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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN MASTRONARDO                        :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                  Appellant             :
                                        :
                                        :
            v.                          :
                                        :
                                        :
MARY ANGELA MASTRONARDO                 :    No. 377 EDA 2017

            Appeal from the Order Entered December 22, 2016
 In the Court of Common Pleas of Montgomery County Domestic Relations
                         at No(s): 2011-12245,
                              2011-12245


BEFORE:    BOWES, J., LAZARUS, J., and PLATT*, J.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

FILED JANUARY 22, 2018

     While I concur with the majority’s decision to affirm the portion of the

trial court order that denied Husband’s counter petition for contempt, I do

not believe that the certified record supports the trial court’s finding of

contempt against Husband or the imposition of sanctions.     Thus, I dissent

from that aspect of the majority memorandum.

     At the outset, I note my agreement with my learned colleagues’

conclusion that the trial court did not err in denying Husband’s counter

petition for contempt. However, the majority’s analysis is incomplete insofar

as it only confronts the component of Husband’s petition that relates to

Wife’s accumulation of credit card debt.    It neglects to address Husband’s

remaining claim that Wife surreptitiously liquidated two investment accounts


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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worth over $100,000 in marital assets.         Nevertheless, my review of the

certified record supports the trial court’s decision in this regard.

      First, the record confirms that Wife disclosed the existence of one of

the accounts to Husband during the divorce proceedings.                 See N.T.,

12/13/16, at 116-117.       Hence, that allegation of misfeasance is baseless.

The remaining claim is equally unconvincing in that the certified record

supports the trial court’s credibility determination in favor of Wife.

Specifically, Wife testified that she was unaware of the Jefferson Pilot

investment account and had no recollection of its alleged liquidation during

2010, while the marriage remained intact.          The trial court credited this

testimony, noting      that the registered representative for the account was

Husband’s business associate, Henry Nemanich, who subsequently lost his

broker’s license for misappropriating client funds. I find no basis to disturb

this aspect of the court’s credibility determination.         Husband       not only

conceded that the Jefferson Pilot account was liquidated before he initiated

the divorce proceedings, but he also confirmed that he has maintained a

business relationship with Mr. Nemanich, despite his sullied reputation and

unexplained    role,   as   the   account   representative,   in   Wife’s    alleged

misappropriation of marital funds. Accordingly, I concur with the majority’s

decision to affirm the portion of the trial court order that denied Husband’s

counter petition for contempt.

      I depart from my colleagues in relation to the remaining aspects of the

majority memorandum.         Specifically, assuming that Husband technically

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violated the terms of the property settlement agreement (“PSA”) between

Wife and him by mortgaging the Boca Raton Condominium that was held in

trust for and their adult children without obtaining “prior consent,” I believe

the transgression was de minimis in light of the fact that the beneficiaries

clearly sanctioned the move and Wife suffered no harm.1        Furthermore, I

believe that the court overstepped its authority by imposing sanctions that

modified the PSA in direct contravention of the agreement.2            Finally,

notwithstanding the majority’s protestations to the contrary, it is clear from

my perspective that Husband’s subjective beliefs are, in fact, relevant to the

issue of wrongful intent, which is an element of civil contempt.     I address

the foregoing positions seriatim, and for the reasons explained infra, I

dissent from the portion of the memorandum that affirms the trial court’s

finding of contempt, unilaterally modifies the PSA, and awards Wife counsel

fees.

        The majority summarized the relevant facts and procedural history,

and it outlined our standard of review. I will not revisit those items beyond

highlighting the fact that Husband provided Wife with proof of the adult
____________________________________________


1 Under the terms of the mortgage secured by the Boca Raton Condominium,
the loan was $375,000; however, the lender could agree to future advances
up to $750,000.

2 The trial court prohibited Husband from encumbering the property with the
beneficiaries’ permission, required Husband to obtain two life insurance
policy’s identifying the children as beneficiaries, and awarded Wife $8,810 in
attorney’s fees.



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beneficiaries’ ratification of the mortgage less than four months after he

executed it, and not, as the majority claims, over one year later.          See

Majority Memorandum at 4. Thus, to the extent that the majority’s decision

is based upon the purported “one year” delay, the clarification undermines

that conclusion. Id.

      I also observe that, in affirming the trial court’s finding of contempt,

the majority neglected to identify the elements of civil contempt. I outline

those components as follows:

      To sustain a finding of civil contempt, the complainant must
      prove certain distinct elements by a preponderance of the
      evidence: (1) that the contemnor had notice of the specific order
      or decree which he is alleged to have disobeyed; (2) that the act
      constituting the contemnor's violation was volitional; and (3)
      that the contemnor acted with wrongful intent.         Stahl v.
      Redcay, 897 A.2d 478, 489 (Pa.Super. 2006).

Habjan v. Habjan, 73 A.3d 630, 637 (Pa.Super. 2012).

      Having addressed these preliminary matters, I confront the merits of

Wife’s contempt petition.      As referenced supra, during the equitable

distribution process, Husband and Wife executed a PSA, which discussed,

inter alia, the Florida condominium that was held in trust for the benefit of

their two adult children. In pertinent part, the PSA provided as follows:

      4. Florida Condo

            ....

      (d) The parties agree that the condo shall remain in trust for the
      parties’ children, Maria and John, according to the terms of the
      Trust Agreement, and that the property shall not be
      encumbered, mortgaged or sold unless both children agree and

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      in accordance with the terms of the Trust Agreement. The
      parties’ children, Maria and John, shall have access to, and the
      enjoyment of, the Property.

Property Settlement Agreement, 3/12/13, at 2. I highlight that the specific

terms of the accord permit the Florida condominium to be encumbered by a

mortgage so long as both of the adult beneficiaries approve the maneuver.

That is what occurred herein.

      Both the trial court and the majority are preoccupied with determining

whether Husband obtained the beneficiaries’ consent prior to executing the

mortgage.     Indeed, the majority dedicates a significant portion of its

memorandum to upholding the trial court’s interpretation of the contract

language. While I agree that the phrase “unless both children agree” frames

a condition precedent, I believe that the dispositive question is not whether

Husband obtained his children’s consent before executing the mortgage, but

rather, whether the beneficiaries condoned the decision. As the beneficiaries

expressly ratified Husband’s action on June 9, 2016, I would find their

subsequent approval sufficient.

      To the extent that the majority seeks to diminish the significance of

the beneficiaries’ ratification by implying that it is unreliable because it was

not authenticated, that issue is a red herring. It is clear from the certified

record that Wife introduced the evidence of her children’s endorsement of

the mortgage by reciting the substance of their approval on the record

verbatim during the contempt hearing.          See N.T., 13/13/16, at 25.


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Husband did not object to the writing’s authenticity and the trial court did

not bar the evidence sua sponte.        Hence, regardless of the majority’s

intimation, the evidence      demonstrating the beneficiaries’ approval is

unassailable on authenticity grounds at this juncture. See Folger ex rel.

Folger   v.   Dugan,   876    A.2d   1049   (Pa.Super.   2005)   (challenge   to

admissibility based upon improper authentication is waived where party

failed to object on that basis during trial). While the majority may find the

lack of authentication off-putting, as a practical matter, that issue is a

nonstarter.

      Instantly, Husband’s failure to obtain prior consent is insignificant. To

be clear, Wife has no interest in the Boca Raton Condominium and the adult

beneficiaries whose interest the trust is designed to protect expressly

ratified the measure.        Moreover, there is no evidence that Husband

obtained the approval by fraud or deception, and the mortgage does not

affect the beneficiaries’ use or enjoyment of the property in violation of the

PSA. In fact, having been given proof of the ratification at the outset of this

litigation, I believe that Wife’s relentless pursuit of contempt was a waste of

judicial resources.

      The gravamen of Wife’s petition is her overarching concern for the

interest of her adult children.       During the hearing, she framed her

apprehensions as follows:

      My concern is that when we placed this in trust for our children,
      that they would have access to it and as something they could

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        split between the two of them in the event that he passed away
        and that they would have a financial basis later in their life. And
        that was when we signed our divorce, I accepted that he would
        take that and do what he signed to do, that he would not
        encumber or mortgage without their consent and leave
        that to them. He's encumbering it now by living in it, which I
        accept. I know that he needed a place to live. And I just don't
        want them to have to be responsible, in the event that
        something happens to him, for this mortgage that he's using to
        live his life off of and make them responsible for it, you know,
        paying off it, if he in fact would eventually take the balance that
        he is allowed to do through this mortgage and have them have
        to satisfy that later. That wasn't the intention, ever.

N.T., 12/13/16, at 27 (emphasis added).

        While Wife had an interest in securing Husband’s compliance with the

PSA, the purported violation of the agreement due to Husband’s failure to

obtain consent prior to executing the mortgage is harmless. There are no

injured parties and no actual damages. Again, I stress that the individuals

who the PSA provision was drafted to protect, the adult beneficiaries, ratified

the encumbrance. Accordingly, I believe that the technical infringement of

the PSA is inconsequential, and the trial court’s imposition of sanctions is an

overreaction to what is a fundamentally unimportant transgression.

        Wife’s argument essentially criticizes her adult children’s decision to

approve the encumbrance.          Rather than permit the adult beneficiaries to

make decisions on their own, Wife intervened by filing the petition for

contempt and, with the trial court’s imprimatur, she overstepped the bounds

of the PSA. The beneficiaries are competent adults who could have denied

their    assent   outright   or   conditioned   approval   on   some   additional


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requirements such as a surety or guaranty. They did neither. It is not for

the trial court to rewrite the PSA on Wife’s behalf simply so that she can

quell her misgivings and minimize the effect of the adult beneficiaries’

decisions.

       Furthermore, mindful that the beneficiaries validated the mortgage, I

believe that the trial court erred in prohibiting Husband from further

encumbering the property with his children’s consent in the future and by

requiring him to purchase and maintain two life insurance policies to protect

against default if he died.       In condoning the trial court’s unilateral

modification of the PSA, the majority relied upon two overlapping sections of

the Divorce Code, 23 Pa.C.S. § 3105 and 23 Pa.C.S. § 3502(e).           Section

3105 authorized the trial court to enforce the PSA as if it were a court order.

Likewise, § 3502(e), relating to equitable distribution, empowered the court

to employ a litany of measures to “effect compliance” with the terms of the

PSA.   As the majority recites both statutes at length, I do not reproduce

them herein.     It is sufficient to say that the trial court’s power is not

absolute.

       Chiefly, it is obvious that the PSA, which is the principal source of the

trial court’s authority, did not authorize the court to modify the terms of the

accord. In pertinent part, the PSA provides as follows:

       1. Incorporation of Agreement in Divorce Decree.

             ....


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      (b) Further, the parties specifically stipulate that this Agreement
      shall be incorporated, but not merged into any such judgment
      for divorce, either directly or by reference. The Court on entry
      of the judgment for divorce shall retain the right to enforce the
      provisions and the terms of this Agreement, but not to modify
      it.

Property Settlement Agreement, 3/12/13, at 1. Likewise, the portion of the

Divorce Code that empowered the trial court to enforce the PSA limited the

court’s enforcement authority to items that did not conflict with the written

agreement, i.e., “except as provided to the contrary in the agreement.” 23

Pa.C.S. § 3105.      Similarly, the court’s enforcement powers that are

enumerated in § 3502(e) do not include the authority to modify an

agreement single-handedly.

      From my perspective, the trial court exceed its authority in modifying

the PSA. While it is beyond argument that the trial court had the power to

enforce the PSA, it is equally obvious that the court lacked the authority to

modify the agreement on its own. The court’s influence over the PSA was

restrained by both: (1) the express terms of the accord; and (2) the

authorizing statute’s explicit recognition that those provisions were inferior

to the agreement.       As the foregoing makes clear, the trial court’s

enforcement authority under § 3105 and § 3502(e) was not unrestrained.

The   PSA   permitted   the   Florida   condo   to   be   encumbered   with   the

beneficiaries’ approval and it did not require the purchase of additional life

insurance policies. Thus, in contrast to the majority, I believe that the trial

court exceeded its authority by modifying the PSA to prevent Husband from

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seeking future encumbrances and by requiring him to secure two life

insurance policies naming the children as beneficiaries.

      Finally, I disagree with the majority’s holding that the trial court did

not err in preventing Husband from adducing evidence regarding his intent,

i.e., his belief that the beneficiaries’ ratification of the maneuver was

sufficient.   Specifically, Husband sought to introduce evidence of his

conversations about the mortgage with the beneficiaries and the trustee.

Although Husband asserted that the out-of-court statements were proffered

to establish his subjective state of mind regarding his compliance with the

PSA, rather than the truth of the matters asserted, i.e., non-hearsay, the

trial court sustained Wife’s hearsay objection. Likewise, concluding that

Husband’s subjective beliefs were irrelevant to the issue of contempt, the

majority sanctioned the court’s decision.

      As the comments to Pa.R.E. 801 demonstrate, “A statement is hearsay

only if it is offered to prove the truth of the matter asserted in the

statement.”   Indeed, “[t]here are many situations in which evidence of a

statement is offered for a purpose other than to prove the truth of the

matter asserted.”   Id.   Thus, since Husband sought to adduce the out-of-

court conversations with his children and the trustee in order to establish his

state of mind when he obtained the mortgage, rather than to prove the truth

of what the respective declarants said, his characterization of the proposed




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evidence as non-hearsay is accurate.3               Moreover, notwithstanding the

majority’s protestations to the contrary, it is a well-ensconced principle of

law that Husband’s subjective belief was relevant insofar as it implicated

Wife’s burden to establish his wrongful intent by a preponderance of the

evidence.    See Habjan, supra at 637.             Thus, mindful of the elements of

civil contempt, I would conclude that the trial court abused its discretion in

prohibiting Husband from proffering the non-hearsay evidence that tended

to disprove his wrongful intent.

       For all of the foregoing reasons, I would reverse the portion of the trial

court order that (1) granted Wife’s petition for contempt; (2) modified the

terms of the PSA; and (3) awarded Wife $8,810.00 in attorney’s fees.

However, I concur with my colleagues’ decision to affirm the portion of the

trial court order that denied Husband’s counter petition for contempt.




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3 Significantly, Husband did not offer the children’s statements to establish
that they validated his actions. Wife had previously established that fact
when she read the substance of the written consent on the record verbatim
during the contempt hearing. See N.T., 13/13/16, at 25.



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