Cullison, E. v. Cullison, D.

J-A03024-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
EILEEN M. CULLISON, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
DONOVAN C. CULLISON, :
:
Appellant :
: No. 991 WDA 2018
Appeal from the Order Dated June 18, 2018
in the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 05-000104-004
BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*
CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED SEPTEMBER 1, 2020
I join the Majority’s analysis and holding as to Husband’s first and
third issues on appeal, and join the Majority’s holding as to Husband’s
second issue.1 Majority at 1-16. I respectfully dissent, however, as to
Husband’s fourth, fifth, and sixth issues on appeal.
In Husband’s fourth claim, he challenges the trial court’s finding of
contempt and awarding of counsel fees to Wife.
1 I do not join the Majority’s analysis of Husband’s second issue insofar as
the Majority finds Husband’s claim waived because Husband withdrew his
appeal from the ED Order. See Majority at 13 (concluding that based on
withdrawal of prior appeal, Husband “cannot be heard now to challenge the
award of fifty percent of the RS plan benefits to Wife”), 16 (concluding
because “Husband filed a notice of appeal from the ED Order then
discontinued it” that “the award to Wife is unassailable at this point”).
Husband withdrew the appeal from the ED Order because the trial court
deemed it interlocutory. Therefore, I do not find waiver applicable in this
context.
* Retired Senior Judge assigned to the Superior Court.
J-A03024-19
This [C]ourt’s review of a civil contempt order is limited to a
determination of whether the trial court abused its discretion. If
a trial court, in reaching its conclusion, overrides or misapplies
the law or exercises judgment which is manifestly unreasonable,
or reaches a conclusion that is the result of partiality, prejudice,
bias or ill will as shown by the evidence of record, then discretion
is abused.
In order to establish that a party is in civil contempt, there
must be proof by a preponderance of the evidence that the
contemnor had notice of the specific order that he or she is
alleged to have disobeyed, that the act that constituted the
contemnor’s violation was volitional, and that the contemnor
acted with wrongful intent.
Cunningham v. Cunningham, 182 A.3d 464, 471 (Pa. Super. 2018)
(citations and quotation marks omitted).
The Majority concludes that Wife demonstrated all three elements for
contempt based upon the finding that the ED Order was “clear, definite, and
specific,” and Husband volitionally and with wrongful intent tanked the
balance of the RS Plan. Majority at 19-20. I disagree.
Husband transferred to Wife the funds he believed she was owed
based upon his interpretation of the ED Order. Although his interpretation
ultimately differed from the trial court’s, mistakenly withholding funds based
upon a good faith interpretation of the ED Order does not equate to Husband
volitionally violating the ED Order, with wrongful intent, to deprive Wife of
assets. Moreover, the Master agreed with Husband’s interpretation of the
ED Order at the December 9, 2015 hearing, following which the Master
found Husband not to be in contempt. See Master’s Report and
Recommendation, 1/13/2016, at 3-4. It was not until remanded by the trial
-2-
J-A03024-19
court that the Master reversed course. Because the evidence of record does
not prove by a preponderance of the evidence that husband volitionally
violated the ED Order with wrongful intent, I would conclude that the trial
court abused its discretion in holding Husband in contempt. Accordingly, I
would also reverse the granting of counsel fees.
In Husband’s fifth issue, he challenges the trial court’s finding that he
knowingly wasted the RS Plan. The trial court disbelieved Husband’s
assertion that he could not trade the stock, and the Majority found no reason
to disturb the trial court’s finding that Husband knowingly wasted the RS
Plan. However, even if Husband was wrong about his inability to trade the
stock, I do not believe it follows that Husband tanked knowingly the RS
Plan’s value simply because the stock plummeted. Stocks are volatile.
Moreover, Husband did not choose the stock that plummeted.
The record supports Husband’s assertion that he believed the entirety
of the RS Plan belonged to him, and that Wife was not entitled to any
portion of it. Additionally, Husband had no incentive to tank intentionally
the value of stocks to which he thought he alone was entitled. Husband had
the same interest in the stock doing well as Wife did. Given Husband’s
beliefs and actions, it does not follow that he intentionally took no action in
order to waste the RS Plan and spite Wife. Accordingly, I would conclude
that the trial court erred in finding Husband wasted knowingly the RS Plan.
-3-
J-A03024-19
Finally, Husband contends that the trial court erred in setting the
valuation date as May 2015, instead of the distribution date.
In determining the value of marital assets, a court must choose
a date of valuation which best works economic justice between
the parties. The same date need not be used for all assets.
Since a business’ value may be subject to great fluctuation,
the date selected is generally close to the date of distribution,
rather than the date of separation. Sutliff v. Sutliff, [] 543 A.2d
534 ([Pa. ]1988). Despite Sutliff's stated preference for the
date of distribution,
there are limited circumstances where it is more
appropriate to value marital assets as of the date of
separation. However, those circumstances are
confined to situations where one spouse consumes or
disposes of marital assets or there are other
conditions that make current valuation difficult.
Nagle v. Nagle, 799 A.2d 812, 820-21 (Pa. Super. 2002). We
will only reverse the decision of the lower court in regard to the
setting of the date for the valuation of the marital assets on the
basis of an abuse of discretion.
Smith v. Smith, 904 A.2d 15, 18-19 (Pa. Super. 2006) (some citations and
quotation marks omitted).
As noted above, I conclude that Husband did not waste the RS Plan.
Additionally, there is no indication that the stock at issue would not be
capable of being valued at the time of distribution. Thus, I conclude the trial
court abused its discretion in deviating from the general rule of using the
distribution date for valuation. Just as a business’ value is subject to great
fluctuation, so is stock. Here, the stock plummeted, prompting Wife to
request a deviation from the usual valuation on the date of distribution to an
earlier date when the stock was worth more. However, if the stock had
-4-
J-A03024-19
skyrocketed, Wife surely would have sought a valuation date commensurate
with the date of distribution. Given the proclivity of stock to fluctuate
greatly, that Husband did not waste the RS Plan, and there is no evidence
that the stock would be incapable of being valued at the date of distribution,
I would reverse the trial court’s decision to stray from the general rule that
valuation should occur on the date of distribution.
Accordingly, I would affirm Husband’s first three issues and reverse
the trial court’s finding of contempt, granting of counsel fees, and setting the
valuation date as May 2015.
-5-