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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

TRACEY OSBORNE                         :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                   v.                  :
                                       :
WESLEY OSBORNE,                        :         No. 553 WDA 2017
                                       :
                        Appellant      :


                    Appeal from the Order, March 13, 2017,
               in the Court of Common Pleas of Lawrence County
                     Civil Division at No. 11099 of 2010 C.A.


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED DECEMBER 12, 2017

     Wesley Osborne (“Husband”) appeals the order of the Court of

Common Pleas of Lawrence County that found Husband in contempt of court

and entered an award against Husband in favor of Tracey Osborne (“Wife”)

in the amount of $37,055.38, permitted Wife to reduce the award to

judgment, ordered Husband to pay Wife the costs of reducing the monetary

award to judgment and all reasonable attorney fees and costs necessary to

collect on the judgment, sentenced husband to a term of 30 days in the

Lawrence County Jail unless Husband paid the sum of $9,980.38 by April 13,

2017, and ordered Husband to pay each monthly alimony payment and each

payment when due on the First Commonwealth Bank commercial loan. The

trial court also ordered that failure to make payments as they come due on
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alimony and the bank loan could result in additional contempt findings and

orders. After careful review, we affirm.

      The trial court set forth the following relevant findings of fact:

            1.    Testimony on the Petition for Contempt and
                  Enforcement was closed on January 3, 2017.

            2.    On September 30, 2014, an Order of Court
                  was entered equitably dividing the marital
                  property and awarding alimony.

            3.    On June 16, 2015 an Order of Court was
                  entered by Judge John Hodge. This Order was
                  not appealed and became a final Order of
                  Court. Therefore, all matters determined by
                  the Court pursuant to the June 16, 2015 Order
                  of   Court   are   final  and   res   judicata
                  in so much as identical issues were raised in
                  the current Contempt Petition.

            4.    The June 16, 2015          Order   contained   the
                  following orders:

                  a.     That   [H]usband   pay   [W]ife’s
                         attorney fees in the amount of
                         $5,100.00 no later than June 30,
                         2015;

                  b.     That [H]usband pay $6,000.00 for
                         back alimony from June 1, 2014 to
                         June 1, 2015;

                  c.     That [H]usband continue to pay
                         $500.00 per month from July 1,
                         2015 until May 31, 2022;

                  d.     “That [H]usband shall pay and
                         provide proof of satisfaction of the
                         First Commonwealth Commercial
                         Loan, in keeping with the Court’s
                         Order of September 30, 2014 at
                         paragraph 5.”


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               e.   That [H]usband return to [W]ife
                    the following properties at a value
                    that the Court included as follows:

                    Harley      Davidson      Sportster
                    Motorcycle (during the Contempt
                    proceedings now before the Court,
                    [W]ife and [H]usband both agreed
                    to a value for the Harley Davidson
                    Sportster of $6,000.00)

                    $14,000.00 -- Mortisse 3 horse
                                  slant stock trailer
                    $75.00 -- portable welder
                    $1,500.00 -- Ford tractor
                    $200.00 -- Husqvarna rototiller
                    $200.00 --3 point hitch scraper blade
                    $600.00 -- bale chopper
                    $2,500.00 -- dump trailer, dual axle
                    $1,000.00 -- Stone water trough
                    $1,000.00 -- cut and spilt wood
                    Stove
                    Refrigerator
                    Washer and dryer.


          5.   [W]ife has paid $5,392.88 on the First
               Commonwealth loan that [H]usband was
               ordered to pay in the June 16, 2015 Order of
               Court. [H]usband in his brief has argued that
               the First Commonwealth loan was a loan that
               [W]ife was obligated to pay pursuant to the
               September 30, 2014 Order. That issue has
               already been determined by Judge Hodge’s
               June 16, 2015 Order of Court and the issue is
               res judicata.       [H]usband therefore is
               responsible for the payment of the First
               Commonwealth commercial loan and the
               payments by [W]ife must be reimbursed by


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               [H]usband.     According to the documents
               provided to the Court pursuant to the Court
               Order of September 8, 2016, the First
               Commonwealth Bank loan is listed as account
               number [] and had an original balance of
               $50,000.00; with a balance as of August 2016
               of $6,360.90. The total owed by [Husband] to
               [Wife] for monies she paid on the loan is
               $5,392.88. The remaining balance must still
               be   paid   by   [Husband]    to   the   First
               Commonwealth Bank.

          6.   After   commencement       of  the   contempt
               proceedings, and pursuant to the October 17,
               2016 Order of Court, [H]usband was allowed to
               refinance one parcel of property and use the
               proceeds to pay $5,900.00 in attorney fees
               and $14,500.00 toward past due alimony. In
               addition, [W]ife’s brief notes that [H]usband
               has since paid an additional $1,000.00 in
               alimony. Therefore, the attorney fees ordered
               by the June 16, 2015 Order of Court have been
               paid in full and $15,500.00 in alimony
               payments have been made for the period of
               time from 6/1/14 through the date of this
               Order.

          7.   The total amount of alimony that should have
               been paid for the period of time from 6/1/14
               through 3/1/17 is as follows:

               a.   Pursuant to the June 16, 2015
                    Order of Court alimony owed for
                    the period from 6/1/14 to 6/1/15 is
                    $6,000.00.

               b.   Alimony owed from 7/1/15 to
                    3/1/17 at $500.00 per month,
                    21 months x $500.00 per month
                    = $10,500.00.

                    Total alimony due from 6/1/14 to
                    3/1/17:    $16,500.00 ($6,000.00
                    + 10,500.00).


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          8.   The total amount of alimony owed by
               [H]usband to [W]ife as of March 1, 2017 is as
               follows:

               total alimony due from 6/1/14
               to 3/1/17                           $16,500.00
               minus alimony paid                  - 15,500.00
               alimony due and owing to [W]ife
               from [H]usband as of 3/1/17            $ 1,000.00

          9.   [H]usband is in Contempt of Court for not
               returning to [W]ife the following items of
               personal property with values as already
               determined by the June 16, 2015 Order of
               Court or by stipulation of parties as to values:

               Harley Davidson Sportster Motorcycle (during
               the Contempt proceedings now before the
               Court, [W]ife and [H]usband both agreed to a
               value for the Harley Davidson Sportster of
               $6,000.00)

               $14,000.00 -- Mortisse 3 horse slant stock
                             trailer
               $75.00 -- portable welder
               $1,500.00 -- Ford tractor
               $200.00 -- Husqvarna rototiller
               $200.00 -- 3 point hitch scraper blade
               $600.00 -- bale chopper
               $2,500.00 -- dump trailer, dual axle
               $1,000.00 -- Stone water trough
               $1,000.00 -- cut and split wood
               Stove
               Refrigerator
               Washer and dryer.




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                   Total $27,075.00 (the Court has not assigned a
                   value to the stove, refrigerator, washer or
                   dryer as no testimony as to the value of those
                   items has been produced.)

            10.    The Court finds that [H]usband had the ability
                   to pay the sums of money due and the ability
                   to return the items as ordered by the Court in
                   the June 16, 2015 Order of Court and willfully
                   failed to do so. [H]usband has available to him
                   certain parcels of property, some of which
                   were unencumbered and which had value
                   sufficient to satisfy his obligations under the
                   Court Order. [H]usband did not make a good
                   faith effort to sell the properties. In one
                   instance, a property appraised in 2010 with a
                   value of $60,000.00 was offered for sale by
                   [H]usband at $495,000.00.

            11.    [W]ife has incurred reasonable attorney fees in
                   the amount of $3,587.50 (20.50 hrs x
                   $175.00) in order to enforce the divorce
                   settlement    agreement    and    pursue   the
                   contempt proceedings against [H]usband.

Trial court findings of fact and order of court, 3/13/17 at 1-5.

      Husband filed a notice of appeal.     On April 12, 2017, the trial court

directed Husband to file a statement of errors complained of on appeal,

pursuant to Pa.R.A.P. 1925(b).        On May 2, 2017, Husband filed his

Rule 1925(b) statement. On June 6, 2017, the trial court issued an opinion

pursuant to Rule 1925(a) which stated that Husband’s issues were

addressed in the findings of fact and order of court of March 13, 2017.

      On appeal, Husband raises the following issues for this court’s review:

            [1.]   Whether the [trial c]ourt erred in finding
                   [Husband] in Contempt of Court for violation of



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                   the September 30, 2014 and June 16, 2015
                   Orders of Court?

            [2.]   Whether the [trial c]ourt erred in awarding
                   [Wife] counsel fees?

            [3.]   Whether the [trial c]ourt erred in finding that
                   [Husband] has the ability to pay the sums of
                   money due and ability to return the items of
                   personal property and that [Husband] willfully
                   failed to do so?

            [4.]   Whether the [trial c]ourt erred in finding
                   [Husband] responsible for payment of the First
                   Commonwealth Commercial Loan and that
                   payment by [Wife] must be reimbursed by
                   [Husband] and that [Husband] must pay the
                   remaining balance?

            [5.]   Whether the [trial c]ourt erred in sentencing
                   [Husband] to a term of incarceration?

            [6.]   Whether the [trial c]ourt erred in finding
                   [Husband] did not make a good faith effort to
                   sell certain properties?

Husband’s brief at 6.

      This court’s review of a civil contempt order is limited to a

determination of whether the trial court abused its discretion. Bold v. Bold,

939 A.2d 892, 894-895 (Pa.Super. 2007). “If a trial court, in reaching its

conclusion, overrides or misapplies the law or exercises judgment which is

manifestly unreasonable, or reaches a conclusion that is the result of

partiality, prejudice, bias or ill will as shown by the evidence of record, then

discretion is abused.”   Gates v. Gates, 967 A.2d 1024, 1028 (Pa.Super.

2009).



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        In order to establish that a party is in civil contempt, there must be

proof by a preponderance of the evidence that the contemnor had notice of

the specific order that he or she is alleged to have disobeyed, that the act

that constituted the contemnor’s violation was volitional, and that the

contemnor acted with wrongful intent. Harcar v. Harcar, 982 A.2d 1230,

1235 (Pa.Super. 2009).

        On July 20, 2016, Wife petitioned for contempt on the basis that

Husband had failed to pay Wife $5,900 in attorney fees, failed to pay

$500 per month in alimony, failed to return to Wife the personal property

listed in the court orders of September 30, 2014, and June 16, 2015, and

failed to provide satisfaction of the First Commonwealth Bank commercial

loan.

        Initially, Husband contends that the trial court erred in finding him in

contempt for violating the September 30, 2014 and June 16, 2015 orders of

court.1    Husband acknowledges that he failed to comply with the court

orders but asserts that the failure was not volitional and that he did not act

with wrongful intent.    Husband asserts that he does not have the present



1
  It is somewhat difficult to address the issues Husband raises because he
has not complied with Rule 2119(a) of the Pennsylvania Rules of Appellate
Procedure in that Husband has not divided the argument section of his brief
into as many parts as there are questions to be argued and has not included
headings to identify individual arguments. However, because this court can
render meaningful appellate review, we will address the issues presented.
See Commonwealth v. Vealey, 581 A.2d 217 (Pa.Super. 1990), petition
for allowance of appeal denied, 592 A.2d 1300 (Pa. 1991).


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ability to comply with the orders and that he attempted to do so. Husband

argues that he has limited income that has prevented him from complying

with the trial court’s orders.   He argues that his personal income is quite

variable as he only averages between $24,000-$32,000 per year from his

trapping business which is his sole source of income. (Notes of testimony,

9/8/16 at 65.)      Appellant also testified that his storage business was

operating at a loss. (Id. at 69.) Further, he asserts that he has attempted

to liquidate all of his real estate holdings that are not tied into existing loans

but has been unable to do so. (See id. at 50-63.)

      However, the trial court found that the amount Husband owed to Wife

was $37,055.38 which consisted of $1,000 in past due alimony payments,

$27,075 in personal property, $5,392.88 for payments Wife made on the

First Commonwealth Bank commercial loan, and $3,587.50 in attorney fees.

The record reflects that Husband owns 11 different parcels of land. Some of

these are owned with his parents, some are encumbered by loans, and some

he owns free and clear.     (Id. at 92-93.)    The trial court determined that

Husband did not make a good faith effort to sell the properties to satisfy his

obligations to Wife.       For example, one property was valued in a

2010 appraisal at $60,000, but Husband listed it for sale at $495,000. (Id.

at 26.)

      If the alleged contemnor is unable to perform and has in good faith

attempted to comply with the court order, then contempt is not proven.



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Sinaiko v. Sinaiko, 664 A.2d 1005, 1010 (Pa.Super. 1993).                The

contemnor has the burden to prove the affirmative defense that he lacks the

ability to comply. Commonwealth ex rel. Ermel v. Ermel, 469 A.2d 682,

683 (Pa.Super. 1983).     The defense of impossibility of performance is

available to a party in a contempt proceeding if the impossibility to perform

is not due to the actions of that party.    Commonwealth Dept. of Envtl.

Resources v. Pennsylvania Power Co., 316 A.2d 96, 103 (Pa.Cmwlth.

1974).

     Here, the trial court did not credit Husband’s testimony that he did not

have the present ability to comply with the earlier court orders.   The trial

court, as fact-finder, determines the credibility of any witnesses and the

weight accorded their testimony.   Mescanti v. Mescanti, 956 A.2d 1017,

1019-1020 (Pa.Super. 2008).     Consequently, the record supports the trial

court’s factual determinations, and Husband failed to meet his burden.

     Husband next contends that the trial court erred when it awarded Wife

counsel fees because Husband lacked the ability to pay.

           Sanctions for civil contempt can be imposed for one
           or both of two purposes:       to compel or coerce
           obedience to a court order and/or to compensate the
           contemnor’s adversary for injuries resulting from the
           contemnor’s noncompliance with a court order.
           Attorney’s    fees     and   other    disbursements
           necessitated by the contemnor’s noncompliance may
           be recovered by the aggrieved party in a civil
           contempt case. Because an award of counsel fees is
           intended to reimburse an innocent litigant for
           expenses made necessary by the conduct of an
           opponent, it is coercive and compensatory, and not


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            punitive, counsel fees are a proper element of a civil
            contempt order.

Rhoades v. Pryce, 874 A.2d 148, 152, (Pa.Super. 2003), appeal denied,

844 A.2d 1297 (Pa. 2004), quoting Mrozek v. James, 780 A.2d 670, 674

(Pa.Super. 2001).

      Here, the trial court had the authority to award attorney fees. As we

have already determined that the trial court did not abuse its discretion

when it found that Husband had the ability to pay, his argument, that the

trial court should not have awarded attorney’s fees because he lacked the

ability to pay, has no merit.

      Appellant next contends that the trial court erred when it found that he

had the ability to pay the sums of money due and the ability to return the

items of personal property and that he willfully failed to do so. This court

has already determined that the trial court did not err when it determined

that he had the ability to pay. As to whether he had the ability to return the

items of personal property, which made up the bulk of the amount due,

appellant argued that most of the items were business equipment that he

was awarded and were not intended to be returned to the Bedford Farm

property now owned by Wife.

      The June 16, 2015 order of the trial court set forth the items that

Husband was to return to Wife. Husband did not appeal that order. That

final order is binding upon Husband.    He cannot now argue that he is not

required to return those items to Wife or to pay for their value. Husband


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cannot now argue that this court find that he has no obligation to comply

with the 2015 order.      See J.S. by and ex rel. H.S. v. Bethlehem Area

Sch. Dist., 794 A.2d 936, 939 (Pa.Cmwlth. 2002).               As to the motorcycle,

Husband testified that the motorcycle was customized for him, sat in a

garage for ten years, and became damaged so that it was not in condition to

give to Wife.   (Notes of testimony, 9/8/16 at 76-77.) It is not Husband’s

decision whether or not Wife should receive the motorcycle. He was ordered

to do so by the trial court.

      Husband next contends that the trial court erred when it found that he

was responsible for the payments on the First Commonwealth Bank

commercial loan and that he must reimburse Wife for payments she made

on the loan and that Husband must pay the remaining balance.

      The September 30, 2014 order is confusing in that in Paragraph 3, the

trial court stated that Wife shall assume full obligation for the First

Commonwealth Bank commercial loan.             In Paragraph 4, the trial court did

not list a First Commonwealth Bank commercial loan in the list of loans for

which Husband shall assume full obligation.         Yet, in Paragraph 5, the trial

court stated that Husband was to “satisfy the First Commonwealth

Commercial loan within one hundred twenty (120) days.”                   (Trial court

opinion, 9/30/14 at 24, ¶ 5.)    In the June 16, 2015 order, the trial court

ordered   Husband    to   pay   and   provide     proof   of    satisfaction   of   the




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First Commonwealth Bank commercial loan as set forth in the September 30,

2014 order.

     Husband did not appeal the June 16, 2015 order that directed him to

pay the First Commonwealth Bank commercial loan. The trial court noted in

the March 13, 2017 order that the issue is decided by the doctrine of

res judicata.

     “The doctrine of res judicata bars repetitious litigation of the same

cause of action.” Taylor v. Shiley Inc., 714 A.2d 1064, 1066 (Pa.Super.

1998), appeal denied, 735 A.2d 1270 (Pa. 1999).

              A final valid judgment upon the merits by a court of
              competent jurisdiction bars any future suit between
              the same parties or their privies on the same cause
              of action. The purpose of the doctrine is to minimize
              the judicial energy devoted to individual cases,
              establish certainty and respect for court judgments,
              and protect the party relying on the previous
              adjudication from vexatious litigation.

Id. quoting Dempsey v. Cessna Aircraft Co., 653 A.2d 679, 681

(Pa.Super. 1995) (en banc) (internal quotation marks omitted).

              In keeping with these purposes, the doctrine must
              be liberally construed and applied without technical
              restriction.    Furthermore, we note that the
              application of res judicata requires the concurrence
              of four conditions between the present and prior
              actions: 1) identity of issues; 2) identity of causes of
              action; 3) identity of parties or their privies; and
              4) identity of the quality or capacity of the parties
              suing or being sued.

Yamulla Trucking & Excavating Co., Inc. v. Justofin, 771 A.2d 782, 784

(Pa.Super. 2001), appeal denied, 784 A.2d 119 (Pa. 2001).


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      This court agrees with the trial court that Husband had the opportunity

to litigate this issue. When a final judgment was reached on the merits that

he was obligated to pay the First Commonwealth commercial loan, Husband

did not appeal.    The litigation of this issue is barred by the doctrine of

res judicata.

      Husband next contends that the trial court erred when it sentenced

him to a term of incarceration. He argues that he is unable to comply with

the order and that a term of incarceration is an infliction of punishment and

not a means to enforce compliance.         He further argues that having him

serve a term of incarceration would only further hinder his ability to comply

with the orders because he would have a loss of income and possibly the

loss of his business entirely as he is a sole proprietor.   Husband’s whole

argument is centered around his belief that he lacked the ability to pay the

amount ordered. As this court has already determined that the trial court

did not abuse its discretion when it found that Husband did not lack the

ability to pay, this issue is without merit.2

      Wife asserts that this appeal is frivolous and intended to delay the

distribution of assets to her. Pursuant to Pa.R.A.P. 2744, Wife argues that

she is entitled to a remand for the purpose of determining reasonable

attorney’s fees to be awarded in Wife’s favor and against Husband for


2
 Husband also contends that the trial court erred in finding that he did not
make a good faith effort to sell certain properties. This court has already
addressed this issue.


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attorney’s fees accrued on her appeal to this court.        Wife raises this

argument in her discussion of Husband’s failure to comply with the

Pennsylvania Rules of Appellate Procedure.       Because we could render

meaningful appellate review, we will not remand for attorney’s fees.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/12/2017




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