J-A33023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JENNIFER DELLA GUARDIA                                    IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                              Appellee

                         v.

JAMES DELLA GUARDIA

                              Appellant                         No. 136 EDA 2015


                Appeal from the Order Dated November 20, 2014
              In the Court of Common Pleas of Montgomery County
                      Civil Division at No: No. 2010-04664


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                                    FILED MARCH 30, 2016

        Appellant     James       Della   Guardia   (“Husband”)        appeals    from    the

November 20, 2014 order of the Court of Common Pleas of Montgomery

County     (“trial    court”),    which    denied   his    petition    for   contempt     and

enforcement of a property settlement agreement executed between him and

Appellee Jennifer Della Guardia (“Wife”) and granted Wife’s counterclaim,

directing Husband to pay Wife $6,415.00 in attorney’s fees. Upon review,

we affirm.

        The   facts     and      procedural    history    underlying     this    appeal   are

undisputed. In 2010, Wife filed a complaint in divorce against Husband. On

February 21, 2012, the parties entered into a “Stipulation for Agreed Order

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A33023-15



in Support” (“Stipulation Order”).      Paragraph 5 of the Stipulation Order

provides in relevant part:

       “The Parties have entered into a comprehensive Property
       Settlement Agreement which includes a provision of
       alimony/alimony pendent [sic] lite for Wife as follows:

          Husband is currently obligated to pay Wife alimony
          pendente lite at the rate of $4,452,00 per month.
          Husband shall continue to be so obligated through
          February 29, 2012. Commencing March 1, 2012 and for a
          period of 18 months thereafter, Husband shall pay to Wife
          as alimony/alimony pendente lite, the sum of $2,550.00
          per month.     This payment shall be non-modifiable in
          amount and duration.      However, this obligation shall
          terminate upon earliest of the following: 1) Wife’s
          cohabitation, 2) Wife’s remarriage, 3) Wife’s death, 4)
          Husband’s death, or 5) August 31, 2013, provided all
          payments contemplated herein have been paid.

Stipulation Order, 2/21/12 at ¶ 5A.       On February 22, 2012, Husband and

Wife   entered   into   a   property   settlement   agreement   (“PSA”),     which

incorporated and restated Paragraph 5 of the Stipulation Order. See PSA,

2/22/12 at ¶ 19.        Moreover, Paragraph 24 of the PSA, pertaining to

enforcement, provides:

       Each party further hereby agrees to pay and to save and hold
       harmless the other party from any and all reasonable attorney’s
       fees, and costs of litigation that either may sustain, or incur, or
       become liable for, in any way whatsoever, or shall pay upon, or
       in consequence of any default or breach by the other of any of
       the terms or provisions of this Agreement by reason of which
       either party shall be obliged to retain or engage counsel to
       initiate or maintain or defend proceedings against the other at
       law or equity or both or in any way whatsoever; provided that
       the party who seeks to recover such reasonable attorney’s fees,
       and costs of litigation must first be successful in whole or in
       part; before there would be any liability for said reasonable
       attorney’s fees, and costs of litigation.      It is the specific
       agreement and intent of the parties that a breaching or
       wrongdoing party shall bear the burden and obligation of any
       and all costs and expenses and counsel fees incurred by himself
       or herself as well as the other party. In endeavoring to protect
       and enforce his or her rights under this Agreement. The Court
       shall determine the reasonableness of the attorney fee award.

                                       -2-
J-A33023-15



Id. at ¶ 24. On February 28, 2013, Husband filed a “Petition for contempt

and to Enforce Stipulation for Agreed Order in Support.”    Husband alleged

that Wife was cohabiting with her paramour, Dan Falcone (“Mr. Falcone”),

“since on or about October 25, 2010” in violation of the alimony provisions

of the Stipulation Order and the PSA. Husband’s Contempt and Enforcement

Petition, 2/28/13, at ¶ 6.   Based on this allegation, Husband argued that

Wife was not entitled to any alimony payments made under the Stipulation

Order.   Wife answered the contempt petition, denying that she was

cohabiting with anyone. Wife’s Amended Answer, 1/22/14, at ¶ 6. Wife also

raised a counterclaim for attorney’s fees under Paragraph 24 of the PSA.

Specifically, Wife requested counsel fees in the event she prevailed on

Husband’s contempt and enforcement petition. Id. at ¶ 22.

     The trial court held hearings on Husband’s petition for contempt and

enforcement, at which Husband, Wife, the parties’ minor daughter, and Mr.

Falcone testified. The trial court summarized the testimony as follows:

     At the . . . hearing, [Wife] testified . . . that she lived at her
     residence with only her two daughters until September, 2013,
     when her boyfriend, Dan Falcone, moved in. Prior to September,
     2013, Mr. Falcone “occasionally” stayed at her residence
     overnight. [Wife] testified that prior to September, 2013, Mr.
     Falcone would stay overnight anywhere from “zero to five”
     nights in a two week period. Wife testified that that Mr. Falcone
     would keep his personal items such as clothes in an overnight
     bag only, and did not keep other personal belongings in her
     residence. [She] stated that Mr. Falcone never stayed overnight
     at her residence prior to September, 2013 when her two
     daughters were there.

           The parties’ daughter, [J.D.G.], testified . . . that on one
     occasion she took a picture of Mr. Falcone’s laundry at her
     mother’s residence and that Mr. Falcone would “. . . bring
     clothes and have them washed there.” [She further] testified
     that between March, 2012 and September, 2013, Mr. Falcone

                                    -3-
J-A33023-15


     never stayed overnight at her mother’s residence when she and
     her sister were living there. When asked by [Husband’s] counsel
     if she had any direct information or knowledge that Mr. Falcone
     moved into [Wife’s] residence before November, 2013, [J.D.G.]
     testified that she did not.

            . . . [Husband] testified as to what he believed the nature
     of [Wife’s] relationship was with Mr. Falcone prior to their
     moving in together in September, 2013. However, [Husband]
     testified to matters as far back as January, 2010, which is
     almost two years prior to the parties[’] signing the [PSA].
     Therefore, the majority of [Husband’s] testimony was irrelevant
     for purposes of the issue before the court which was whether or
     not [Wife] had cohabit[ed with Mr. Falcone between February,
     2012 and September, 2013. [Husband] testified that he had
     seen Mr. Falcone’s car parked outside [Wife’s] residence several
     times prior to September, 2013. [Husband] testified that in his
     “opinion,” and that it was his “belief,” that [Wife] and Mr.
     Falcone were living together prior to signing the PSA in February,
     2012, yet despite this, he signed the agreement which includes
     the provision that alimony would terminate upon [Wife’s]
     “cohabitation” with a man. [Husband] testified that he has
     never been inside Wife’s residence.

           . . . [Wife] testified . . . Mr. Falcone never paid rent at her
     residence, he never paid any of the bills, he never received mail
     there, he never did any household chores or helped to maintain
     the home, he never mowed the lawn, or cleaned the house.
     Prior to September, 2013, Mr. Falcone never ate breakfast or
     lunch at [Wife’s] residence, but, occasionally, ate dinner there.
     [She] testified that she and Mr. Falcone did not support each
     other financially prior to September, 2013, and she did not hold
     Mr. Falcone out as her husband in the community.

           Mr. Falcone testified . . . that he began living with [Wife] in
     September, 2013. Mr. Falcone testified that he paid rent at a
     separate address through August, 2013. He testified that prior
     to September, 2013, he never stayed overnight at [Wife’s]
     residence when her daughters were present. [He] also testified
     that prior to September, 2013, he never paid rent or any bills at
     [Wife’s] residence, he did not do any chores at the house or
     perform any maintenance on the property, and he did not keep
     personal items or clothing there. Mr. Falcone testified that prior
     to September, 2013, he never used [Wife’s] home phone
     number as a number where people could reach him, and he
     never bought food for [Wife’s] house. He stated that prior to
     September, 2013, he never held [Wife] out as a person who was
     either his wife or someone he was living with.

Trial Court Opinion, 2/26/15, at 3-6. Following the hearings, and based on

the foregoing findings, the trial court concluded that Wife and Mr. Falcone


                                     -4-
J-A33023-15



did not cohabit prior to September 2013.             As a result, on November 20,

2014,     the   trial   court   denied   Husband’s    petition   for    contempt   and

enforcement and granted Wife’s request for attorney’s fees under Paragraph

24 of the PSA. Husband timely appealed to this Court.

        As directed by the trial court, Husband filed a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, raising ten assertions of error.

First, Husband argued that the trial court’s determination that Wife did not

cohabi with Mr. Falcone was inconsistent with our Supreme Court’s decision

in Kripp v. Kripp, 849 A.2d 1159 (Pa. 2004). Second, Husband argued that

the trial court’s determination that Wife did not cohabit with Mr. Falcone was

inconsistent with our decision in Moran v. Moran, 839 A.2d 1091 (Pa.

Super. 2003).       Third, Husband argued that the trial court’s determination

that Wife did not cohabit with Mr. Falcone was inconsistent with our decision

in Miller v. Miller, 508 A.2d 550 (Pa. Super. 1986).                   Fourth, Husband

argues that the trial court’s determination that Wife did not cohabit with Mr.

Falcone was inconsistent with our decision in Lobaugh v. Lobaugh, 753

A.2d 834 (Pa. Super. 2000).           Fifth, Husband argued that the trial court’s

determination that Wife did not cohabit with Falcone was inconsistent with

Section 507 of the Divorce Code, now codified at 23 Pa.C.S. § 3706.1 Sixth,
____________________________________________


1
    Section 3706 of the Divorce Code provides:

        No petitioner is entitled to receive an award of alimony where
        the petitioner, subsequent to the divorce pursuant to which
        alimony is being sought, has entered into cohabitation with a
(Footnote Continued Next Page)


                                           -5-
J-A33023-15



Husband argued that the trial court abused its discretion in disallowing

Michele Harris to testify as an expert in the field of “surveillance.” Seventh,

Husband argued that the trial court abused its discretion in disallowing

Michele Harris to testify pursuant to Pa.R.E. 803(6), relating to records of a

regularly conducted activity.          Eight, Husband argued that the trial court

erred in permitting Wife to present evidence after moving for a directed

verdict at the close of Husband’s evidence. Ninth, Husband argued that the

trial court erred in awarding counsel fees to Wife. Tenth, Husband argued

that the trial court erred in denying his petition for contempt and

enforcement.

      In response, the trial court issued a Pa.R.A.P. 1925(a) opinion,

addressing Husband’s assertions of error in seriatim.         First, the trial court

concluded that the instant case was distinguishable from Kripp because the

term cohabitation sub judice was unambiguous as used in the Stipulation

Order and the PSA.         The trial court noted that the term cohabitation here

applied to Wife living with a member of the opposite sex. See Trial Court

Opinion, 2/26/15, at 12.          Second, the trial court concluded that Husband

was not entitled to relief on his Moran argument. Specifically, the trial court

determined that the case at bar was factually distinguishable from Moran in

                       _______________________
(Footnote Continued)

      person of the opposite sex who is not a member of the family of
      the petitioner within the degrees of consanguinity.

23 Pa.C.S. § 3706.



                                            -6-
J-A33023-15



part because Wife and Mr. Falcone maintained separate residences between

February 2012 and September 2013 and were not financially or socially

interdependent. Id. at 13-14. Third, the trial court concluded that Husband

was not entitled to relief under Miller.2        Fourth, the trial court concluded

that Husband’s argument under Lobaugh was without merit.3 Fifth, the trial

court determined that Husband’s argument under Section 507 of the Divorce

Code likewise lacked merit.4 Sixth, the trial court concluded that it did not

abuse its discretion in disallowing Michele Harris to testify as an expert in

the field of “surveillance.”      Particularly, the trial court found that Husband

“attempted to qualify Ms. Harris as an expert, seemingly, so Ms. Harris could

testify about the contents of certain photographs and documents of which

she herself had no firsthand knowledge. In fact, Ms. Harris testified that she
____________________________________________


2
  We are puzzled by Husband’s reliance on Miller, as it is similar to this
case. In Miller, we determined that wife and her boyfriend did not cohabit
because they shared only weekend sexual liaisons, they did not share a
common home on a permanent basis, they maintained separate residences,
and they did not mutually share their respective incomes and expenses.
Miller, 508 A.2d at 555. Much like the boyfriend in Miller, Mr. Falcone only
maintained one change of clothes in Wife’s house.
3
  We note that Lobaugh is markedly distinguishable from the case sub
judice. There, this Court held that wife and boyfriend were cohabiting when
they resided together in wife’s house for three months, were affectionate
towards one another (despite denying having sex), had meals together and
went to church together. The boyfriend often took wife’s boys to school,
bought mattresses for each of the boys’ bedrooms as well as wife’s, received
telephone calls at wife’s home and made some minor household repairs.
Lobaugh, 753 A.2d at 837.
4
  We observe that Husband’s fifth assertion of error is simply a rehash of his
first four arguments.



                                           -7-
J-A33023-15



personally never observed Mr. Falcone’s car outside of [Wife’s] residence.”

Id. at 16.      The trial court declined to find her an expert in surveillance,

because surveillance did not require any specialized, scientific, or technical

knowledge beyond that of an average layperson.5 Id. at 16-17. Seventh,

the trial court concluded that it did not abuse its discretion in disallowing Ms.

Harris to testify under Rule 803(6),6 which permits introduction of business


____________________________________________


5
   As Wife points out, surveillance essentially involves only “watching and
listening.” Wife’s Brief at 31.
6
    Rule 803(6) provides in part:

        The following are not excluded by the rule against hearsay,
        regardless of whether the declarant is available as a witness:

         ....

        (6) Records of a Regularly Conducted Activity. A record
        (which includes a memorandum, report, or data compilation in
        any form) of an act, event or condition if,

        (A) the record was made at or near the time by--or from
        information transmitted by--someone with knowledge;

        (B) the record was kept in the course of a regularly conducted
        activity of a “business”, which term includes business,
        institution, association, profession, occupation, and calling of
        every kind, whether or not conducted for profit;

        (C) making the record was a regular practice of that activity;

        (D) all these conditions are shown by the testimony of the
        custodian or another qualified witness, or by a certification that
        complies with Rule 902(11) or (12) or with a statute permitting
        certification; and

        (E) neither the source of information nor other circumstances
        indicate a lack of trustworthiness.
Pa.R.E. 803(6).



                                           -8-
J-A33023-15



records as an exception to the hearsay rule.7          Eighth, the trial court

concluded that it did not err in permitting Wife to proceed with her case in

chief, after denying Wife’s motion for a directed verdict at the close of

Husband’s evidence.8 The trial court noted that, even though Wife used the

phrase directed verdict, she intended to seek a motion to dismiss or a

compulsory nonsuit.9 Id. at 19. Ninth, the trial court concluded that it did


____________________________________________


7
  We note that Husband’s argument is hard to follow: apparently, he
thought Ms. Harris could, as a fact witness, authenticate notes and photos
taken by other investigators in her office under Rule 803(6) and then testify
as an expert as to the significance of these items. As noted earlier,
however, the trial court properly declined to admit Ms. Harris as an expert in
surveillance. Husband now seems to want to switch gears and have Ms.
Harris testify as a fact witness. If Ms. Harris were to testify as a fact
witness, Husband could not satisfy Rule 803(6). The “records” in question
were notes and photos taken by other investigators. Because Ms. Harris did
not take the notes or the photos herself, she would not be able to
authenticate them. See U.S. Bank v. Pautenis, 118 A.3d 386, 401 (Pa.
Super. 2015) (concluding that the court acted within its discretion in finding
that bank’s evidence regarding amount owed on loan by homeowner was
insufficiently reliable to be admitted in mortgage foreclosure action under
business records exception to hearsay rule, because representative of loan
servicer could not authenticate documents created by bank or establish their
trustworthiness).
8
 Rule 226(b) provides that “[a]t the close of all evidence, the trial judge
may direct a verdict upon the oral or written motion of any party.” Pa.R.C.P.
No. 226(b).
9
  We agree with the trial court that Wife’s slip of the tongue did not prejudice
Husband; “gotcha” claims like Husband’s are properly denied under
Pa.R.C.P. No. 126, relating to liberal construction and application of the
rules. See Green Acres Rehabilitation and Nursing Center v. Sullivan,
113 A.3d 1261, 1272 (“Rule 126 allows an equitable exception for parties
‘who commit a misstep when attempting to do what any particular rule
requires.’ Rule 126 does not excuse a party’s complete noncompliance with
(Footnote Continued Next Page)


                                           -9-
J-A33023-15



not err in awarding Wife attorney’s fees under Paragraph 24 of the PSA.

Tenth, the trial court concluded that Husband’s final argument was non-

specific and vague and, as a result, did not merit relief. Alternatively, the

trial court noted that Husband’s last argument was redundant of his other

arguments relating to cohabitation that the court properly rejected. The trial

court determined that it did not err in holding that Wife did not cohabit with

Mr. Falcone. Accordingly, Wife was not in contempt. Id. at 21-22.

      On appeal,10 Husband essentially repeats these same arguments for

our review.11     After careful review of the parties’ briefs, the record on

appeal, and the relevant case law, we conclude that the trial court’s Rule

                       _______________________
(Footnote Continued)

the rules, but Rule 126 ‘is available to a party who makes a substantial
attempt to conform.’”) (internal citation omitted).
10
   When reviewing the dismissal of a contempt petition, our standard of
review is well-settled: “[i]n reviewing a trial court's finding on a contempt
petition, we are limited to determining whether the trial court committed a
clear abuse of discretion. This Court must place great reliance on the sound
discretion of the trial judge when reviewing an order of contempt.” P.H.D.
v. R.R.D., 56 A.3d 702, 706 (Pa. Super. 2012), appeal denied, 94 A.3d
1010 (Pa. 2014).
11
   As wife correctly points out, to the extent Husband argues that the trial
court erred in allowing him to introduce evidence of cohabitation predating
the PSA, the argument is waived. Husband failed to raise this argument in
his Rule 1925(b) statement. See Dietrich v. Dietrich, 923 A.2d 461, 463
(Pa. Super. 2007) (“When an appellant files a [Rule] 1925(b) statement, any
issues not raised in that statement are waived on appeal.”). Even if this
argument was not waived, we do not appreciate its relevance. Husband’s
petition for contempt and enforcement was premised on alimony payments
made under the Stipulation Order and the PSA. Thus, it is immaterial
whether Mr. Falcone may have cohabited with Wife prior to the execution of
the Stipulation Order and the PSA in February 2012.



                                           - 10 -
J-A33023-15



1925(a) opinion, authored by the Honorable Patricia E. Coonahan, cogently

disposes of Husband’s issues on appeal. See Trial Court Opinion, 2/26/15,

at 7-22. We, therefore, affirm the trial court’s November 20, 2015 order.

We direct that a copy of the trial court’s February 26, 2015 Rule 1925(a)

opinion be attached to any future filings in this case.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2016




                                     - 11 -
                                                                                               Circulated 02/29/2016 03:36 PM

                                                                 2010-0466+0129     22620159:50.u\!      ,; 1019!031
                                                                                        Opinion
                                                                 R~pt,:/.2J4Hl8   F~<!:$0.00
                                                                             vlark Levy - \[ontCo Prnthonolary
               IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
                               CIVIL ACTION - LAW


    JENNIFER DELLA GUARDIA,                               SUPERIOR COURT DOCKET NO.
    PLAINTIFF/APPELLEE                                    136 EDA 2015
         v.
                                                          LOWER COURT DOCKET NO.
    JAMES DELLA GUARDIA                                   2010-04664
    DEFENDANT/APPELLANT



                                              OPINION

    COONAHAN, J.                                                 FEBRUARY               26, 2015


           On February 21, 2012, Plaintiff/Appellee Jennifer Della Guardia (hereinafter

    "Plaintiff") and Defendant/Appellant James Della Guardia (hereinafter "Defendant")

    entered into a Stipulation for Agreed Order in Support.1 Paragraph SA of the

    stipulation and order, captioned "For Alimony Pendente Lite Purposes'' states:

                       "The Parties have entered into a comprehensive
                Property Settlement Agreement which includes a provision
                of alimony/alimony pendent [sic] lite for Wife as follows:

                      Husband is currently obligated to pay Wife
                     alimony pendente lite at the rate of $4,452.00
                     per month. Husband shall continue to be so
                     obligated through February 29, 2012.
                     Commencing March 1, 2012 and for a period of
                      18 months thereafter, Husband shall pay to Wife
                     as alimony/alimony pendente lite, the sum of
                     $2,550.00 per month. This payment shall be non-
                     modifiable in amount and duration. However, this
                     obligation shall terminate upon earliest of the
                     following: 1) Wife's cohabitation, 2) Wife's
                     remarriage, 3) Wife's death, 4) Husband's death,
                     or 5) August 31, 2013, provided all payments
                     contemplated herein have been paid. In addition

I
    On February 28, 2012, the stipulation for agreed order in support was signed by became an order of
the court.
                   to the terms and conditions set forth in this
                   paragraph, the parties shall also execute,
                   contemporaneously with their execution of this
                   Agreement, the Stipulation for Agreed Order in
                   Support attached hereto as Exhibit 'A', which
                   Stipulation is hereby incorporated into this
                   Agreement."


          On February 22, 2012, Plaintiff and Defendant entered into a property

    settlement agreement.2    Section 19 of the property settlement agreement

    incorporates and restates Paragraph SA of the February 21, 2012 stipulation for

agreed order in support in regard to alimony as outlined above. Section 24,

    paragraph 4, of the property settlement agreement states in regard to attorney's

fees as follows:

                "Each party further hereby agrees to pay and to save and
                hold harmless the other party from any and all reasonable
                attorney's fees, and costs of litigation that either may
                sustain, or incur, or become liable for, in any way
                whatsoever, or shall pay upon, or in consequence of any
                default or breach by the other of any of the terms or
                provisions of this Agreement by reason of which either
                party shall be obliged to retain or engage counsel to
                initiate or maintain or defend proceedings against the
                other at law or equity or both or in any way whatsoever;
                provided that the party who seeks to recover such
                reasonable attorney's fees, and costs of litigation must
                first be successful in whole or in part, before there would
                be any liability for said reasonable attorney's fees, and
                costs of litigation. It is the specific agreement and intent
                of the parties that a breaching or wrongdoing party shall
                bear the burden and obligation of any and all costs and
                expenses and counsel fees incurred by himself or herself
                as well as the other party in endeavoring to protect and
                enforce his or her rights under this Agreement. The Court
                shall determine the reasonableness of the attorney fee
                award."




2
 The February 21 2012 property settlement agreement was incorporated into the parties' March 5,
2012 divorce decree.

                                                 2
      On February 28, 2013, Defendant filed a Petition for Contempt and to Enforce

Stipulation for Agreed Order in Support wherein Defendant alleged that Plaintiff was

in contempt of paragraph "SA" of the February 21, 2012 stipulation and order by

cohabitating "with a male in which she is romantically involved with since on or

about October 25, 2010." February 28, 2013 petition, section 6. On March 8, 2013,

Plaintiff filed an Answer to Petition for Contempt and to Enforce Stipulation for

Agreed Order in Support. On January 22, 2014, Plaintiff filed an Amended Answer

to Petition for Contempt and to Enforce Stipulation for Agreed Order in Support with

Counterclaim for Counsel Fees. In her counterclaim, Plaintiff requested the court

reimburse her for legal fees incurred in her defense of Defendant's February 28,

2013 petition pursuant to section 24 of the parties' February 22, 2012 property

settlement agreement.

      Hearings were held on Defendant's February 28, 2013 petition and Plaintiff's

January 22, 2014 amended answer and counterclaim on January 24, 2014,

March 25, 2014, May 29, 2014, and September 26, 2014. At the hearings, Plaintiff

was represented by Cheryl Sattin, Esquire, and Defendant was represented by

Jason G. Donoghue, Esquire. At the January 24, 2014 hearing, Plaintiff testified as

on cross examination that she lived at her residence with only her two daughters

until September, 2013, when her boyfriend, Dan Falcone, moved in. N.T.

January 24, 2014 at 12. Prior to September, 2013, Mr. Falcone "occasionally"

stayed at her residence overnight. N .T. January 24, 2014 at 13. Plaintiff testified

that prior to September, 2013, Mr. Falcone would stay overnight anywhere from

"zero to five" nights in a two week period. N.T. January 24, 2014 at 13. Plaintiff


                                           3
testified that Mr. Falcone would keep his persona! items such as clothes in an

overnight bag only, and did not keep other personal belongings in her residence.

N.T. January 24, 2014 at 26. Plaintiff stated that Mr. Falcone never stayed

overnight at her residence prior to September, 2013 when her two daughters were

there. N.T. January 24, 2014 at 40.

      The parties' daughter, Jessica Della Guardia, testified at the January 24,

2014 hearing that on one occasion she took a picture of Mr. Falcone's laundry at

her mother's residence and that Mr. Falcone would " ... bring clothes and have them

washed there." N.T. January 24, 2014 at 107. Jessica testified that between March,

2012 and September, 2013, Mr. Falcone never stayed overnight at her mother's

residence when she and her sister were living there. N.T. January 24, 2014 at 118,

144. When asked by Defendant's counsel if she had any direct information or

knowledge that Mr. Falcone moved into Plaintiff's residence before November,

2013, Jessica testified that she did not. N.T. January 24, 2014 at 124.

      At the March 25, 2014 hearing, Defendant testified as to what he believed

the nature of Plaintiff's relationship was with Mr. Falcone prior to their moving in

together in September, 2013. However, Defendant's testified to matters as far back

as January, 2010, which is almost two years prior to the parties signing the

February 22, 2012 property settlement agreement. Therefore, the majority of

Defendant's testimony was irrelevant for purposes of the issue before the court

which was whether or not Plaintiff had cohabitated with Mr. Falcone between

February, 2012 and September, 2013. Defendant testified that he had seen

Mr. Falcone's car parked outside Plaintiff's residence several times prior to

September, 2013. N.T. March 25, 2014 at 52. Defendant testified that in his


                                           4
"opinion", and that it was his "belief", that Plaintiff and Mr. Falcone were living

together prior to signing the property settlement agreement in February, 2012, yet

despite this, he signed the agreement which includes the provision that alimony

would terminate upon Plaintiff's "cohabitation" with a man. N.T. March 25, 2014 at

104-105, 107. Defendant testified that he has never been inside Plaintiff's

residence. N.T. March 25, 2014 at 123.

      At the September 26, 2014 hearing, Plaintiff testified on direct examination

that prior to September, 2013, Mr. Falcone never paid rent at her residence, he

never paid any of the bills, he never received mail there, he never did any

household chores or helped to maintain the home, he never mowed the lawn, or

cleaned the house. N.T. September 26, 2014 at 10-11. Prior to September, 2013,

Mr. Falcone never ate breakfast or lunch at Plaintiff's residence, but, occasionally,

ate dinner there. N.T. September 26, 2014 at 15. Plaintiff testified that she and

Mr. Falcone did not support each other financially prior to September, 2013,

and she did not hold Mr. Falcone out as her husband in the community. N.T.

September 26, 2014 at 19.

       Mr. Falcone testified at the September 26, 2014 hearing that he began living

with Plaintiff in September, 2013. N.T. September 26, 2014 at 80. Mr. Falcone

testified that he paid rent at a separate address through August, 2013. He testified

that prior to September, 2013, he never stayed overnight at Plaintiff's residence

when her daughters were present. N.T. September 26, 2014 at 85. Mr. Falcone also

testified that prior to September, 2013, he never paid rent or any bills at Plaintiff's

residence, he did not do any chores at the house or perform any maintenance on

the property, and he did not keep personal items or clothing there. N.T. September


                                            5
       26, 2014 at 86. Mr. Falcone testified that prior to September, 2013, he never used

       Plaintiff's home phone number as a number where people could reach him, and he

       never bought food for Plaintiff's house. N.T. September 26, 2014 at 87. He stated

       that prior to September, 2013, he never held Plaintiff out as a person who was

       either his wife or someone he was living with. N.T. September 26, 2014 at 88.

              After the hearings, on November 20, 2014, the court issued the following



                          "AND NOW, this 20th day of November, 2014, upon
                     consideration of Defendant's February 28, 2013
                     Petition for Contempt and to Enforce Stipulation for
                     Agreed Order in Support, Plaintiff's January 22, 2014
                     Amended Answer to Petition for Contempt and to
                     Enforce Stipulation for Agreed Order in Support with
                     Counterclaim for Counsel Fees, following hearings on
                     January 24, 2014, March 25, 2014, May 29, 2014, and
                     September 26, 2014 and upon consideration of
                     Plaintiff's November 5, 2014 Brief Submitted in
                     Opposition to Defendant's Petition for Contempt and in
                     Support of Plaintiff's Counterclaim for Counsel Fees,
                     and Defendant's November 7, 2014 Memorandum of
                     Law of Closing Arguments as so Ordered by the Court
                     for Defendant's Petition for Contempt and Enforcement
                     of the February 22, 2012 Property Settlement
                     Agreement, it is hereby ORDEREDand DECREEDas
                     follows:
                        Defendant's February 28, 2013 Petition is DENIED.
                       Plaintiff's January 22, 2014 Counterclaim is
                     GRANTED as follows:
                          Pursuant to section 24 of the parties' February 22,
                     2012 Property Settlement Agreement, Defendant shall
                     reimburse Plaintiff for the reasonable attorney's fees
                     charged to Plaintiff by Plaintiff's counsel for the cost of
                     litigation in this matter in the amount of $6,415.00
                     within sixty (60) days of the date of this Order."




       JThe November 20, 2014 order was filed with the Montgomery County Prothonotary on November 21,
       2014.

                                                     6



-----------------~·----·-.. ·-·-·-···-·····
      On December 22, 2014 Defendant filed a Notice of Appeal to the Superior

Court of Pennsylvania of the November 20, 2014 Order issued by this court. On

December 23, 2014, the trial court issued an Order directlng Defendant to file

with the court a Concise Statement of Errors Complained of on Appeal pursuant to

Pa. R.A.P. 1925 (b) within twenty one (21) days of the date of the Order. On

January 12, 2015, Defendant flied his Concise Statement of Matters Complained of

on Appeal and stated the trial court erred as follows:

             "1. By not applying The Supreme Court of
             Pennsylvania's case law ruling of Kripp v. Kripp, 849
             A.2d 1159 - Pa: Supreme Court 2004, as it pertains to
             their finding in the following:

             a. The application of the definition and elements of the
                term "cohabitation", and;
             b. The admissibility of Parole Evidence for the
                evaluation of an entitlement for Husband's
                obligation to pay Spousal Support, Alimony
                Pendente Lite, and Alimony.

               2. By not applying the Superior Court of
               Pennsylvania's case law ruling of Moran v. Moran, 839
               A.2d 1091 - Pa: Superior Court 2003, as it pertains to
               their finding of the following:

               a. The application of the definition and elements of
                  the term "cohabitation", and;
               b. The Courts rulings on financial interdependence
                  between Wife and boyfriend, and;
               c. The test of overnight stays being more than "just
                  vlsiting" and;
               d. The inclusion of participating in joint business
                  trips, weekend outings and vacations.

              3. By not applylng The Supreme Court of
             Pennsylvania's case law ruling of Miller v. Miller, 508
             A.2d 550 - Pa: Supreme Court 1986, as it pertains to
             their finding in the following:
               a. The application of the definition and elements of
              the tern "cohabitation", and;
               b. Burden of proof being a preponderance of the
              evidence.

                                           7
              4. By not applying the Superior Court of
              Pennsylvania's case law ruling in Lobaugh v. Lobaugh,
              753 A.2d 834- PA: Superior Court 2000, as it pertains
              to the following:
                a. The definition and elements of the term
              "cohabitation", and;
                b. Testimony by the parties child as to the living
              arrangements between Wife and Boyfriend, and;
                c. Interpretation of the property settlement
              agreement terms and parameters of termination in the
              agreement for payment obligation of Husband.

               5. By not applying the Superior Court of
              Pennsylvania's case law ruling in Faherty v. Gracias,
              874 A.2d 1239 - Pa: Superior Court 2005, as it
              pertains_to the following:
                a. The application of the definition and elements of
              the term "cohabitation", and;
                b. The application of Section 507 of the Divorce
              Code.

                6. By not allowing Michele Harris of Harris
              Investigations, LLC to testify and put forth evidence as
              an "expert witness" under the rules of evidence as it to
              pertains to surveillance in matters related to this case
              and the activities of Wife and her boyfriend.

                7. By not allowing Michele Harris of Harris
              Investigations, LLC. to testify and put forth evidence
              as to the business records exception under the rules of
              evidence for testimony and records.

                8. By allowing Plaintiff to move forward with
              testimony or the introduction of evidence alter denying
              her Pa.R.C.P. 226(b) motion.

                9. By entering an Order awarding Plaintiff attorney
               fees for Defendant's Petition for Contempt and to
               Enforce Stipulation for Agreed Order in Support.

               10. By entering an Order Denying Defendant's
               Petition for Contempt and to Enforce Stipulation for
               Agreed Order in Support."

   This opinion is filed pursuant to and is in compliance with Pa. R.A.P. 1925

(a).

                                          8
        When reviewing an appeal from a contempt order, the appellate court

"must place great reliance upon the sound discretion of the trial judge." Godfrey v.

Godfrey, 894 A.2d 776, 2006 PA Super 39 (2006); Langendorfer v. Spearman, 797

A.2d 303, 2002 PA Super 93 (2002). The scope of review for the appellate court is

very narrow, and the appellate court is limited to "determining whether the trial

court committed an abuse of discretlon." Godfrey, 2006 PA Super (2006). The trial

court abuses its discretion in a contempt case if it "misapplies the law or exercises

its discretion in a manner lacking reason." Godfrey, 2006 PA Super 39 (2006);

Hopkins v. Byes, 954 A.2d 654, 2008 PA Super 172 (2008). A party alleging

contempt of a court order has the burden to show a party violated an order by a

preponderance of the evidence. Hopkins, 2008 PA Super 172 (2008).

      In reaching a property settlement agreement or spousal support agreement,

the parties in a divorce have the right and power to define for themselves the

conditions under which alimony or alimony pendente lite payments are to

terminate, and the court has no authority alter the divorce decree to alter that

agreement. Woodings v. Woodings, 411 Pa. Super. 406, 601 A.2d 854 (1992).

Cohabitation by the receiving spouse with a member of the opposite sex "who is not

a member of the petitioner's family within the degrees of consanguinity" may

provide the grounds for termination of alimony or alimony pendente lite by

agreement of the parties. Schenk v. Schenk, 2005 PA Super 266, 880 A.2d 633

(2005); Kripp v. K.cm.Q, 578 Pa. 82, 849 A.2d 1159 (2004); Lobaugh v. Lobaugh,

753 A.2d 834 (2000). Cohabitation has been defined as occurring when "two

persons of the opposite sex reside together in the manner of husband and wife,

mutually assuming those rights and duties usually attendant upon the marriage


                                          9
relationship." Miller v. Miller, 352 Pa. Super. 432, 508 A.2d 550 (1986).

Cohabitation may be shown by evidence of financial, social, and sexual

interdependence, by a sharing of the same residence, and by other means." Moran

v. Moran, 839 A2d 1091, 2003 PA Super 455 (2004). Cohabitation is a definition

that has to be viewed in light of the facts of each individual case... " demonstrating

" ... a consistent pattern of conduct established over a substantial period of time ... "

Thomas v. Thomas, 335 Pa. Super. 41, 483 A.2d 945 (1984).

   The court addresses the Plaintiff's claims as follows;

              "1. By not applying The Supreme Court of
              Pennsylvania's case law ruling of Kripp v. Kripp, 849
              A.2d 1159 - Pa: Supreme Court 2004, as it pertains to
              their finding in the following:

              c. The application of the definition and elements of the
                 term "cohabitation", and;
              d. The admissibility of Parole Evidence for the
                 evaluation of an entitlement for Husband's
                 obligation to pay Spousal Support, Alimony
                 pendente Lite, and Alimony.

       Kripp v. Kripp, 578 Pa. 82, 849 A.2d 1159 (2004) defines cohabitation by

referring to its definition as stated in Lobaugh v. Lobaugh, 753 A.2d 834, 836

(Pa.Super.Ct. 2000) and Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550, 554

(1986).These cases define cohabitation as occurring when "two persons of the

opposite sex reside together in the manner of husband and wife, mutually assuming

those rights and duties usually attendant upon the marriage relationship." Kd.QQ,

849 A.2d 1159, citing Lobaugh, 753 A2d at 836 and Miller, 508 A.2d at 554.

       Based on the testimony presented at the hearings in this matter, the court

found that Plaintiff and Mr. Falcone were not cohabitating prior to September, 2013

as defined in the above cases. Plaintiff and Mr. Falcone both testified that prior to


                                             10
September, 2013, Mr. Falcone "occasionally" stayed overnight at her residence,

anywhere from "zero to five" nights in a two week period, and that he never stayed

overnight during the weeks when she had physical custody of her two daughters.

Plaintiff and Mr. Falcone testified that Mr. Falcone kept his belongings in an

overnight bag which he would take to and from Plaintiff's residence, and prior to

September, 2013, Mr. Falcone and Plaintiff did not share financial obligations, nor

did Mr. Falcone receive mail at Plaintiff's house, nor use her phone number as his

own. Plaintiff and Mr. Falcone both testified that prior to September, 2013,

Mr. Falcone did not perform any household chores at Plaintiff's residence, nor did he

eat breakfast or lunch there. Plaintiff and Mr. Falcone also both testified that they

did not hold one another out to the community as husband and wife.

      None of this evidence was persuasively rebutted by Defendant at the

hearings. Defendant offered his "belief' and "opinion" that Plaintiff and Mr. Falcone

were cohabitating prior to September, 2013, mainly because he witnessed Mr.

Falcone's car parked outside Mother's residence on numerous occasions. However,

Defendant testified that he had actually never been inside Mother's residence.

Defendant's witness, the parties' daughter, Jessica Della Guardia, testified that she

had no direct information or knowledge that Mr. Falcone moved into her mother's

residence before November, 2013. N.T. January 24, 2014 at 124. Although

Defendant offered Jessica's testimony to prove cohabitation because she

photographed Mr. Falcone's laundry in Plaintiff's laundry area, Jessica actually

testified that Mr. Falcone would "bring clothes and have them washed there".

Based on the testimony as a whole, the court could not conclude that Mr. Falcone

washed his clothes at the Plaintiff's home because he lived there, but, rather


                                           11
                            --
brought his clothes to Plaintiff's residence from his own, separate residence to use

Plaintiff's laundry facilities.

       Applying the definition of cohabitation as stated in Kd.QQ, Miller and Lobaugh,

Defendant did not prove by a preponderance of the evidence and under case law

that prior to September, 2013, Plaintiff and Mr. Falcone lived together "in the

manner of husband and wife, mutually assuming those rights and duties usually

attendant upon the marriage relationship." The court applied the definition of

cohabitation as stated in K.d.QQ, therefore, the court did not err in its conclusion,

and, Defendant's claim is without merit and should be dismissed.

       Kri.QQ also holds that "when an ambiguity exists in the terms of a contract,

parol evidence is admissible to explain or clarify or resolve the ambiguity," In Kripp.

the court found that a property settlement agreement stating that alimony

payments to wife would end after a minimum period if wife were to "cohabitate"

was ambiguous as to whether it referred to or included the wife living with a person

of the same sex, since the facts in that case involved allegations that the

dissolution of the parties' marriage was husband's discovery that wife was involved

"in an intimate relationship with a woman". Therefore, parol evidence was

admissible in that case to determine the meaning of the term "cohabitate" since

wife was living with a woman.

       In this case, there was no ambiguity alleged or shown in the terms of the

parties' February 22, 2012 property settlement agreement, or the parties'

February 21, 2012 support stipulation. Defendant's only issue as raised in his

February 28, 2013 Petition for Contempt was whether or not Plaintiff had

cohabitated with Mr. Falcone prior to September 1, 2013, which would in turn


                                           12
                         ..   ~




relieve Defendant of his alimony obligation to Plaintiff. No claim was raised by

Defendant as to any ambiguity in the parties' property settlement agreement.

Therefore, the parol evidence holding in KdQQ is not relevant to the instant matter,

and, Defendant's claim the court erred by not "applying" that holding in this matter

is without merit.

               2. By not applying the Superior Court of
               Pennsylvania's case law ruling of Moran v. Moran. 839
               A.2d 1091 - Pa: Superior Court 2003, as it pertains to
               their finding of the following:

               e. The application of the definition and elements of
                  the term "cohabitation", and;
               f. The Courts rulings on financial interdependence
                  between Wife and boyfriend, and;
               g. The test of overnight stays being more than "just
                  visiting" and;
               h. The inclusion of participating in joint business
                  trips, weekend outings and vacations.


     The definition and "elements'' of cohabitation as stated in Moran v.

Moran, 839 A.2d 1091, 2003 PA Super 455 (2004) are the same as those

stated in Miller v. Miller, 508 A.2d 550, which the court has previously

addressed in discussion of paragraph 1 of Defendant's concise statement.

      The facts of Moran differ significantly from those of the instant case in

that the court in Moran was determining the issue of wife's eligibility to

receive alimony in the first place. This case involves the determination of

whether or not Plaintiff cohabitated with Mr. Falcone so as to nullify her

eligibility for alimony payments that were agreed to by the parties.

Furthermore, the evidence in Moran showed that wife was not residing at her

residence at all, but was spending the "majority" of her time over a two year

span with her significant other, which was shown through utility usage and

                                          13
banking transactions. Therefore, the court concluded that overnight stays

were more than "just visiting" which was the terminology used by wife in her

testimony. There was also evidence that the wife in Moran accompanied her

significant other "almost everywhere" including business trips, weekend

outings, and vacations. None of these facts were present in the instant case.

Defendant in this case focuses on the finding in Moran that there was

cohabitation despite the absence of "co-mingling of funds, such as joint

accounts". However, the court in Moran found cohabitation had occurred in

conjunction with several other factors which were not proven in the instant

case, as previously stated. Defendant's reliance on Moran as being applicable

to the instant case is misplaced, and, therefore Defendant's claims raised in

paragraph 2 of his concise statement are without merit and should be

dismissed.

                3. By not applying The Supreme Court of
               Pennsylvania's case law ruling of Miller v. Miller, 508
               A.2d 550 - Pa: Supreme Court 1986, as it pertains to
               their finding in the following:
                 a. The application of the definition and elements of
                the term "cohabitation", and;
                 b. Burden of proof being a preponderance of the
                evidence.

         Defendant's claims raised in paragraph 3 of his concise statement are

repetitive of his claims raised in paragraph 1, therefore, the court restates

and incorporates its position as set forth in its discussion under paragraph 1

above wherein the court also addresses the holding in Miller v. Miller1 352

Pa.Super. 432, 508 A.2d 550, 554 ( 1986). Again, there is no merit to this

issue.



                                            14
                         ..   -

              4. By not applying the Superior Court of
              Pennsylvania's case law ruling in Lobaugh v. Lobaugh.
              753 A.2d 834- PA: SuQerior Court 2000, as it pertains
              to the following:
                a. The definition and elements of the term
              "cohabltatlon11, and;
                b. Testimony by the parties child as to the living
              arrangements between Wife and Boyfriend, and;
                c. Interpretation of the property settlement
              agreement terms and parameters of termination in the
              agreement for payment obligation of Husband.

      Defendant's claims raised in paragraph 4 of his concise statement are

repetitive of his claims raised in paragraph 1, therefore, the court restates

and incorporates its position as set forth under paragraph 1 above wherein

the court addresses the holding in Lobaugh v. Lobaugh, 753 A.2d 834, 836

(Pa.Super.Ct. 2000). Furthermore, the issue of "interpretation of the

property settlement agreement terms and parameters" was not before the

court at the hearings in this matter as stated previously in this opinion. In

reaching a property settlement agreement or spousal support agreement, the

parties in a divorce have the right and power to define for themselves the

conditions under which alimony or alimony pendente lite payments are to

terminate, and, the court has no authority after the divorce decree to alter

that agreement. Woodings, 411 Pa. Super. 406. There is no merit to this

argument.


               5. By not applying the Superior Court of
              Pennsylvania's case law ruling in Faherty v. Gracias,
              874 A.2d 1239 - Pa: Superior Court 2005, as it
              pertainsto the following:
                a. The application of the definition and elements of
              the term "cohabitation", and;
                b. The application of Section 507 of the Divorce
              Code.


                                           15
                         ...   -...




        Faherty v. Gracias, 874 A.2d 1239, 2005 PA Super 174 (2005) is a

wrongful death malpractice case, and, does not raise any issue with regard

to the "definition and elements of the term 'cohabitation"' and does not refer

to Section 507 of the Divorce Code. Therefore, Defendant's claims raised in

paragraph 5 of his concise statement are without merit and should be

dismissed.


                6. By not allowing Michele Harris of Harris
              Investigations, LLC to testify and put forth evidence as
              an "expert witness" under the rules of evidence as it to
              pertains to surveillance in matters related to this case
              and the activities of Wife and her boyfriend.

Pennsylvania Rule of Evidence 702 states:

              "A witness who is qualified as an expert by knowledge,
              skill, experience, tratnlnq, or education may testify in
              the form of an opinion or otherwise if:

              (a)    the experts' scientific, technical or other
                      specialized knowledge is beyond that possessed
                      by the average layperson;
              (b)    the expert's scientific, technical, or other
                      specialized knowledge will help the trier of fact
                      to understand the evidence or to determine a
                      fact in issue; and
              ( c)   the expert's methodology is generally accepted
                      in the relevant field"


      At the January 24, 2014 hearing, Defendant called Michele Harris, a

licensed private investigator, as a witness. Defense counsel attempted to

qualify Ms. Harris as an expert, seemingly, so Ms. Harris could testify about

the contents of certain photographs and documents of which she herself had

no firsthand knowledge. In fact, Ms. Harris testified that she personally never

observed Mr. Falcone's car outside of Plaintiff's residence.


                                           16
                          ·-

      Ms. Harris' credentials as testified to at the January 24, 2014 hearing

did not qualify her as an expert in the area of "surveillance". Ms. Harris

obtained her private investigator's license by getting on the job training for a

period of more than five years from another investigator, and there were no

other qualifications for her license other than a certification that she had

received on the job training. N.T. January 24, 2014 at 64. Ms. Harris also

testified that none of her specific licenses from Pennsylvania, New Jersey,

Delaware and Maryland require any specific education. N.T. January 24, 2014

at 68. When inquiring about seminars which the witness had attended,

Plaintiff's counsel asked Ms. Harris: "Is there any specific scientific or expert

training that goes on at these seminars?", Ms. Harris replied: "They train you

how to do certain things, but it's not necessarily scientific or technical or

anything like that." N.T. January 24, 2014 at 69. The court determined that

based on Ms. Harris' testimony, she could arguably be an expert in "cell

phone forensics", and that her testimony in this area would be beyond the

knowledge of a layperson, "but I don't find her to be an expert in anything

else." N.T. January 24, 2014 at 74. Nothing in Ms. Harris' background as

testified to at the January 24, 2014 hearing would permit her to testify as an

expert as permitted by Pa.R.E. 702 in the field of "surveillance."   The court

concluded that Defendant's attempt to have Ms. Harris testify as an expert

was simply an effort to place into evidence the contents of photographs and

documents of which she herself admittedly had no personal knowledge.

Photographs and notes taken by her employees during their surveillance of

Plaintiff's home, which Ms. Harris was not present for, did not qualify her as


                                           17
                         ~·~-.




an expert in surveillance. Defendant's claim raised in paragraph 6 of his

concise statement is without merit and should be dismissed.


                7. By not allowing Michele Harris of Harris
              Investigations, LLC. to testify and put forth evidence
              as to the business records exception under the rules of
              evidence for testimony and records.


       The court assumes that Defendant is referring in paragraph 7 of his

concise statement to Pa.R.E. 803(6) Exceptions to the Rule against Hearsay,

entitled "Records of a Regularly Conducted Activity."   Defendant does not

indicate what specific "evidence" Ms. Harris was prevented from presenting

at the hearing that would have been permissible hearsay under this rule. The

only exhibit marked by Defendant's counsel in regard to Ms. Harris'

testimony was Ms. Harris' "personal memorandum of the investigation",

which Defense counsel produced and marked after Ms. Harris' testimony had

concluded, and which was never properly introduced during Ms. Harris'

testimony. Plaintiff's counsel objected to its admission and it was excluded by

the court since it was not marked nor introduced during Ms. Harris'

testimony. There is no merit to this issue.

                8. By allowing Plaintiff to move forward with
              testimony or the introduction of evidence after denying
              her Pa.R.C.P. 226(b) motion.

      Pa.R.C.P. 226(b) states: "At the close of all evidence, the trial judge

may direct a verdict upon the oral or written motion of any party." At the

March 251 2014 hearing, Plaintiff made an oral motion for a directed verdict

at the conclusion of Defendant's case. The court and counsel discussed on

the record that if the court were to deny Plaintiff's directed verdict motion, an

                                          18
                          _,....,,




additional hearing would be scheduled to present Plaintiff's case in chief. N.T.

March 25, 2014 at 148-156. On May 12, 2014, the court issued an order

denying Plaintiff's motion for directed verdict and scheduled "an additional

hearing date for the conclusion of evidence in the above captioned matter."

Defendant's claim that Pa.R.C.P. 226(b) precluded Plaintiff from proceeding

with her case, because Plaintiff1s counsel raised the motion prior to the close

of all evidence is without merit.

      The court views Pa.R.C.P. 226(b) in light of Pa.R.C.P. 126, entitled

"Liberal Construction and Application of Rules" which states:

                     "The rules shall be liberally construed to
                    secure the just, speedy and inexpensive
                    determination of every action or proceeding
                    to which they are applicable. The court at
                    every stage of any such action or proceeding
                    may disregard any error or defect of
                    procedure which does not affect the
                    substantial rights of the parties."

Defendant's argument at the time of the hearings was that because Plaintiff's

counsel used the terminology "motion for directed verdict" instead of "motion

to dismiss", Plaintiff was precluded from proceeding with her case after her

motion was denied since Pa.R.C.P. 226(b) states that such a motion for

directed verdict shall occur "at the close of all the evidence" in a case.

However, the argument raised by Plaintiff in her oral motion for a directed

verdict, and the relief being requested, were identical to those which would

have been raised in a motion to dismiss. Defendant was not prejudiced by

the terminology used by Plaintiff's counsel. Therefore, pursuant to Pa.R.C.P.

126, the court permitted Plaintiff to proceed with her case in chief.



                                           19
''A rule which mandates summary dismissal of a law suit based upon a

nonprejudicial procedural error is inconsistent with the fairness required by

the Pennsylvania Rules of Civil Procedure." DeAngelis v. Newman, 501 Pa.

144 460 A.2d 730 (1983).
   1




       Defendant's claim raised in paragraph 8 of his concise statement is

without merit, and should, therefore, be dismissed.

                9. By entering an Order awarding Plaintiff attorney
               fees for Defendant's Petition for Contempt and to
               Enforce Stipulation for Agreed Order in Support.


       Defendant's claim raised in paragraph 9 of his concise statement does not

specifically allege how the court erred by entering an order awarding Plaintiff

attorney's fees in this matter. It is the appellant's responsibility to precisely identify

any purported errors. Schenk v. Schenk, 880 A.2d 633 (Pa. Super. 2005). "When

the trial court has to guess what issues a defendant is appealinq. that is not enough

for meaningful review." Commonwealth v. Dowling, 2001 PA Super 166, 778 A.2d

683 (2001}. A Concise Statement which is too vague to allow the court to identify

the issues raised on appeal is the functional equivalent of no Concise Statement at

all. In re A.B., 2013 PA Super 43, 63 A.3d 345 (2013).

       Nevertheless, on the merits, section 24, paragraph 4, of the parties'

February 22, 2012 property settlement agreement states that each party shall be

responsible for the reasonable attorney's fee of the other party

             "in consequence of any default or breach by the other
             of any of the terms or provisions of this Agreement by
             reason of which either party shall be obliged to retain
             or engage counsel to initiate or maintain or defend
             proceedings against the other at law or equity or both or
             in any way whatsoever; provided that the party who seeks
             to recover such reasonable attorney's fees, and costs of

                                            20
             litigation must first be successful in whole or in part,
             before there would be any liability for said reasonable
             attorney's fees, and costs of litigation."

      Defendant's claim raised in paragraph 9 of his concise statement is

either waived, or without merit, and should be dismissed.

                10. By entering an Order Denying Defendant's
               Petition for Contempt and to Enforce Stipulation for
               Agreed Order in Support."

      Defendant's claim raised in paragraph 10 of his concise statement does

not specifically allege how the court erred by entering an order denying

Defendant's petition for contempt and to enforce stipulation for agreed order

in support. It is the appellant's responsibility to precisely identify any

purported errors. Schenk • 880 A.2d 633. "When the trial court has to guess

what issues a defendant is appealing, that is not enough for meaningful

review." Commonwealth v. Dowling, 2001 PA Super 166. A Concise

Statement which is too vague to allow the court to identify the issues raised

on appeal is the functional equivalent of no Concise Statement at all. In re

A.B., 2013 PA Super 43. Therefore, Defendant's claim raised in paragraph 10

of his concise statement is waived, and should be dismissed. Nevertheless,

the foregoing discussions in this opinion of the Defendant's issues negates

error by the court.

       The court did not err or abuse its discretion in not finding Plaintiff in

contempt of the February 22, 2012 property settlement agreement.

Defendant did not prove by a preponderance of the evidence that Plaintiff

had cohabitated with Mr. Falcone prior to September, 2013, and even had

the court made such a finding, this did not lead the court to conclude that


                                           21
Plaintiff was in contempt of the agreement, rather, it would lead the court to

conclude that the alimony payments should end. The February 22, 2012

property settlement agreement did not contain a duty of the Plaintiff to notify

Defendant if she were cohabitating with Mr. Falcone to warrant a finding of

contempt. The property settlement agreement states that alimony shall

terminate " ... upon earliest of the following: 1) Wife's cohabitation, 2) Wife's

remarriage, 3) Wife's death, 4) Husband's death, or 5) August 31, 2013 ... "

The court could not find that there was cohabitation proven under the facts

of this case to warrant negating Defendant's promise to pay to Plaintiff

alimony/alimony pendente lite per their agreement.

       For the above stated reasons, the court respectfully requests that

Defendant's appeal be dismissed and the November 20, 2014 order be

affirmed.

                                     BY THE COURT:



                                        ;0;. ~ £ (_i;,_J:_.,~
                                     PATRICIA E. COONAHAN, J.


Copies of the above Opinion mailed
on 2/26/15 to the following:
By First-Class Mail:




                                            22
