J-A05018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NICHOLAS J. PRESTOSH,                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellant

                   v.

JOY A. PRESTOSH,

                        Appellee                     No. 2144 EDA 2014


               Appeal from the Order entered June 3, 2014,
          in the Court of Common Pleas of Northampton County,
                  Civil Division, at No(s): 1991-C-04120.


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED FEBRUARY 27, 2015

     Nicholas J. Prestosh (“Husband”) appeals from the trial court’s order

denying his petition to enforce a marital settlement agreement he entered

into with Joy A. Prestosh (“Wife”). We affirm.

     The pertinent facts and procedural history are as follows: The parties

were divorced by a decree entered on May 10, 1994.             A handwritten

“Memorandum of Understanding” was incorporated as an order of court that

same day.     Among the issues addressed in this marriage settlement

agreement was the following provision:

           Husband shall provide, as alimony, medical coverage
        for Wife, including prescription coverage, indefinitely to the
        extent that Wife is unable to obtain such insurance. Wife
        shall use reasonable efforts to obtain such insurance
        herself, either as a benefit or at lesser cost than that
        available to Husband.         If Husband is not directly
        purchasing such insurance himself, payment shall be paid
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         through the Domestic Relations Section.       This obligation
         shall cease upon Wife’s remarriage.

Memorandum of Understanding, 5/10/94, at 2.

      On April 3, 2014, Husband filed a petition to enforce based upon the

above provision, in which he sought to compel Wife to obtain her own health

insurance   through    the   federal   government’s   Patient   Protection   and

Affordable Care Act (“Obamacare”). Within his petition, Husband “believed

and averred” that under Obamacare, Wife “is able to obtain such medical

coverage at a lesser cost than that of [Husband’s] medical coverage.”

Petition, 4/3/14, at 2. According to Husband, “[Wife] continues to refuse to

look into any medical coverage options for herself under [Obamacare].”

Thus, Husband requested the trial court to enter an order “directing [Wife]

to fully comply with the terms of the Order of Court filed on or about May

10, 1994.” Id. at 3.

      Wife filed an answer to Husband’s petition, as well as a counter

petition to enforce the provisions of the marriage settlement agreement. In

her answer, Wife averred that she is ineligible for coverage under

Obamacare. According to Wife, “[a]s she is currently covered by Medicare

Parts A and B, [Wife] denied that additional Medicare and Medicaid options

existed through which she could obtain less costly medical insurance.”

Answer, 4/16/14, at 1. In her counter petition, Wife averred that for the last

several years Husband has violated the marriage settlement agreement by

failing to pay for her prescription drugs.



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     The trial court summarized the subsequent proceedings as follows:

          The matter was submitted to the undersigned in
       Miscellaneous Hearing Court on April 25, 2014.        No
       testimonial record was offered.       [Husband’s] counsel
       provided superficial argument regarding “Obamacare” and
       [Wife’s] obligation to pursue coverage.

          We granted [Husband’s] counsel the opportunity to
       submit a Brief within ten days. [Husband’s] counsel failed
       to do so. On May 23, 2014, we received a telephone
       request from [Husband’s] counsel for an additional
       extension to file a Brief.      We permitted counsel an
       extension until May 30, 2014, to file his Brief. Again,
       counsel failed to file a Brief.

          On June 3, 2014, we entered an Order, after reviewing
       the record dismissing [Husband’s] Petition. Apparently, on
       July 3, 2014, [Husband] filed his Notice of Appeal to
       Superior Court attacking our June 3, 2014, Order. [In its
       June 3, 2014 order, the trial court also granted Wife’s
       counter petition, and awarded her the sum of $562.00.
       That part of the order is not at issue in Husband’s appeal.]
       Although a Certificate of Mailing appears in the record, we
       received no notice of the July 3, 2014, Notice of Appeal.

          Our first notice of the Appeal was when we received a
       transmittal form to the Superior Court from our
       Prothonotary’s Office on August 5, 2014. Upon receipt of
       the notice, we entered a 1925(b) Statement requiring
       [Husband] to submit a Concise Statement of Matters
       Complained of on Appeal within twenty-one (21) days. We
       note that our Order directed service of the Concise
       Statement of Matters [Complained] of on Appeal must be
       made to the trial judge as required under [Rule]
       1925(b)(2).

          We were not served with a [Rule] 1925(b) Statement
       by Counsel as required by our Order and Rule 1925(b).
       Frankly, we were annoyed at the fact that it appeared that
       counsel was again not complying with Court Rules and/or
       his filing obligations.

          Prior to submitting this [Rule] 1925(a) Statement, we
       pulled the file from the Prothonotary’s Office and learned

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         that on August 22, 2014, counsel filed a “Statement of
         Errors Complained of on Appeal Pursuant to 1925(b)”.
         However, counsel failed to serve us with a copy of the
         filing as required under our Order and Rule 1925(b).

             Further, we reviewed [Husband’s] Statement of Matters
         Complained of on Appeal.         In his Statement, counsel
         admitted that he did not comply with our Written Order to
         file a Brief on or before May 30, 2014. In fact, [Husband]
         apparently filed his Brief on June 2, 2014, with the
         Prothonotary, but as consistent with his track record, failed
         to serve our office with a copy.

Trial Court Opinion, 9/8/14, at 1-2.

      On appeal, Husband raises two issues with this Court:

         I. WHETHER [HUSBAND] WAS UNFAIRLY PREJUDICED BY
            THE TRIAL COURT’S DISMISSAL OF HIS PETITION TO
            ENFORCE A MEMORANDUM OF UNDERSTANDING
            BECAUSE OF THE UNTIMELY FILING OF A BRIEF BY
            [HUSBAND’S] COUNSEL[?]

         II. WHETHER THE TRIAL COURT ERRED IN DISMISSING
             [HUSBAND’S] PETITION TO ENFORCE AN ORDER OF
             COURT FOR PROCEDURAL DEFECTS WHEN THE PLAIN
             LANGUAGE OF THE ORDER THAT [HUSBAND] SOUGHT
             TO ENFORCE WAS UNAMBIGUOUS AS TO ITS
             INTENT[?]

Husband’s Brief at 4.

      Before addressing the issues raised by Appellant, we must first

determine whether they are properly before us. As noted above, although

Appellant timely filed his Pa.R.A.P. 1925(b) statement with the prothonotary,

he never served the trial court with a copy. His failure to do so results in

waiver of his claims on appeal. See Pa.R.A.P. 1925(b)(1) (providing that an

appellant “shall file of record the Statement and concurrently shall serve the



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judge”); Shaefer v. Aames Capital Corp., 805 A.2d 834, 835 (Pa. Super.

2002) (holding that the appellant’s “failure to serve on the trial court a Rule

1925(b) statement after being directed to do so” results in waiver of all

issues). See also Greater Erie Industrial Development Corporation v.

Presque Isle Downs, Inc., 88 A.2d 222, 225 (Pa. Super. 2014) (en banc)

(holding that this Court cannot consider issues raised by an appellant in an

untimely Rule 1925 statement, even if the trial court addressed the merits of

them).

      Absent waiver, Appellant’s issues raised on appeal are without merit.

We address them together.

      Our standard of review is well settled:

            A settlement agreement between spouses is governed
         by the law of contracts unless the agreement provides
         otherwise.

                                    ***

             When interpreting a marital settlement agreement, the
         trial court is the sole determiner of facts and[,] absent an
         abuse of discretion, we will not usurp the trial court’s fact-
         finding function. On appeal from an order interpreting a
         marital settlement agreement, we must decide whether
         the trial court committed an error of law or abused its
         discretion.

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007) (citation

omitted).

      Our review of the record refutes Husband’s claim that his petition was

dismissed for the late filing of his brief or other “procedural defects.”



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Rather, although the trial court expressed its displeasure with Husband’s

failure to adhere to procedural rules, the trial court considered Husband’s

untimely brief and dismissed his petition on its merits.       The trial court

explained:

            We reviewed [Husband’s] untimely Brief and note that
         there is no record or legal authority that supports
         [Husband’s] position.      His argument is limited to an
         [assertion] that [he] should be freed of his contractual
         obligation which was confirmed by a May 10, 1994 Court
         Order: “to provide medical coverage for Wife, including
         prescription coverage, indefinitely to the extent that Wife
         is not able to obtain such insurance for herself, either as a
         benefit or at a lesser cost than that available to Husband.”

             We note that Wife has been disabled collecting Social
         Security Disability (since 1986) and Medicare Part A. Wife
         is also a heart transplant recipient.

            The bald support for [Husband’s] claim is the passage
         of the Affordable Care Act. No record was made as to
         expected costs to Wife to obtain equivalent coverage at a
         lesser cost than Husband has historically provided. In fact,
         no record was made that equivalent coverage can be made
         available to Wife under the Affordable Care Act.

            Just what record does [Husband] suggest that we
         should rely upon in freeing Husband from [his] obligation,
         by finding that equivalent care is available to [Wife] at a
         lesser cost?

            [Husband] did not meet his burden of proof. In fact,
         [Husband] submitted no proof. Without an appropriate
         record made upon which the Court can rely, we cannot
         accept the bald assertions by [Husband’s] counsel.

             [Husband] is not entitled to relief.

Trial Court Opinion, 9/8/14, at 3.




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         Our review of the record supports the trial court’s conclusions. Along

with her brief in opposition to Husband’s petition, Wife filed an affidavit in

which she explained that “to the best of her knowledge” she was unable “to

obtain comparable Medigap coverage at a cost less than is currently being

paid.”     Affidavit, 6/4/14, at 2.   On appeal, Husband has referenced no

evidence to contradict Wife’s averment. We therefore affirm the trial court’s

order denying Husband’s petition to enforce a marital settlement agreement.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2015




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