J-S90017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.M.R-H.                                       IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

M.E.R.

                        Appellee                    No. 1771 EDA 2016


                Appeal from the Order Entered May 2, 2016
           In the Court of Common Pleas of Montgomery County
                 Domestic Relations at No(s): 2006-21976


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

MEMORANDUM BY SOLANO, J.:                      FILED DECEMBER 16, 2016

      Appellant, K.M.R-H., appeals from the May 2, 2016 order finding her in

contempt of the trial court’s June 19, 2015 order, and directing her to pay

$1,500, plus 6% per annum interest from August 19, 2015, until January

20, 2016, as well as $1,540 in counsel fees. We affirm.

      The parties are the divorced parents of a minor child, and have

engaged in ongoing litigation. On May 20, 2015, M.E.R., who is the child’s

father, filed an Emergency Petition for Immediate Relief and for Contempt to

Enforce Court’s Orders. The trial court held a hearing on June 12, 2015, and

on June 19, 2015, granted M.E.R.’s petition.      Specifically, the trial court

found Appellant in contempt of three prior court orders, and directed

Appellant to “resume therapy appointments with the child” and “continue

with family and reunification therapy.” The trial court also ordered Appellant
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to “reimburse [M.E.R.] $1,5000.00 [sic] within sixty (60) days of the date of

this Order due to [Appellant] taking the child as a tax exemption for

calendar year 2013 in violation of the parties’ June 26, 2008 Divorce Decree

and June 10, 2008 Property Settlement Agreement.”           Trial Ct. Order,

6/19/15. The trial court subsequently noted, “the extra zero in the figure as

stated in the June 19, 2015 order was a typographical error.       [M.E.R.]’s

counsel stated ‘yes, we agree its $1,500.00 . . . no one has ever asserted it

was anything other than $1,500.00.’ N.T. 3-4.” Trial Ct. Op., 8/5/16, at 2.

      On December 2, 2015, M.E.R. filed another emergency petition in

which he sought, among other things, to compel Appellant to reimburse him

the $1,500 ordered by the trial court on June 19, 2015. The trial court held

a hearing on April 21, 2016. In an order dated April 29, 2016, and docketed

May 2, 2016, the trial court found Appellant in contempt of the June 19,

2015 order, and again directed her to pay M.E.R. $1,500, with 6% per

annum interest from August 19, 2015, until January 20, 2016, as well as

$1,540 in counsel fees. Appellant filed a pro se motion for reconsideration,

but the trial court did not act on it and it therefore was deemed denied by

operation of law. See Pa. R. Civ. P. 1930.2(b).

      On May 27, 2016 Appellant, through counsel, filed a timely notice of

appeal, and on June 21, 2016, she responded to the trial court’s order

directing her to file a Pa.R.A.P. 1925(b) statement.      The Rule 1925(b)

statement raised the following five issues:




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      1.   The Lower Court abused its discretion when it found
           Appellant in contempt of its June 19, 2015 Order after
           [M.E.R.] failed to demonstrate by a preponderance of the
           evidence that the alleged violation was volitional.

      2.   The Lower Court abused its discretion when it found
           Appellant in contempt of its June 19, 2015 Order after
           [M.E.R.] failed to demonstrate, by a preponderance of the
           evidence, that Appellant acted with wrongful intent in
           making payments to [M.E.R.] to satisfy the June 19, 2015
           Order.

      3.   The Lower Court abused its discretion when it found that the
           June 19, 2015 Order was sufficiently definite, clear and
           specific, and left no doubt or uncertainty in the mind of the
           Appellant, so as to justify a finding of contempt thereof.

      4.   The Lower Court abused its discretion when it found
           Appellant in contempt of an Order seeking to enforce an
           illegal provision of the parties’ Property Settlement
           Agreement relating to the issue of income tax exemptions.

      5.   The Lower Court abused its discretion when it ordered
           Appellant to pay counsel fees to [M.E.R.]’s counsel when
           [M.E.R.] failed to establish by a preponderance of the
           evidence that Appellant’s conduct was obdurate, dilatory or
           vexatious.

Appellant’s Concise Statement of Matters Complained of on Appeal, 6/21/16,

at 1-2.

      On appeal, Appellant presents the following four issues for our review:

      1. Is [Appellant] entitled to a reversal of the Trial Court’s Order
         finding her in contempt of its June 19, 2015 Order when
         [M.E.R.] failed to provide any evidence demonstrating
         [Appellant] intended to violate the Trial Court’s Order when
         she made payments to [M.E.R.], which [M.E.R.] accepted,
         and where the entire amount due and owing to [M.E.R.] was
         paid in full prior to the hearing?

      2. Is [Appellant] entitled to a reversal of the Trial Court’s Order
         finding her in contempt of the June 19, 2015 [Order], when
         that Order contains the incorrect amount of the 2015 child tax
         credit, which [Appellant] was ordered to pay to [M.E.R.]?

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      3. Is [Appellant] entitled to a reversal of the Trial Court’s Order
         finding her in contempt of the June 19, 2015 Order when the
         June 19th Order required [Appellant] to pay $1,5000.00 [sic]
         to [M.E.R.] when the child tax credit was only $1,000 in 2015,
         and where [M.E.R.] is not permitted under Federal Law to
         take the parties’ minor child as a tax credit for 2015, despite
         the language in the parties’ Property Settlement Agreement
         permitting [M.E.R.] to take the deduction in odd-numbered
         years, since [M.E.R.] did not have primary custody of the
         child at the time he was seeking to take the deduction?

      4. Is [Appellant] entitled to a reversal of the Trial Court’s Order
         requiring [her] to pay [M.E.R.]’s counsel fees, when [M.E.R.]
         failed to present evidence demonstrating that [Appellant’s]
         acts of making payments to [M.E.R.] and relying on a prior
         agreement of the parties, which [Appellant] was waiting to be
         signed, were obdurate, dilatory or vexatious?

Appellant’s Brief at 4-5.

      Preliminarily, we note that Appellant’s second and third issues, which

pertain to the order that Appellant reimburse the amount of the child tax

exemption, are waived. Appellant’s second issue is not properly before us

because Appellant failed to raise it in her Pa.R.A.P. 1925(b) statement of

errors complained of on appeal.       Pa.R.A.P. 1925(b)(4)(vii) (issues not

included in the Statement are waived); see also Glynn v. Glynn, 789 A.2d

242, 248–49 (Pa. Super. 2001) (en banc) (because appellant failed to raise

the issue in his Statement of Matters Complained of on Appeal, he waived

issue for purposes of appellate review). Moreover, Appellant’s second and

third issues both are not properly before us because, as M.E.R. observes,

Appellant waived “any issue regarding the reimbursement of $1,500.00”

because she did not appeal the June 19, 2015 order which originally

provided for the reimbursement “due to [Appellant] taking the child as a tax

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exemption for calendar year 2013 in violation of the parties’ . . . Property

Settlement Agreement.” M.E.R.’s Brief at 10. The June 19, 2015 contempt

order was final and appealable. Glynn, 789 A.2d at 246 (an order finding a

party in contempt for failure to comply with a prior order of court is final and

appealable if sanctions are imposed). Because Appellant failed to appeal at

that time, she is bound by that order and cannot reopen that matter now.

      With regard to Appellant’s first issue, in which she claims that her

actions fail to support a finding of contempt, “[o]ur scope and standard of

review are familiar:    ‘In 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) (citations omitted), appeal

denied, 97 A.3d 793 (Pa. 2014).

      To sustain a finding of civil contempt, the complainant must prove by a

preponderance of the evidence: “(1) that the contemnor had notice of the

specific order or decree which [she] 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), appeal denied, 918 A.2d 747 (Pa. 2007).

      Appellant does not dispute that she had notice of the June 19, 2015

order. Rather, she maintains that her “actions in not paying the full amount

of $1,500.00” were not “volitional or done with wrongful intent.” Appellant’s

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Brief at 14. In support of her argument, Appellant references six separate

$25.00 checks she remitted to M.E.R.,1 and claims that although she had the

funds to pay the full $1,500, she did not do so because she was waiting for

the court to rule on her pro se motion for reconsideration. Appellant’s Brief

at 13.   Appellant also asserts that the parties, through counsel, agreed in

January of 2016 that her $1,500 payment to M.E.R. would be offset by funds

owed from M.E.R. to Appellant for the child’s unreimbursed medical

expenses. Id. at 14.

       In rejecting Appellant’s argument and expressly finding her actions to

be volitional and with wrongful intent, the trial court noted that it had given

Appellant no authority to modify the terms of is June 19, 2015 order

directing her payment of $1,500 within 60 days, and that her pro se status

at that time did not absolve Appellant of responsibility for complying with the

order as written.       Trial Ct. Op., 8/5/16, at 6-9.   See also Wilkins v.

Marsico, 903 A.2d 1281, 1284–85 (Pa. Super. 2006), appeal denied, 918

A.2d 747 (Pa. 2007) (pro se status is not an excuse for failing to adhere to

court rules and confers no special benefit). The trial court also determined

that there was no evidence M.E.R. told Appellant she could pay him in

$25.00 increments or delay full payment for more than 60 days, particularly


____________________________________________


1
 At the advice of counsel, M.E.R. did not cash the checks. N.T., 4/21/16, at
5-6, 67.




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because any purported agreement in January of 2016 would have been “six

months after she was required to pay [M.E.R.] the $1,500.00.” Trial Ct. Op.,

8/5/16, at 8.

      Our review reveals no abuse of discretion by the court.           M.E.R.

testified he did not receive $1,500 by August 18, 2015, as required by the

June 19, 2015 order, and that he never agreed to accept the $1,500 in $25

increments.     N.T., 4/21/16, at 4, 6.   M.E.R. also testified that he did not

receive the $25 incremental payments until “several days after August 15 th,”

and that the first check he received was dated August 15, 2015. Id. at 5, 9-

10.   The last $25 check was dated January 3, 2016.         Id. at 6.   M.E.R.

stated:

            I realize there was an attempt at damage control [by
      Appellant], and to pay me what she should have done within the
      60 days, and I did not accept that type of payment.

N.T., 4/21/16, at 23.

      Appellant conceded that the June 19, 2015 order required her to pay

M.E.R. $1,500 by August 18, 2015. N.T., 4/21/16, at 27, 54. She said that

she remitted the $25 payments to M.E.R. as “good faith” while she waited

for the court to decide her reconsideration motion. Id. at 28. In addition,

she testified: “the fact that [M.E.R.] kept each check, and did not mail them

back to me, he kept each payment, I took that as he was accepting the

payments, and he never told me otherwise.”            Id. at 33, 59.     When

specifically asked to answer “yes or no” as to whether she paid M.E.R.

$1,500 on or before the sixty day deadline, Appellant responded:          “No,

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because I filed reconsideration.”   Id. at 56.    She also confirmed that her

ability to pay “was never a factor.” Id. at 57.

      After hearing from the parties and their counsel, the court concluded

that Appellant’s arguments “as to why she did not comply with the order are

not credible, nor reasonable, nor are they supported by the evidence of

record at the April 21, 2016 hearing.” Trial Ct. Op., 8/5/16, at 11. Based

on our review, we find no abuse of discretion in the trial court’s conclusion.

Although Appellant may have thought it reasonable to forego paying the full

$1,500 that the trial court ordered while she awaited a decision on her

motion for reconsideration, and although she also might have thought it

reasonable to make $25 installment payments in the interim, the fact

remains that the order expressly directed payment of the full $1,500 within

60 days. Appellant knew what the order required; she simply decided to do

something different because she apparently believed her own course of

action was a better one than what the court directed.          Appellant had no

authority to make such a unilateral modification of the trial court’s order,

and she therefore may be charged with a deliberate violation of the order in

taking such action.

      In her fourth and final issue, Appellant contends that the trial court

erred in awarding counsel fees even though she claims her actions were not

obdurate, vexatious, or dilatory.        Once again, Appellant supports her

argument with the assertion that she was acting in good faith by making the

$25   payments.       She   references   the   pendency   of   her   motion   for

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reconsideration, and her January 2016 negotiations with M.E.R. regarding

the child’s unreimbursed medical expenses. Appellant’s Brief at 19-20.

      The trial court noted that it awarded counsel fees pursuant to 42

Pa.C.S. § 2503(7). Trial Ct. Op., 8/5/16, at 10. The statute states:

      The following participants shall be entitled to a reasonable
      counsel fee as part of the taxable costs of the matter:

      …

      (7) Any participant who is awarded counsel fees as a sanction
      against another participant for dilatory, obdurate or vexatious
      conduct during the pendency of a matter.

42 Pa.C.S. § 2503(7).

      In addressing a trial court’s award of counsel fees, our review of a trial

court’s order is limited solely to determining whether the trial court palpably

abused its discretion in making the fee award. Thunberg v. Strause, 682

A.2d 295, 299 (Pa. 1996) (citing In re Estate of Liscio, 638 A.2d 1019,

1021 (Pa. Super. 1994), appeal denied, 652 A.2d 1324 (Pa. 1994)).

      It is within the sole province of the trial court to weigh the
      evidence presented and assess the credibility of the witnesses.
      Palladino v. Palladino, 713 A.2d 676, 678 (Pa. Super. 1998).
      On appeal, this Court will not disturb the trial court’s assessment
      of either the husband’s or the wife’s credibility. Brotzman–
      Smith v. Smith, 437 Pa. Super. 509, 650 A.2d 471, 474
      (1994).

Sternlicht v. Sternlicht, 822 A.2d 732, 742 n.8 (Pa. Super. 2003) (noting

that if Section 2503(7) applied to request for counsel fees, the court would

nonetheless have denied award), affirmed, 876 A.2d 904 (Pa. 2005);

accord In re Barnes Found., 74 A.3d 129, 135 (Pa. Super. 2013), appeal

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denied, 80 A.3d 774 (Pa., Nov. 27, 2013), cert. denied, 134 S. Ct. 2301

(2014).

      Here, the trial court found Appellant’s conduct to be “not only

obdurate, but dilatory and vexatious as well,” explaining:

          [Appellant] had no justifiable reason for refusing to pay
          [M.E.R.] the $1,500.00 within sixty (60) days she owed
          him under the terms of the court’s June 19, 2015 order.
          [Appellant] testified that she had the financial ability to do
          so. Furthermore the reasons [Appellant] presented to the
          court for her non-payment were not reasonable. Instead,
          [Appellant] chose to wait until the compliance date of the
          court’s June 19, 2015 order had passed, then she
          proceeded to provide [M.E.R.] with six $25.00 checks on a
          sporadic basis. The evidence presented to the court at the
          April 21, 2016 hearing supports by a preponderance of the
          evidence the court’s finding that [Appellant] acting in a
          dilatory, vexatious and obdurate manner with regard to
          the June 19, 2015 order.

Trial Ct. Op., 8/5/16, at 11.

      As detailed above, our review of the record comports with the trial

court’s conclusions. We therefore find no error or abuse of discretion in the

award of attorney’s fees, and affirm the trial court’s May 2, 2016 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016


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