J-A09017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BARRY COHEN                                     IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

VICTORIA COHEN

                         Appellee                    No. 1460 EDA 2013


                    Appeal from the Order May 10, 2013
               In the Court of Common Pleas of Bucks County
                   Civil Division at No(s): No. 2007-62034


BEFORE: BOWES, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                           FILED OCTOBER 07, 2014

      Barry Cohen (Husband) appeals from the order of May 10, 2013,

entered in the Court of Common Pleas of Bucks County, finding him in civil

contempt for failing to abide by the terms of a Support Agreement between

him and his estranged wife, Victoria Cohen (Wife). Husband was ordered to



associated with the filing and prosecution of the contempt petition. Husband

has raised three issues in this timely appeal. He claims the trial court erred:

(1) in determining the payments were untimely, (2) in accepting as evidence

a letter from Husband to his counsel, and (3) in finding Wife credible. After
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                                                     the certified record and relevant

law, we affirm.

        We adopt the relevant procedural and factual history of this matter as

related by the Honorable Alan M. Rubenstein in his Pa.R.A.P. 1925(a)

opinion.


        10, 2013, finding him in contempt and ordering him to pay


        This finding of Contempt was made on January 13, 2012,
        however, the Order was not filed and officially docketed until
        May 10, 2013. See Order of Superior Court, May 4, 2012; see
        also Cohen v. Cohen, BCCP No. A06-07-62034-D.

        In March of 2006, the parties separated and entered into a
        spousal support agreement. Husband, Barry Cohen, filed a
        Complaint in Divorce on June 28, 2007. Since that time, the
        parties have been involved in contentious, acrimonious, and
        protracted litigation. During the course of this divorce action,
        approximately 30 petitions for contempt, enforcement, and/or
        other relief have been filed. See Cohen v. Cohen, BCCP No.
        A06-07-62034-D (Divorce), E (Equity), Q (Equitable distribution)
        and S (Support).

        On October 12, 2011, Wife filed a Petition for Contempt with the
        Family Division, Bucks County Court of Common Pleas.           A
        hearing on this Petition was scheduled for January 13, 2012.

        On January 13, 2012, this Court conducted a heari
        Petition for Contempt.

        The following evidence was presented at the hearing:


____________________________________________


1
    Victoria Cohen, Appellee, chose not to file a brief.



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       On March 15, 2006, Husband, Barry Cohen, and Wife, Victoria
       Cohen, entered into a Spousal Support Agreement wherein,
       beginning on March 1, 2006, Husband was to pay Wife
       $4,400.00 per month payable on the fifteenth day of each
       month.[2] See Support Agreement attached hereto. This sum

       bank account                              Id.

       Wife testified that the September 15, 2011 spousal support
       payment of $4,400.00 was untimely. Wife stated that she did
       not receive the check from Husband until September 26, 2011.

       counsel on September 15, 2011.

       Wife further testified that she did not receive the October 15,
       2011 spousal support payment until October 20, 2011.

       Wife testified that the November 15, 2011 payment was also late
       and was not received until November 18, 2011. Like the
       September payment, the November 15, 2011 spousal support



       Spousal Support Agreement of March 15, 2006.

       Lastly, Wife testified that she did not receive the spousal support
       payment of December 15, 2011 until December 16, 2011.[3]

       Wife testified that she received an invoice from her counsel, John
       Heley, Esquire, for $750.00, which represented the cost of filing
       the Petition for Contempt as well as his appearance at the
       hearing of January 13, 2012.

____________________________________________


2
  We note the terms of the agreement specifically required the monthly
payment to be made directly to Wife, and the beginning date was originally
March 1, 2006, but was amended and initialed by the parties to March 15,
2006.
3
  The Petition for Contempt only complains of the September 15, 2011
payment being late. However, testimony regarding the other months was
presented without objection.



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      Starting in September, 2011, the spousal support payments
      from Husband were either personally handed or mailed to
                    nsel, William Marshall, Esquire, who then mailed


Trial Court Opinion, 7/29/13, at 1-3 (citations to record omitted).

      Our standard of review for an order regarding civil contempt is as

follows:

      This Court will reverse a trial court's order denying [or granting]
      a civil contempt petition only upon a showing that the trial court
      misapplied the law or exercised its discretion in a manner lacking
      reason. Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa. Super.
      2009)(citations omitted). 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 v. Hinchcliffe, 769
      A.2d 481, 489 (Pa. Super. 2001) (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).

      In his first issue, Husband claims the trial court erred in determining

his payments were late. He argues that the agreement states he is to pay



           See Agreement at ¶ 1. Husband claims the Agreement contained

no terms of when the payment was to be received, only when it was

payable.    Therefore, he claims that as he has mailed the check by the

fifteenth of each month, he complied with the terms of the agreement

specifically he paid the money by the fifteenth of each month.




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      Accepting, arguendo

                                                                         timing

requirement of payment is only one of the conditions attached to the support

payment. The full text of Paragraph 1 of the Agreement reads as follows:

             1. Beginning March 15, 2006 Husband shall pay to Wife
      directly the amount of $4,400 per month payable on or before
      the fifteenth of each month. This sum of money shall be payable

      parties shall agree. The parties agree that for the month of
      March 2006 only, Husband shall remit to Wife $2,200 or one half
      the usual amount.

Support Agreement, at ¶ 1.

      Additionally, Paragraph 10 of the Agreement addresses the ability of

the parties to modify the Agreement.

             10. No modification or waiver of this Agreement or any
      part thereof shall be valid or effective unless in writing signed by
      both parties; and failure to insist upon a strict performance of
      any provision of this Agreement shall not be deemed to be a
      waiver or relinquishment for the future of any such terms, option
      or election and all provisions of this Agreement shall remain in
      full force and effect.

Id. at ¶ 10.

      There are two relevant components to the proper payment of

                             support obligation: (1) support is payable on or

before the fifteenth of every month; (2) payment is to be made directly to

Wife or her bank account. Husband admitted that from September through

November he made payment to his lawyer who then sent the ch

lawyer who then gave the check to Wife.       See N.T. Hearing, January 13,



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2012, at 36-37. The trial court found, and we agree, that this method of

delivery did not comply with the requirement of direct payment to Wife. The

terms of the Agreement requiring direct payment were not modified in

writing, much less signed by both parties.      By the express terms of the

Agreement, Husband had no right to unilaterally amend the terms of the

Agreement.      Regardless of the timing off the payment, Husband did not

comply with the terms of the agreement requiring he make the payments

directly to Wife.



was specifically noted by the trial court at the conclusion of the hearing.

      THE COURT
      Cohen is clearly in contempt. How do I know that? Because the
      agreement which he entered into, and which has not been
      challenged, states that he shall pay wife directly $4400 per
      month, payable on or before the 15th day of each month. It also

      account as the parties shall agree. For whatever reason, the
      letter, if not the spirit of that agreement, has not been followed.
      Instead, Mr. Cohen has decided, perhaps unilaterally, to send
      the checks to his counsel adding another layer to the payments,
      and Mr. Marshall adds another layer to the payment schedule by

      previous counsel].    So we have two conduits which are not
      necessary.

      The Order is clear, precise, and unmistakable. Mr. Cohen is to

      bank account.

Id. at 66-67.

      It is clear that the trial court found Husband had vio




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finding of contempt.      Therefore, we find no error of law or abuse of

discretion in the finding of contempt.

                                                                   two issues

necessarily fail.   In his next issue, Husband claims the trial court erred in

accepting into evidence a letter he wrote to his counsel in which he stated,



the only weapon             See Exhibit W-7. Husband claimed introduction of

the evidence violated his attorney-client privilege.    The determination of

contempt did not rely upon the contents of the letter.       Further, the trial

judge noted at the hearing that he was making no determination whether

Husband was using late payments as a weapon.              See N.T. Hearing,

1/13/2012, at 68. Because the trial court did not rely upon the letter and

the finding of contempt was based upon other evidence, this issue is moot.

                       issue is a claim that Wife was not credible because she

lied about whether the bank was open on Saturdays.           This claim is in



December check until Monday, December 19, 2011. Wife testified although

she received the check on Friday, December 16, 2011, her bank was not

open on Saturday, thereby making the funds unavailable to her for a number

of days.   See N.T. Hearing, 1/13/2012, at 16, 31.       Husband claims that

after the hearing he discovered that the local branches of the banks near




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production of evidence.      See Order denying Motion for Reconsideration,

2/28/2012.    Therefore, his assertion that Wife lied is not supported by

evidence of record.     Even accepting the assertion Wife lied, her testimony

was only relevant to the timing of the payment, not to the whether the

payment was made directly to her. The determination that Husband violated




the resolution of the appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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