Tomassetti, M. v. Suarez, R. ( 2023 )

J-S18031-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MARY TOMASSETTI, EXECUTRIX OF : IN THE SUPERIOR COURT OF
THE ESTATE OF PATRICIA ANN : PENNSYLVANIA
SUAREZ :
:
Appellant :
:
:
v. :
: No. 3158 EDA 2022
:
ROBERT J. SUAREZ, JR., CHRISTINE :
COLLINS SHUBERT, BANKRUPTCY :
TRUSTEE OF THE BANKRUPTCY :
ESTATE OF ROBERT J. SUAREZ :
Appeal from the Order Entered November 15, 2022
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): June Term, 2008 No. 8485
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 25, 2023
Mary Tomassetti, Executrix of the Estate of Patricia Ann Suarez, appeals
from the November 15, 2022 order directing the distribution of proceeds from
the court-ordered sale of the parties’ former marital residence. After careful
review we affirm.
A panel of this Court in a related appeal1 summarized the relevant facts
of this case as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 As discussed, infra, in footnotes 2 and 3, Appellant also filed appeals from
the trial court’s January 14 and March 31, 2022 orders in this matter.
J-S18031-23
This matter arises out of a bifurcated divorce and
equitable distribution matter. Decedent, Patricia
Suarez (“Wife”), and Robert J. Suarez, Jr.
(“Husband”), were divorced by decree entered on
October 21, 2013. Wife, who had been the plaintiff in
the divorce action, died later that same day, and
Executrix was substituted as plaintiff in the ongoing
equitable distribution matter. Husband filed for
bankruptcy and, accordingly, Christine C. Shubert,
Bankruptcy Trustee of Husband’s bankruptcy estate
(“Bankruptcy Trustee”), was added as an additional
defendant in the equitable distribution matter.
On July 15, 2019, the court entered a final order
resolving the parties’ claims in equitable distribution.
Executrix was awarded a 100% interest in the
Property, contingent upon payment to Appellees of
the sum of $90,000 within 120 days of entry of the
order. The order further provided that, should
Executrix fail to make the payment within the time
specified, the Property would be listed for immediate
sale and the proceeds divided evenly between
Executrix and Appellees. Husband and Executrix filed
cross-appeals from the equitable distribution order.
Husband’s appeal was dismissed for failure to file a
brief; Executrix’s cross-appeal was voluntarily
discontinued.
Executrix failed to make the payment to the Appellees
as required by the equitable distribution order. Over
the next two years, the parties filed numerous
petitions and motions before the trial court.
Tomassetti v. Suarez, ___ A.3d ___, 2023 WL 2660247 (unpublished
memorandum at *1 (footnote omitted)) (Pa.Super. 2023).
On January 14, 2022, the trial court entered an order disposing of
multiple pleadings filed by the parties. The January 14, 2002 order provides,
verbatim, as follows:
-2-
J-S18031-23
The property located at 3725 Ronnald Drive,
Philadelphia, PA shall be listed for sale forthwith.
[Bankruptcy Trustee] has the sole authority to
execute the sale of the property.
[Bankruptcy Trustee] shall choose the realtor and
notify [Executrix] with the full contact information of
the realtor.
[Executrix] shall provide the [Bankruptcy Trustee]
with keys to the property by 3:00 p.m. on 1/18/22.
[Executrix] shall add [Bankruptcy Trustee] and
[Husband] as additional insureds to the insurance
policy covering the property.
[Executrix] shall provide evidence that the insurance
policy is in full force to the [Bankruptcy Trustee] by
3:00 p.m. [on] 1/20/22. This property policy shall be
in full force until the sale of the property.
The lien in the amount of $13,297.42 held by Discover
Bank[ ] shall be paid by the [Bankruptcy Trustee].
The amount of $75,549.22[,] plus interest in the
amount of $11,332.38[,] shall be paid to the
[Bankruptcy Trustee] by 3:00 p.m. on 1/18/22.
Counsel fees as set forth in the order of 8/4/21 shall
be paid today. Interest in the amount of $324.75 shall
be paid today.
Additional counsel fees requested by [Bankruptcy
Trustee’s] counsel are denied.
This order addresses all issues pending before the
court raised in the following motions:
1. [Bankruptcy Trustee’s] second motion for
contempt and to enforce distribution of assets,
filed on 11/2/21[,] and answer and new matter
filed in response thereto[;]
-3-
J-S18031-23
2. [Executrix’s] petition to extend the date to obtain
compliance by the [Bankruptcy Trustee] of the
court[’s] decision[s] of 7/15/19 and 8/4/21 to
11/24/21, filed on 9/24/21[;]
3. [Bankruptcy Trustee’s] emergency motion for
insurance, filed 12/9/21[,] and answer and new
matter thereto[; and]
4. [Executrix’s] second petition [to] enforce court
decision [of] 7/15/19, filed 9/7/21.
Trial Court Order, 1/14/22, at 1-2.2
On January 21, 2022, Bankruptcy Trustee filed an emergency contempt
motion against Appellant, alleging that she failed to provide keys to the
Ronnald Drive property; that she failed to comply with the insurance
provision; that she failed to pay pursuant to the July 15, 2019 order; and that
she failed to pay counsel fees pursuant to the August 4, 2021 and January 14,
2022 orders. On January 26, 2022, the trial court issued a rule to show cause
to address Bankruptcy Trustee’s contempt motion and scheduled a hearing for
March 16, 2022. On March 15, 2022, Appellant filed an answer to the pending
emergency contempt motion.
On March 16, 2022, the trial court conducted an evidentiary hearing.
Immediately following the hearing, the trial court entered an order finding
____________________________________________
2 Appellant’s
appeal from the January 14, 2022 order was docketed at 431
EDA 2022, and the decision of the trial court was affirmed by a panel of this
Court on March 28, 2023. See Tomassetti v. Suarez, ___ A.3d ___, 2023
WL 2660247 (unpublished memorandum) (Pa.Super. 2023).
-4-
J-S18031-23
Appellant in contempt of the January 14, 2022 order. Specifically, the trial
court noted that Appellant failed to: 1) provide Bankruptcy Trustee with the
keys to the property; 2) make the required payment of $75,549.22 plus
interest; and 3) failed to pay counsel fees as directed. The trial court relisted
the matter for a hearing to determine Appellant’s ability to pay a monetary
sanction for contempt. Following a subsequent hearing on March 31, 2022,
the trial court ordered Appellant to pay counsel fees to Bankruptcy Trustee in
amount of $17,500.00. The trial court also found Appellant in civil contempt
and sentenced her to 60 days’ imprisonment with a purge factor of
$53,208.08. Appellant was subsequently taken into custody and promptly
paid the purge amount that same day.3
On August 24, 2022, the Bankruptcy Trustee filed a motion to distribute
funds, proposing that the $327,978.61 net proceeds from the August 18, 2022
sale of the Ronnald Drive property be divided equally between the parties as
ordered on July 15, 2019, with specific adjustments as set forth in the motion.
See “Motion to Distribute Funds, 8/24/22 at ¶¶ 18-21. Specifically, the
motion alleged additional sums were due to the Bankruptcy Trustee as a result
of the following: 1) Appellant owing the difference between $75,549.22 and
the $53,208.08 paid on March 31, 2022; 2) $32,500.00 in counsel fees
____________________________________________
3 Appellant’s appeal from the March 31, 2022 order was docketed at 1004 EDA
2022, and the decision of the trial court was recently affirmed by a panel of
this Court on February 22, 2023. See Tomassetti v. Suarez, 293 A.3d 631,
2023 WL 2151993 (unpublished memorandum) (Pa.Super. 2023).
-5-
J-S18031-23
pursuant to the trial court’s August 4, 2021 and March 31, 2022 orders; and
3) unpaid interest. Id. at ¶ 28.
The trial court conducted an evidentiary hearing on this matter on
September 21, 2022. That same day, Appellant filed an answer to the
Bankruptcy Trustee’s motion. Following the hearing, the trial court entered
an order on November 15, 2022 denying the Bankruptcy Trustee’s requests
for rent and additional counsel fees, and ordering “that the net proceeds of
sale of the [Ronnald Drive property] be divided $91,799.66 to [Appellant] and
the balance to [Bankruptcy Trustee].” Trial court order, 11/15/22.
On December 15, 2022, Appellant filed a timely notice of appeal. On
December 16, 2022, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal, in accordance with Pa.R.A.P.
1925(b). Appellant filed a timely concise statement on January 6, 2023 and
the trial court filed its Rule 1925(a) opinion on February 8, 2023.
Appellant raises the following issue for our review:
Did the [trial] court err by ordering a distribution of
the proceeds of sale different from the previous orders
of the [trial] court?
Appellant’s brief at iii (extraneous capitalization omitted).
Specifically, takes issue with the reduction to her share of the proceeds
from the sale of the Ronnald Drive property, based upon the judgment against
Patricia Suarez that was paid at settlement. Appellant contends that the
November 15, 2022 order improperly “gives [Bankruptcy Trustee]
-6-
J-S18031-23
reimbursement for certain expenses including a judgment against Patricia
Suarez in the amount of $7,212.00 from 2015.” Id. at 6. Appellant avers
that “[t]he amount of $91,799.66 should be increased by $3,606.00 (one-half
of the $7,212.00 judgment) which should have been divided in accordance
with previous orders of the Court.” Id. at 7.
It is well established that our standard of review is limited and this Court
will not reverse an award of equitable distribution absent an abuse of
discretion. Lee v. Lee, 978 A.2d 380, 382 (Pa.Super. 2009). “In addition,
when reviewing the record of the proceedings, we are guided by the fact that
trial courts have broad equitable powers to effectuate economic justice[.]” Id.(citation omitted). “An abuse of discretion is not found lightly, but only upon
a showing of clear and convincing evidence” that the trial court misapplied the
law or failed to follow proper legal procedure. Smith v. Smith, 904 A.2d 15,
18 (Pa.Super. 2006) (citation omitted). “[T]he finder of fact is free to believe
all, part, or none of the evidence and the Superior Court will not disturb the
credibility determinations of the court below.” Lee, 978 A.2d at 382 (citation
omitted). Lastly, we note that “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.” Biese v. Biese, 979
A.2d 892, 895 (Pa.Super. 2009) (citations omitted).
Upon review, we discern no abuse of discretion on the part of the trial
court in reducing the share of Appellant’s proceeds from the sale of the
-7-
J-S18031-23
Ronnald Drive property by the amount of the judgment against Decedent-
Wife, Patricia Suarez, that was paid at settlement. As recognized by the trial
court,
While pleading denials in her answer to the motion to
distribute to the requests by the [Bankruptcy] Trustee
for additional costs, unpaid interest, and attorney’s
fees, Appellant presented no credible evidence to the
calculations presented by the [Bankruptcy] Trustee.
Appellant now contends that the amounts due alleged
by the Trustee are more than Appellant owes.
Appellant failed, however, to present any evidence to
this court that challenged the amount due as
calculated by the [Bankruptcy] Trustee.
Trial court opinion, 2/8/23 at 13.
Notably, the record reflects that Appellant waived any claims concerning
the judgment against Patricia Suarez by failing timely raise this issue at the
September 21, 2022 evidentiary hearing nor in her October 11, 2022
“Memorandum in Support of Plaintiff’s Answer to Motion to Distribute Funds.”
At the September 21, 2022 hearing, the following averments were made
with regards to the judgment against Patricia Suarez:
[Counsel for Bankruptcy Trustee]: And then there
was a judgement against Patricia Suarez that was paid
at settlement. And Your Honor will recall that at prior
arguments in this case there’s a judgement against
Mr. Suarez and Your Honor made it very clear that
that judgement should have been paid by Mr. Suarez.
There’s no reason that this judgement shouldn’t be
paid by Mrs. Suarez’s side.
Notes of testimony, 9/21/22 at 12-13. Appellant did not lodge any objection
to nor challenge these statements.
-8-
J-S18031-23
Moreover, in the October 11, 2022 memorandum, Appellant expressly
acknowledged that her proposed order indicated that “the decedent’s estate
will bear the payoff amounts for any judgments against Patricia Ann Suarez
or her estate.” Memorandum in Support of Plaintiff’s Answer to Motion to
Distribute Funds, 10/11/22 at 3.
Rule of Appellate Procedure 302 states, in relevant part, that “[i]ssues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302(a). Moreover,
a Rule 1925(b) statement cannot resurrect an
otherwise untimely claim or objection. Because issues
not raised in the lower court are waived and cannot
be raised for the first time on appeal, a 1925(b)
statement can therefore never be used to raise a claim
in the first instance. Pennsylvania law is clear that
claims and objections that are not timely made are
waived.
Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009) (citations omitted).
Based on the foregoing, we find that Appellant has waived her claim on
appeal and affirm the November 15, 2022 order directing the distribution of
proceeds from the sale of the parties’ Ronnald Drive property.
Order affirmed.
-9-
J-S18031-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2023
- 10 -