J-A35024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TERRENCE R. WEISHNER,                               IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellant

                    v.

DEBORAH ANN WEISHNER,

                          Appellee                        No. 394 WDA 2015


                   Appeal from the Order February 3, 2015
              In the Court of Common Pleas of Indiana County
                    Civil Division at No(s): 12363 CD 2010


BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED FEBRUARY 26, 2016

     Appellant, Terrence R. Weishner (“Husband”), appeals from the order

finding him in contempt of an equitable distribution order in this divorce

matter involving Appellee, Deborah Ann Weishner (“Wife”). We affirm.

     We summarize the history of this case as follows. Husband and Wife

were married on June 3, 1978.         On November 24, 2010, Husband filed a

complaint in divorce. During the divorce proceedings, Husband received a

monthly pension from the Pennsylvania State Employees’ Retirement

System (“SERS”).        Based upon the amount of Husband’s pension, Wife

received monthly alimony pendente lite payments of $2,100.00.

     On May 16, 2014, upon agreement of the parties, the trial court

entered an order disposing of the parties’ equitable distribution claims.

Paragraph   five   of    the   equitable   distribution   order   addressed   Wife’s
J-A35024-15


entitlement to a portion of Husband’s SERS pension in the amount of

$2,000.00 per month and the preparation of a qualified domestic relations

order (“QDRO”).     The parties’ divorce decree was entered on August 12,

2014.

        Because Husband did not make $2,000.00 payments to Wife while the

QDRO was being finalized by SERS, on December 11, 2014, Wife sent a pro

se letter to the court of common pleas seeking to hold Husband in contempt

of the May 16, 2014 equitable distribution order.     At a hearing on Wife’s

petition for contempt on January 26, 2015, Husband filed an answer and

new matter alleging that paragraph five of the equitable distribution order

was ambiguous because it did not identify a date upon which the monthly

payments from Husband’s pension to Wife were to begin. Husband claimed

that the parties agreed the payments were to begin once the QDRO was

approved by SERS.

        On February 3, 2015, the trial court entered an order finding Husband

in contempt of paragraph five of the May 16, 2014 order.      The trial court

concluded that Husband was obligated to pay Wife $2,000.00 per month

from his SERS pension, regardless of whether the amount was deducted

from Husband’s pension pursuant to a QDRO. The trial court also found that

Husband was in arrears $10,000.00 (the equivalent of five monthly

payments), and ordered Husband to pay Wife the sum of $10,000.00 within

thirty days of the February 3, 2015 order.


                                     -2-
J-A35024-15


      Husband filed a motion for reconsideration, which the trial court

denied. This timely appeal followed. Both Husband and the trial court have

complied with Pa.R.A.P. 1925.

      Husband presents the following issues for our review:

      [1.] Whether the Trial Court erred in finding that Paragraph 5 of
      the Order of May 16, 2014 obligated Husband to pay $2,000 per
      month to Wife as her share of equitable distribution from his
      pension regardless of whether it was deducted from his pension
      pursuant to a QDRO or not, and, in making such finding where
      the record and evidence showed that neither party intended or
      expected that the payments would start prior to being deducted
      from Husband’s pension pursuant to a QDRO and where Wife’s
      allegations of contempt and request for damages were based on
      delay in the receipt of pension distributions because of delay in
      the QDRO process rather than because Husband allegedly failed
      to make direct distributions to Wife before they were made by
      deduction pursuant to the QDRO[?]

      [2.] Whether the Trial Court erred in finding Husband in
      contempt of Paragraph 5 of the Trial Court’s Order of May 16,
      2014 for failure to pay the sum of $2,000 per month from his
      pension?

      [3.] Whether the Trial Court erred in determining that Husband
      was in arrears in the amount of $10,000.00 where the evidence
      showed that Wife was to receive a distribution by pension
      deduction for January of 2015 and where Husband had overpaid
      spousal support to Wife and the Court did not consider a set off
      of any or all of the overpayment?

Husband’s Brief at 4-5.

      In his first two issues, Husband argues that the trial court erred in

finding him in contempt of paragraph five of the equitable distribution order.

Husband contends that paragraph five is ambiguous, and a consideration of

the   parties’   intent   and   expectations   was   necessary   for   the   proper


                                       -3-
J-A35024-15


interpretation of the paragraph. Husband claims that neither party intended

that payments would start prior to their deductions from Husband’s pension

plan pursuant to a QDRO, and that the trial court’s finding of contempt was

improper because Husband did not act with wrongful intent.           Rather,

Husband claims that he was merely waiting for the QDRO to be in place for

payments to begin.

           “When considering an appeal from an [o]rder holding a
     party in contempt for failure to comply with a court [o]rder, our
     scope of review is narrow: we will reverse only upon a showing
     the court abused its discretion.” Harcar v. Harcar, 982 A.2d
     1230, 1234 (Pa. Super. 2009) (quoting Hopkins v. Byes, 954
     A.2d 654, 655 (Pa. Super. 2008)). We also must consider that:

           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. When reviewing an appeal from a
           contempt order, the appellate court must place great
           reliance upon the discretion of the trial judge.

     Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa. Super.
     2002) (quoting 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.” Godfrey
     v. Godfrey, 894 A.2d 776, 780 (Pa. Super. 2006). Additionally,
     “[i]n proceedings for civil contempt of court, the general rule is
     that the burden of proof rests with the complaining party to
     demonstrate, by [a] preponderance of the evidence that the
     defendant is in noncompliance with a court order.” Lachat v.
     Hinchcliffe, 769 A.2d 481, 488 (Pa. Super. 2001).

Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013).

     “It is well-established that the law of contracts governs marital

settlement agreements.”   Vaccarello v. Vaccarello, 757 A.2d 909, 914


                                   -4-
J-A35024-15


(2000).     Our courts observe the following principles in reviewing a trial

court’s interpretation of a marital settlement agreement:

     Because contract interpretation is a question of law, this Court is
     not bound by the trial court’s interpretation. Our standard of
     review over questions of law is de novo and to the extent
     necessary, the scope of our review is plenary as the appellate
     court may review the entire record in making its decision.
     However, we are bound by the trial court’s credibility
     determinations.

            When interpreting a marital settlement agreement, the
     trial court is the sole determiner of facts and absent an abuse of
     discretion, we will not usurp the trial court’s fact-finding
     function. On appeal from an order interpreting a marital
     settlement agreement, we must decide whether the trial court
     committed an error of law or abused its discretion.

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007) (citation

omitted).

     We have also reiterated this Court’s limited role in interpreting

contracts such as property settlement agreements between spouses:

             A court may construe or interpret a consent decree
             as it would a contract, but it has neither the power
             nor the authority to modify or vary the decree unless
             there has been fraud, accident or mistake.

                                       * * *

             It is well-established that the paramount goal of
             contract interpretation is to ascertain and give effect
             to the parties’ intent. When the trier of fact has
             determined the intent of the parties to a contract, an
             appellate court will defer to that determination if it is
             supported by the evidence.

     Lang v. Meske, 850 A.2d 737, 739 (Pa. Super. 2004) (internal
     citations omitted) (quoting Osial v. Cook, 803 A.2d 209, 213–
     214 (Pa. Super. 2002)). Further, where, as here, the words of a

                                       -5-
J-A35024-15


     contract are clear and unambiguous, the intent of the parties is
     to be ascertained from the express language of the agreement
     itself. Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071 (Pa.
     Super. 2004).

Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004).

     The text of paragraph five provides as follows:

     5. Wife shall be entitled to $2,000.00 per month from Husband’s
     SERS pension. Husband’s counsel shall draft a QDRO that has
     been approved by SERS. Husband shall receive any and all
     remaining amounts from this pension.

Order, 4/16/14, at 1.

     The trial court made the following determinations, which we conclude

are supported by the relevant law and certified record:

            The [trial c]ourt found that paragraph 5 of the May 16,
     2014 Order of Court was unambiguous.             The [trial c]ourt
     disagrees that in finding Husband in contempt, the [trial c]ourt
     substituted its own judgment and interpretation of paragraph 5
     over the parties’ intentions when entering into the agreement.
     The parties’ interpretation and intent in the formation of the
     contract was not relevant as there is no ambiguity. Paragraph 5
     clearly states that Wife is entitled to $2,000.00 per month from
     Husband’s SERS pension. While the Order instructs Husband’s
     counsel to draft a QDRO to be approved by SERS, there is no
     language within paragraph 5 or the Order to defer
     commencement of the obligation until this was accomplished.
     For example, the paragraph does not state that Wife shall be
     entitled to $2,000.00 per month from Husband’s SERS pension
     after or when the QDRO is drafted and approved by SERS. The
     provision merely sets forth that it is Husband’s obligation to draft
     the QDRO and seek approval.

           The [trial c]ourt disagrees with Husband that there is a
     “lack of evidence” to support the [trial c]ourt’s finding. To the
     contrary, the [trial c]ourt finds no evidence to support Husband’s
     contention that his obligation was only to start after a QDRO was
     accepted by SERS.          In making this argument, Husband
     acknowledges that the timeframe in which the QDRO would be

                                    -6-
J-A35024-15


      approved and implemented was uncertain. Husband contends
      that this was considered by the parties and Wife was aware of a
      possible delay. [The trial c]ourt disagrees. As stated above, the
      [trial c]ourt finds paragraph 5 to be clear and unambiguous,
      providing Wife a payment of $2,000 per month from Husband’s
      pension. The [trial c]ourt found no contingencies in paragraph 5
      or the Order to indicate that the parties had meant for there to
      be a delay in when the payments were to commence.

Trial Court Opinion, 4/29/15, at 7-8 (emphasis in original).

      Likewise, upon review of the language of paragraph five, we are

constrained to agree with the trial court that there is no ambiguity and that

Wife was entitled to $2,000.00 per month from Husband’s SERS pension,

regardless of when a QDRO was drafted and approved.                Thus, Wife’s

entitlement to $2,000.00 from Husband’s SERS pension began when the

order was signed by the trial court. Accordingly, we conclude that Husband

has failed to establish that the trial court abused its discretion in finding him

in contempt of paragraph five of the court order, and his contrary claims in

this regard lack merit.

      In his final argument, Husband asserts that the trial court erred in

calculating the amount of his arrears. Husband’s Brief at 37-39. Husband

notes that Wife was due to be paid by SERS under the QDRO at the end of

January 2015. Basically, Husband contends that he should have been given

a credit due to his overpayment of spousal support.

      However, Husband’s request for a credit on his alleged overpayment of

alimony pendente lite to Wife was not properly before the trial court in

relation to Wife’s petition for contempt. Rather, as Pa.R.C.P. 1910.1 states,

                                      -7-
J-A35024-15


“the rules of this chapter govern all civil actions or proceedings brought in

the court of common pleas to enforce a duty of support, or an obligation to

pay alimony pendente lite.”         In addition, Pa.R.C.P. 1910.19(g)(2) specifies

how a party is to seek recovery from an over payment of support once an

order of support is terminated.1

        The trial court correctly noted Husband’s procedural misstep as

follows:

              The [trial c]ourt further finds Husband’s argument that
        Wife filed a petition with “unclean hands” and that Husband had
        overpaid spousal support, which was not considered by the [trial
____________________________________________


1
    The pertinent text of Pa.R.C.P. 1910.19 provides as follows:

        Rule 1910.19.         Support.   Modification. Termination.
        Guidelines as        Substantial Change in Circumstances.
        Overpayments

                                          ***

        (g) Overpayments.
                                          ***

        (2) Order Terminated.       If there is an overpayment in any
        amount and there is no charging order in effect, within one year
        of the termination of the charging order, the former obligor may
        file a petition with the domestic relations section seeking
        recovery of the overpayment. A copy shall be served upon the
        former obligee as original process.        The domestic relations
        section shall schedule a conference on the petition, which shall
        be conducted consistent with the rules governing support
        actions. The domestic relations section shall have the authority
        to enter an order against the former obligee for the amount of
        the overpayment in a monthly amount to be determined by the
        trier of fact after consideration of the former obligee’s ability to
        pay.



                                           -8-
J-A35024-15


     c]ourt as an offset to Husband’s arrears, is not pertinent to the
     issue at hand or properly raised during the proceeding. While
     Husband did respond to Wife’s contempt petition with an answer
     and new matter, in which he alleged he had overpaid spousal
     support, [the trial c]ourt was never requested to offset the
     alleged arrears owed by Husband nor was the contempt
     proceeding the appropriate forum for this request to
     establish an overpayment of a Domestic Relations support
     order.

Trial Court Opinion, 4/29/15, at 9 (emphasis added).

     We agree with the trial court that Husband’s attempt to recapture any

alleged overpayment of alimony pendente lite as a credit to the amount due

to Wife for failure to pay her according to paragraph five of the equitable

distribution order was not appropriate.   Therefore, we dismiss Husband’s

claim of trial court error without prejudice to Husband’s ability to seek

recovery for any alleged overpayment of alimony pendente lite via the

correct methods set forth under the Pennsylvania Rules of Civil Procedure.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2016




                                    -9-
J-A35024-15




              - 10 -
