Kozel, S. v. Kozel, R.

J.A19036/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SANDRA L. KOZEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT F. KOZEL, :
:
Appellant : No. 1606 WDA 2013
Appeal from the Order Entered September 27, 2013
In the Court of Common Pleas of Allegheny County
Family Court No(s).: FD 11-007838-016
SANDRA L. KOZEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT F. KOZEL, :
:
Appellant : No. 1607 WDA 2013
Appeal from the Order Entered September 26, 2013
In the Court of Common Pleas of Allegheny County
Civil Division No(s).: FD 11-007838-016
SANDRA L. KOZEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT F. KOZEL, :
:
Appellant : No. 1608 WDA 2013
J. A19036/14
Appeal from the Order Entered September 26, 2013
In the Court of Common Pleas of Allegheny County
Family Court No(s).: FD 11-007838-016
SANDRA L. KOZEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT F. KOZEL, :
:
Appellant : No. 1609 WDA 2013
Appeal from the Order Entered September 16, 2013
In the Court of Common Pleas of Allegheny County
Family Court No(s).: FD 11-007838-016
SANDRA L. KOZEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT F. KOZEL, :
:
Appellant : No. 1610 WDA 2013
Appeal from the Order September 16, 2013
In the Court of Common Pleas of Allegheny County
Family Court No(s).: FD 11-007838-016
SANDRA L. KOZEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT F. KOZEL, :
:
Appellant : No. 1611 WDA 2013
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J. A19036/14
Appeal from the Order Dated September 13, 2013
In the Court of Common Pleas of Allegheny County
Family Court No(s).: FD 11-007838-016
SANDRA L. KOZEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT F. KOZEL, :
:
Appellant : No. 1612 WDA 2013
Appeal from the Order Entered September 13, 2013
In the Court of Common Pleas of Allegheny County
Civil Division No(s).: FD 11-007838-016
SANDRA L. KOZEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT F. KOZEL, :
:
Appellant : No. 1613 WDA 2013
Appeal from the Order Entered September 10, 2013
In the Court of Common Pleas of Allegheny County
Family Court No(s).: FD 11-007838-016
SANDRA L. KOZEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT F. KOZEL, :
:
Appellant : No. 1614 WDA 2013
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J. A19036/14
Appeal from the Order September 6, 2013
In the Court of Common Pleas of Allegheny County
Family Court No(s).: FD 11-007838-016
BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 25, 2015
Appellant, Robert F. Kozel (“Husband”), appeals from nine orders
dated September 6, 10, 13, 16, 26, and 27, 2013.1 Husband contends the
trial court erred in ordering him to relinquish possession of marital property
to Appellee, Sandra L. Kozel (“Wife”). We quash the appeal.2
*
Former Justice specially assigned to the Superior Court.
1
The appeals were consolidated by order of this Court. Order October 24,
2013.
2
On October 23, 2013, this Court entered a per curiam rule to show cause
order which stated:
These appeals, having been filed from orders dealing
with property distribution prior to the entry of a final
decree of divorce and equitable distribution, are
interlocutory pursuant to Campbell v. Campbell, 516
A.2d 363 (Pa. Super. 1986). See also Fried v. Fried, [ ]
501 A.2d 211 ([Pa.] 1985) (noting disapproval of collateral
order doctrine in divorce cases). Further, Pa.R.A.P.
311(a)(2) and (4), cited to on the docketing statement
submitted to this Court, explicitly state that divorce
matters are exempt from those sections of the Rule.
Therefore, [Husband] shall show cause, in the form of a
letter addressed to the Prothonotary of this court with a
copy to opposing counsel and the trial judge, why these
appeals should not be quashed. . . .
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The trial court summarized the procedural posture of this case as
follows:
Husband and [Wife] were married on August 23, 1997.
Three (3) children were born of the marriage . . . . Wife
filed a Complaint in Divorce on September 1, 2011,
wherein she raised claims for, inter alia, equitable
distribution of marital property, child support, alimony
pendente lite/spousal support, and counsel fees. On
September 27, 2011 Wife praeciped for a
conference/hearing to establish alimony pendente lite,
spousal support, child support, and counsel fees and costs.
On December 13, 2011 an Interim Order of Court was
entered, which provided that Husband was to pay wife
$116,224 per month for support of Wife and the Children.
On January 18, 2012 Husband presented to the [c]ourt
a Motion to Compel Wife to file her Affidavit of Consent to
the entry of a divorce decree. On February 3, 2012 the
[c]ourt entered an Order that required Wife to file her
Affidavit of Consent within five (5) days of the date of the
Order. If Wife did not timely file this Affidavit, the Divorce
Action would be dismissed and the December [13], 2011
Order would be vacated immediately upon Husband’s filing
of a Praecipe to Dismiss the Divorce Action with the
Department of Court Records. Wife failed to file her
Affidavit of Consent, and on February 13, 2012 Husband
filed a Praecipe to Dismiss the Divorce Action with the
Department of Court Records. As noted in the February 3,
2012 Order, this action resulted in the immediate dismissal
of the Complaint in Divorce. Wife file a Complaint for
Spousal Support on February 15, 2012. An Interim Order
of Court was entered on March 23, 2012, which provided
that Husband was to pay Wife $40,005 per month in
unallocated support beginning April 1, 2012.
On September 6, 2013 Wife presented to the [c]ourt an
Oral Emergency Motion for Injunctive Relief. Husband
Order, 10/23/13. This Court received a response from Husband and
deferred the issue to the merits panel.
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presented an Oral Response to this Motion that same day.
Wife stated that Husband entered the marital residence
without permission, which he had vacated approximately
two (2) years prior. Wife alleged that Husband took
belongings from the home including privileged attorney-
client information. Wife also alleged that Husband burned
unidentified papers in the fireplace. Husband did not deny
that he took items from the home, but he denied removing
any of Wife’s privileged attorney-client documents.
Husband argued that the [c]ourt did not have jurisdiction
to rule on this matter because the Complaint in Divorce
was dismissed in 2012, and the issue before the [c]ourt
concerned equitable distribution and exclusive possession
of the marital residence. Wife argued that the [c]ourt did
have jurisdiction to rule on this matter because of the
ongoing child custody and support litigation, and Husband
could be enjoined from disposing of assets and materials
that could be used for the Children.
After hearing the arguments from both Husband and
Wife, the [c]ourt entered it’s September 6, 2013 Order.
The Order provided that, inter alia, Husband was to
restore and return all tangible personal property that
he and/or his agents removed, relocated, destroyed,
dissipated, and/or tampered with to the marital residence
by September 7, 2013. Husband was also directed to
return any and all documents representing attorney-client
communications and/or other privileged materials retained
by Wife in the marital residence.
The Order further provided that Husband shall be
deemed in contempt upon discovery that Husband did not
restore the marital residence to the status quo that existed
before his and his agents’ unauthorized entry on
September 6, 2013. The Order directed that a hearing
would be held before Husband could be found in
contempt. Wife was awarded interim exclusive
possession of the martial residence, and a hearing
on exclusive possession was scheduled before the
[c]ourt on December 13, 2013. The Order further
authorized the Hampton Police Department, the
Pennsylvania State Police and any other applicable law
enforcement agency to enforce the provisions of the Order.
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On September 10, 2013 the [c]ourt entered an
Order of Court to amend the September 6, 2013
Order sua sponte. The September 10, 2013 Order
required Wife to file a Complaint in Divorce raising an
equitable distribution count or an exclusive possession
count no later than September 16, 2013. If Wife failed to
file the Complaint in Divorce, the Order cancelled the
exclusive possession hearing. The Order also
rescheduled the December 13, 2013 exclusive
possession hearing for November 12, 2013.
On September 13, 2013, Husband presented in Motions
Court an Emergency Motion to Vacate the [c]ourt’s
September 6, 2013 Order of Court and the September 10,
2013 Amended Order of Court. At the same time Wife
presented her Reply to Husband’s Emergency Motion and
her Motion for Sanctions, as Husband had not complied
with the September 6, 2013 Order to restore the marital
residence to the status quo that existed before the
unauthorized entry.
The [c]ourt denied Husband’s Emergency Motion to
Vacate via its first September 13, 2013 Order of Court.
The [c]ourt also denied Husband’s request that the
September 6, 2013 Order of Court and the September 10,
2013 Amended Order of Court be stayed pending
Husband’s appeal of these Orders to the Superior Court via
its second September 13, 2013 Order of Court. On
September 16, 2013 the [c]ourt entered the Order
attached to Wife’s Motion for Sanctions. Under the
provisions of this Order Husband was to, inter alia,
return any and all documents removed, inspected,
reviewed, and/or tampered with to the marital
residence by September 21, 2013. A compliance
review hearing to determine Husband’s compliance
with the relevant Orders of Court was scheduled for
November 18, 2013. The Court also issued a Pretrial
Statement Order on September 16, 2013 for the one
(1) day compliance review hearing scheduled for
November 18, 2013.
On September 17, 2013 Wife filed her Complaint
in Divorce. The same day the [c]ourt entered an Order
that cancelled the exclusive possession hearing scheduled
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for November 12, 2013 because the [c]ourt concluded that
Wife had failed to timely file her Complaint in Divorce
raising either an equitable distribution count or an
exclusive possession count in accordance with the
September 10, 2013 Amended Order of Court. The
September 17, 2013 Order also vacated Wife’s
interim exclusive possession of the marital residence
pending the filing of a divorce action and a formal
request for exclusive possession by way of motion.
On September 26, 2013 Husband presented a
Petition for Stay in Motions Court. Husband sought for
the [c]ourt to stay the September 6, 2013 Order of Court,
the September 10, 2013 Order of Court, the two
September 13, 2013 Orders of Court, and the two
September 16, 2013 Orders of Court pending Husband’s
appeal to the Superior Court. The [c]ourt denied
Husband’s Petition on September 26, 2013.
Wife presented a Motion to Vacate the September 17,
2013 Order of Court in Motions Court on September 26,
2013. Wife averred that she filed her Complaint in Divorce
at approximately 4:53 P.M. on September 16, 2013, in
compliance with the September 10, 2013 Amended Order
of Court. Wife stated that she learned that her Complaint
could not be accepted on September 16, 2013 because it
contained a count for primary physical and shared legal
custody of the Children. This count required a waiver from
the Generations Department of the Family Division noting
that the parties had already completed their Generations
Education and Mediation sessions before the Complaint
could be accepted. Wife re-filed the Complaint [in Divorce]
on September 17, 2013 when she learned of the waiver
requirement.
The [c]ourt granted Wife’s Motion in part via
another September 26, 2013 Order of Court. It did
not vacate the September 17, 2013 Order of Court,
but it did re-award Wife interim exclusive possession
of the marital residence pending the outcome of the
one (1) day exclusive possession hearing on
November 12, 2013.
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On September 27, 2013 the [c]ourt entered an
Order that continued generally the compliance
review hearing scheduled for November 18, 2013 to
allow counsel to conduct formal discovery. The
Order also provided that either party could praecipe
to reschedule the compliance review hearing on an
expedited basis upon completion of discovery.
On October 4, 2013 Husband filed nine (9) separate
Appeals of the following Orders: the September 6, 2013
Order of Court; the September 10, 2013 Order of Court;
the two September 13, 2013 Orders of Court; the two
September 16, 2013 Orders of Court; the two September
26, 2013 Orders of Court; and the September 27, 2013
Order of Court.
Trial Ct. Op., 12/2/13, at 1-6 (footnotes omitted and emphases added).
Husband timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The trial court filed a
responsive opinion.
On November 6, 2013, the trial court entered the following consent
order:3
3
The trial court entered the consent order, notwithstanding the filing of the
instant appeal. Pa.R.A.P. 1701 provides, in pertinent part:
(b) Authority of a trial court or agency 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.
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1. [Wife] is hereby awarded exclusive possession of
the former marital residence . . . .
2. [Husband] is hereby excluded from the premises of the
former marital residence and adjoined from entering
and/or occupying the same;
3. This Order of Court shall become effective immediately;
and
4. The one (1) day hearing scheduled to address [Wife’s]
request for exclusive possession of the former marital
residence, currently scheduled for Tuesday, November 12,
2013 . . . is hereby cancelled.
Consent Order, 11/6/13, at 1-2 (emphasis added).4
Appellant raises the following issues for our review:
1. Did the Trial Court err as a matter of law, and abuse its
discretion, in ordering the relinquishment of possession of
property by [Husband] without subject matter jurisdiction?
2. Did the Trial Court err as a matter of law, and abuse its
discretion, in ordering the relinquishment of possession of
property by [Husband] without proper notice, without a
Pa.R.A.P. 1701(b)(6).
4
On November 27, 2013, a second consent ordered was entered, stating:
[Wife is] awarded an advance of equitable distribution in
the amount of Three Million Dollars ($3,000,000.00) which
amount is to be reduced by income tax attributable to
[Wife], which would have been incurred if the parties
Merrill Lynch Wealth Management Joint Investment
Account would have had to sell $3,000,000.00 in assets in
order to generate the aforementioned $3,000,000 cash
advance. The amount of the tax that has been agreed
upon by the parties is $60,000. . . .
Order, 11/27/13.
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written Motion, and without a hearing as required by due
process?
3. Did the Trial Court err as a matter of law, and abuse its
discretion, in ordering law enforcement officials to enforce
the relinquishment of possession of property by [Husband]
without proper notice, without a written Motion and
without a hearing as required by due process?
4. Did the Trial Court err, as a matter of law, and abuse its
discretion, in ordering law enforcement officials to enforce
the relinquishment of possession of property by [Husband]
without subject matter jurisdiction?
Husband’s Brief at 18.
As a prefatory matter, we consider whether the issues concerning the
distribution of marital property, viz., the marital residence, are moot based
upon the November 6, 2013 consent order. This Court has stated:
Generally, an actual claim or controversy must be
present at all stages of the judicial process for the case to
be actionable or reviewable. . . . If events occur to
eliminate the claim or controversy at any stage in
the process, the case becomes moot. An issue can
become moot during the pendency of an appeal due to an
intervening change in the facts of the case or due to an
intervening change in the applicable law. An issue before
a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.
Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574, 577 (Pa. Super. 2005)
(quotation marks and citations omitted).
In Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474
(Pa. Super. 2014), appeal denied, 104 A.3d 526 (Pa. 2014), the appellants
[d]iscontin[ed] their action immediately prior to filing their
appeal in [the Supreme] Court, depriv[ing] this Court of
jurisdiction to hear the issues complained of in their
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appeal. Because no action [wa]s pending from which an
appeal of an order c[ould] be heard, this Court [wa]s
without jurisdiction to hear [the a]ppellants claims. [The
a]ppellants rendered their action moot. Th[e] appeal,
therefore, must be quashed.
Id. at 476.
Instantly, Husband’s challenges to the court’s orders granting Wife
interim exclusive possession of the marital residence are moot based upon
the consent order granting Wife exclusive possession. See Deutsche Bank
Nat. Co., 868 A.2d at 577. Because the consent order rendered the issue
moot, Husband’s appeal as to that issue must be quashed. See Motley
Crew, LLC, 93 A.3d at 476.
We also consider whether the orders were interlocutory and
unappealable. A final order is defined in part as “any order that . . .
disposes of all claims and of all parties.” Pa.R.A.P. 341(b)(1) (emphasis
added). The September 6, 2013 order directed Husband to return property
to the marital home and awarded interim possession of the home to Wife. A
hearing was set for December 13th. The September 10th order amended
the September 6th order, directing Wife to file a complaint in divorce and
scheduling a hearing on the issue of the exclusive possession of the marital
residence. The two September 13th orders (1) denied a request to vacate
the orders entered on September 6th and 10th and (2) denied a stay of the
orders. The September 16th order set a date for a compliance review
hearing and specified the information to be included in pre-trial statements.
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The court entered another order on September 16th directing Husband to
return documents and set a date for a compliance review hearing. The court
entered an order on September 26th awarding Wife possession of the
marital residence and scheduling a hearing on the issue of exclusive
possession. The court entered another order on September 26th denying
Husband’s petition for a stay pending his appeal to this Court. The
September 27th order generally continued the compliance review hearing
scheduled for November 18, 2013 so counsel could conduct formal
discovery.
We find that the orders were not final orders because they did not
dispose of all claims and anticipated further proceedings. See Pa.R.A.P.
341(b)(1). Therefore, we are constrained to quash the appeal.
Appeal quashed.
President Judge Emeritus Bender joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2015
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