Pollick, C. v. Trozzolillo, A. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CYNTHIA L. POLLICK IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
ANTHONY P. TROZZOLILLO
Appellee No. 991 MDA 2021
Appeal from the Order Entered July 23, 2021
In the Court of Common Pleas of Lackawanna County
Civil Division at No: 20 DR 0205 2020-40119 PACSES 517300200
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: NOVEMBER 7, 2022
Appellant, Cynthia Pollick, appeals pro se from the July 23, 2021 orders
resolving the equitable distribution of the parties’ marital estate, denying her
claim for an award of alimony, and imposing sanctions against her.1 We
affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The trial court entered a decree in divorce on July 23, 2021, thus rendering
its equitable distribution and alimony order final and appealable. See Busse
v. Busse, 921 A.2d 1248, 1253 n.2 (Pa. Super. 2007) (noting that orders
regarding equitable distribution and alimony become final and appealable
upon entry of a decree in divorce); appeal denied, 934 A.2d 1275 (Pa. 2007).
The trial court’s imposition of sanctions against Appellant (essentially an
award of counsel fees to Appellee also is properly before us. Holz v. Holz,
850 A.2d 751, 760-61 (Pa. Super. 2004), appeal denied, 871 A.2d 192 (Pa.
2005).
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The parties were married on January 7, 2017. Appellee, Anthony P.
Trozzolillo, commenced this action with a divorce complaint filed on December
30, 2019. Appellant filed her own complaint in divorce on January 24, 2020,
followed by a spousal support complaint on March 6, 2020. Both parties are
practicing attorneys in Lackawanna County. On September 21, 2020, after all
judges of the Lackawanna County Court of Common Pleas recused
themselves, the Lackawanna County Court Administrator assigned Judge
Emanual A. Bertin (hereinafter the trial court) to preside over this case.
In this timely appeal, Appellant presents seven questions:
I. Whether the trial court had jurisdiction while this case was
on appeal to issue substantive orders?
II. Whether the trial court erred in sanctioning a pro se litigant
almost $27,000 for filing a divorce and attempting to gather
evidence on marital assets?
III. Whether the trial court erred when it refused to allow
Appellant to engage in discovery, including the use of
subpoenas to evaluate marital assets when both parties
sought discovery?
IV. Whether the trial court erred when it sealed the entire
judicial record, which included even the names of
documents filed?
V. Whether the trial court erred in its equitable distribution
since without investigation it found only two marital assets,
which were the parties’ retirement pensions and both
parties owned residences along with husband owning rental
properties?
VI. Whether the trial court should have allowed Appellant to
receive alimony?
VII. Whether the trial court must hold a hearing to determine if
a party is entitled to a fault divorce based on indignities?
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Appellant’s Brief at 14.
We have reviewed the extensive record, the applicable law, the parties’
briefs, and the trial court’s opinions of July 20, 2021 (the trial court issued
two opinions that day—one addressing its imposition of sanctions (hereinafter
the “Sanctions Opinion”) and the other addressing the substantive issues
(hereinafter the “Substantive Opinion”)). We conclude that the trial court’s
opinions thoroughly and accurately address Appellants’ arguments. Subject
to the following observations, we reject Appellant’s arguments based on the
accurate recitation of facts and sound reasoning set forth in the trial court’s
opinions.
With her first issue, Appellant claims that the trial court lacked
jurisdiction during much of the underlying proceedings because this matter
was pending on appeal before this court and/or awaiting our Supreme Court’s
disposition of a petition for allowance of appeal. This argument arises from
Appellant’s appeals from various interlocutory orders. On December 2, 2020,
the trial court entered an order expressly titled an “Interlocutory order and
scheduling order for pre-trial conference in-court on the record.” Order
12/2/20. Appellant nonetheless filed a notice of appeal from that order the
next day. This Court granted Appellee’s application to quash by order of
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January 7, 2021 (1537 MDA 2020). On February 12, 2021,2 the trial court
entered four interlocutory orders addressing scheduling and other ministerial
matters. Appellant appealed from these orders on February 17, 2021, and
this Court granted Appellee’s application to quash by order of March 22, 2021
(239 MDA 2021).
Rule 1701 of the Pennsylvania Rules of Appellate Procedure governs the
affect of an appeal:
(b) Authority of a trial court or other government unit after
appeal.--After an appeal is taken or review of a quasijudicial
order is sought, the trial court or other government unit may:
[…]
(6) Proceed further in any matter in which a non-appealable
interlocutory order has been entered, notwithstanding the
filing of a notice of appeal or a petition for review of the order.
Pa.R.A.P. 1701(b)(6) (emphasis added). Pursuant to Rule 1701(b)(6), the
trial court had jurisdiction to proceed notwithstanding Appellant’s appeal from
orders that were plainly not final or appealable. For this reason, and for the
reason explained on pages 23-28 of the trial court’s Substantive Opinion,
Appellant’s first argument lacks merit.
____________________________________________
2 The four orders in question were docketed on February 12, 2021. The trial
court dated them February 11, 2021, and the time stamps on the original
documents indicate that they were filed on February 11, 2021.
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Appellant’s second argument challenges the trial court’s order of
$26,950.00 in sanctions pursuant to 42 Pa.C.S.A. § 2503(7) and (9).3 We
review to determine whether the trial court abused its discretion. Miller v.
Nelson, 768 A.2d 858, 861-62 (Pa. Super. 2001), appeal denied, 782 A.2d
547 (Pa. 2001). Where the record supports the trial court’s finding that the
conduct of the sanctioned party was obdurate or vexatious, we will not disturb
the trial court’s award. In re Padezanin, 937 A.2d 475, 483-84 (Pa. Super.
2007).
The amount of the sanctions award is based on testimony from
Appellee’s counsel, deemed credible by the trial court, to the effect that
Appellant’s dilatory, obdurate, and vexatious conduct considerably increased
____________________________________________
3 That section provides:
§ 2503. Right of participants to receive counsel fees
The following participants shall be entitled to a reasonable counsel
fee as part of the taxable costs of the matter:
[…]
(7) Any participant who is awarded counsel fees as a sanction
against another participant for dilatory, obdurate or vexatious
conduct during the pendency of a matter.
[…]
(9) Any participant who is awarded counsel fees because the
conduct of another party in commencing the matter or otherwise
was arbitrary, vexatious or in bad faith.
42 Pa.C.S.A. § 2503(7), (9).
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Appellee’s counsel fees. In addition to the two frivolous appeals mentioned
above, Appellant filed dozens of subpoenas demanding that Appellee produce
items with no obvious relevance to this proceeding. Also, Appellant
consistently failed to produce tax records and other documentation pertinent
to an equitable distribution. We discern no abuse of discretion in the trial
court’s award, and we affirm the imposition of sanctions on the basis of the
Sanctions Opinion. In addition, the trial court references numerous instances
of Appellant’s misconduct on pages 22 through 33 of the Substantive Opinion.
Appellant’s third argument—regarding the trial court’s denial of various
discovery requests—lacks merit. Appellant correctly notes that Pa.R.C.P.
1930.5(b) provides for discovery without leave of court in alimony and
equitable distribution proceedings. But Appellant’s argument ignores her own
consistent failure to provide pertinent discovery, as referenced on pages 4-5,
8-10, 15-18, and 31-33 of the Substantive Opinion. Appellant further ignores
the detailed list of subpoenas that she served on Appellee—which the trial
court quashed at Appellee’s request—as set forth on pages 4-8 of the trial
court's Sanctions Opinion. The trial court described Appellant’s conduct as
“outrageous” and “disrespectful of, and to, the court system.” Sanctions
Opinion, 7/20/21, at 2. Likewise, the court wrote in a section of its
Substantive Opinion titled “Wife’s Abusive Discovery Requests” that “Wife’s
outrageous discovery requests were meant to harass Husband and to run up
his legal fees, with which she was successful.” Substantive Opinion, 7/20/21,
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at 30. Appellant’s third argument lacks merit for the reasons explained in the
portions of the Sanctions and Substantive Opinions referenced above.
Appellant’s fourth argument challenges the trial court’s decision to seal
the record in this matter. She cites no law to support her argument as to why
the trial court should not have sealed the record in this case, in violation of
Pa.R.A.P. 2119(b). She has therefore waived this argument. Estate of Haiko
v. McGinley, 799 A.2d 155, 161 (Pa. Super. 2002). At any rate, Rule 223 of
the Pennsylvania Rules of Civil Procedure permits a trial court to exclude the
public from civil proceedings in the interest of “public good, order or morals.”
Pa.R.C.P. 223(4). This Court has held that divorce proceedings can be closed,
pursuant to Rule 223(4) for good cause. Katz v. Katz, 514 A.2d 1374 (Pa.
Super. 1986), appeal denied, 527 A.2d 542 (Pa. 1987). The findings in the
Sanctions Opinion establish that Appellant repeatedly attached Appellee’s
private financial information to her filings without attaching a confidential
information form, per the Public Access Policy of the Unified Judicial System,
thus making that information a matter of public record. Sanctions Opinion,
7/20/21, at 4-5. We discern no error in the trial court’s decision to seal the
record.
Appellant’s fifth argument challenges the trial court’s valuation of the
marital estate for purposes of equitable distribution.
A trial court has broad discretion when fashioning an award
of equitable distribution. Our standard of review when assessing
the propriety of an order effectuating the equitable distribution of
marital property is whether the trial court abused its discretion by
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a misapplication of the law or failure to follow proper legal
procedure. We do not lightly find an abuse of discretion, which
requires a showing of clear and convincing evidence. This Court
will not find an “abuse of discretion” unless the law has been
overridden or misapplied or the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence in the certified record.
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.
Moreover, it is within the province of the trial court to weigh
the evidence and decide credibility and this Court will not reverse
those determinations so long as they are supported by the
evidence.
Carney v. Carney, 167 A.3d 127, 131 (Pa. Super. 2017). The trial court
analyzed the factors set forth in 23 Pa.C.S.A. § 3502(a) at pages three
through 13 of the Substantive Opinion, and explains its conclusion at pages
16 through 20. We reject Appellant’s argument for the reasons given in the
Substantive Opinion.
Next, Appellant argues the trial court erred in denying her an award of
alimony.
Our standard of review regarding questions pertaining to the
award of alimony is whether the trial court abused its discretion.
We previously have explained that [t]he purpose of alimony is not
to reward one party and to punish the other, but rather to ensure
that the reasonable needs of the person who is unable to support
himself or herself through appropriate employment, are met.
Alimony “is based upon reasonable needs in accordance with the
lifestyle and standard of living established by the parties during
the marriage, as well as the payor's ability to pay. Moreover,
[a]limony following a divorce is a secondary remedy and is
available only where economic justice and the reasonable needs
of the parties cannot be achieved by way of an equitable
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distribution award and development of an appropriate employable
skill.
Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004) (quotation
marks omitted).
The trial court described Appellant’s alimony claim as a “sham.”
Substantive Opinion, 7/20/21, at 20. She earns six figures, has no children,
and greater future earning capacity than Appellee. Id. Further, Appellant
failed to document her needs by providing a list of expenses. Id. at 15, 20.
The trial court thoroughly and accurately addresses the factors set forth under
23 Pa.C.S.A. § 3701 at pages 14-16 of the Substantive Opinion, and explains
its conclusion on pages 20-21. We reject Appellant’s argument for the reasons
explained in the trial court’s Substantive Opinion.
Finally, Appellant claims the trial court erred in not holding a hearing to
address her allegation that a fault-based divorce was warranted because of
indignities. The trial court did not address this argument. Indignities can be
grounds for a fault-based divorce under 23 Pa.C.S.A. § 3301(a)(6). We
observe, however, that Appellant fails to support her argument with citation
to pertinent authority, resulting in waiver. Pa.R.A.P. 2119(b); Estate of
Haiko. Furthermore, Appellant’s second amended complaint in divorce
included claims for a no-fault divorce under § 3301(c) and (d) (mutual consent
and irretrievable breakdown, respectively). Appellant’s Second Amended
Complaint in Divorce, 2/7/20, at Count I, ¶¶ 12-17. That being the case,
§ 3301(e) provides as follows:
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(e) No hearing required in certain cases.--If grounds for
divorce alleged in the complaint or counterclaim are established
under subsection (c) or (d), the court shall grant a divorce without
requiring a hearing on any other grounds.
23 Pa.C.S.A. § 3301(e). The trial court found an irretrievable breakdown and
therefore granted a divorce without requiring a hearing on indignities, exactly
in accord with § 3301(e).
For the foregoing reasons, and those expressed in the trial court’s
Substantive and Sanctions Opinions, we affirm the order. We direct that a
copy of the trial court’s July 20, 2021 opinions, titled “Memorandum Opinion
Re: Equitable Distribution and Alimony, Issued Simultaneously With Divorce
Decree”, and “Memorandum Opinion and Order Re: Husband’s Omnibus
Petition For Sanctions Pursuant to 42 Pa.C.S.A. § 2503(7) and (9)” be filed
along with this memorandum.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/07/2022
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Circulated 10/25/2022 03:06 PM
Circulated 10/25/2022 03:06 PM