 12-17.
In contempt proceedings, the burden of proof rests with the
complaining party to demonstrate by a preponderance of the evidence that
the respondent is in noncompliance with a court order. Lachat v.
Hinchcliffe, 769 A.2d 481, 488 (Pa. Super. 2001). Accordingly, Appellant
was required to prove that Appellee was not complying with the court order.
Appellant did not meet this burden.
Appellant’s claims are neither supported by the record, nor was his
testimony credible. To the contrary, the court found that: (1) the evidence
established that Appellant did not adequately perform his duties to the
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business; (2) Appellee made an effort to enable the business to stay in
operation, including performing duties that should have been done by
Appellant; (3) the language of the settlement order and Appellant’s own
testimony made it absolutely certain that he was in charge of the finances
and accounting; (4) due to Appellant’s failures, Appellee had no choice but
to become more involved in the finances; (5) Appellee testified credibly that
she had always provided Appellant with access to the business’s financial
records. See TCO at 9-12. These findings are supported by the record.
Thus, we discern no abuse of discretion.
Second, Appellant claims that the court erroneously determined that
he had acted with unclean hands. See Appellant’s Brief at 18. Appellant
raises a number of arguments in this regard, including the contention he did
not violate the February 2008 order or prevent Appellee from filing the
company’s taxes herself. Id. at 18-19. Essentially, he challenges the
court’s factual determinations and complains that the trial court gave
improper weight to Appellee’s testimony. Id. We disagree.
In matrimonial cases, the courts have full equity power and jurisdiction
to issue injunctions and other orders necessary to protect the interests of
the parties. See 23 Pa.C.S. § 3323; see also Lee v. Lee 978 A.2d 380,
387 (Pa. Super. 2009). A party seeking relief in a court of equity must come
with “clean hands” and act fairly and without fraud or deceit as to the
controversy at issue. Lee, 978 A.2d 387; see also In re Adoption of
S.A.J., 838 A.2d 616, 625 (2003). If a party has not acted in good faith,
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they will not be allowed to benefit from those actions. Jacobs v. Halloran,
710 A.2d 1098, 1103 (Pa. 1998).
In determining that Appellant had acted with unclean hands in filing
the instant petition, the trial court made the following factual findings: (1)
Appellant’s duties were to manage the business’s books, including IRS debt,
licensing, taxes, and accounting; (2) Appellant did not file tax returns or
filed them late; (3) Appellant did not pay any of Crown/Mixology’s debts and
Appellee has paid the debts from her personal funds; (4) Appellant did not
cooperate with accountants attempting to prepare corporate tax returns; (5)
Appellant regularly appeared at the business to demand money; and (6)
Appellee did not have knowledge of the years of unfiled tax returns, taxes,
interest, and penalties Appellant had accumulated. As a result, the trial
court concluded that Appellant failed to perform his duties pursuant to the
February 2008 order. The trial court found credible Appellee’s testimony.
The trial court did not find Appellant’s testimony credible.
These conclusions are supported by the record, and we are bound by
the trial court’s determination of credibility. Wade v. Huston, 877 A.2d
464, 465 (Pa. Super. 2005). Accordingly, we discern no abuse of discretion
in the trial court’s conclusion that Appellant acted with unclean hands.
Harcar, 982 A.2d at 1234.
Finally, Appellant claims the lower court erred in awarding Appellee
attorney’s fees because the petition for contempt had been filed in good
faith. Appellant has waived this claim for failure to include it in his Pa.R.A.P.
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1925(b) statement of errors complained of on appeal. See
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“[a]ny issues not
raised in a [Rule] 1925(b) statement will be deemed waived.”)
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2017
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