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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

     MARY BETH ENGGREN                                IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                       Appellant


                 v.


     STEFAN L. ENGGREN                       :        No. 1328 MDA 2018

                   Appeal from the Order Entered August 3, 2018
                   In the Court of Common Pleas of York County
                    Civil Division at No(s): 2015-FC-000932-15,
                                  PACSES 869116178


BEFORE:        SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY OTT, J.:                                     FILED AUGUST 02, 2019

        Appellant, Mary Beth Enggren ("Wife"), appeals from the order entered

in   the York County Court of Common Pleas, which granted the motion of

Stefan   L.   Enggren ("Husband") for special relief and denied Wife's motions for

special relief. On appeal, Wife argues that the order violated the divorce code

and improperly impaired the interests of         a   third -party secured creditor. For

the reasons discussed below, we vacate the order of August 3, 2018, and

remand with instructions.

        As the parties are well acquainted with the facts and procedural history

of this case, we do not restate them in detail. We briefly note that Husband

and Wife married in August 2001 and separated in May 2015. Husband, who

is   disabled, left the marital residence and moved to California. By agreement

of the parties, Wife's health insurance policy covers Husband. Wife remained,

      Former Justice specially assigned to the Superior Court.
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and wishes to remain, in the marital residence, which is subject to multiple

mortgages.

        On December 12, 2017, Husband filed a petition for special relief,

alleging    that    Wife   misappropriated      the   funds     from   his   insurance

reimbursements for medical treatments and used them for her monthly

mortgage payments and other personal expenses.                See Petition for special

Relief, 12/12/2017, at unnumbered pages 1-3.            Husband sought repayment

of the funds and counsel fees. See id. at unnumbered page 3.

        By order of January 12, 2018, the trial court ordered Wife to sign a

release to allow Husband to obtain all information from the insurance company

regarding the monies she received. Order, 1/12/2018, at 1-2. The court also

directed that Wife reimburse Husband and/or the healthcare providers within

90 days.   Id. at   2.

        In February 2018, Wife filed   a   petition for special relief and an amended

petition for special relief. In both petitions, Wife complained that Husband

was not paying his share of the marital debt, and                   sought an order

redistributing the debt.      See Petition for Special Relief, 2/09/18, at 6;

Amended Petition for Special Relief, 2/21/18, at 2.

        By order of February 21, 2018, the trial court scheduled a hearing on

April 12, 2018, and directed Wife to bring all documentation with her regarding




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the marital residence.' Order, 2/21/2018, at 1. The court warned Wife that

it might direct her to sell the residence if she could not come up with           a


"reasonable plan." Id. at 2.       The court also directed that both parties file

inventories within 30 days. Id.

        A hearing   took place on April 12, 2018. The record reflects that Wife

still owed money to at least some of Husband's medical providers and believed

that she could cash out her retirement savings    in   order to refinance the home.

See N.T. Hearing, 4/12/2018, at 2-37. However, the record does not specify

the exact amounts still owed either to the medical providers or on the

residential mortgage. See id. At the close of the hearing, the trial court gave

Wife 90 days to pay all the remaining medical expenses, come to court with        a


plan to refinance the house, and provide the court and parties with complete

financial documentation. Id. at 21, 26-27.

        A second hearing   took place on July 30, 2018. At that hearing it became

clear that Wife was unprepared and not in compliance with any of the court's

previous orders.      See N.T. Hearing, 7/30/2018, at 2-55.          Wife had not

provided any complete financial documentation, had not completely paid all

of Husband's medical providers, and had presented no plan for refinancing the

mortgage. See id. Therefore, the trial court directed that:




' It is not entirely clear how the marital residence and Husband's desire to
have his name removed from the mortgage became central to the proceedings
since it was not pled in his petition for special relief filed December 12, 2017.

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        .   .at this time [W]ife is Ordered to take all reasonable steps for
                .


        the following:

        A deed in lieu of foreclosure, a foreclosure, a short sale, the
        [c]ourt recognizes that those steps may and most likely will
        involve that [W]ife will not be paying the mortgage for several
        months in order to make those viable options. The problems here
        is not just [W]ife keeping the house.     The problem is [W]ife
        keeping the house such that [H]usband is not obligated for any
        financial obligation associated with it. Wife has presented no
        realistic plan that would relieve [H]usband of any financial
        obligation associated with the residence.

        Furthermore, since she is in violation of the party's [sic]
        prior agreement in that she was not timely making
        payments on the mortgage in accordance with the
        agreement. While it is current now, that is only through
        essentially destroying [H]usband's credit by failing to
        apply the insurance proceeds she received to his medical
        expenses.

        The [c]ourt does find the fee of $250.00 per hour to be
        reasonable and given the extensive proceedings that have
        occurred over a period of several months, as well [as W]ife
        coming      today completely unprepared with any
        documentation associated with the mortgage payments
        specifically, the [c]ourt is awarding $4,000.00 in attorney
        fees to be paid within 30 days from today's date.

Order, 8/03/2018, at 4-5 (emphasis added).           The instant, timely appeal

followed.2

        On October 3, 2018, this Court issued a rule to show cause as to why

we should not dismiss this appeal as interlocutory. On October 12, 2018, Wife




2 In response to the trial court's order of August 3, 2018, Wife filed a timely
concise statement of errors complained of on appeal on September 6, 2018.
On October 9, 2018, the trial court issued an opinion.

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filed   a   response. On October 22, 2018, this Court discharged the rule to show

cause and referred the issue to the merits panel.

            Preliminarily, we must determine whether the August 3, 2018 order       is

appealable.

            The appealability of an order directly implicates the jurisdiction of
            the court asked to review the order. This Court has the power to
            inquire at any time, sua sponte, whether an order is appealable.
            Pennsylvania law makes clear:

                  An appeal may be taken from: (1) a final order or an
                  order certified as a final order (Pa.R.A.P. 341); (2) an
                  interlocutory order as of right (Pa.R.A.P. 311); (3) an
                  interlocutory order by permission (Pa.R.A.P. 312,
                  1311, 42 Pa.C.S.A. § 702(b) ); or (4) a collateral order
                  (Pa.R.A.P. 313).

Bloome v. Alan, 154 A.3d 1271, 1273              (Pa. Super. 2017) (internal brackets,

quotation marks, and some citations omitted), appeal denied sub nom.

Bloome v. Silver St. Dev. Corp., 170 A.3d 1005              (Pa. 2017). The order on

appeal does not meet the requirements for an interlocutory order by

permission nor does it fit into any of the categories that permit an interlocutory

appeal as of right. See Pa.R.A.P. 311-312.

            In her response to this Court's rule to show cause, Wife contends that

the August 3, 2018 order is           a   collateral order pursuant to Pa.R.A.P. 313.

[Wife's] Answer to Rule to Show Cause, 10/12/2018, at 3-6. Wife argues the

same in her brief. Wife's Brief, at 11-13.

            According to Pa.R.A.P. 313(b):

            A collateral order is an order separable from and collateral to the
            main cause of action where the right involved is too important to

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        be denied review and the question presented is such that if review
        is postponed until final judgment in the case, the claim will be
        irreparably lost.

The Supreme Court of Pennsylvania "construe[s] the collateral order doctrine

narrowly, and insist[s] that each one of its three prongs be clearly present

before collateral appellate review is allowed." Shearer v. Hafer, 177 A.3d

850, 858 (Pa. 2018).

        In Fried v. Fried, 501 A.2d 211 (Pa. 1985), our Supreme Court held

that orders granting interim relief       in   divorce actions are not generally

appealable under the collateral order doctrine.       Fried, supra at 216. The
Fried Court stated:
        In the event that an initial award of interim relief is granted in
        error, the court has the power to make adjustments in the final
        settlement via the equitable division of marital property,
        permanent alimony, and/or the final award of attorney's
        fees and costs. Thus, under the [1980] Code the conclusion
        that a grant of interim financial relief may result in the
        irreparable loss of a claimed right cannot be supported. We
        hold, therefore, that such an order is interlocutory and thus not
        reviewable until final disposition of the case.

Id. (footnote omitted       and emphasis added). Thus, the    Fried Court grounded
its decision on the belief that so long as the trial court could remedy any error

in   interim order in equitable distribution or the final award, the aggrieved party

could not immediately appeal the interim order.         Id.   Because of this, this

Court has distinguished Fried and found orders in divorce granting interim

relief immediately appealable under the collateral order doctrine where the

interim relief ordered by the trial court will result in irreparable loss that    a



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court cannot later remedy via equitable distribution or            a    final award. See

McDonald v. McDonald, 621 A.2d 604, 605                    (Pa. Super. 1993), appeal

denied, 636 A.2d 634 (Pa. 1993).

        Here, we find that   Fried   is   distinguishable. The relief ordered here,         a


deed in lieu of foreclosure,    a   foreclosure, or   a   short sale,   is   not one that   a


court can remedy via equitable distribution or        a   final award. See McDonald,

supra at 605.
        Wife wishes to remain in the marital residence and the mortgage is

current.     In McMahon v. McMahon, 706 A.2d 350, 353 n.1 (Pa. Super.

1998),   a   decision issued over ten years after Fried, this Court held that an

order granting special relief which required sale of property appealable under

collateral order doctrine. In discussing appealability, we stated:

        In Shazes v. Baltuskonis, 359 Pa.Super. 599, 519 A.2d 514
        (1987), and O'Brien v. O'Brien, 359 Pa.Super. 594, 519 A.2d
        511 (1987), this Court found that special relief orders arising out
        of divorce litigation can be interlocutory and therefore not
        appealable. In the instant case, however, the order granting
        special relief falls within the exception to the final judgment rule
        announced in Cohen v. Beneficial Industrial Loan Corp., 337
        U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Cohen test
        provides an exception if:

               (1) it is separable from and collateral to the main
               cause of action; (2) the right involved is too important
               to be denied review; and (3) the question presented
               is such that if review is postponed until final judgment
               in the case, the claimed right will be irreparably lost.

        Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985) (citing Cohen,
        supra, 337 U.S. at 546, 69 S.Ct. at 1226).



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        In the present case, the order requires appellant to sign an
        agreement to sell off certain property owned by appellant and
        appellee. Sale of this property does not affect the rights of
        the parties in the underlying divorce action. Furthermore,
        the sale of the property is a final action, one that may not
        be later changed or modified as the property will belong to
        someone else. Appellant's right to not be forced to sell that
        property is therefore both an important right and one that
        would be irreparably lost if this order were not reviewed
        until the underlying divorce litigation were final.
        Therefore, because the instant order falls within the Cohen
        exception to a final judgment, this order is appealable.
Id. (emphasis added).
        The instant matter, where the trial court ordered the sale and/or

dissipation of Wife's residence     is   more analogous to the factual scenario in

McMahon than it    is   to the award of interim counsel fees in Fried. Moreover,

as in   McDonald, the trial court cannot correct any error made       in   equitable

distribution. Thus, we find that, under the Cohen exception, this order           is

immediately appealable as      a   collateral order.3 See Cohen, supra at 546;

McMahon, supra at n.1; McDonald, supra at 605; Griffin, supra at 88-

89.4 Thus, we proceed to address the merits of Wife's appeal.




3  Husband does not address the issue of appealability in his brief. While the
trial court does argue that this is an improper interlocutory appeal, its
argument rests on Pa.R.A.P. 311(a)(2), not Pa.R.A.P. 313. See Trial Court
Opinion, 10/09/2018, at 5-6.

4   Furthermore, we note that Pennsylvania Rule of Appellate Procedure
342(a)(6) provides for an appeal as of right of "an order determining an
interest in real or personal property[.]" Pa.R.A.P. 342(a)(6). Real estate
owned by a decedent is no less unique than real estate owned by parties to a
divorce.
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        Wife argues that the trial court abused its discretion "in ordering her to

stop making mortgage payments so her home will go into foreclosure or to

short -sell   a   home that is current on all mortgage payments." Wife's Brief, at

8. We are constrained to agree.

        Our standard and scope of review in this case are as follows:

        We review a trial court's decision to grant [or deny] special relief
        in divorce actions under an abuse of discretion standard as
        follows:

                  Judicial discretion requires action in conformity with
                  law on facts and circumstances before the trial court
                  after hearing and consideration. Consequently, the
                  court abuses its discretion if, in resolving the issue for
                  decision, it misapplies the law or exercises its
                  discretion in a manner lacking reason. Similarly, the
                  trial court abuses its discretion if it does not follow
                  legal procedure.

        An abuse of discretion exists when the trial court has rendered a
        decision or a judgment which is manifestly unreasonable,
        arbitrary, or capricious, has failed to apply the law, or was
        motivated by partiality, prejudice, bias or ill will.

        However, our deference is not uncritical. An order may represent
        an abuse of discretion if it misapplies the law. It is therefore our
        responsibility to be sure that in entering its order the.       .court
                                                                            .


        correctly applied the law. An order may also represent an abuse
        of discretion if it reaches a manifestly unreasonable result. This
        will be the case if the order is not supported by competent
        evidence. It is therefore also our responsibility to examine the
        evidence received by the. .court to be sure that the. .court's
                                         .                              .


        findings are supported by the evidence. Although we will accept
        and indeed regard ourselves as bound by the. .court's appraisal
                                                              .


        of a witness' credibility, we are not obliged to accept a finding that
        is not supported by the evidence.

        When reviewing questions of law, our scope of review is plenary.



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Pro/ v. Pro/, 935 A.2d 547, 551-552          (Pa. Super.      2007) (internal citations

and quotation marks omitted).

        Initially, we are sympathetic to the situation            in       which the trial court

found itself.    Wife has been uncooperative, argumentative, and duplicitous

throughout these           proceedings.    She     has   failed        to     provide financial

documentation, failed to repay completely Husband's medical providers, and

failed to put forward any viable plan to refinance the marital residence.

However, we believe that the trial court's remedy exceeded its discretion.

        Here, the emphasized portions of the trial court's August 3, 2018 order

read similarly to      a   finding of contempt rather than             a    grant of Husband's

petition for special relief. See Order, 8/03/2018, at 4-5. However, there                       is

no outstanding petition      for contempt and the trial court did not make              a   formal

finding of contempt. If the trial court wanted to find Wife in contempt that

was within its discretion, as long as the circumstances were appropriate. See

Marian Shop, Inc. v. Baird, 670 A.2d 671, 672-73                            (Pa. Super. 1996).

However, if the court wished to do so, it needed to make appropriate findings

of fact and conclusions of law within the framework this Court has provided in

its prior decisions.       See id. at 673; Bold v. Bold, 939 A.2d 892, 895 (Pa.

Super. 2007.

        Here, as noted above, we are unable to ascertain when or how removing

Husband's name from the residential mortgage became the central concern of

proceedings that began with Husband's petition to recoup the insurance


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monies misappropriated by Wife. At no point in his December 2017 petition

did Husband mention the residence or request that the Court remove his name

from the mortgage. In her petition and amended petition for special relief,

Wife sought reallocation of that debt between the parties and relief from an

agreement that she was solely responsible for the mortgage payments, not

removing Husband's name from the mortgage.

      Thus, although the trial court did not find Wife in contempt of any order,

it appears that it tacitly found her in violation of the parties' agreement that

she was responsible for the mortgage payments and not the Court's orders of

January or April 2018. Thus, it punished her for said violation without actually

finding her in contempt. We are unable to discern if the court considered the

necessary standards in reaching its decision.            Furthermore, the actions the

court ordered Wife to take do not directly relate to the condition of either the

January 12, 2018 order or the April 12, 2018 order, namely the payment of

Husband's medical care providers. We believe this was an abuse of discretion.

See Pro/, supra at 551-552.

      Accordingly, we will remand the matter for either an order granting

solely the relief sought, i.e.,       a   directive ordering Wife to repay the medical

bills by   a   date certain or   a   properly noticed contempt proceeding.5 If, after



5 Because of our disposition of Wife's first issue, we need not address her
second claim.
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appropriate findings of fact and conclusions of law, the trial court finds Wife    is

in   contempt of its January 12, 2018 and April 12, 2018 orders, it   is   within the

court's discretion to set an appropriate purge condition.6

        Order    vacated;   case   remanded    with   instructions.    Jurisdiction

relinquished.



Judgment Entered.




J    seph D. Seletyn,
Prothonotary
Date: 8/2/2019




6 We note that the trial court imposed remedies that could prove ruinous to
both parties' credit ratings, even though Husband does not discuss this issue
in his Appellee brief.

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