Prestosh, N. v. Prestosh, J.

J-A05018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICHOLAS J. PRESTOSH, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOY A. PRESTOSH,
Appellee No. 2144 EDA 2014
Appeal from the Order entered June 3, 2014,
in the Court of Common Pleas of Northampton County,
Civil Division, at No(s): 1991-C-04120.
BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 27, 2015
Nicholas J. Prestosh (“Husband”) appeals from the trial court’s order
denying his petition to enforce a marital settlement agreement he entered
into with Joy A. Prestosh (“Wife”). We affirm.
The pertinent facts and procedural history are as follows: The parties
were divorced by a decree entered on May 10, 1994. A handwritten
“Memorandum of Understanding” was incorporated as an order of court that
same day. Among the issues addressed in this marriage settlement
agreement was the following provision:
Husband shall provide, as alimony, medical coverage
for Wife, including prescription coverage, indefinitely to the
extent that Wife is unable to obtain such insurance. Wife
shall use reasonable efforts to obtain such insurance
herself, either as a benefit or at lesser cost than that
available to Husband. If Husband is not directly
purchasing such insurance himself, payment shall be paid
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through the Domestic Relations Section. This obligation
shall cease upon Wife’s remarriage.
Memorandum of Understanding, 5/10/94, at 2.
On April 3, 2014, Husband filed a petition to enforce based upon the
above provision, in which he sought to compel Wife to obtain her own health
insurance through the federal government’s Patient Protection and
Affordable Care Act (“Obamacare”). Within his petition, Husband “believed
and averred” that under Obamacare, Wife “is able to obtain such medical
coverage at a lesser cost than that of [Husband’s] medical coverage.”
Petition, 4/3/14, at 2. According to Husband, “[Wife] continues to refuse to
look into any medical coverage options for herself under [Obamacare].”
Thus, Husband requested the trial court to enter an order “directing [Wife]
to fully comply with the terms of the Order of Court filed on or about May
10, 1994.” Id. at 3.
Wife filed an answer to Husband’s petition, as well as a counter
petition to enforce the provisions of the marriage settlement agreement. In
her answer, Wife averred that she is ineligible for coverage under
Obamacare. According to Wife, “[a]s she is currently covered by Medicare
Parts A and B, [Wife] denied that additional Medicare and Medicaid options
existed through which she could obtain less costly medical insurance.”
Answer, 4/16/14, at 1. In her counter petition, Wife averred that for the last
several years Husband has violated the marriage settlement agreement by
failing to pay for her prescription drugs.
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The trial court summarized the subsequent proceedings as follows:
The matter was submitted to the undersigned in
Miscellaneous Hearing Court on April 25, 2014. No
testimonial record was offered. [Husband’s] counsel
provided superficial argument regarding “Obamacare” and
[Wife’s] obligation to pursue coverage.
We granted [Husband’s] counsel the opportunity to
submit a Brief within ten days. [Husband’s] counsel failed
to do so. On May 23, 2014, we received a telephone
request from [Husband’s] counsel for an additional
extension to file a Brief. We permitted counsel an
extension until May 30, 2014, to file his Brief. Again,
counsel failed to file a Brief.
On June 3, 2014, we entered an Order, after reviewing
the record dismissing [Husband’s] Petition. Apparently, on
July 3, 2014, [Husband] filed his Notice of Appeal to
Superior Court attacking our June 3, 2014, Order. [In its
June 3, 2014 order, the trial court also granted Wife’s
counter petition, and awarded her the sum of $562.00.
That part of the order is not at issue in Husband’s appeal.]
Although a Certificate of Mailing appears in the record, we
received no notice of the July 3, 2014, Notice of Appeal.
Our first notice of the Appeal was when we received a
transmittal form to the Superior Court from our
Prothonotary’s Office on August 5, 2014. Upon receipt of
the notice, we entered a 1925(b) Statement requiring
[Husband] to submit a Concise Statement of Matters
Complained of on Appeal within twenty-one (21) days. We
note that our Order directed service of the Concise
Statement of Matters [Complained] of on Appeal must be
made to the trial judge as required under [Rule]
1925(b)(2).
We were not served with a [Rule] 1925(b) Statement
by Counsel as required by our Order and Rule 1925(b).
Frankly, we were annoyed at the fact that it appeared that
counsel was again not complying with Court Rules and/or
his filing obligations.
Prior to submitting this [Rule] 1925(a) Statement, we
pulled the file from the Prothonotary’s Office and learned
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that on August 22, 2014, counsel filed a “Statement of
Errors Complained of on Appeal Pursuant to 1925(b)”.
However, counsel failed to serve us with a copy of the
filing as required under our Order and Rule 1925(b).
Further, we reviewed [Husband’s] Statement of Matters
Complained of on Appeal. In his Statement, counsel
admitted that he did not comply with our Written Order to
file a Brief on or before May 30, 2014. In fact, [Husband]
apparently filed his Brief on June 2, 2014, with the
Prothonotary, but as consistent with his track record, failed
to serve our office with a copy.
Trial Court Opinion, 9/8/14, at 1-2.
On appeal, Husband raises two issues with this Court:
I. WHETHER [HUSBAND] WAS UNFAIRLY PREJUDICED BY
THE TRIAL COURT’S DISMISSAL OF HIS PETITION TO
ENFORCE A MEMORANDUM OF UNDERSTANDING
BECAUSE OF THE UNTIMELY FILING OF A BRIEF BY
[HUSBAND’S] COUNSEL[?]
II. WHETHER THE TRIAL COURT ERRED IN DISMISSING
[HUSBAND’S] PETITION TO ENFORCE AN ORDER OF
COURT FOR PROCEDURAL DEFECTS WHEN THE PLAIN
LANGUAGE OF THE ORDER THAT [HUSBAND] SOUGHT
TO ENFORCE WAS UNAMBIGUOUS AS TO ITS
INTENT[?]
Husband’s Brief at 4.
Before addressing the issues raised by Appellant, we must first
determine whether they are properly before us. As noted above, although
Appellant timely filed his Pa.R.A.P. 1925(b) statement with the prothonotary,
he never served the trial court with a copy. His failure to do so results in
waiver of his claims on appeal. See Pa.R.A.P. 1925(b)(1) (providing that an
appellant “shall file of record the Statement and concurrently shall serve the
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judge”); Shaefer v. Aames Capital Corp., 805 A.2d 834, 835 (Pa. Super.
2002) (holding that the appellant’s “failure to serve on the trial court a Rule
1925(b) statement after being directed to do so” results in waiver of all
issues). See also Greater Erie Industrial Development Corporation v.
Presque Isle Downs, Inc., 88 A.2d 222, 225 (Pa. Super. 2014) (en banc)
(holding that this Court cannot consider issues raised by an appellant in an
untimely Rule 1925 statement, even if the trial court addressed the merits of
them).
Absent waiver, Appellant’s issues raised on appeal are without merit.
We address them together.
Our standard of review is well settled:
A settlement agreement between spouses is governed
by the law of contracts unless the agreement provides
otherwise.
***
When interpreting a marital settlement agreement, the
trial court is the sole determiner of facts and[,] absent an
abuse of discretion, we will not usurp the trial court’s fact-
finding function. On appeal from an order interpreting a
marital settlement agreement, we must decide whether
the trial court committed an error of law or abused its
discretion.
Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007) (citation
omitted).
Our review of the record refutes Husband’s claim that his petition was
dismissed for the late filing of his brief or other “procedural defects.”
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Rather, although the trial court expressed its displeasure with Husband’s
failure to adhere to procedural rules, the trial court considered Husband’s
untimely brief and dismissed his petition on its merits. The trial court
explained:
We reviewed [Husband’s] untimely Brief and note that
there is no record or legal authority that supports
[Husband’s] position. His argument is limited to an
[assertion] that [he] should be freed of his contractual
obligation which was confirmed by a May 10, 1994 Court
Order: “to provide medical coverage for Wife, including
prescription coverage, indefinitely to the extent that Wife
is not able to obtain such insurance for herself, either as a
benefit or at a lesser cost than that available to Husband.”
We note that Wife has been disabled collecting Social
Security Disability (since 1986) and Medicare Part A. Wife
is also a heart transplant recipient.
The bald support for [Husband’s] claim is the passage
of the Affordable Care Act. No record was made as to
expected costs to Wife to obtain equivalent coverage at a
lesser cost than Husband has historically provided. In fact,
no record was made that equivalent coverage can be made
available to Wife under the Affordable Care Act.
Just what record does [Husband] suggest that we
should rely upon in freeing Husband from [his] obligation,
by finding that equivalent care is available to [Wife] at a
lesser cost?
[Husband] did not meet his burden of proof. In fact,
[Husband] submitted no proof. Without an appropriate
record made upon which the Court can rely, we cannot
accept the bald assertions by [Husband’s] counsel.
[Husband] is not entitled to relief.
Trial Court Opinion, 9/8/14, at 3.
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Our review of the record supports the trial court’s conclusions. Along
with her brief in opposition to Husband’s petition, Wife filed an affidavit in
which she explained that “to the best of her knowledge” she was unable “to
obtain comparable Medigap coverage at a cost less than is currently being
paid.” Affidavit, 6/4/14, at 2. On appeal, Husband has referenced no
evidence to contradict Wife’s averment. We therefore affirm the trial court’s
order denying Husband’s petition to enforce a marital settlement agreement.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2015
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