Thomas v. v. Thomas, J.

J-A14014-18
2018 PA Super 224VICTORIA C. THOMAS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES W. THOMAS :
:
Appellant : No. 1139 EDA 2017
Appeal from the Order Entered March 2, 2017
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2010-33188
BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.
OPINION BY GANTMAN, P.J.: FILED AUGUST 07, 2018
Appellant, James W. Thomas (“Husband”), appeals from the order
entered in the Montgomery County Court of Common Pleas, which found
Husband in civil contempt of the court’s September 16, 2016 order and
imposed sanctions in the form of counsel fees in favor of Appellee, Victoria C.
Thomas (“Wife”). We affirm.
The trial court opinion sets forth the relevant facts and procedural
history of this case as follows:
BACKGROUND AND PROCEDURAL HISTORY
The parties were formally married. They have two (2) minor
children. The parties were divorced pursuant to a Divorce
Decree dated January 11, 2016. The Divorce Decree
incorporated a settlement agreement (“PSA”) that was
placed on the record before Equitable Distribution Master
Bruce Goldenberg on December 17, 2015.
Pursuant to the PSA, [Husband] agreed to transfer assets
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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totaling $575,000 to [Wife]. The $575,000 was to be
distributed to [Wife] as follows: (1) $50,000 in accounts or
assets that [Wife] had received as of the date of the PSA on
December 17, 2015; (2) one-half of [Husband’s] TD IRA
account in the amount of $101,000; (3) one-half of
[Husband’s] TIAA-CREF account in the amount of $35,000;
(4) three-fourths of the parties’ joint TD stock account in
the amount of $270,000; and (5) remaining $119,000
payment.
On July 21, 2016, [Wife] filed an Emergency Petition for
Contempt of Court and to Enforce Property Settlement
Agreement (“Petition”). In this Petition, [Wife] alleged,
inter alia, that [Husband] had failed to effectuate transfer of
the amounts due to her pursuant to the terms of the PSA.
* * *
On September 13, 2016, [Husband] filed an Answer to
[Wife’s] Petition as well as a Counterclaim. [Husband]
contended that, inter alia, he had made all the transfers that
were required pursuant to the PSA.
On September 15, 2016, [the court] conducted a hearing
regarding, inter alia, the following: (1) [Wife’s] Emergency
Petition for Contempt of Court and to Enforce Property
Settlement Agreement and (2) [Husband’s] Answer and
Counterclaim.
From the evidence presented on September 15, 2016, [the
court] determined that of the $575,000 that [Husband] was
required to pay [Wife] pursuant to the PSA, [Wife] had
received the following: (1) $100,000.00 cash, (2)
$101,000.00 which represents one-half of [Husband’s] TD
IRA account, and (3) $273,422.57, which represents 100%
of the value of the parties’ joint TD stock account.1 The total
amount received by [Wife] from these three (3) sources is
$474,422.57.
1 See N.T., 9/15/16, Exhibit XW-3. The parties
stipulated that [Wife] received this amount from the
parties’ joint TD stock account.
At the time of the hearing on September 15, 2016, the
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parties had yet to finalize a QDRO with respect to
[Husband’s] TIAA-CREF account. It is anticipated that one-
half of this account will be approximately $35,000 to
$37,000. (N.T., 9/15/16, pp. 38, 81).
We issued an Order dated September 16, 2016,[1] that
directed [Husband] to pay to [Wife] cash in the amount of
$62,000 within 30 days of the date of the Order. That would
leave a balance of $38,577.43 to be paid to [Wife] from
[Husband’s] TIAA-CREF account via a QDRO. If one-half of
the TIAA-CREF account is more than $38,577.43, then we
directed [Wife] to pay the balance to [Husband] within 30
days. Conversely, if one-half of the TIAA-CREF account is
less than $38,577.43, then we directed [Husband] to pay
the difference to [Wife] within 30 days so that [Wife] is paid
a total of $575,000 as stated in the PSA.
On October 19, 2016, [Husband] filed an appeal from our
Order dated September 16, 2016. See [No.]3320 EDA
2016. Pursuant to Pa.R.A.P. 1925(a), we issued our Opinion
(dated December 14, 2016) in support of our Order dated
September 16, 2016. By Order filed on April 28, 2017, the
Superior Court dismissed that appeal because [Husband]
had failed to file an appellate brief by April 19, 2017.
[Meanwhile, on] November 23, 2016, [Wife] filed an
Emergency Petition for Contempt and to Enforce the PSA.
In this Emergency Petition, [Wife] alleged, inter alia, that
[Husband] was in contempt of the Order dated September
16, 2016, because he failed to pay her the $62,000 cash
payment that was set forth in that Order.
On December 2, 2016, [Wife] filed a Petition for Special
Relief in which she requested the [c]ourt to permit each
party to claim one child as a tax exemption on their
respective tax returns.2
2 During the hearing on February 23, 2017, the parties
stipulated that each party would claim one child as a
tax exemption. (N.T., 2/23/17, p. 112).
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1The trial court’s order was dated September 16, 2016, but was not docketed
and sent until September 19, 2016.
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On January 13, 2017, [Husband] filed an Answer and
Counterclaim. On January 23, 2017, [Husband] filed an
Addendum to the Counterclaim he had filed on January 13,
2017.
On February 23, 2017, we conducted a hearing regarding:
(1) [the] 11/23/16 Emergency Petition for Contempt and to
Enforce the PSA filed by [Wife], (2) [the] 12/2/16 Petition
for Special Relief filed by [Wife], (3) [the] 1/13/17 Answer
and Counterclaim filed by [Husband], and (4) [the] 1/23/17
Addendum to the Counterclaim filed by [Husband].
At the conclusion of the hearing on February 23, 2017, we
found [Husband] in contempt of the Order dated September
16, 2016 because he had failed to pay ANY of the $62,000
he was required to pay to [Wife] pursuant to the terms of
that Order. We issued an Order dated March 2, 2017 that
directed [Husband] to pay $62,000 to [Wife’s] counsel, by
certified check, bank check, or money order no later than
noon on Friday, March 3, 2017. Furthermore, the Order
directed [Husband] to pay [Wife’s] counsel fees in the
amount of $10,000 no later than March 31, 2017.
We received correspondence from [Wife’s] counsel, dated
March 7, 2017 stating that he had received a cashier’s check
from [Husband] in the amount of $62,000.00 on the
afternoon of March 2, 2017. …
On March 10, 2017, [Husband] filed a Motion for
Reconsideration of the Order dated March 2, 2017. By Order
dated March 27, 2017, we denied the Motion for
Reconsideration.
On March 31, 2017, [Husband] filed the instant appeal.
(Trial Court Opinion, dated May 25, 2017, at 1-5). Procedurally, we add that
the trial court did not order Husband to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and Husband filed
none.
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On appeal, Husband raises the following issues for review:
THE [TRIAL] COURT ERRED IN REFUSING TO ALLOW EX-
HUSBAND TO DEFEND THE CONTEMPT PETITION FOR
UNPAID MONIES DUE EX-WIFE UNDER THEIR PROPERTY
SETTLEMENT AGREEMENT, GIVEN THAT:
−EX-WIFE SHOULD HAVE BEEN ESTOPPED FROM
SEEKING EQUITABLE RELIEF FOR “UNCLEAN HANDS”
BECAUSE SHE FALSELY TESTIFIED TO THE COURT AT
AN EARLIER HEARING ABOUT THE AMOUNT OF
MONIES SHE HAD ALREADY RECEIVED FROM EX-
HUSBAND, RESULTING IN AN OVERPAYMENT OF
OVER $25,000;
−THE COURT WAS TAINTED AGAINST EX-HUSBAND
BY FORMER COUNSEL’S IMPERMISSIBLE USE OF A
PRIVILEGED E-MAIL GIVING THE IMPRESSION EX-
HUSBAND WAS AT FAULT FOR THE DELAY IN
ORIGINALLY PAYING EX-WIFE;
−THE COURT PERMITTED FORMER COUNSEL TO
UNILATERALLY STIPULATE TO AN INCORRECT
AMOUNT EX-HUSBAND HAD PAID EX-WIFE,
REFUSING TO ALLOW EX-HUSBAND TO OBJECT TO
THE STIPULATION AND BINDING HIM TO THE
STIPULATION WITHOUT HIS CONSENT; AND
−THE COURT’S RULING THAT THE AGREEMENT BY
EX-HUSBAND’S THEN-COUNSEL TO ACCEPT A STOCK
TRANSFER VALUE—EVEN IF INCORRECT—ABSOLVED
EX-WIFE OF ANY “UNCLEAN HANDS” ALLOWS EX-
WIFE TO PROFIT FROM HER DECEIT AND OFFENDS
THE PROPER ADMINISTRATION OF JUSTICE.
THE [TRIAL] COURT [ERRED] IN ASSESSING A $10,000
CONTEMPT SANCTION AGAINST EX-HUSBAND, GIVEN
THAT:
−THE SANCTION GIVES EX-WIFE A WINDFALL
REWARD FOR GIVING FALSE TESTIMONY AND
DECEIVING THE COURT; AND
−THE SANCTION IS GROSSLY EXCESSIVE AND
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PUNITIVE FOR A SIMPLE “FAILURE TO PAY”
CONTEMPT SANCTION.
(Husband’s Brief at 3-4).
In his issues combined, Husband first argues Wife falsely testified at the
September 2016 hearing and knowingly provided an incorrect value of the
parties’ joint TD stock account. Husband contends Wife obtained a windfall in
the amount of $25,000.00 as a result of her inaccurate testimony. Husband
avers Wife’s “unclean hands” served as a valid defense to her contempt
petition. Husband submits the trial court erred in refusing to consider Wife’s
misrepresentations at both the September 2016 hearing and the February
2017 contempt hearing. Husband claims Wife’s deceitful conduct during the
September 2016 hearing should have precluded her second petition for
contempt, this time to enforce the September 2016 order, plus sanctions.
Next, Husband asserts that at the September 2016 hearing, his counsel
unilaterally stipulated to Wife’s incorrect valuation of the joint TD stock
account, and duped the court into accepting that value. Husband contends
his counsel’s unauthorized stipulation at the September 2016 hearing should
not defeat his claim of Wife’s “unclean hands,” absolve Wife of her “unclean
hands,” or allow her to profit from her deceit, which offends the proper
administration of justice.
Husband also complains the court’s award of counsel fees was excessive
and unwarranted. Specifically, Husband avers the drafting and modification
of a contempt petition is not a complex legal matter, and the sanction of
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$10,000.00 for counsel fees was inappropriate. Husband relies on Sutch v.
Roxborough Memorial Hospital, 142 A.3d. 38 (Pa.Super. 2016), appeal
denied, ___ Pa. ___, 163 A.3d 399 (2016), to support his contention that the
amount of attorney’s fees awarded was arbitrary, gratuitous, and punitive
under the circumstances.
Further, Husband insists the trial court’s dislike for and bias against him
played a substantial role in the amount of harsh sanctions imposed. For these
reasons, Husband concludes this Court should vacate the trial court’s
contempt order and remand the matter for a new contempt hearing, where
he can present evidence of Wife’s “unclean hands.” We disagree.
On appeal from an order holding a party in contempt of court, our scope
of review is very narrow, and we place great reliance on the court’s discretion.
Garr v. Peters, 773 A.2d 183, 189 (Pa.Super. 2001). “The court abuses its
discretion if it misapplies the law or exercises its discretion in a manner lacking
reason.” Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009). “Each
court is the exclusive judge of contempts against its process. The contempt
power is essential to the preservation of the court’s authority and prevents
the administration of justice from falling into disrepute.” Habjan v. Habjan,
73 A.3d 630, 637 (Pa.Super. 2013). Absent an error of law or an abuse of
discretion, we will not disrupt a finding of civil contempt if the record supports
the court’s findings. Mrozek v. James, 780 A.2d 670, 673 (Pa.Super. 2001).
“In proceedings for civil contempt of court, the general rule is that the
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burden of proof rests with the complaining party to demonstrate that the
defendant is in noncompliance with a court order.” MacDougall v.
MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012). “To sustain a finding of
civil contempt, the complainant must prove, by a preponderance of the
evidence, that: (1) the contemnor had notice of the specific order or decree
which he is alleged to have disobeyed; (2) the act constituting the contemnor’s
violation was volitional; and (3) the contemnor acted with wrongful intent.”
Id. Nevertheless, “a mere showing of noncompliance with a court order, or
even misconduct, is never sufficient alone to prove civil contempt.” Habjan,
supra at 637.
“If the alleged contemnor is unable to perform and has, in good faith,
attempted to comply with the court order, then contempt is not proven.”
Cunningham v. Cunningham, 182 A.3d 464, 471 (Pa.Super. 2018). “The
contemnor has the burden to prove the affirmative defense that he lacks the
ability to comply.” Id. “The defense of impossibility of performance is
available to a party in a contempt proceeding if the impossibility to perform is
not due to the actions of that party.” Id.“The imposition of counsel fees can serve as a sanction upon a finding
of civil contempt.” Sutch, supra at 69; Rhoades v. Pryce, 874 A.2d 148,
152 (Pa.Super. 2005), appeal denied, 899 A.2d 1124 (2006). The purpose of
awarding counsel fees in this context is “to reimburse an innocent litigant for
the expenses the conduct of an opponent makes necessary, such as the cost
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of the contempt hearing, so it can be coercive and compensatory but it cannot
be punitive.”2 Sutch, supra at 69. We review an award of contempt
sanctions in the form of counsel fees for an abuse of discretion. Mrozek,
supra at 674.
In response to Husband’s complaints, the court reasoned as follows:
Discussion
To find one in civil contempt, a complainant must prove by
a preponderance of the evidence that the respondent is in
noncompliance with a court order. The order must be clear,
definite, and specific. To sustain a finding of civil contempt,
the complainant must prove that: (1) the contemnor had
notice of the specific order or decree which he is alleged to
have violated, (2) the act constituting the contemnor’s
violation was volitional, and (3) the contemnor acted with
wrongful intent.
In the case before the [court], all three (3) elements set
forth in the preceding paragraphs have been satisfied. The
Order dated September 16, 2016, which, inter alia, directed
[Husband] to pay to [Wife] $62,000 cash within 30 days of
the date of the Order was clear, definite, and specific.
[Husband] had notice of the Order dated September 16,
2016. We provided a copy of the Order to [Husband] as
well as his former counsel. [Wife] demonstrated that
[Husband’s] failure to pay her the $62,000 in cash was
volitional, and [Husband] had acted with wrongful intent.
It is clear that [Husband] had the means to pay the $62,000
in cash to [Wife]. He testified [at the February 2017
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2An award of attorney’s fees as a sanction in a civil contempt case is “separate
and apart from the statutory provision for [attorney’s] fees under 42 Pa.C.S.A.
§ 2503(7).” Sutch, supra at 68-70 (distinguishing award of counsel fees as
sanction for civil contempt from award of counsel fees under statute, where
statutory award requires specific finding of dilatory, obdurate or vexatious
conduct).
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hearing] that he could sell stock or borrow money. In fact,
when [Husband] learned that he may be imprisoned due to
his contempt of the Court Order, he paid the $62,000 on
March 2, 2017.
[Husband’s] contempt of the Order dated September 16,
2016 is particularly egregious because he did not make a
good-faith effort to pay ANY of the $62,000 in cash to
[Wife] within 30 days of that Order.
* * *
The [court] reviewed [Wife’s] certification of counsel fees
and determined that an award of $10,000.00 was
appropriate and reasonable given the nature of the work
performed and the length of time spent to prosecute the
contempt allegations.
(Trial Court Opinion at 5-6). The record supports the court’s decision to hold
Husband in contempt of the court’s September 2016 order. See Mrozek,
supra.With respect to Husband’s arguments related to the September 15,
2016 hearing, e.g., his argument regarding Wife’s testimony at the September
2016 hearing, counsel’s alleged unauthorized stipulation at that hearing on
the value of the joint TD stock account, and the court’s purported bias against
Husband, as allegedly illustrated by the court’s preclusion of evidence at that
hearing, these claims are not properly before us now. Husband filed an appeal
from the September 2016 order, but he did not pursue the appeal with
diligence, which caused this Court to dismiss his appeal for his failure to file
an appellate brief. As a result, Husband squandered his right to obtain
appellate review of these claims.
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Further, in the contempt proceedings of February 23, 2017, Wife
established (1) Husband had notice of the September 15, 2016 order that
Husband disobeyed and the order was specific and directed Husband to pay
Wife $62,000.00 by a date certain, which Husband did not do; (2) Husband
had the ability to pay and chose not to pay; and (3) Husband deliberately and
willfully disobeyed the court’s order, so as to deny Wife any of the additional
funds. See MacDougall, supra. Thus, Wife’s evidence was more than just
a “mere showing of noncompliance.” See Habjan, supra. Therefore, we
reject Husband’s current efforts to resurrect his lost claims as “defenses” and
“counterclaims” to Wife’s contempt petition, because they are invalid
justifications in the current proceedings.
Regarding Husband’s distress over the amount of counsel fees awarded
to Wife as a sanction for Husband’s contempt of the September 15, 2016
order, Husband’s reliance on Sutch is misplaced. In Sutch, the sanction
imposed totaled over one million dollars in attorney’s fees allegedly incurred
in a standard medical malpractice contingency fee case. On appeal, we
reversed the award of counsel fees because the record showed the difficulties
inherent in the underlying medical malpractice case, and the hourly fees
associated with the high number of lawyers who allegedly touched the file,
were embellished without record basis, in a case that carried no novel question
of law or fact to support the extensive charges. See Sutch, supra at 79.
Here, however, the court reviewed Wife’s certification of counsel fees
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sustained as a result of Husband’s contempt of the court’s September 2016
order. Based on the detailed accounting offered, the court awarded Wife’s
counsel about ninety percent of the fees associated with prosecuting her
contempt petition, which was a reasonable reflection of counsel’s related tasks
and hourly billing rate. The record reveals that, as respondent in the contempt
proceedings, Husband incurred comparable fees, given his counsel’s related
tasks and hourly billing rate. The record shows no abuse of discretion in the
amount of counsel fees awarded to Wife. Thus, Husband’s sanctions claim
merits no relief.
Finally, we address Husband’s complaint about the parties’ September
2016 stipulation for the removal of Husband’s personal and patient-related
data from Wife’s laptop computer and their daughter’s cell phone. The
stipulation was based on Husband’s bald allegation that Wife had transferred
his personal/patient files from their joint laptop to a second laptop she had
purchased after the divorce proceedings. Specifically, the parties’ stipulation
provided Wife would deliver her laptop computer and her daughter’s cell phone
to Springboard Media (“Springboard”), who would then wipe Husband’s
information from these devices. Per the September 2016 stipulation,
Springboard would separate Wife’s personal data from Husband’s
personal/patient-related data, and return a drive to Husband that contained
his information.
Wife testified at the February 2017 hearing that, while she was unsure
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whether Husband’s information was actually on her personal laptop and cell
phone, she complied with the stipulation and turned over the devices to
Springboard for service. At the February 2017 contempt hearing, however,
Springboard owner Everett Katzen testified that his company was digitally
incapable of performing this task and took no further steps to service Wife’s
computer as contemplated in the September 2016 stipulation.
Here, Husband did not identify his computer-records claim separately
on appeal. In just one sentence in the conclusion paragraph of Husband’s
appellate brief, he states: “[Given] that the computer stipulation [Wife’s]
counsel formulated and [Husband] was forced to sign upon threat of losing his
HIPPA protected data has not and cannot be implemented, [Wife] herself
remains in contempt of the original divorce decree for not returning the
computer and other electronic data as she was required to return, including
the additional copies of the data she improperly made.” (See Appellant’s Brief
at 23).
That sentence is the sum and substance of Husband’s particular claim.
Absent more, we cannot intuit if Husband is complaining about the content of
the stipulation or about Wife’s alleged failure to comply with the stipulation or
about Springboard’s inability to provide the service intended in the stipulation.
To the extent Husband is complaining about the content of the stipulation, this
issue is waived because he failed to pursue that claim on his appeal from the
September 2016 order. To the extent Husband is complaining about Wife’s
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failure to comply with the stipulation, the record makes clear that she did
comply by bringing the laptop and cell phone to Springboard for service.
Finally, to the extent Husband is complaining about Springboard’s inability to
provide the service as stipulated, Husband is the party who insisted on using
Springboard and failed to offer any workable alternatives. Therefore, as
presented, Husband’s computer data claim did not serve as a valid defense to
Wife’s contempt petition.
Moreover, we decline to grant Husband any specific relief in this regard
at this time because he did not properly preserve the claim for appellate
review. See Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000) (stating when
appellant fails to raise or develop his issue on appeal properly, or where his
brief is wholly inadequate to present specific issue for review, this Court can
decline to address merit of appellant’s claim). See also In re Estate of
Whitley, 50 A.3d 203, 206-07 (Pa.Super. 2012), appeal denied, 620 Pa. 724,
69 A.3d 603 (2013) (reiterating general rule that failure to cite relevant
supporting legal authority constitutes waiver of claim on appeal); Estate of
Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating appellant must
support each issue raised by discussion and analysis of pertinent authority;
without reasoned discussion of law in appellate brief, appellant hampers this
Court’s review and risks waiver; “It is not this Court’s function or duty to
become an advocate for the appellant”). This Court is willing to construe
materials of a pro se litigant liberally, but his pro se status confers no special
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benefit upon Husband. See Wilkins v. Marsico, 903 A.2d 1281, 1284-85
(Pa.Super. 2006), appeal denied, 591 Pa. 704, 918 A.2d 747 (2007) (stating:
“To the contrary, any person choosing to represent himself in a legal
proceeding must, to a reasonable extent, assume that his lack of expertise
and legal training will be his undoing”). Thus, Husband waived his computer-
data claim on appeal. Husband will have to chart another course to enforce
and/or modify the stipulation to obtain his purported files.
Based upon the foregoing, we hold the trial court properly found
Husband in civil contempt of the court’s September 16, 2016 order and
imposed sanctions in the form of counsel fees in favor of Wife. Accordingly,
we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/18
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