J-A02017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 KERRI L. SIEMINKEWICZ                      :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 PAUL R. SIEMINKEWICZ                       :
                                            :
                     Appellant              :   No. 590 WDA 2019

              Appeal from the Order Entered March 19, 2019
  In the Court of Common Pleas of Westmoreland County Civil Division at
                        No(s): No. 2367 of 2012


BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                           FILED FEBRUARY 14, 2020

      Appellant, Paul R. Sieminkwicz (“Husband”), appeals the March 19,

2019 order entered in the Court of Common Pleas of Westmoreland County.

We affirm in part, vacate in part, and remand.

       The facts and procedural history of this case are as follows.           The

parties, Husband and Kerri L. Sieminkwicz (“Wife”), were married in October

1992. Wife filed a complaint in divorce on November 2, 2012. “[T]hereafter,

during a long and tortuous proceeding, [Husband] impeded the orderliness of

the litigation” by filing “several civil actions before magistrate district judges”

asserting claims “inextricably related to marital [] and marital property

issues.” Trial Court Opinion, 8/21/19, at 1-2. Nonetheless, the court entered

the divorce decree on February 17, 2015. The parties subsequently executed

a Consent Order of Court (“Consent Order”) on August 27, 2015, which served

as their final marital settlement agreement. See Consent Order, 8/27/15, at
J-A02017-20



1-6. Contained within the Consent Order was the provision that “[n]o further

civil lawsuits shall be filed by either party relating to the marital property or

marital issues.” Id. at 3, ¶9.

        On February 26, 2018, Husband filed two civil actions against Wife.

Consequently, Wife filed a petition for contempt against Husband.            Wife’s

Petition for Contempt, 6/13/18, at 1-8.          In her petition, Wife claimed that

Husband violated the Consent Order by filing the aforementioned civil actions.

Id.     Wife also sought to recover attorney’s fees for Husband’s alleged

contempt.     Id.    Husband then filed a petition for contempt against Wife,

claiming that she also violated the Consent Order.          Husband’s Petition for

Contempt, (Un-dated), at 1-6. The trial court held a hearing on August 6,

2018,1 during which it dismissed Husband’s petition for contempt. See N.T.

Hearing, 8/6/19, at 31, 49, and 70. On March 19, 2019, the trial court issued

an order granting Wife’s petition for contempt and ordering Husband to pay

$7,400.00 in attorney’s fees, payable in monthly installments of $1,000.00.

Trial Court Order, 3/19/19, at 1. This timely appeal followed.2

____________________________________________


1   Husband appeared pro se at the August 6, 2018 hearing.

2 Husband filed a notice of appeal on April 16, 2019. On May 1, 2019, the
trial court issued an order directing Husband to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). On May 17,
2019, Husband filed a timely pro se 1925(b)(1) statement. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 21, 2019. On
appeal, Husband is represented by counsel.




                                           -2-
J-A02017-20



       Husband raises the following issues on appeal:3

       I.    Whether[,] in light of the ambiguities of the Consent Order, the
             trial court erred in granting [Wife’s] petition for contempt against
             [Husband]?

      II.    Whether the trial court erred by dismissing [Husband’s] petition for
             contempt particularly where the trial court acknowledged [Wife’s]
             failure to abide by the Consent Order?

     III.    Whether the trial court erred in refusing to require [Husband’s
             subpoenaed witness] to appear in[-]person at [the] August 6, 2018
             hearing over objections of [Husband]?

      IV.    Whether the trial court erred in granting [Wife’s] request for
             attorney[’]s fees without requiring [her] to produce a detailed
             billing statement when [Husband] objected to the amount of legal
             fees as unreasonable?

       V.    Whether the trial court abused its discretion in finding monthly
             installments of $1,000.00 to pay [Wife’s] awarded legal fees
             reasonable?

Husband’s Brief at 4.

       Husband’s first two issues challenge the trial court’s grant of Wife’s

petition for contempt and its denial of Husband’s petition for contempt.

Husband’s Brief at 8-10 and 13. Husband asserts that the trial court erred in

both respects. Id. We disagree.

       Our standard of review is as follows:

       When we review a trial court's finding of contempt, 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.

____________________________________________


3 We have altered the order of Husband’s issues for clarity and ease of
discussion. See Husband’s Brief at 4.

                                           -3-
J-A02017-20


       This Court also has stated that each court is the exclusive judge
       of contempts against its process.

G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013) (internal citation and

quotations omitted). We previously determined:

       A court may exercise its civil contempt power to enforce
       compliance with its orders for the benefit of the party in whose
       favor the order runs but not to inflict punishment. A party must
       have violated a court order to be found in civil contempt. The
       complaining party has the burden of proving by a preponderance
       of evidence that a party violated a court order.

Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001) (internal citation

omitted).

       We first address Wife’s petition for contempt.      In her petition, Wife

claimed that Husband violated Paragraph 9 of the Consent Order, which

specifically prohibited the parties from filing civil lawsuits against each other

if the subject of the suit related to marital property or marital issues.4 Consent

Order, 8/27/15, at 3, ¶ 9. Herein, Husband filed two civil lawsuits against

Wife on February 26, 2018. N.T. Hearing, 8/6/18, at 5. In Husband’s first

lawsuit, he sought to recover $16,174.96 from Wife for his alleged

overpayment of child support. Wife’s Petition for Contempt, 6/13/18, Exhibit

C. A review of the certified record reveals that Husband was required to pay

Wife $600.00 per month in child support.         N.T. Hearing, 8/6/18, at 30.
____________________________________________


4  Paragraph 9 of the Consent Order states: “[Husband] shall dismiss all
pending civil lawsuits before [Magistrate District Judge] Thiel on or before
Friday, September 4, 2015, with prejudice. No further civil lawsuits shall be
filed by either party relating to the marital property or marital issues.”
Consent Order, 8/27/15, at 3, ¶ 9.


                                           -4-
J-A02017-20



Paragraph 14 of the Consent Order governs the modification of support.

Consent Order, 8/27/15, at 3, ¶ 14. Thus, Husband violated Paragraph 9 of

the Consent Order by filing a separate civil action to recover any alleged

overpayment because Husband should have sought to modify his support

obligations consistent with Paragraph 14 of the Consent Order. In his second

lawsuit, Husband alleged that Wife accessed and utilized a business line of

credit held by Siemco Electric, LLC (“Siemco”). Wife’s Petition for Contempt,

6/13/18, Exhibit B. Specifically, Husband claimed that Wife used the Siemco

business account to pay a cable bill in the amount of $176.58 and place a

$4,000.00 down payment on a 2008 Volvo. N.T. Hearing, 8/6/18, at 44-48.

These transactions, however, occurred in 2012, three years prior to the

execution of the Consent Order, and six years prior to Husband initiating the

aforementioned civil action. Id. Husband’s claims were therefore “liquidated

in the [Consent Order].” Id. at 49. Based upon the foregoing, we conclude

that the trial court did not commit an abuse of discretion in granting Wife’s

petition for contempt.5
____________________________________________


5 In his appellate brief, Husband argues that the trial court erred in finding
him in contempt because the Consent Order “is ambiguous as Paragraph 9
and [Paragraph] 17 contradict each other.” Husband’s Brief at 9. Specifically,
Husband argues that in “Paragraph 9, the parties agree to not pursue any
further legal action against each other, but Paragraph 17 allows the parties to
pursue further legal action.” Id. Upon review, we conclude that the Consent
Order is not ambiguous. Paragraph 9 prohibits the parties from filing any civil
lawsuits “relating to the marital property or marital issues.” Consent Order,
8/27/15, at 3, ¶ 9. Paragraph 17 permits the parties to “sue for specific
performance or damages” only if a “party defaults in the due performance of



                                           -5-
J-A02017-20



       Next, we address Husband’s petition for contempt. In his petition, he

asserted three counts of contempt. We will address each in turn.

       First, Husband claimed that, after the Social Security Administration

deemed him “totally disabled,” Wife “refused” to abide by the Consent Order.

Husband’s Petition for Contempt, (Un-dated), at 2-3. Specifically, Husband

alleged that Wife violated Paragraph 14 of the Consent Order, which outlines

the party’s agreement for child support.          Id.; see also Consent Order,

8/27/15, at 3, ¶ 14. We disagree.

       As stated above, Paragraph 14 governs modification to the amount of

Husband’s child support obligation. Specifically, Paragraph 14 states:

       [Paragraph 14:] The Order dated February 17, 2015 shall be
       superseded by agreement of the parties with regard to child
       support and [Husband’s] imputed income. If [Husband] seeks to
       modify the child support to below $600[.00] (+$25[.00] in
       arrears, totaling $625.00) per month, without [Husband] being
       determined to be disabled by a finding by Social Security, there
       will be a dollar for dollar set-off in equitable distribution to be paid
       to the [Wife]. [Husband] will agree to pay the difference between
       the lower amount and $600.00 to [Wife]. The reverse shall be
       true for the [Wife], in that if she seeks to increase child support
       [to] any amount above $600.00 per month, there shall be a dollar
       for dollar set-off which shall be paid in equitable distribution by
       the [Wife] to the [Husband].

____________________________________________


any of the terms of [the] Consent Order.” Id. at 4, ¶ 17. We therefore
conclude that the Consent Order is clear and unambiguous because, read as
a whole, it prohibits the parties from seeking further legal action against each
other except if the other is in default of the Consent Order. As such, Husband’s
claim is without merit. See Tuthill v. Tuthill, 763 A.2d 417, 420 (Pa. Super.
2000) (“The fact that the parties have different interpretations of a contract
does not render the contract ambiguous.”).



                                           -6-
J-A02017-20



Consent Order, 8/27/15, at 3, ¶ 14. Therefore, to be found in contempt, Wife

must have sought to increase the amount of child support and failed to provide

Husband with a dollar for dollar set-off.6 This did not occur. Indeed, Husband

admitted during the August 6, 2018 hearing that Wife did not seek to increase

the amount of child support. N.T. Hearing, 8/6/18, at 25 and 30. Accordingly,

we discern no abuse of discretion.7

       Second, Husband contends that Wife failed to distribute certain assets

in violation of the Consent Order.               Husband’s Petition for Contempt,

(Un-dated), at 3-4. Specifically, Husband argued that Wife did not produce

____________________________________________


6 Husband is under the impression that, upon the Social Security
Administration finding him disabled, Paragraph 14 of the Consent Order
enables him to automatically adjust his child support obligation. See N.T.
Hearing, 8/6/18, at 24. Husband, however, ignores the language in Paragraph
14 which explicitly requires him to “seek to modify” the support order.
Consent Order, 8/27/15, at 3, ¶ 14.

7 In his appellate brief, Husband claims that the trial court “acknowledged
[Wife’s] failure to abide by the [C]onsent [O]rder.” Husband’s Brief at 13. In
support, Husband cites the following statement made by the court:

       [Husband], you are claiming that [Wife] has refused to abide by
       the [C]onsent [O]rder[] with respect to the modification petitions
       which are pending. From what you told me, she has.

Husband’s Brief at 13, citing N.T. Hearing, 8/6/18, at 31. By including only
this sentence, Husband misconstrues the trial court’s statement. In the
sentence immediately following, the trial court clarified that “[Wife] has not
filed anything at domestic relations.” Id. Thus, the trial court did not
acknowledge a failure by Wife to meet the terms of the Consent Order.
Instead, the trial court indicated the opposite: that Wife complied with the
Consent Order and, therefore, was not in contempt.




                                           -7-
J-A02017-20



his portion of the purchase price from the sale of the marital residence

pursuant to Paragraph 3 of the Consent Order.8 Id. Additionally, Husband

claimed that Wife did not provide him with Siemco’s “assets” as required by

Paragraph 6 of the Consent Order.9             Id. Upon review, we conclude that

Husband’s claims are meritless. Indeed, during the August 6, 2018 hearing,

Husband, himself, admitted that Wife distributed the proceeds of the sale of

the marital residence. Specifically, he stated:

        [Husband:] I mean, she closed [the sale] on November 19[,
        2015]. I received nothing until January 8[, 2016].


____________________________________________


8   Paragraph 3 of the Consent Order states:

        The parties agree to list the marital residence . . . within [ten]
        days of the date of this order. Said property shall be sold "AS IS".
        The listing price shall be at [f]air [m]arket [v]alue as determined
        and set by said realtor. Any offers below 10% of said listing price
        will be by agreement of the parties, and if no such agreement, by
        order of court. [Wife] shall receive the first $180,000[.00] of the
        net proceeds of the marital residence. This amount is not
        modifiable.     [Husband] shall receive the remainder of any
        proceeds of the sale of the house. Pending the sale of the house,
        [Wife] shall maintain exclusive possession of the marital
        residence, and shall be responsible for all taxes, insurance and
        utilities associated with said residence.         Both [Wife] and
        [Husband] shall be named insureds and [Wife] shall obtain and
        maintain said insurance. Consent Order, 8/27/15, at 2-3, ¶ 3.
9   Paragraph 6 of the Consent Order states:

        [Husband] is awarded any and all interest, assets and liabilities
        associated with Siemco[]; this includes[,] but is not limited to[,]
        any inventory, tools[,] and vehicles (trucks and skid-loader).
        Consent Order, 8/27/15, at 2-3, ¶ 6.



                                           -8-
J-A02017-20



N.T. Hearing, 8/6/18, at 42 (emphasis added).        Furthermore, the Siemco

“assets” Wife allegedly failed to distribute to Husband were the basis of one

of his February 2018 civil suit against Wife. As we noted above, because the

two withdrawals took place in 2012 and were resolved under the Consent

Order, they cannot be the basis for Husband’s claims for contempt. Indeed,

it is impossible for Wife to violate the Consent Order with acts that took place

prior to its existence. Accordingly, we discern no abuse of discretion.

      Lastly, Husband alleged that Wife violated the Consent Order by

deliberately making a false report to his parole officer, Russel Stubock.

Husband’s Petition for Contempt, (Un-dated), at 5. Husband claimed that Wife

called Stubock and falsely stated that Husband contacted her in violation of

his probation.   N.T. Hearing, 8/6/18, at 53.      Per Husband, this violated

Paragraph 1 of the Consent Order which requires the parties to “live separate

and apart from each other, free from interference or control by the other.”

Consent Order, 8/27/15, at 1, ¶ 1.      During the August 6, 2018 hearing,

Stubock testified that he “received a phone call back in March [2018,]” during

which Wife “advised him that she was being bothered by [Husband].” N.T.

Hearing, 8/6/18, at 65. The trial court then dismissed Husband’s petition for

contempt.   Id. at 70.    Therefore, it appears that the trial court credited

Stubock’s testimony that Wife made a report and that Husband violated his

probation by contacting her. See Harcar v. Harcar, 982 A.2d 1230, 1236

(Pa. Super. 2009) (“This Court defers to the credibility determinations of the

trial court with regard to the witnesses who appeared before it, as the court

                                     -9-
J-A02017-20



had the opportunity to observe their demeanor.”) The record supports the

trial court’s assessment. Based on the foregoing, we conclude that the trial

court did not commit an abuse of discretion in denying Husband’s petition for

contempt.

       In Husband’s third issue, he argues that the trial court erred in

“refusing” to require the in-person testimony of his subpoenaed witness.

Husband’s Brief at 13.        In particular, Husband challenges the trial court’s

decision to permit Stubock to testify during the August 6, 2018 hearing via

telephone. Id. Upon review, however, we conclude that Husband waived this

issue on appeal. Indeed, contrary to Husband’s assertions, he did not object

to the procedure used by the trial court during the proceeding.            Thus,

Husband’s third issue is waived.10 See Pa.R.A.P. 302 (“Issues not raised in

the lower court are waived and cannot be raised for the first time on appeal.”);


____________________________________________


10 Even if Husband had not waived this issue, we would conclude that no
prejudice occurred. Husband claims that, because the trial court failed to
require the in-person testimony of Stubock, he “had no reasonable way to
refresh [his] recollection with documents.” Husband’s Brief at 14. We note
that, during the hearing, Husband sought to present Stubock’s testimony to
prove that Wife falsely accused him of contacting her in violation of his
probation. While questioning Stubock via telephone, Husband asked him
whether Wife stated that Husband tried to contact her “by telephone.” N.T.
Hearing, 8/6/18, at 66.       Because Stubock could not recall that exact
statement, Husband attempted to refresh his recollection by discussing
Stubock’s testimony at a prior hearing. Id. Thus, it appears that, while
Stubock did state that Wife contacted him, Husband’s contention on appeal is
that the trial court erred because Husband was not able to refresh Stubock’s
recollection as to whether Wife specifically told him that the offending
communication took the form of a telephone call from Husband to Wife. This
minor point did not result in prejudice for Husband.

                                          - 10 -
J-A02017-20



see also Tecce v. Hally, 106 A.3d 728, 732 (Pa. Super. 2014) (“Parties may

waive rights, even due process rights and other rights of constitutional

magnitude” by failing to raise an objection before the trial court, and in turn,

failing to preserve the objection on appeal).

      In Husband’s remaining issues, he challenges the trial court’s award of

attorney’s fees to Wife. He argues that the trial court erred by granting Wife’s

counsel’s request “based on a general invoice” and a “generic assertion.”

Husband’s Brief at 11. We agree.

      We note:

      We have a limited power of review of court awarded fees. As the
      Supreme Court has so frequently stated, the responsibility for
      setting such fees lies primarily with the trial court and we have
      the power to reverse its exercise of discretion only where there is
      plain error. Plain error is found where the award is based either
      on factual findings for which there is no evidentiary support or on
      legal factors other than those that are relevant to such an award.
      The rationale behind this limited scope of review is sound. It is
      the trial court that has the best opportunity to judge the attorney's
      skills, the effort that was required and actually put forth in the
      matter at hand, and the value of that effort at the time and place
      involved.

                                      ***

      [Our] Supreme Court has enumerated the factors to be considered
      in determining if a request for attorney's fees is reasonable. [The
      Court identified the following considerations:]

      ... the amount of work performed; the character of the services
      rendered; the difficulty of the problems involved; the importance
      of the litigation; the amount of money or value of the property in
      question; the degree of responsibility incurred; whether the fund
      involved was “created” by the attorney; the professional skill and
      standing of the attorney in his profession; the results he was able
      to obtain; the ability of the client to pay a reasonable fee for the


                                     - 11 -
J-A02017-20


      services rendered; and, very importantly, the amount of money
      or the value of the property in question [sic].

Gilmore by Gilmore v. Dondero, 582 A.2d 1106, 1109 (Pa. Super. 1990)

(internal citations omitted).

      At the August 6, 2018 hearing, following argument concerning Wife’s

contempt petition, her counsel stated that they were “seeking sanctions in the

form of reimbursement of all attorney[’]s fees and expenses incurred by

[Wife].” N.T. Hearing, 8/6/18, at 6. In addressing the amount of the fees,

the following exchange occurred:

      [Wife’s Counsel]: [] My client, to date, would testify in a
      statement that she [spent] in excess of $7,400.00 dealing with
      these civil lawsuits, plus whatever is involved in this enforcement
      action.

      [The court]: Wow.

      [Husband]: We [have] never even been to court, Judge.

                                     ***

      [The court]: She paid the counsel fees. You [are] going to
      challenge them as unreasonable?

      [Husband]: Well, there [is] no doubt.

      [The court]: Well, they were actually paid.

      [Wife’s counsel]: They were paid to date.

      [The court]: How am I going to argue with that? She paid them.
      Whether it [is] reasonable or not, it [is] between the attorney and
      the client. That matter is closed. I [will] let them submit counsel
      fees. I can determine whether they [are] reasonable and so forth,
      but that matter is closed.

Id. at 19-20. At the close of the hearing, Husband again objected to the

reasonableness of Wife’s claimed attorney’s fees and requested to see the

                                    - 12 -
J-A02017-20



“billable hours” and “what the hours were for.” Id. at 71. Wife’s counsel

contended that such a disclosure would violate attorney-client privilege, but

offered to submit the hours for an in-camera review by the court. Id. at 72.

There is, however, no evidence that an in-camera review ever occurred. In

fact, in its order, the trial court merely stated that because of the “contentious

history of this case,” it “[could not] determine that [the] fees [were]

unreasonable.” Trial Court Opinion, 3/19/19, at 3. It is therefore unclear

whether the trial court’s determination possesses evidentiary support.         As

such, we reverse the trial court's order and we remand for an evidentiary

hearing to determine whether the amount of Wife’s attorney’s fees were, in

fact, reasonable.11

       In summary, we reverse the trial court's order as to the amount of

attorney’s fees awarded and remand for an evidentiary hearing. Otherwise,

we affirm.

       Order affirmed in part and vacated in part.       Case remanded for an

evidentiary hearing limited to the amount of attorney’s fees to be awarded.

Jurisdiction relinquished.




____________________________________________


11 Because we have vacated the trial court’s award of attorney’s fees and
remanded this case for an evidentiary hearing regarding the reasonableness
of these fees, we need not address Husband’s last issue which contends that
the trial court abused its discretion by ordering Husband to pay said fees in
monthly installments.

                                          - 13 -
J-A02017-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2020




                          - 14 -
