Hayman, B. v. Hayman, J.

J-A10020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BETTE HAYMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JACK HAYMAN : No. 2453 EDA 2019
Appeal from the Order Entered May 14, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 06-09596
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: Filed October 8, 2020
Appellant, Bette Hayman (“Wife”), appeals from a contempt order
imposing sanctions in the form of dismissal of her petition for special relief,
which she had filed against Appellee, Jack Hayman (“Husband”).1 We reverse.
The trial court summarized the history as follows:
The parties married in October 1993, separated in March
2006 and divorced in August 2009. The divorce included a
property settlement agreement. The parties since have returned
to court numerous times for a dispute over the entry of a Qualified
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* Retired Senior Judge assigned to the Superior Court.
1 While the parties divorced in 2009, for ease, we refer to them as Husband
and Wife.
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Domestic Relations Order [(“QDRO”)2] involving [H]usband’s
Hayman-Carpenter Assocs. Inc. 401(k) profit sharing plan
(“pension”). Relevantly, the Honorable Rhonda Lee Daniele 1
issued an Order dated February 28, 2017, appointing Pension
Analysis Consultants (“PAC”) to update an evaluation of
[Husband’s] pension and the parties’ QDRO. The parties
subsequently filed petitions for contempt.
1 Judge Daniele moved to senior judge status in 2019
and this case was administratively reassigned to the
undersigned [the Honorable Gary S. Silow].
Judge Daniele held hearings on the petitions and issued an
Order dated July 24, 2018, granting [Wife] time to seek additional
information and to file a petition for special relief, if she so chose,
after receiving the information. [Wife] subsequently filed a
petition for special relief on September 7, 2018, claiming she had
learned of documents that [Husband] allegedly had withheld from
her and that had not been provided to PAC in order to develop a
QDRO.
The petition for special relief proceeded to a hearing before
Judge Daniele on November 30, 2018. After a series of objections
by [Husband’s] counsel during direct examination of [Wife], and
Judge Daniele learning that [Wife] had turned over a new expert
report to [Husband] the day before the hearing, Judge Daniele
terminated the proceeding, leaving it to be heard by the
undersigned in the new year.
The undersigned scheduled a hearing on the petition for
special relief for March 5, 2019. The parties appeared[,] but the
hearing was continued because [Wife] had not been able to secure
the attendance of Mark Altschuler from PAC. During the
proceeding, however, this court issued an oral order directing
[Wife] to pay her outstanding portion of Altschuler’s fees and
making her responsible for all of his fees moving forward. (N.T.,
3/5/19, p. 10)[.] This court also ordered [W]ife, within five days,
to provide proof to the court, filed of record, of her having paid
____________________________________________
2 “A QDRO . . . is a domestic relations order which creates or recognizes the
rights of an alternate payee to receive all or a portion of the benefits payable
to a participant under the [pension] plan.” Morgante v. Morgante, 119 A.3d
382, 395 n.11 (Pa. Super. 2015).
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her portion of the outstanding fees. Id. This court cautioned
[Wife] that a failure to provide proof of payment would result in
the court sua sponte dismissing her petition for special relief. Id.
Five days passed without proof of payment being filed[,] and
this court, on its own initiative, held a teleconference with counsel
for the parties on March 13, 2019. During the call, [Wife’s]
counsel claimed confusion with this court’s oral order. As an
accommodation, this court allowed [Wife] an additional day to
give the check to [Husband] and to file a certificate of payment.
Counsel agreed the amount [Wife] owed [Husband] in connection
with her outstanding portion of the PAC fees was [$]4,600.
Later that day, [Wife’s] counsel delivered to [Husband’s]
counsel a personal check in the amount of $4,600, payable from
a Bank of America account held in [Wife’s] name. The check was
dated March 8, 2019. [Wife’s] counsel also filed that day a
certification of payment.
Believing the payment issue had been resolved, this court
rescheduled the hearing on [Wife’s] petition for special relief. In
the interim, the check from [Wife] was dishonored, [because it
was allegedly inadvertently] written on a closed account.
This court learned of the dishonored check through the filing
of a petition for contempt by [Husband] on March 25, 2019. He
acknowledged that [Wife] had delivered a check to his counsel,
but alleged that a week later he received notice that the check
was not payable because it was made on an account that had been
closed. [Wife] filed an answer, new matter[,] and counterclaim.2
She and her attorney also filed separate supporting affidavits.
2 [Wife] claims the first she learned of the closed
account was when she received [Husband’s] petition
for contempt. She subsequently provided [Husband]
with a different check[,] and it appears the new check
was honored.
This court consolidated [Wife’s] petition for special relief and
[Husband’s] petition for contempt for a hearing on May 2, 2019.
At the hearing, [Wife] and her attorney testified on the issue of
the contempt petition. The matter was taken under advisement[,]
and this court issued an Order dated May 14, 2019, granting
[Husband’s] petition to the extent that it dismissed [Wife’s]
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petition for special relief. The Order also directed the parties to
file and serve a proposed QDRO based on the record as it existed
prior to [Wife] filing her petition for special relief.
[Wife] filed an emergency petition for reconsideration on
May 24, 2019.3 This court granted reconsideration and ordered
[Husband] to file a response. After considering the emergency
petition and [Husband’s] response, this court denied [Wife’s]
petition in an Order dated July 23, 2019, and gave [Wife] 30 days
to file her proposed QDRO.4 [Wife] retained new counsel and filed
a . . . notice of appeal.
3 [Wife] also filed an emergency petition for stay
pending appeal, which this court dismissed as moot
because it had granted reconsideration.
4 [Husband] already had filed his proposed QDRO.
Trial Court Opinion, 10/1/19, at 1–4. Wife filed her notice of appeal on August
1, 2019. Both the trial court and Wife complied with Pa.R.A.P. 1925.
We first address the timeliness and appealability of the order appealed.
By way of background, on September 12, 2019, before this case was assigned
to a panel, this Court entered a Per Curiam order directing Wife to show cause
as to the finality and appealability of both the contempt and special relief
portions of the order appealed. Order, 9/12/19. Wife filed a response on
September 23, 2019, and we entered an order on September 24, 2019,
discharging the show-cause order and advising that the panel may revisit the
jurisdictional issue. Order, 9/24/19.
Husband, in his brief, has renewed his claim that the appeal should be
quashed. Husband’s Brief at 12, 16–22. For the following reasons, we
disagree. The appealed contempt order was entered May 14, 2019. On May
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24, 2019, the trial court granted Wife’s timely emergency petition for
reconsideration, stayed the May 14, 2019 contempt order, and ordered
Husband to file a response. Order, 5/24/19. The filing of a reconsideration
motion “neither extends, nor tolls the appeal statute” unless, as here, a stay
is granted. Blackburn v. King Investment Group, LLC, 162 A.3d 461, 464
n.5 (Pa. Super. 2017).
Pennsylvania Rule of Civil Procedure 1930.2, “No Post-Trial Practice;
Motions for Reconsideration,” is relevant herein. Pa.R.C.P. 1930.2(b) provides
that a party aggrieved by the decision of the court may file a motion for
reconsideration, and it incorporates the timeliness requirements within
Pa.R.A.P. 1701(b)(3), as follows:
Rule 1701(b)(3) provides that after an appeal is filed, the trial court
may:
grant reconsideration of the order which is the subject of the
appeal ... if:
(i) an application for reconsideration of the order is filed in
the trial court ... within the time provided or prescribed by
law; and
(ii) an order expressly granting reconsideration of such prior
order is filed in the trial court ... within the time prescribed
by these rules for the filing of a notice of appeal ... or within
any shorter time provided or prescribed by law for the
granting of reconsideration.
… Where a timely order of reconsideration is entered under this
paragraph, the time for filing a notice of appeal … begins to run
anew after the entry of the decision on reconsideration, whether
or not that decision amounts to a reaffirmation of the prior
determination of the trial court.
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Dumas v. Brooks, 201 A.3d 1273, 1275–1276 (Pa. Super. 2018) (footnote
omitted) (quoting Pa.R.A.P. 1701(b)(3)). “The reconsidered decision, except
as set forth in subdivision (e), shall be rendered within 120 days of the date
the motion for reconsideration is granted.” Pa.R.C.P. 1930.2(c). “[T]he time
for filing a notice of appeal will begin to run anew from the date of entry of
the reconsidered decision. . . .” Pa.R.A.P. 1930(d).
Here, the trial court did grant reconsideration and a stay within the time
permitted and did take further action on July 23, 2019, which was within the
ensuing 120 days. Thus, the appeal period began to run anew from July 23,
2019. Therefore, the notice of appeal filed August 1, 2019, was timely.
Pa.R.C.P. 1930.2; Pa.R.A.P. 1701 and 903 (“Time for Appeal”).
Husband also contends the denial of Wife’s Petition for Special Relief
was “an evidentiary ruling and not an appealable order.” Husband’s Brief at
17. In this regard, he maintains the May 14, 2019 order appealed was not an
appealable order. Id. at 21–22.
In its Pa.R.A.P. 1925(a) opinion, the trial court opined that the instant
appeal “may have been improperly brought at this time because the decision
to dismiss the petition did not finally decide this matter.” Trial Court Opinion,
10/1/19, at 6 (citing Pa.R.A.P. 341(b)(1)). The trial court asserted that the
Petition for Special Relief sought to introduce additional evidence in connection
with the parties’ dispute over the entry of a QDRO, and that dispute “remains
pending and the striking of [Wife’s] petition for special relief does not place
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her out of court.” Id. The trial court posits that the case should proceed “to
the entry of a QDRO and, should [Wife] then wish to appeal, she may do so
while also challenging this court’s dismissal of her petition for special relief.”
Id.
Prior to imposition of sanctions, an order finding a defendant in
contempt is interlocutory. Rhoades v. Pryce, 874 A.2d 148, 151-153 (Pa.
Super. 2005) (en banc). Once the court imposes sanctions, however, the
previously interlocutory order is final and appealable. N.A.M. v. M.P.W., 168
A.3d 256, 260 (Pa. Super. 2017).
We agree with Wife that the order entered on May 14, 2019, included a
present finding of contempt and further, imposed sanctions in the form of
dismissal of Wife’s Petition for Special Relief. In re K.K., 957 A.2d 298, 303
(Pa. Super. 2008) (order of contempt was final and appealable because it
contained a present finding of contempt and imposed sanctions). While Judge
Daniele invited Wife to file a petition for special relief to raise her objections
to the pension valuation that was before the trial court, the May 14, 2019
order denied Wife that opportunity. Because the court dismissed the special-
relief petition as a sanction, it did not consider Wife’s special-relief petition on
the merits. The order at issue is properly before us. In re C.W., 960 A.2d
458, 460 (Pa. Super. 2008).
Appellant raises the following issues on appeal:
1. Did the trial court err as a matter of law and apply the incorrect
burden of proof when it mischaracterized its contempt order as an
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order for civil contempt rather than indirect criminal contempt,
where the sanction imposed was punitive rather than coercive and
compensatory, and the sanctions order did not include a purge
condition?
2. Did the trial court err as a matter of law or abuse its discretion
when it imposed civil contempt sanctions where the order alleged
to have been violated was not “definite, clear, and specific,” Wife’s
unrebutted testimony revealed that she did not intend to violate
the court's bench order, and Wife immediately cured the alleged
contempt?
Wife’s Brief at 6. We address the issues in tandem.
Each court is the exclusive judge of contempts against its process, and
we will reverse an order of contempt “only upon a showing of a plain abuse of
discretion.” In re Contempt of Cullen, 849 A.2d 1207, 1210 (Pa. Super.
2004) (citation omitted); Lachat v. Hinchcliffe, 769 A.2d 481, 487 (Pa.
Super. 2001). “[A]n appellate court has the authority to determine whether
the findings of the trial court support its legal conclusions, but may only
interfere with those conclusions if they are unreasonable in light of the trial
court’s factual findings.” Sutch v. Roxborough Mem’l Hosp., 142 A.3d 38,
67 (Pa. Super. 2016) (citation omitted).
Wife maintains that the trial court’s sanctions were criminal rather than
civil-contempt sanctions because their dominant purpose was to punish Wife
rather than compensate Husband. Wife’s Brief at 28. Wife suggests that
although the trial court classified its dismissal of her petition for special relief
as a civil sanction, the court’s order does not seek to compel her to comply
with the prior order requiring the payment of expert fees. Wife’s Brief at 31.
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Wife points out that when the trial court entered the May 14, 2019 order, Wife
“had already paid Husband in full.” Id.
Wife further submits that the sanction order was not compensatory.
Wife’s Brief at 31. She contends that “although Husband’s petition sought an
award of attorneys’ fees, the court did not award attorneys’ fees but instead[,]
dismissed Wife’s petition for special relief.” Id. at 31–32. Wife cites this as
support that the order was punitive rather than coercive. Id. at 32.
Wife suggests that the trial court’s confusion between civil and criminal
contempt caused it to apply the incorrect burden of proof, which she maintains
requires reversal. Wife’s Brief at 36. Wife avers that although the March 5,
2019 order3 required Wife to pay her outstanding portion of Mr. Altschuler’s
fees, it did “not state the dollar amount to be paid. Nor [did] it identify to
whom the fees should be paid—Mr. Altschuler (PAC) or [Husband]. (R. 99a,
191a.).” Wife’s Brief at 41. Thus, Wife suggests the order does not meet the
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3 The March 5, 2019 order provided as follows:
Regarding [Wife’s] petition for special relief, at which time
[Wife] will produce Mark Altschuler as her witness. Wife shall pay
her outstanding portion of his fees, and is solely responsible for
his fees going forward.
Within five days from today, Wife shall provide proof to the
[c]ourt, filed of record, of having paid her outstanding portion of
Mr. Altschuler’s fees. Failure to file proof of payment shall result
in the [c]ourt sua sponte dismissing your petition.
Order, 3/5/19, at 1; N.T., 3/5/19, at 2.
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requirement that it be “definite, clear, and specific.” Id. Wife further
contends that there was confusion regarding the amount Husband had paid
PAC. Wife’s Brief at 42–43. Because Wife argues that Husband failed to
sustain his burden of proof that the March 5, 2019 order was definite, clear,
and specific, she maintains that the trial court erred when it held her in
contempt. Id. at 45.
Finally, Wife asserts that Husband failed to sustain his burden of proving
that Wife intended to violate the March 5th order. Wife’s Brief at 46. Wife
avers that evidence of wrongful intent is a prerequisite to the imposition of
contempt sanctions. Id. at 52 (citing MacDougall v. MacDougall, 49 A3d
890, 892 (Pa. Super. 2012)). She posits that the record does not support
such a conclusion.
Husband responds that the trial court properly entered civil sanctions
against Wife. Husband’s Brief at 22. He argues the order was not punitive;
rather, Husband suggests the trial court merely ordered Wife to pay her
outstanding portion of the Altschuler expert fees “and was solely responsible
for the expert’s fees going forward.” Id. at 22–23.
Husband avers that Wife was on notice of her noncompliance of the
order requiring her payment of the expert’s fees. Husband’s Brief at 31. Once
the trial court found civil contempt, Husband maintains it can impose
sanctions, and here, the sanction was not disproportionate to Wife’s acts. Id.
at 32.
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Husband also avers that Wife was not confused—she admitted that she
understood her obligation to deliver a check for the PAC expert to Husband.
Husband’s Brief at 33. Husband asserts that he met his burden of proof with
clear evidence that Wife violated court orders and that special relief was not
warranted. Id. at 37. Husband maintains that Wife failed to comply with the
trial court’s orders, “despite being cautioned that failure to do so would result
in the dismissal of her petition.” Id.
The trial court, in an alternative to its suggestion of quashal of the
appeal, stated the following:
Here, [Wife] and her attorney were present when this court
issued its oral order and [Wife’s] counsel participated in the
conference call that granted an extension. [Wife] also filed a
written response to [Husband’s] contempt petition[,] and she and
her attorney participated at the subsequent hearing. [Wife],
therefore, did not suffer a due process violation in connection with
the dismissal of her petition for special relief.
Trial Court Opinion, 10/1/19, at 7. The trial court did not address Wife’s
contention that the May 14, 2019 order held Wife in indirect criminal
contempt, nor did it deny that the dismissal of Wife’s Petition for Special Relief
was a sanction for its finding of contempt. Trial Court Opinion, 10/1/19, at 1–
9.
We conclude that the instant order held Wife in indirect criminal
contempt and the contempt finding is not supported in the record. We have
stated:
The factors generally said to point to a civil contempt are these:
(1) where the complainant is a private person as opposed to the
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government or a governmental agency; (2) where the proceeding
is entitled (captioned) in the original...action and filed as a
continuation thereof as opposed to a separate and independent
action; (3) where holding the respondent in contempt affords
relief to a private party; (4) where the relief requested is primarily
for the benefit of the complainant; and (5) where the acts of
contempt complained of are primarily civil in nature and do not of
themselves constitute crimes or conduct by the respondent so
contumelious that the court is impelled to act on its own motion.
Stahl v. Redcay, 897 A.2d 478, 486 (Pa. Super. 2006).
Alternatively, indirect criminal contempt:
consists of a claim that a violation of an Order or Decree of court
occurred outside the presence of the court. Commonwealth v.
Padilla, 2005 Pa. Super. 332, 885 A.2d 994 (Pa. Super. 2005). . . .
To establish indirect criminal contempt, [it] must [be] prove[n]:
1) the Order was sufficiently definite, clear, and specific to the
contemnor as to leave no doubt of the conduct prohibited; 2) the
contemnor had notice of the Order; 3) the act constituting the
violation must have been volitional; and 4) the contemnor must
have acted with wrongful intent.
Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa. Super. 2007).
“The distinction between criminal and civil contempt is … a distinction
between two permissible judicial responses to contumacious behavior.”
Lachat, 769 A.2d at 488. The characteristic that distinguishes civil from
criminal contempt is the ability of the contemnor to purge himself of contempt
by complying with the court’s directive. Interest of E.O., 195 A.3d 583, 587
n.7 (Pa. Super. 2018). If the purpose of the order is to punish despite an
opportunity to purge, the order is criminal in nature. Id. (citing Sinaiko v.
Sinaiko, 664 A.2d 1005, 1009 (Pa. Super. 1995)). Thus, “criminal contempt
is of a punitive character.” Bruzzi v. Bruzzi, 481 A.2d 648, 651 (Pa. Super.
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1984). Here, the trial court was punishing Wife for her alleged act of
noncompliance. “A civil label is inappropriate when the court is attempting to
punish the contemnor for past acts of misbehavior . . . .” Id. The above
factors point to classifying the instant contempt as indirect criminal contempt.
We have stated, moreover, that “the same facts or conduct may constitute or
amount to both civil and criminal contempt.” Stahl, 897 A.2d at 486. Further,
both civil and criminal contempt require proof of the distinct elements of clarity
of order, notice, volition, and intent.
We look first to the language of the order allegedly violated to determine
whether it was sufficiently definite, clear, and specific, such that Wife had no
doubt of the conduct prohibited. As noted supra, the March 5, 2019 order
required Wife to pay her outstanding portion of Mr. Altschuler’s fees, but it did
not state the dollar amount to be paid, nor did it identify to whom the fees
should be paid—Mr. Altschuler (PAC) or Husband. Order, 3/5/19.
Evidence admitted at the May 2, 2019 hearing, including the affidavits
of Wife, her counsel, and Wife’s testimony, established that confusion existed
regarding the amount Husband had paid PAC. N.T., 5/2/19, at 54. The
nebulous and indefinite March 5, 2019 order, which lacked the amount of fees
Wife was to pay and to whom, resulted in confusion. During questioning by
Husband’s counsel, Wife testified:
A. So I was ordered to pay Mr. Altschuler’s outstanding fees,
which is what I did.
Q. Okay. You didn’t pay them to [Husband], did you?
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A. It doesn’t say I have to pay them to Mr. Hayman. It says I
have to pay outstanding fees.
Q. Okay. And so within five days of the order, what did you pay
Mr. Altschuler?
A. I don’t recall what the amount was. But we had asked for
proof of payment and we had a difficult time getting it.
And we also had a difficult time getting the court transcript
because there was an illness in the court system, the person who
provides that. So there was a delay.
And we also asked your—asked [Husband] for proof of
payment. And there was no response on that.
And then we asked PAC for the proof of payment. And there
was a delay on that because somebody was out on vacation.
Id. at 49. Due to the uncertainty regarding the amount to be paid, Wife’s
counsel attempted to obtain a transcript of the March, 2019 hearing. There
were a series of emails between Wife’s counsel and the court reporter, who
was unable to timely provide a transcript due to an illness in the reporter’s
family. Id. Clearly, the order was not the model of clarity, and it does not
meet the requirement that it be “definite, clear, and specific.” Sutch, 142
A.3d at 67–68.
Further, any violation of the relevant order was not intentional. This
conclusion relates to the requirement that the contemnor must have acted
with wrongful intent. Brumbaugh, 932 A.2d at 110. “[W]hen making a
determination regarding whether a defendant acted with wrongful intent, the
court should use common sense and consider context . . . .” Commonwealth
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v. Reese, 156 A.3d 1250, 1258 (Pa. Super. 2017); see also
Commonwealth v. Haigh, 874 A.2d 1174, 1177 (Pa. Super. 2005) (Trial
courts must “use common sense and consider the context and surrounding
factors in making their determinations of whether a violation of court order is
truly intentional before imposing sanctions of criminal contempt.”) (emphasis
in original).
Wife’s uncontroverted testimony reveals that a combination of mishaps
caused the check to be written on the wrong account. Three days after the
March 2019 hearing, Wife delivered the check to her attorney on March 8,
2019. N.T., 5/2/19, at 56. Wife testified that the account from which the
check was written was closed, “unbeknownst to [her].” Id. at 61. Wife
testified that she had two checking accounts:
One with checks that I write occasionally. Less than six a year.
Probably closer to three. And I have another checking account
that I pay all my bills through electronically. I have no checks for
that account, never had checks, never wrote a check from that
other account. It is all eBill pay.
Id. at 62. Wife agreed with counsel for Husband that she intended “to write
a check on an account relying upon [her] belief that overdraft protection would
somehow take money from [her] other account[] to cover the check that [she]
wrote to [Husband].” Id. at 65. Wife testified that she did not know the
account had been closed until she received Husband’s petition for contempt.
Id. at 89. Wife immediately telephoned customer service for the Bank of
America and was told the account had been closed. Id. at 105, Affidavit of
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Bette Hayman, ¶ 19. The bank admitted closing the account six days before
Wife wrote the check and admitted that “no notice of closure was mailed,
emailed, nor was an alert sent to” Wife’s cellular telephone of to her “Bank of
America App.” Id. The next day, Wife personally delivered a replacement
check to Husband’s counsel. Id. at ¶ 20.
Evidence of wrongful intent is an essential element of indirect criminal
contempt. Commonwealth v. Taylor, 137 A.3d 611, 615 (Pa. Super. 2016).
In addition, the violation of the order “must have been volitional.” Id.
Instantly, the lack of a clear, definite, and specific order, combined with the
absence of volitional conduct and wrongful intent as supported in the record,
compel our conclusion that the trial court abused its discretion and the finding
of contempt must be reversed. Because we have determined that the
contempt order cannot stand, we need not evaluate whether dismissal of the
Petition for Special Relief was an appropriate sanction.
The order of indirect criminal contempt is reversed, and Wife’s Petition
for Special Relief, therefore, is reinstated. Thus, we remand the matter to the
trial court for proceedings consistent with this memorandum.
May 14, 2019 order reversed. Case remanded. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/20
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