J-A26029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 THOMAS MACKIE                             :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 DIANE MACKIE                              :   No. 442 WDA 2019

             Appeal from the Order Entered February 20, 2019
    In the Court of Common Pleas of Washington County Civil Division at
                          No(s): No. 2013-6350


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY LAZARUS, J.:                       FILED NOVEMBER 26, 2019

      Thomas Mackie (“Husband”) appeals from the order, entered in the

Court of Common Pleas of Washington County, holding him in contempt of

court for failure to comply with the court’s equitable distribution orders and

enjoining him from disposing of any portion of his American Airlines 401(k)

plan for pilots. Upon careful review, we affirm.

      The trial court set forth the facts of this matter as follows:

      This divorce has such a long, agonizing, and tortured history . . .
      with which the Superior Court is familiar. . . . Importantly, the
      Superior Court [affirmed] the trial court’s . . . equitable
      distribution order. [Husband] filed a petition for allowance of
      appeal with the Pennsylvania Supreme Court, but that Court
      denied the request. Thereafter, [Wife] sought enforcement of the
      trial court’s equitable distribution order.

      On May 16, 2018, [Wife] filed a rule to show cause why [Husband]
      should not be held in contempt [of] the court[’]s April 26, 2017
      order of equitable distribution. Among other things, [Wife]
      claimed that [Husband] had failed to distribute the $157,700 the
      trial court awarded her from [Husband’s] Northrup Grumman
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     Savings Plan. The trial court scheduled a hearing for June 28,
     2018.

     [Wife] and [Husband’s] counsel appeared at the hearing;
     [Husband] did not appear.1 The trial court proceeded and
     concluded that [Husband] was not in contempt of the equitable
     distribution order because the April 26, 2017 order required [Wife]
     to draft the [Qualified Domestic Relations Order (“QDRO”)] for the
     Northrup Grumman Savings Plan. Thereafter, [Wife] drafted a
     QDRO and presented it to the trial court for approval. On August
     21, 2018, the trial court approved the QDRO.
        1 [Husband], who lives in the state of California, has failed
        to appear at other equitable distribution enforcement
        hearings. As a result, the trial court issued bench warrants
        against [him] on May 11, 2018 and July 9, 2018. The
        warrants remain outstanding. Further, the trial court found
        [Husband] in contempt for failing to comply with equitable
        distribution orders regarding his military pension . . . as well
        as his failure to pay [Wife’s] counsel fees from the equitable
        distribution order and her $15,035.18 share of the [parties’]
        G-Force Leadership, L.L.C. asset.

     On October 26, 2018, [Wife] then filed a second rule to show
     cause why [Husband] should not be held in contempt [of] the
     court[’]s April 26, 2017 order of equitable distribution. The trial
     court scheduled a hearing for November 27, 2018. At that
     hearing, [Wife] produced a letter from Fidelity Investments, the
     plan administrator for [Husband’s] Northrup Grumman Savings
     Plan, dated September 21, 2018[.]             Critically, the plan
     administrator stated, “[a]ccording to our records, the Participant
     was eligible to be in the Plan, but our records indicate that there
     are no assets in the account to segregate. Therefore, as there are
     no assets in the account to assign to the Alternate Payee, there
     will be no review of this order, and our file on this matter is
     considered closed.” As a consequence, the trial court issued an
     order on December 6, 2018 finding [Husband] in contempt for
     depleting the mar[ital] asset because a QDRO could not issue
     against the account.       Further, the trial court directed the
     Washington County Prothonotary to enter judgment against
     [Husband] and in favor of [Wife] in the amount of $157,700, plus
     legal interest as of December 6, 2018. Finally, the trial court
     imposed a $2,000.00 fine against [Husband] which was to be paid
     within 30 days.


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       On January 23, 2019, [Wife] filed [a] rule to show cause why
       [Husband] shall not be held in contempt for failure to comply with
       the December 22, 2014 order of court. According to [that] order,
       both parties were ordered not to dissipate any “marital funds and
       assets,” including the Northrup Grumman Savings Plan, pending
       equitable distribution. The trial [court] scheduled a hearing for
       February 15, 2019.[1] [Wife] and [Husband’s] counsel appeared
       for the hearing; [Husband] did not appear.

       The trial court found two reasons why [Husband] was in contempt
       for noncompliance with the December 6, 2018 order: failing to
       pay the $2,000.00 fine, and dissipating/sequestering the Northrup
       Grumman Savings Plan in violation of the December 22, 2014
       order. As a result, the trial court issued an order on February 19,
       2019 . . . enjoining [Husband] from disposing [of] any portion of
       the moneys that had been his American Airlines 401(k) Plan for
       Pilots . . . until further order of court. The trial court also ordered
       [Husband] to draft a QDRO for the Alternate Payee in the amount
       of $157,700, plus the legal rate of interest from December 6,
       2018. The trial court directed that this be completed within 30
       days. If [Husband] did not comply within 30 days, a $500 per
       month fine would be imposed until a QDRO was submitted for
       court approval. [Husband], pro se, filed a notice of appeal on
       March 22, 2019 regarding the trial court’s February 19, 2019
       order.

Trial Court Opinion, 4/1/19, at 2-3 (citations, unnecessary capitalization and

footnote omitted).

____________________________________________


1 We note that Husband failed to order the transcription of the notes of
testimony from the February 15, 2019 hearing and, as such, they are not
included in the certified record on appeal. It is an appellant’s responsibility to
supply this Court with a complete record for purposes of review. Pa.R.A.P.
1911(a). This Court could dismiss this appeal or find waiver of Husband’s
claim based upon his failure to include the necessary transcript in the certified
record. See Pa.R.A.P. 1911(d); Cade v. McDanel, 679 A.2d 1266, 1268–69
(Pa. Super. 1996) (“[A] failure by ... appellant to insure that the original record
certified for appeal contains sufficient information to conduct a proper review
constitutes a waiver of the issue[s] sought to be examined.”). However,
because we are able to resolve Husband’s claim without reference to the notes
of testimony, we decline to dismiss the appeal.

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      On appeal, Husband asserts that the trial court erred in finding him in

contempt of court.      Specifically, Husband argues that, by order dated

December 6, 2018, the trial court had already held him in contempt for the

depletion of the Northrop Grumman account, entered judgment in favor of

Wife, and imposed a fine for his intentional non-compliance. Husband asserts

that the court improperly based its finding of contempt on the December 22,

2014 order, in which the court had precluded either party from dissipating

assets pending equitable distribution. Husband claims that, because equitable

distribution had long since occurred, and because he never dissipated any

assets while equitable distribution was pending, a finding of contempt based

on that order was improper as that order “has no application to events

occurring in 2018 and 2019, post-equitable distribution.” Brief of Appellant,

at 17. Husband further argues that the court’s second basis for the instant

finding of contempt—Husband’s failure to pay the $2,000 fine assessed in the

contempt order of December 6, 2018—was insufficient to support the

“excessive” sanction imposed in the order now under review. For the following

reasons, Husband is entitled to no relief.

      “In considering an appeal from a contempt order, great reliance
      must be placed upon the discretion of the trial judge.” Marian
      Shop, Inc. v. Baird, [] 670 A.2d 671, 673 ([Pa. Super.] 1996).
      Accordingly, “appellate review of a finding of contempt is limited
      to deciding whether the trial court abused its discretion.” Lachat
      v. Hinchliffe, 769 A.2d 481, 487 (Pa. Super. 2001).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it misapplies

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J-A26029-19


          the law or exercises its discretion in a manner lacking
          reason. Similarly, the trial court abuses its discretion if it
          does not follow legal procedure.

       Id. (citation omitted).

Bold v. Bold, 939 A.2d 892, 894–95 (Pa. Super. 2007).

       In proceedings for civil contempt of court, the general rule is that
       the burden of proof rests with the complaining party to
       demonstrate that the defendant is in noncompliance with a court
       order. Lachat [769 A.2d at 489] (citations omitted). 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.

MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012).

       We begin by noting our agreement that a purported violation of the

December 22, 2014 order, precluding either party from dissipating assets

pending equitable distribution, cannot form the basis for the court’s finding of

contempt on February 19, 2019. Equitable distribution was finalized on April

26, 2017. Thus, any subsequent dissipation of assets is not a violation of the

December 2014 order. Moreover, in making its finding of contempt, the court

does not cite any dissipation of assets that occurred prior to equitable

distribution as a basis for its finding.2

       However, Husband does not dispute that he failed to pay the $2,000

fine imposed in the December 6, 2018 order. Indeed, Husband concedes that

____________________________________________


2 Wife averred in her petition for contempt that Husband dissipated the
Northrup Grumman account on August 22, 2018, over one year after the
equitable distribution order was entered. See Petition for Contempt, 1/23/19,
at ¶ 12.

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J-A26029-19



his “failure to pay that fine might form the basis of a contempt finding on

February 19, 2019.”       Brief of Appellant, at 16.   Particularly in light of

Husband’s ongoing contemptuous conduct throughout the pendency of this

matter, we are unable to conclude that the trial court abused its discretion by

holding Husband in contempt for his failure to pay the fine imposed in the

December 6, 2018 order.       Husband was aware of the order, which was

definite, clear, and specific, and he admits that he failed to pay the fine

ordered. See MacDougall, supra. Moreover, we do not find excessive a fine

of $500 for each month in which Husband remains in violation of the court’s

order that he draft and submit to the court a QDRO with respect to his

American Airlines 401(K). Such a requirement simply enables Wife to finally

collect funds she has long been due pursuant to the court’s equitable

distribution order and requires Husband to do no more than that which he was

already obligated to do.    Husband need only fulfill his obligations to avoid

paying the fine.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019




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