Della Guardia, J. v. Della Guardia, J.

J-A33023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENNIFER DELLA GUARDIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES DELLA GUARDIA
Appellant No. 136 EDA 2015
Appeal from the Order Dated November 20, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No: No. 2010-04664
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 30, 2016
Appellant James Della Guardia (“Husband”) appeals from the
November 20, 2014 order of the Court of Common Pleas of Montgomery
County (“trial court”), which denied his petition for contempt and
enforcement of a property settlement agreement executed between him and
Appellee Jennifer Della Guardia (“Wife”) and granted Wife’s counterclaim,
directing Husband to pay Wife $6,415.00 in attorney’s fees. Upon review,
we affirm.
The facts and procedural history underlying this appeal are
undisputed. In 2010, Wife filed a complaint in divorce against Husband. On
February 21, 2012, the parties entered into a “Stipulation for Agreed Order
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A33023-15
in Support” (“Stipulation Order”). Paragraph 5 of the Stipulation Order
provides in relevant part:
“The Parties have entered into a comprehensive Property
Settlement Agreement which includes a provision of
alimony/alimony pendent [sic] lite for Wife as follows:
Husband is currently obligated to pay Wife alimony
pendente lite at the rate of $4,452,00 per month.
Husband shall continue to be so obligated through
February 29, 2012. Commencing March 1, 2012 and for a
period of 18 months thereafter, Husband shall pay to Wife
as alimony/alimony pendente lite, the sum of $2,550.00
per month. This payment shall be non-modifiable in
amount and duration. However, this obligation shall
terminate upon earliest of the following: 1) Wife’s
cohabitation, 2) Wife’s remarriage, 3) Wife’s death, 4)
Husband’s death, or 5) August 31, 2013, provided all
payments contemplated herein have been paid.
Stipulation Order, 2/21/12 at ¶ 5A. On February 22, 2012, Husband and
Wife entered into a property settlement agreement (“PSA”), which
incorporated and restated Paragraph 5 of the Stipulation Order. See PSA,
2/22/12 at ¶ 19. Moreover, Paragraph 24 of the PSA, pertaining to
enforcement, provides:
Each party further hereby agrees to pay and to save and hold
harmless the other party from any and all reasonable attorney’s
fees, and costs of litigation that either may sustain, or incur, or
become liable for, in any way whatsoever, or shall pay upon, or
in consequence of any default or breach by the other of any of
the terms or provisions of this Agreement by reason of which
either party shall be obliged to retain or engage counsel to
initiate or maintain or defend proceedings against the other at
law or equity or both or in any way whatsoever; provided that
the party who seeks to recover such reasonable attorney’s fees,
and costs of litigation must first be successful in whole or in
part; before there would be any liability for said reasonable
attorney’s fees, and costs of litigation. It is the specific
agreement and intent of the parties that a breaching or
wrongdoing party shall bear the burden and obligation of any
and all costs and expenses and counsel fees incurred by himself
or herself as well as the other party. In endeavoring to protect
and enforce his or her rights under this Agreement. The Court
shall determine the reasonableness of the attorney fee award.
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Id. at ¶ 24. On February 28, 2013, Husband filed a “Petition for contempt
and to Enforce Stipulation for Agreed Order in Support.” Husband alleged
that Wife was cohabiting with her paramour, Dan Falcone (“Mr. Falcone”),
“since on or about October 25, 2010” in violation of the alimony provisions
of the Stipulation Order and the PSA. Husband’s Contempt and Enforcement
Petition, 2/28/13, at ¶ 6. Based on this allegation, Husband argued that
Wife was not entitled to any alimony payments made under the Stipulation
Order. Wife answered the contempt petition, denying that she was
cohabiting with anyone. Wife’s Amended Answer, 1/22/14, at ¶ 6. Wife also
raised a counterclaim for attorney’s fees under Paragraph 24 of the PSA.
Specifically, Wife requested counsel fees in the event she prevailed on
Husband’s contempt and enforcement petition. Id. at ¶ 22.
The trial court held hearings on Husband’s petition for contempt and
enforcement, at which Husband, Wife, the parties’ minor daughter, and Mr.
Falcone testified. The trial court summarized the testimony as follows:
At the . . . hearing, [Wife] testified . . . that she lived at her
residence with only her two daughters until September, 2013,
when her boyfriend, Dan Falcone, moved in. Prior to September,
2013, Mr. Falcone “occasionally” stayed at her residence
overnight. [Wife] testified that prior to September, 2013, Mr.
Falcone would stay overnight anywhere from “zero to five”
nights in a two week period. Wife testified that that Mr. Falcone
would keep his personal items such as clothes in an overnight
bag only, and did not keep other personal belongings in her
residence. [She] stated that Mr. Falcone never stayed overnight
at her residence prior to September, 2013 when her two
daughters were there.
The parties’ daughter, [J.D.G.], testified . . . that on one
occasion she took a picture of Mr. Falcone’s laundry at her
mother’s residence and that Mr. Falcone would “. . . bring
clothes and have them washed there.” [She further] testified
that between March, 2012 and September, 2013, Mr. Falcone
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never stayed overnight at her mother’s residence when she and
her sister were living there. When asked by [Husband’s] counsel
if she had any direct information or knowledge that Mr. Falcone
moved into [Wife’s] residence before November, 2013, [J.D.G.]
testified that she did not.
. . . [Husband] testified as to what he believed the nature
of [Wife’s] relationship was with Mr. Falcone prior to their
moving in together in September, 2013. However, [Husband]
testified to matters as far back as January, 2010, which is
almost two years prior to the parties[’] signing the [PSA].
Therefore, the majority of [Husband’s] testimony was irrelevant
for purposes of the issue before the court which was whether or
not [Wife] had cohabit[ed with Mr. Falcone between February,
2012 and September, 2013. [Husband] testified that he had
seen Mr. Falcone’s car parked outside [Wife’s] residence several
times prior to September, 2013. [Husband] testified that in his
“opinion,” and that it was his “belief,” that [Wife] and Mr.
Falcone were living together prior to signing the PSA in February,
2012, yet despite this, he signed the agreement which includes
the provision that alimony would terminate upon [Wife’s]
“cohabitation” with a man. [Husband] testified that he has
never been inside Wife’s residence.
. . . [Wife] testified . . . Mr. Falcone never paid rent at her
residence, he never paid any of the bills, he never received mail
there, he never did any household chores or helped to maintain
the home, he never mowed the lawn, or cleaned the house.
Prior to September, 2013, Mr. Falcone never ate breakfast or
lunch at [Wife’s] residence, but, occasionally, ate dinner there.
[She] testified that she and Mr. Falcone did not support each
other financially prior to September, 2013, and she did not hold
Mr. Falcone out as her husband in the community.
Mr. Falcone testified . . . that he began living with [Wife] in
September, 2013. Mr. Falcone testified that he paid rent at a
separate address through August, 2013. He testified that prior
to September, 2013, he never stayed overnight at [Wife’s]
residence when her daughters were present. [He] also testified
that prior to September, 2013, he never paid rent or any bills at
[Wife’s] residence, he did not do any chores at the house or
perform any maintenance on the property, and he did not keep
personal items or clothing there. Mr. Falcone testified that prior
to September, 2013, he never used [Wife’s] home phone
number as a number where people could reach him, and he
never bought food for [Wife’s] house. He stated that prior to
September, 2013, he never held [Wife] out as a person who was
either his wife or someone he was living with.
Trial Court Opinion, 2/26/15, at 3-6. Following the hearings, and based on
the foregoing findings, the trial court concluded that Wife and Mr. Falcone
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did not cohabit prior to September 2013. As a result, on November 20,
2014, the trial court denied Husband’s petition for contempt and
enforcement and granted Wife’s request for attorney’s fees under Paragraph
24 of the PSA. Husband timely appealed to this Court.
As directed by the trial court, Husband filed a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, raising ten assertions of error.
First, Husband argued that the trial court’s determination that Wife did not
cohabi with Mr. Falcone was inconsistent with our Supreme Court’s decision
in Kripp v. Kripp, 849 A.2d 1159 (Pa. 2004). Second, Husband argued that
the trial court’s determination that Wife did not cohabit with Mr. Falcone was
inconsistent with our decision in Moran v. Moran, 839 A.2d 1091 (Pa.
Super. 2003). Third, Husband argued that the trial court’s determination
that Wife did not cohabit with Mr. Falcone was inconsistent with our decision
in Miller v. Miller, 508 A.2d 550 (Pa. Super. 1986). Fourth, Husband
argues that the trial court’s determination that Wife did not cohabit with Mr.
Falcone was inconsistent with our decision in Lobaugh v. Lobaugh, 753
A.2d 834 (Pa. Super. 2000). Fifth, Husband argued that the trial court’s
determination that Wife did not cohabit with Falcone was inconsistent with
Section 507 of the Divorce Code, now codified at 23 Pa.C.S. § 3706.1 Sixth,
____________________________________________
1
Section 3706 of the Divorce Code provides:
No petitioner is entitled to receive an award of alimony where
the petitioner, subsequent to the divorce pursuant to which
alimony is being sought, has entered into cohabitation with a
(Footnote Continued Next Page)
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Husband argued that the trial court abused its discretion in disallowing
Michele Harris to testify as an expert in the field of “surveillance.” Seventh,
Husband argued that the trial court abused its discretion in disallowing
Michele Harris to testify pursuant to Pa.R.E. 803(6), relating to records of a
regularly conducted activity. Eight, Husband argued that the trial court
erred in permitting Wife to present evidence after moving for a directed
verdict at the close of Husband’s evidence. Ninth, Husband argued that the
trial court erred in awarding counsel fees to Wife. Tenth, Husband argued
that the trial court erred in denying his petition for contempt and
enforcement.
In response, the trial court issued a Pa.R.A.P. 1925(a) opinion,
addressing Husband’s assertions of error in seriatim. First, the trial court
concluded that the instant case was distinguishable from Kripp because the
term cohabitation sub judice was unambiguous as used in the Stipulation
Order and the PSA. The trial court noted that the term cohabitation here
applied to Wife living with a member of the opposite sex. See Trial Court
Opinion, 2/26/15, at 12. Second, the trial court concluded that Husband
was not entitled to relief on his Moran argument. Specifically, the trial court
determined that the case at bar was factually distinguishable from Moran in
_______________________
(Footnote Continued)
person of the opposite sex who is not a member of the family of
the petitioner within the degrees of consanguinity.
23 Pa.C.S. § 3706.
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part because Wife and Mr. Falcone maintained separate residences between
February 2012 and September 2013 and were not financially or socially
interdependent. Id. at 13-14. Third, the trial court concluded that Husband
was not entitled to relief under Miller.2 Fourth, the trial court concluded
that Husband’s argument under Lobaugh was without merit.3 Fifth, the trial
court determined that Husband’s argument under Section 507 of the Divorce
Code likewise lacked merit.4 Sixth, the trial court concluded that it did not
abuse its discretion in disallowing Michele Harris to testify as an expert in
the field of “surveillance.” Particularly, the trial court found that Husband
“attempted to qualify Ms. Harris as an expert, seemingly, so Ms. Harris could
testify about the contents of certain photographs and documents of which
she herself had no firsthand knowledge. In fact, Ms. Harris testified that she
____________________________________________
2
We are puzzled by Husband’s reliance on Miller, as it is similar to this
case. In Miller, we determined that wife and her boyfriend did not cohabit
because they shared only weekend sexual liaisons, they did not share a
common home on a permanent basis, they maintained separate residences,
and they did not mutually share their respective incomes and expenses.
Miller, 508 A.2d at 555. Much like the boyfriend in Miller, Mr. Falcone only
maintained one change of clothes in Wife’s house.
3
We note that Lobaugh is markedly distinguishable from the case sub
judice. There, this Court held that wife and boyfriend were cohabiting when
they resided together in wife’s house for three months, were affectionate
towards one another (despite denying having sex), had meals together and
went to church together. The boyfriend often took wife’s boys to school,
bought mattresses for each of the boys’ bedrooms as well as wife’s, received
telephone calls at wife’s home and made some minor household repairs.
Lobaugh, 753 A.2d at 837.
4
We observe that Husband’s fifth assertion of error is simply a rehash of his
first four arguments.
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personally never observed Mr. Falcone’s car outside of [Wife’s] residence.”
Id. at 16. The trial court declined to find her an expert in surveillance,
because surveillance did not require any specialized, scientific, or technical
knowledge beyond that of an average layperson.5 Id. at 16-17. Seventh,
the trial court concluded that it did not abuse its discretion in disallowing Ms.
Harris to testify under Rule 803(6),6 which permits introduction of business
____________________________________________
5
As Wife points out, surveillance essentially involves only “watching and
listening.” Wife’s Brief at 31.
6
Rule 803(6) provides in part:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
....
(6) Records of a Regularly Conducted Activity. A record
(which includes a memorandum, report, or data compilation in
any form) of an act, event or condition if,
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a “business”, which term includes business,
institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and
(E) neither the source of information nor other circumstances
indicate a lack of trustworthiness.
Pa.R.E. 803(6).
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records as an exception to the hearsay rule.7 Eighth, the trial court
concluded that it did not err in permitting Wife to proceed with her case in
chief, after denying Wife’s motion for a directed verdict at the close of
Husband’s evidence.8 The trial court noted that, even though Wife used the
phrase directed verdict, she intended to seek a motion to dismiss or a
compulsory nonsuit.9 Id. at 19. Ninth, the trial court concluded that it did
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7
We note that Husband’s argument is hard to follow: apparently, he
thought Ms. Harris could, as a fact witness, authenticate notes and photos
taken by other investigators in her office under Rule 803(6) and then testify
as an expert as to the significance of these items. As noted earlier,
however, the trial court properly declined to admit Ms. Harris as an expert in
surveillance. Husband now seems to want to switch gears and have Ms.
Harris testify as a fact witness. If Ms. Harris were to testify as a fact
witness, Husband could not satisfy Rule 803(6). The “records” in question
were notes and photos taken by other investigators. Because Ms. Harris did
not take the notes or the photos herself, she would not be able to
authenticate them. See U.S. Bank v. Pautenis, 118 A.3d 386, 401 (Pa.
Super. 2015) (concluding that the court acted within its discretion in finding
that bank’s evidence regarding amount owed on loan by homeowner was
insufficiently reliable to be admitted in mortgage foreclosure action under
business records exception to hearsay rule, because representative of loan
servicer could not authenticate documents created by bank or establish their
trustworthiness).
8
Rule 226(b) provides that “[a]t the close of all evidence, the trial judge
may direct a verdict upon the oral or written motion of any party.” Pa.R.C.P.
No. 226(b).
9
We agree with the trial court that Wife’s slip of the tongue did not prejudice
Husband; “gotcha” claims like Husband’s are properly denied under
Pa.R.C.P. No. 126, relating to liberal construction and application of the
rules. See Green Acres Rehabilitation and Nursing Center v. Sullivan,
113 A.3d 1261, 1272 (“Rule 126 allows an equitable exception for parties
‘who commit a misstep when attempting to do what any particular rule
requires.’ Rule 126 does not excuse a party’s complete noncompliance with
(Footnote Continued Next Page)
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not err in awarding Wife attorney’s fees under Paragraph 24 of the PSA.
Tenth, the trial court concluded that Husband’s final argument was non-
specific and vague and, as a result, did not merit relief. Alternatively, the
trial court noted that Husband’s last argument was redundant of his other
arguments relating to cohabitation that the court properly rejected. The trial
court determined that it did not err in holding that Wife did not cohabit with
Mr. Falcone. Accordingly, Wife was not in contempt. Id. at 21-22.
On appeal,10 Husband essentially repeats these same arguments for
our review.11 After careful review of the parties’ briefs, the record on
appeal, and the relevant case law, we conclude that the trial court’s Rule
_______________________
(Footnote Continued)
the rules, but Rule 126 ‘is available to a party who makes a substantial
attempt to conform.’”) (internal citation omitted).
10
When reviewing the dismissal of a contempt petition, our standard of
review is well-settled: “[i]n reviewing a trial court's finding on a contempt
petition, we are limited to determining whether the trial court committed a
clear abuse of discretion. This Court must place great reliance on the sound
discretion of the trial judge when reviewing an order of contempt.” P.H.D.
v. R.R.D., 56 A.3d 702, 706 (Pa. Super. 2012), appeal denied, 94 A.3d
1010 (Pa. 2014).
11
As wife correctly points out, to the extent Husband argues that the trial
court erred in allowing him to introduce evidence of cohabitation predating
the PSA, the argument is waived. Husband failed to raise this argument in
his Rule 1925(b) statement. See Dietrich v. Dietrich, 923 A.2d 461, 463
(Pa. Super. 2007) (“When an appellant files a [Rule] 1925(b) statement, any
issues not raised in that statement are waived on appeal.”). Even if this
argument was not waived, we do not appreciate its relevance. Husband’s
petition for contempt and enforcement was premised on alimony payments
made under the Stipulation Order and the PSA. Thus, it is immaterial
whether Mr. Falcone may have cohabited with Wife prior to the execution of
the Stipulation Order and the PSA in February 2012.
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1925(a) opinion, authored by the Honorable Patricia E. Coonahan, cogently
disposes of Husband’s issues on appeal. See Trial Court Opinion, 2/26/15,
at 7-22. We, therefore, affirm the trial court’s November 20, 2015 order.
We direct that a copy of the trial court’s February 26, 2015 Rule 1925(a)
opinion be attached to any future filings in this case.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2016
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Circulated 02/29/2016 03:36 PM
2010-0466+0129 22620159:50.u\! ,; 1019!031
Opinion
R~pt,:/.2J4Hl8 F~849
A.2d 1159 - Pa: Supreme Court 2004, as it pertains to
their finding in the following:
a. The application of the definition and elements of the
term "cohabitation", and;
b. The admissibility of Parole Evidence for the
evaluation of an entitlement for Husband's
obligation to pay Spousal Support, Alimony
Pendente Lite, and Alimony.
2. By not applying the Superior Court of
Pennsylvania's case law ruling of Moran v. Moran, 839
A.2d 1091 - Pa: Superior Court 2003, as it pertains to
their finding of the following:
a. The application of the definition and elements of
the term "cohabitation", and;
b. The Courts rulings on financial interdependence
between Wife and boyfriend, and;
c. The test of overnight stays being more than "just
vlsiting" and;
d. The inclusion of participating in joint business
trips, weekend outings and vacations.
3. By not applylng The Supreme Court of
Pennsylvania's case law ruling of Miller v. Miller, 508
A.2d 550 - Pa: Supreme Court 1986, as it pertains to
their finding in the following:
a. The application of the definition and elements of
the tern "cohabitation", and;
b. Burden of proof being a preponderance of the
evidence.
7
4. By not applying the Superior Court of
Pennsylvania's case law ruling in Lobaugh v. Lobaugh,
753 A.2d 834- PA: Superior Court 2000, as it pertains
to the following:
a. The definition and elements of the term
"cohabitation", and;
b. Testimony by the parties child as to the living
arrangements between Wife and Boyfriend, and;
c. Interpretation of the property settlement
agreement terms and parameters of termination in the
agreement for payment obligation of Husband.
5. By not applying the Superior Court of
Pennsylvania's case law ruling in Faherty v. Gracias,
874 A.2d 1239 - Pa: Superior Court 2005, as it
pertains_to the following:
a. The application of the definition and elements of
the term "cohabitation", and;
b. The application of Section 507 of the Divorce
Code.
6. By not allowing Michele Harris of Harris
Investigations, LLC to testify and put forth evidence as
an "expert witness" under the rules of evidence as it to
pertains to surveillance in matters related to this case
and the activities of Wife and her boyfriend.
7. By not allowing Michele Harris of Harris
Investigations, LLC. to testify and put forth evidence
as to the business records exception under the rules of
evidence for testimony and records.
8. By allowing Plaintiff to move forward with
testimony or the introduction of evidence alter denying
her Pa.R.C.P. 226(b) motion.
9. By entering an Order awarding Plaintiff attorney
fees for Defendant's Petition for Contempt and to
Enforce Stipulation for Agreed Order in Support.
10. By entering an Order Denying Defendant's
Petition for Contempt and to Enforce Stipulation for
Agreed Order in Support."
This opinion is filed pursuant to and is in compliance with Pa. R.A.P. 1925
(a).
8
When reviewing an appeal from a contempt order, the appellate court
"must place great reliance upon the sound discretion of the trial judge." Godfrey v.
Godfrey, 894 A.2d 776, 2006 Pa. Super. 39 (2006); Langendorfer v. Spearman, 797
A.2d 303, 2002 Pa. Super. 93 (2002). The scope of review for the appellate court is
very narrow, and the appellate court is limited to "determining whether the trial
court committed an abuse of discretlon." Godfrey, 2006 PA Super (2006). The trial
court abuses its discretion in a contempt case if it "misapplies the law or exercises
its discretion in a manner lacking reason." Godfrey, 2006 Pa. Super. 39 (2006);
Hopkins v. Byes, 954 A.2d 654, 2008 Pa. Super. 172 (2008). A party alleging
contempt of a court order has the burden to show a party violated an order by a
preponderance of the evidence. Hopkins, 2008 Pa. Super. 172 (2008).
In reaching a property settlement agreement or spousal support agreement,
the parties in a divorce have the right and power to define for themselves the
conditions under which alimony or alimony pendente lite payments are to
terminate, and the court has no authority alter the divorce decree to alter that
agreement. Woodings v. Woodings, 411 Pa. Super. 406, 601 A.2d 854 (1992).
Cohabitation by the receiving spouse with a member of the opposite sex "who is not
a member of the petitioner's family within the degrees of consanguinity" may
provide the grounds for termination of alimony or alimony pendente lite by
agreement of the parties. Schenk v. Schenk, 2005 Pa. Super. 266, 880 A.2d 633
(2005); Kripp v. K.cm.Q, 578 Pa. 82, 849 A.2d 1159 (2004); Lobaugh v. Lobaugh,
753 A.2d 834 (2000). Cohabitation has been defined as occurring when "two
persons of the opposite sex reside together in the manner of husband and wife,
mutually assuming those rights and duties usually attendant upon the marriage
9
relationship." Miller v. Miller, 352 Pa. Super. 432, 508 A.2d 550 (1986).
Cohabitation may be shown by evidence of financial, social, and sexual
interdependence, by a sharing of the same residence, and by other means." Moran
v. Moran, 839 A2d 1091, 2003 Pa. Super. 455 (2004). Cohabitation is a definition
that has to be viewed in light of the facts of each individual case... " demonstrating
" ... a consistent pattern of conduct established over a substantial period of time ... "
Thomas v. Thomas, 335 Pa. Super. 41, 483 A.2d 945 (1984).
The court addresses the Plaintiff's claims as follows;
"1. By not applying The Supreme Court of
Pennsylvania's case law ruling of Kripp v. Kripp, 849
A.2d 1159 - Pa: Supreme Court 2004, as it pertains to
their finding in the following:
c. The application of the definition and elements of the
term "cohabitation", and;
d. The admissibility of Parole Evidence for the
evaluation of an entitlement for Husband's
obligation to pay Spousal Support, Alimony
pendente Lite, and Alimony.
Kripp v. Kripp, 578 Pa. 82, 849 A.2d 1159 (2004) defines cohabitation by
referring to its definition as stated in Lobaugh v. Lobaugh, 753 A.2d 834, 836
(Pa.Super.Ct. 2000) and Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550, 554
(1986).These cases define cohabitation as occurring when "two persons of the
opposite sex reside together in the manner of husband and wife, mutually assuming
those rights and duties usually attendant upon the marriage relationship." Kd.QQ,
849 A.2d 1159, citing Lobaugh, 753 A2d at 836 and Miller, 508 A.2d at 554.
Based on the testimony presented at the hearings in this matter, the court
found that Plaintiff and Mr. Falcone were not cohabitating prior to September, 2013
as defined in the above cases. Plaintiff and Mr. Falcone both testified that prior to
10
September, 2013, Mr. Falcone "occasionally" stayed overnight at her residence,
anywhere from "zero to five" nights in a two week period, and that he never stayed
overnight during the weeks when she had physical custody of her two daughters.
Plaintiff and Mr. Falcone testified that Mr. Falcone kept his belongings in an
overnight bag which he would take to and from Plaintiff's residence, and prior to
September, 2013, Mr. Falcone and Plaintiff did not share financial obligations, nor
did Mr. Falcone receive mail at Plaintiff's house, nor use her phone number as his
own. Plaintiff and Mr. Falcone both testified that prior to September, 2013,
Mr. Falcone did not perform any household chores at Plaintiff's residence, nor did he
eat breakfast or lunch there. Plaintiff and Mr. Falcone also both testified that they
did not hold one another out to the community as husband and wife.
None of this evidence was persuasively rebutted by Defendant at the
hearings. Defendant offered his "belief' and "opinion" that Plaintiff and Mr. Falcone
were cohabitating prior to September, 2013, mainly because he witnessed Mr.
Falcone's car parked outside Mother's residence on numerous occasions. However,
Defendant testified that he had actually never been inside Mother's residence.
Defendant's witness, the parties' daughter, Jessica Della Guardia, testified that she
had no direct information or knowledge that Mr. Falcone moved into her mother's
residence before November, 2013. N.T. January 24, 2014 at 124. Although
Defendant offered Jessica's testimony to prove cohabitation because she
photographed Mr. Falcone's laundry in Plaintiff's laundry area, Jessica actually
testified that Mr. Falcone would "bring clothes and have them washed there".
Based on the testimony as a whole, the court could not conclude that Mr. Falcone
washed his clothes at the Plaintiff's home because he lived there, but, rather
11
--
brought his clothes to Plaintiff's residence from his own, separate residence to use
Plaintiff's laundry facilities.
Applying the definition of cohabitation as stated in Kd.QQ, Miller and Lobaugh,
Defendant did not prove by a preponderance of the evidence and under case law
that prior to September, 2013, Plaintiff and Mr. Falcone lived together "in the
manner of husband and wife, mutually assuming those rights and duties usually
attendant upon the marriage relationship." The court applied the definition of
cohabitation as stated in K.d.QQ, therefore, the court did not err in its conclusion,
and, Defendant's claim is without merit and should be dismissed.
Kri.QQ also holds that "when an ambiguity exists in the terms of a contract,
parol evidence is admissible to explain or clarify or resolve the ambiguity," In Kripp.
the court found that a property settlement agreement stating that alimony
payments to wife would end after a minimum period if wife were to "cohabitate"
was ambiguous as to whether it referred to or included the wife living with a person
of the same sex, since the facts in that case involved allegations that the
dissolution of the parties' marriage was husband's discovery that wife was involved
"in an intimate relationship with a woman". Therefore, parol evidence was
admissible in that case to determine the meaning of the term "cohabitate" since
wife was living with a woman.
In this case, there was no ambiguity alleged or shown in the terms of the
parties' February 22, 2012 property settlement agreement, or the parties'
February 21, 2012 support stipulation. Defendant's only issue as raised in his
February 28, 2013 Petition for Contempt was whether or not Plaintiff had
cohabitated with Mr. Falcone prior to September 1, 2013, which would in turn
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relieve Defendant of his alimony obligation to Plaintiff. No claim was raised by
Defendant as to any ambiguity in the parties' property settlement agreement.
Therefore, the parol evidence holding in KdQQ is not relevant to the instant matter,
and, Defendant's claim the court erred by not "applying" that holding in this matter
is without merit.
2. By not applying the Superior Court of
Pennsylvania's case law ruling of Moran v. Moran. 839
A.2d 1091 - Pa: Superior Court 2003, as it pertains to
their finding of the following:
e. The application of the definition and elements of
the term "cohabitation", and;
f. The Courts rulings on financial interdependence
between Wife and boyfriend, and;
g. The test of overnight stays being more than "just
visiting" and;
h. The inclusion of participating in joint business
trips, weekend outings and vacations.
The definition and "elements'' of cohabitation as stated in Moran v.
Moran, 839 A.2d 1091, 2003 Pa. Super. 455 (2004) are the same as those
stated in Miller v. Miller, 508 A.2d 550, which the court has previously
addressed in discussion of paragraph 1 of Defendant's concise statement.
The facts of Moran differ significantly from those of the instant case in
that the court in Moran was determining the issue of wife's eligibility to
receive alimony in the first place. This case involves the determination of
whether or not Plaintiff cohabitated with Mr. Falcone so as to nullify her
eligibility for alimony payments that were agreed to by the parties.
Furthermore, the evidence in Moran showed that wife was not residing at her
residence at all, but was spending the "majority" of her time over a two year
span with her significant other, which was shown through utility usage and
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banking transactions. Therefore, the court concluded that overnight stays
were more than "just visiting" which was the terminology used by wife in her
testimony. There was also evidence that the wife in Moran accompanied her
significant other "almost everywhere" including business trips, weekend
outings, and vacations. None of these facts were present in the instant case.
Defendant in this case focuses on the finding in Moran that there was
cohabitation despite the absence of "co-mingling of funds, such as joint
accounts". However, the court in Moran found cohabitation had occurred in
conjunction with several other factors which were not proven in the instant
case, as previously stated. Defendant's reliance on Moran as being applicable
to the instant case is misplaced, and, therefore Defendant's claims raised in
paragraph 2 of his concise statement are without merit and should be
dismissed.
3. By not applying The Supreme Court of
Pennsylvania's case law ruling of Miller v. Miller, 508
A.2d 550 - Pa: Supreme Court 1986, as it pertains to
their finding in the following:
a. The application of the definition and elements of
the term "cohabitation", and;
b. Burden of proof being a preponderance of the
evidence.
Defendant's claims raised in paragraph 3 of his concise statement are
repetitive of his claims raised in paragraph 1, therefore, the court restates
and incorporates its position as set forth in its discussion under paragraph 1
above wherein the court also addresses the holding in Miller v. Miller1 352
Pa.Super. 432, 508 A.2d 550, 554 ( 1986). Again, there is no merit to this
issue.
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4. By not applying the Superior Court of
Pennsylvania's case law ruling in Lobaugh v. Lobaugh.
753 A.2d 834- PA: SuQerior Court 2000, as it pertains
to the following:
a. The definition and elements of the term
"cohabltatlon11, and;
b. Testimony by the parties child as to the living
arrangements between Wife and Boyfriend, and;
c. Interpretation of the property settlement
agreement terms and parameters of termination in the
agreement for payment obligation of Husband.
Defendant's claims raised in paragraph 4 of his concise statement are
repetitive of his claims raised in paragraph 1, therefore, the court restates
and incorporates its position as set forth under paragraph 1 above wherein
the court addresses the holding in Lobaugh v. Lobaugh, 753 A.2d 834, 836
(Pa.Super.Ct. 2000). Furthermore, the issue of "interpretation of the
property settlement agreement terms and parameters" was not before the
court at the hearings in this matter as stated previously in this opinion. In
reaching a property settlement agreement or spousal support agreement, the
parties in a divorce have the right and power to define for themselves the
conditions under which alimony or alimony pendente lite payments are to
terminate, and, the court has no authority after the divorce decree to alter
that agreement. Woodings, 411 Pa. Super. 406. There is no merit to this
argument.
5. By not applying the Superior Court of
Pennsylvania's case law ruling in Faherty v. Gracias,
874 A.2d 1239 - Pa: Superior Court 2005, as it
pertainsto the following:
a. The application of the definition and elements of
the term "cohabitation", and;
b. The application of Section 507 of the Divorce
Code.
15
... -...
Faherty v. Gracias, 874 A.2d 1239, 2005 Pa. Super. 174 (2005) is a
wrongful death malpractice case, and, does not raise any issue with regard
to the "definition and elements of the term 'cohabitation"' and does not refer
to Section 507 of the Divorce Code. Therefore, Defendant's claims raised in
paragraph 5 of his concise statement are without merit and should be
dismissed.
6. By not allowing Michele Harris of Harris
Investigations, LLC to testify and put forth evidence as
an "expert witness" under the rules of evidence as it to
pertains to surveillance in matters related to this case
and the activities of Wife and her boyfriend.
Pennsylvania Rule of Evidence 702 states:
"A witness who is qualified as an expert by knowledge,
skill, experience, tratnlnq, or education may testify in
the form of an opinion or otherwise if:
(a) the experts' scientific, technical or other
specialized knowledge is beyond that possessed
by the average layperson;
(b) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a
fact in issue; and
( c) the expert's methodology is generally accepted
in the relevant field"
At the January 24, 2014 hearing, Defendant called Michele Harris, a
licensed private investigator, as a witness. Defense counsel attempted to
qualify Ms. Harris as an expert, seemingly, so Ms. Harris could testify about
the contents of certain photographs and documents of which she herself had
no firsthand knowledge. In fact, Ms. Harris testified that she personally never
observed Mr. Falcone's car outside of Plaintiff's residence.
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Ms. Harris' credentials as testified to at the January 24, 2014 hearing
did not qualify her as an expert in the area of "surveillance". Ms. Harris
obtained her private investigator's license by getting on the job training for a
period of more than five years from another investigator, and there were no
other qualifications for her license other than a certification that she had
received on the job training. N.T. January 24, 2014 at 64. Ms. Harris also
testified that none of her specific licenses from Pennsylvania, New Jersey,
Delaware and Maryland require any specific education. N.T. January 24, 2014
at 68. When inquiring about seminars which the witness had attended,
Plaintiff's counsel asked Ms. Harris: "Is there any specific scientific or expert
training that goes on at these seminars?", Ms. Harris replied: "They train you
how to do certain things, but it's not necessarily scientific or technical or
anything like that." N.T. January 24, 2014 at 69. The court determined that
based on Ms. Harris' testimony, she could arguably be an expert in "cell
phone forensics", and that her testimony in this area would be beyond the
knowledge of a layperson, "but I don't find her to be an expert in anything
else." N.T. January 24, 2014 at 74. Nothing in Ms. Harris' background as
testified to at the January 24, 2014 hearing would permit her to testify as an
expert as permitted by Pa.R.E. 702 in the field of "surveillance." The court
concluded that Defendant's attempt to have Ms. Harris testify as an expert
was simply an effort to place into evidence the contents of photographs and
documents of which she herself admittedly had no personal knowledge.
Photographs and notes taken by her employees during their surveillance of
Plaintiff's home, which Ms. Harris was not present for, did not qualify her as
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an expert in surveillance. Defendant's claim raised in paragraph 6 of his
concise statement is without merit and should be dismissed.
7. By not allowing Michele Harris of Harris
Investigations, LLC. to testify and put forth evidence
as to the business records exception under the rules of
evidence for testimony and records.
The court assumes that Defendant is referring in paragraph 7 of his
concise statement to Pa.R.E. 803(6) Exceptions to the Rule against Hearsay,
entitled "Records of a Regularly Conducted Activity." Defendant does not
indicate what specific "evidence" Ms. Harris was prevented from presenting
at the hearing that would have been permissible hearsay under this rule. The
only exhibit marked by Defendant's counsel in regard to Ms. Harris'
testimony was Ms. Harris' "personal memorandum of the investigation",
which Defense counsel produced and marked after Ms. Harris' testimony had
concluded, and which was never properly introduced during Ms. Harris'
testimony. Plaintiff's counsel objected to its admission and it was excluded by
the court since it was not marked nor introduced during Ms. Harris'
testimony. There is no merit to this issue.
8. By allowing Plaintiff to move forward with
testimony or the introduction of evidence after denying
her Pa.R.C.P. 226(b) motion.
Pa.R.C.P. 226(b) states: "At the close of all evidence, the trial judge
may direct a verdict upon the oral or written motion of any party." At the
March 251 2014 hearing, Plaintiff made an oral motion for a directed verdict
at the conclusion of Defendant's case. The court and counsel discussed on
the record that if the court were to deny Plaintiff's directed verdict motion, an
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_,....,,
additional hearing would be scheduled to present Plaintiff's case in chief. N.T.
March 25, 2014 at 148-156. On May 12, 2014, the court issued an order
denying Plaintiff's motion for directed verdict and scheduled "an additional
hearing date for the conclusion of evidence in the above captioned matter."
Defendant's claim that Pa.R.C.P. 226(b) precluded Plaintiff from proceeding
with her case, because Plaintiff1s counsel raised the motion prior to the close
of all evidence is without merit.
The court views Pa.R.C.P. 226(b) in light of Pa.R.C.P. 126, entitled
"Liberal Construction and Application of Rules" which states:
"The rules shall be liberally construed to
secure the just, speedy and inexpensive
determination of every action or proceeding
to which they are applicable. The court at
every stage of any such action or proceeding
may disregard any error or defect of
procedure which does not affect the
substantial rights of the parties."
Defendant's argument at the time of the hearings was that because Plaintiff's
counsel used the terminology "motion for directed verdict" instead of "motion
to dismiss", Plaintiff was precluded from proceeding with her case after her
motion was denied since Pa.R.C.P. 226(b) states that such a motion for
directed verdict shall occur "at the close of all the evidence" in a case.
However, the argument raised by Plaintiff in her oral motion for a directed
verdict, and the relief being requested, were identical to those which would
have been raised in a motion to dismiss. Defendant was not prejudiced by
the terminology used by Plaintiff's counsel. Therefore, pursuant to Pa.R.C.P.
126, the court permitted Plaintiff to proceed with her case in chief.
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''A rule which mandates summary dismissal of a law suit based upon a
nonprejudicial procedural error is inconsistent with the fairness required by
the Pennsylvania Rules of Civil Procedure." DeAngelis v. Newman, 501 Pa.
144 460 A.2d 730 (1983).
1
Defendant's claim raised in paragraph 8 of his concise statement is
without merit, and should, therefore, be dismissed.
9. By entering an Order awarding Plaintiff attorney
fees for Defendant's Petition for Contempt and to
Enforce Stipulation for Agreed Order in Support.
Defendant's claim raised in paragraph 9 of his concise statement does not
specifically allege how the court erred by entering an order awarding Plaintiff
attorney's fees in this matter. It is the appellant's responsibility to precisely identify
any purported errors. Schenk v. Schenk, 880 A.2d 633 (Pa. Super. 2005). "When
the trial court has to guess what issues a defendant is appealinq. that is not enough
for meaningful review." Commonwealth v. Dowling, 2001 Pa. Super. 166, 778 A.2d
683 (2001}. A Concise Statement which is too vague to allow the court to identify
the issues raised on appeal is the functional equivalent of no Concise Statement at
all. In re A.B., 2013 Pa. Super. 43, 63 A.3d 345 (2013).
Nevertheless, on the merits, section 24, paragraph 4, of the parties'
February 22, 2012 property settlement agreement states that each party shall be
responsible for the reasonable attorney's fee of the other party
"in consequence of any default or breach by the other
of any of the terms or provisions of this Agreement by
reason of which either party shall be obliged to retain
or engage counsel to initiate or maintain or defend
proceedings against the other at law or equity or both or
in any way whatsoever; provided that the party who seeks
to recover such reasonable attorney's fees, and costs of
20
litigation must first be successful in whole or in part,
before there would be any liability for said reasonable
attorney's fees, and costs of litigation."
Defendant's claim raised in paragraph 9 of his concise statement is
either waived, or without merit, and should be dismissed.
10. By entering an Order Denying Defendant's
Petition for Contempt and to Enforce Stipulation for
Agreed Order in Support."
Defendant's claim raised in paragraph 10 of his concise statement does
not specifically allege how the court erred by entering an order denying
Defendant's petition for contempt and to enforce stipulation for agreed order
in support. It is the appellant's responsibility to precisely identify any
purported errors. Schenk • 880 A.2d 633. "When the trial court has to guess
what issues a defendant is appealing, that is not enough for meaningful
review." Commonwealth v. Dowling, 2001 Pa. Super. 166. A Concise
Statement which is too vague to allow the court to identify the issues raised
on appeal is the functional equivalent of no Concise Statement at all. In re
A.B., 2013 Pa. Super. 43. Therefore, Defendant's claim raised in paragraph 10
of his concise statement is waived, and should be dismissed. Nevertheless,
the foregoing discussions in this opinion of the Defendant's issues negates
error by the court.
The court did not err or abuse its discretion in not finding Plaintiff in
contempt of the February 22, 2012 property settlement agreement.
Defendant did not prove by a preponderance of the evidence that Plaintiff
had cohabitated with Mr. Falcone prior to September, 2013, and even had
the court made such a finding, this did not lead the court to conclude that
21
Plaintiff was in contempt of the agreement, rather, it would lead the court to
conclude that the alimony payments should end. The February 22, 2012
property settlement agreement did not contain a duty of the Plaintiff to notify
Defendant if she were cohabitating with Mr. Falcone to warrant a finding of
contempt. The property settlement agreement states that alimony shall
terminate " ... upon earliest of the following: 1) Wife's cohabitation, 2) Wife's
remarriage, 3) Wife's death, 4) Husband's death, or 5) August 31, 2013 ... "
The court could not find that there was cohabitation proven under the facts
of this case to warrant negating Defendant's promise to pay to Plaintiff
alimony/alimony pendente lite per their agreement.
For the above stated reasons, the court respectfully requests that
Defendant's appeal be dismissed and the November 20, 2014 order be
affirmed.
BY THE COURT:
;0;. ~ £ (_i;,_J:_.,~
PATRICIA E. COONAHAN, J.
Copies of the above Opinion mailed
on 2/26/15 to the following:
By First-Class Mail:
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