J. A10032/17 & J. A10034/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

RICHARD MICKMAN                        :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                     v.                :
                                       :
ELAINE MICKMAN,                        :         No. 1426 EDA 2016
                                       :
                          Appellant    :


                 Appeal from the Decree, March 31, 2016,
           in the Court of Common Pleas of Montgomery County
                       Civil Division at No. 03-06252



RICHARD MICKMAN                        :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                     v.                :
                                       :
ELAINE MICKMAN,                        :         No. 2097 EDA 2016
                                       :
                          Appellant    :


                   Appeal from the Order, June 9, 2016,
           in the Court of Common Pleas of Montgomery County
                     Civil Division at No. 2003-06252


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JULY 20, 2017

     Elaine Mickman appeals from the decree of March 31, 2016, and from

the order entered June 9, 2016, in these consolidated appeals. After careful

review, we affirm.
J. A10032/17 & J. A10034/17


      At No. 1426 EDA 2016, the trial court has aptly summarized the

tortured history of this case as follows:

                   On June 21, 2011 the Honorable Arthur R.
            Tilson entered a divorce decree and equitable
            distribution order in this matter. On June 29, 2011,
            Judge Tilson entered an amended divorce decree and
            equitable distribution order.     On July 1, 2011,
            Defendant/Appellant/Elaine Mickman (hereinafter
            “Defendant”) filed a Notice of Appeal to the Superior
            Court of Pennsylvania of the June 29, 2011 amended
            decree and order.        On October 18, 2012, the
            June 29, 2011 amended divorce decree and
            equitable distribution order was affirmed by the
            Superior Court of Pennsylvania.[1]

                   On June 25, 2014, Defendant filed a pro se
            Emergency Motion to Re-Open Divorce Decree to
            Vacate/Strike/Modify Divorce Decree Order Based on
            23 Pa.C.S.A. [§] 3332 Procured Under Fraud. On
            July 7 and July 11, 2014, counsel for Defendant,
            Shannon K. McDonald, Esquire filed Amended
            Petitions to Open/Vacate Divorce Decree Pursuant to
            23 Pa.C.S.A. [§] 3332 (Procedure [sic] Under Fraud).
            On November 17, 2014, the court heard argument
            on Defendant’s July 7 and 11, 2014 amended
            petitions which alleged substantially the same facts
            as Defendant’s pro se June 25, 2014 emergency
            motion and also refer to “Payment Direct, Inc.” and
            “Beacon Financial Inc.” On January 12, 2015, the
            court denied Defendant’s petitions of July 7 and 11,
            2014. No appeal was taken of the court’s January
            12, 2015 order.

                   On July 10, 2015 Defendant filed pro se a New
            Petition to Open/Vacate Divorce Decree Pursuant to
            23 Pa.C.S.A. [§] 3332 for Extrinsic Fraud.        On
            October 8, 2015 the court held a hearing on
            Defendant’s petition.       Following hearing on
            October 8, 2015, the court denied Defendant’s

1
 Mickman v. Mickman, 62 A.3d 45 (Pa.Super. 2012) (unpublished
memorandum), dismissed, 91 A.3d 1236 (Pa. 2014).


                                      -2-
J. A10032/17 & J. A10034/17


            July 10, 2015 petition.     On October 13, 2015,
            Defendant filed a Notice of Appeal to the Superior
            Court of Pennsylvania of the October 8, 2015 order
            and a Petition and Affidavit for Leave to Proceed
            In Forma Pauperis. The in forma pauperis petition
            was denied by the court on October 19, 2015, and
            Defendant did not thereafter pay the required filing
            fees for the October 13, 2015 Notice of Appeal.
            Therefore, Defendant did not perfect her appeal to
            the Superior Court of Pennsylvania.

                  On October 30, 2015, Defendant filed pro se
            an Amended New Petition to Open/Vacate Divorce
            Decree Pursuant to 23 Pa.C.S.A. [§] 3332 for
            Extrinsic Fraud.

                  On November 4, 2015, Appellee/Plaintiff/
            Richard Mickman (hereinafter “Plaintiff”) filed
            Preliminary Objections to Defendant’s October 30,
            2015 amended new petition.

                   On March 24, 2016, the court heard argument
            on Defendant’s amended new petition and Plaintiff’s
            preliminary objections. Plaintiff was represented by
            Jack A. Rounick, Esquire, and Defendant represented
            herself pro se. At the March 24, 2016 argument,
            Mr. Rounick stated that each of Defendant’s petitions
            to open or vacate the divorce decree in this matter
            has “alleged the same facts, all of which were
            previously presented to the court prior to the court
            dismissing each of the petitions.” N.T. March 24,
            2016 at 3. Mr. Rounick cited the legal doctrine of
            res judicata, stating “... in this case, there’s been a
            final determination from the date of the divorce to
            the petitions filed thereafter, and there’s no basis
            under the law for granting the petition filed by
            [Defendant][.]” N.T. at 3.

Trial court opinion, 7/7/16 at 1-3 (emphasis in original; footnote omitted).

                   Defendant argued that the divorce decree was
            procured by extrinsic fraud, and that “there’s
            absolutely no res judicata here ... because this
            is [sic] new and additional documents.” N.T. at 7-8.


                                     -3-
J. A10032/17 & J. A10034/17


            Defendant also stated that “none of my petitions to
            open and vacate the divorce for extrinsic fraud were
            identical[”] ... and that she was “never afforded a full
            and fair hearing to present evidence.” N.T. at 8.

                  On March 31, 2016, the court issued an order
            sustaining Plaintiff’s preliminary objections and
            dismissing Defendant’s October 30, 2015 amended
            new petition. On April 27, 2016, Defendant filed a
            Notice of Appeal to the Superior Court of
            Pennsylvania. On May 11, 2016, the trial court
            ordered the Defendant to file her Concise Statement
            of Errors Complained of on Appeal [pursuant to
            Pa.R.A.P. 1925(b)] within twenty one days of the
            date of the order. On June 1, 2016 Defendant filed a
            Concise Statement of Errors Complained of on
            Appeal[.]

Trial court opinion, 7/7/16 at 4 (emphasis in original).

      Appellant has raised the following issues for this court’s review:

            1.    The Court erred in dismissing Appellant’s
                  “timely” filed Petition to Open her Divorce for
                  Extrinsic Fraud without a Due Process hearing
                  to present “Newly” discovered evidence,
                  testimony, witnesses, and genuine material
                  facts and issues collateral to the divorce trial
                  which identify Appellee’s divorce “planning” to
                  keep Appellant and the court ignorant and
                  prevent a fair hearing.

            2.    The Court erred in dismissing Appellant’s
                  Petition to Open her Divorce for Extrinsic Fraud
                  by     relying    on   Appellee’s   Preliminary
                  Objection’s [sic]    misrepresentations      and
                  unsupported allegation of Res judicata,
                  regardless      that    Appellant     filed    a
                  Reconsideration with an attached Exhibit as
                  material evidence that directly contradicted
                  and refuted Appellee’s Preliminary Objections.




                                     -4-
J. A10032/17 & J. A10034/17


            3.     The Court erred and abused its discretion by
                   sanctioning Appellant when there was no
                   frivolous, vexacious [sic], or dilatory conduct.

Appellant’s brief at 6.

            When reviewing an order sustaining preliminary
            objections, our standard of review is de novo and
            our scope of review is plenary. Huss v. Weaver,
            134 A.3d 449, 453 (Pa.Super. 2016) (en banc)
            (citation omitted). “On an appeal from an order
            sustaining preliminary objections, we accept as true
            all well-pleaded material facts set forth in the
            [plaintiff’s] complaint and all reasonable inferences
            which may be drawn from those facts.” Estate of
            Gentry v. Diamond Rock Hill Realty, LLC, 111
            A.3d 194, 198 (Pa.Super. 2015) (internal alteration
            and citation omitted). “Preliminary objections which
            seek the dismissal of a cause of action should be
            sustained only in cases in which it is clear and free
            from doubt that the pleader will be unable to prove
            facts legally sufficient to establish the right to relief.”
            Feingold v. Hendrzak, 15 A.3d 937, 941
            (Pa.Super. 2011) (citation omitted).

Grimm v. Grimm, 149 A.3d 77, 87 (Pa.Super. 2016), appeal denied, 2017

WL 1159583 (Pa. 2017).

            The High Court has recognized that “res judicata and
            collateral estoppel relieve parties of the cost and
            vexation of multiple lawsuits, conserve judicial
            resources, and, by preventing inconsistent decisions,
            encourage reliance on adjudication.”        Allen v.
            McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66
            L.Ed.2d 308 (1980).          These two doctrines
            “preclud[e] parties from contesting matters that they
            have had a full and fair opportunity to litigate.”
            Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct.
            2161, 171 L.Ed.2d 155 (2008) (internal quotation
            marks and citations omitted). “Under res judicata, a
            final judgment on the merits of an action precludes
            the parties or their privies from relitigating issues



                                       -5-
J. A10032/17 & J. A10034/17


           that were or could have been raised in that action
           . . . .” Allen, 449 U.S. at 94, 101 S.Ct. 411.

In re Stevenson, 40 A.3d 1212, 1222 (Pa. 2012).

     In addition, Section 3333 of the Divorce Code provides:

           § 3333. Res judicata and estoppel

           The validity of a divorce or annulment decree
           granted by a court having jurisdiction over the
           subject matter may not be questioned by a party
           who was subject to the personal jurisdiction of the
           court except by direct appeal provided or prescribed
           by law. A party who sought and obtained a decree,
           financed or agreed to its procurement, or accepted a
           property settlement, alimony pendente lite or
           alimony pursuant to the terms of the decree, or who
           remarries after the decree, or is guilty of laches, is
           barred from making a collateral attack upon the
           validity of the decree unless, by clear and convincing
           evidence, it is established that fraud by the other
           party prevented the making of a timely appeal from
           the divorce or annulment decree.

23 Pa.C.S.A. § 3333.

     As the trial court astutely observed,

                 As detailed above, Defendant has had the
           opportunity to pursue her allegations of extrinsic
           fraud as raised in previous petitions, both pro se and
           counseled. The court has denied Defendant’s claims
           as to any alleged extrinsic fraud on two prior
           occasions before the court ruled on the Defendant’s
           most recent petition.      On both those previous
           occasions, Defendant was afforded the opportunity
           for a hearing or argument on her petitions, once with
           counsel, and once pro se.

                 Defendant is collaterally estopped from
           continually re-litigating the same issues, her claims
           of extrinsic fraud and her right to a “due process
           hearing,” simply because she adds a new exhibit to a


                                    -6-
J. A10032/17 & J. A10034/17


              previously filed petition. In her October 30, 2015
              amended new petition, Defendant raises the same
              claims as previously raised in the earlier petitions,
              even attaching the same exhibits from prior
              petitions. Defendant’s argument at the March 24,
              2016 listing simply reiterated what Defendant, or her
              counsel, has stated at prior listings. Furthermore,
              Defendant continually alleges she has uncovered
              “new documentation” which would permit her to
              open or vacate the divorce decree, however,
              Defendant’s “new documentation” is either repetitive
              of prior information, or is not persuasive or relevant
              to her claims that Plaintiff has “unclean hands” and
              “intentionally Placed Fraud Upon the Court, and
              intentionally concealed business ownership and
              income to the Court and to Petitioner.” Nor did
              Defendant elaborate on her “new documentation” at
              the March 24, 2016 listing to a degree which would
              lead the court to find that the “new documentation”
              was either relevant or persuasive to her allegations
              of fraud.

                     Defendant previously litigated the issue of her
              allegations of extrinsic fraud committed by Plaintiff in
              relation to opening or vacating the divorce decree on
              two prior occasions before this court. This court
              dismissed Defendant’s allegations of extrinsic fraud
              on those two prior occasions.            Furthermore,
              Defendant either did not file and/or perfect an appeal
              of the court’s previous decisions. Therefore, those
              decisions are finally determined.

Trial court opinion, 7/7/16 at 8-9 (emphasis in original; punctuation

corrected).    We agree and determine that the trial court did not err in

dismissing    appellant’s   claims   on     the   basis    of      claim   preclusion   and

res judicata. Appellant’s claims that appellee engaged in a scheme to hide

assets   during    the   parties’    2011    divorce      trial,    including   deliberate

concealment of his business interests using third parties, have been



                                          -7-
J. A10032/17 & J. A10034/17


previously litigated.    Appellant is collaterally estopped from repeatedly

re-litigating the same issues.

      Furthermore, although appellant couches her claims in terms of

extrinsic fraud, she is really alleging intrinsic fraud.   The Divorce Code,

Section 3332 provides:

            § 3332. Opening or vacating decrees

            A motion to open a decree of divorce or annulment
            may be made only within the period limited by
            42 Pa.C.S. § 5505 (relating to modification of orders)
            and not thereafter. The motion may lie where it is
            alleged that the decree was procured by intrinsic
            fraud or that there is new evidence relating to the
            cause of action which will sustain the attack upon its
            validity. A motion to vacate a decree or strike a
            judgment alleged to be void because of extrinsic
            fraud, lack of jurisdiction over the subject matter or
            a fatal defect apparent upon the face of the record
            must be made within five years after entry of the
            final decree. Intrinsic fraud relates to a matter
            adjudicated by the judgment, including perjury and
            false testimony, whereas extrinsic fraud relates to
            matters collateral to the judgment which have the
            consequence of precluding a fair hearing or
            presentation of one side of the case.

23 Pa.C.S.A. § 3332.

                  In accordance with § [3332], the only basis for
            vacating a decree within 30 days is intrinsic fraud.
            Beyond the 30 day limitation period a party must
            show extrinsic fraud, lack of jurisdiction over the
            subject matter or a fatal defect apparent from the
            record. In McEvoy v. Quaker City Cab, 267 Pa.
            527, 110 A. 366 (1920), our Supreme Court first
            distinguished intrinsic fraud from extrinsic fraud.

                  By the expression ‘extrinsic or collateral
                  fraud’ is meant some act or conduct of


                                    -8-
J. A10032/17 & J. A10034/17


                the prevailing party which has prevented
                a fair submission of the controversy.
                Among these are the keeping of the
                defeated party away from court by false
                promise or compromise, or fraudulently
                keeping him in ignorance of the action.
                Another instance is where an attorney
                without authority pretends to represent a
                party and corruptly connives at his
                defeat, or where an attorney has been
                regularly employed and corruptly sells
                out his client’s interest. The fraud in
                such case is extrinsic or collateral to the
                question determined by the court. The
                reason for the rule is that there must be
                an end to litigation; and, where a party
                has had his day in court and knows what
                the issues are, he must be prepared to
                meet and expose perjury then and there:
                Pico v. Cohn, 91 Cal. 129 [25 P. 970
                (1891)].     Where the alleged perjury
                relates to a question upon which there
                was a conflict, and it was necessary for
                the court to determine the truth or falsity
                of the testimony, the fraud is intrinsic
                and is concluded by the judgment, unless
                there be a showing that the jurisdiction
                of the court has been imposed up, or
                that by some fraudulent act of the
                prevailing party the other has been
                deprived of an opportunity for a fair trial.
                Bleakley v. Barclay, 75 Kansas 462 [89
                P. 906 (1907)].

          Fenstermaker v. Fenstermaker, 348 Pa.Super.
          237, 243, 502 A.2d 185, 188 (1985) quoting
          McEvoy v. Quaker City Cab Co., 267 Pa. 527, 536,
          110 A. 366, 368 (1920).

Justice v. Justice, 612 A.2d 1354, 1358-1359 (Pa.Super. 1992), appeal

denied, 621 A.2d 581 (Pa. 1993).     “Thus, the Divorce Code makes clear




                                   -9-
J. A10032/17 & J. A10034/17


that beyond 30 days, a decree cannot be vacated absent fraud which is

collateral to the proceedings.” Id. at 1359.

     Here, the issue of appellee’s alleged fraudulent misrepresentations

concerning his assets and business interests has been thoroughly litigated

and appellant has had her day in court. The trial court stated,

           Defendant was represented by counsel at the 2010
           divorce and equitable distribution hearings, and also
           utilized the services and testimony of Mr. Dennis
           Bieler as an expert financial witness with respect to
           valuation issues, accounting issues and income.
           Defendant has not articulated or proved to the court
           any reason or explanation as to why her alleged
           “newly discovered evidence” was not available to
           either her, her expert witness, or her attorney at the
           time of the 2010 equitable distribution hearings.

Trial court opinion, 7/7/16 at 2-3 n.1. In the November 16, 2011 trial court

opinion, the trial court noted, “This Court entertained significant expert

testimony regarding [appellee]’s assets, business interests and income

during the protracted hearing.” (Trial court opinion, 11/16/11 at 7 n.5.) At

some point, litigation must come to an end.       Simply stated, appellant’s

allegations of fraud relating to entry of the 2011 divorce decree and

equitable distribution order are not extrinsic or collateral to the question

already determined by the court.     See Justice v. Justice, 612 A.2d at

1360, citing Ratarsky v. Ratarsky, 557 A.2d 23 (Pa.Super. 1989) (“In

Ratarsky, appellee contended that appellant committed extrinsic fraud by

concealing the value of a marital asset. This court held that even assuming

appellant concealed the value, his action did not amount to extrinsic fraud.


                                    - 10 -
J. A10032/17 & J. A10034/17


The court found that the property settlement was entered into after

extensive negotiations, and that trial counsel had an opportunity to assess

the value of the assets and simply failed to do so.”).         See also Major v.

Major, 518 A.2d 1267, 1273 (Pa.Super. 1986), affirmed, 540 A.2d 529

(Pa. 1988) (“Although the record clearly demonstrates that appellant did not

disclose to the lower court his military pension asset, we cannot say this

failure to disclose amounted to extrinsic fraud.”), citing Fenstermaker,

supra.

     Finally,   we   address   the   trial   court’s   award   of   counsel   fees.2

Section 2503(7) of the Judicial Code provides that a participant in a legal

proceeding may be 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.A. § 2503(7).

           Our ability to review the grant of attorney’s fees is
           limited, and we will reverse only upon a showing of
           plain error.” Diament v. Diament, 816 A.2d 256,
           270 (Pa.Super. 2003) (citation omitted). “Plain error
           is found where the decision is based on factual
           findings with no support in the evidentiary [sic] or
           legal factors other than those that are relevant to
           such an award.” Id.

Sirio v. Sirio, 951 A.2d 1188, 1198-1199 (Pa.Super. 2008).

           The trial court has great latitude and discretion with
           respect to an award of attorneys’ fees pursuant to a
           statute. Cummins v. Atlas R.R. Construction Co.,
           814 A.2d 742, 746 (Pa.Super. 2002). In reviewing a

2
  The trial court’s March 31, 2016 order sustaining appellee’s preliminary
objections also awarded $5,482.50 in counsel fees.


                                     - 11 -
J. A10032/17 & J. A10034/17


            trial court’s award of attorneys’ fees, our standard is
            abuse of discretion. Lucchino v. Commonwealth,
            570 Pa. 277, 284, 286, 809 A.2d 264, 269-70
            (2002); Miller v. Nelson, 768 A.2d 858, 861
            (Pa.Super. 2001). If there is support in the record
            for the trial court’s findings of fact that the conduct
            of the party was obdurate, vexatious or in bad faith,
            we will not disturb the trial court’s decision.

In re Padezanin, 937 A.2d 475, 483-484 (Pa.Super. 2007), quoting Scalia

v. Erie Ins. Exchange, 878 A.2d 114, 116 (Pa.Super. 2005) (citation

omitted).

            The relentless pursuit of a claim which plainly lacks
            legal merit warrants an award of counsel fees. See,
            e.g., In re Estate of Liscio, 432 Pa.Super. 440,
            638 A.2d 1019 (1994), appeal denied, 539 Pa.
            679, 652 A.2d 1324 (1994) (pursuing claim with no
            reasonable possibility of success and prolonging
            litigation justifies award of counsel fees under
            42 Pa.C.S. § 2503). A suit is vexatious if brought
            without legal or factual grounds and if the action
            served the sole purpose of causing annoyance.
            [Thunberg v. Strause, 682 A.2d 295, 299 (Pa.
            1996)].

Miller v. Nelson, 768 A.2d 858, 862 (Pa.Super. 2001), appeal denied,

782 A.2d 547 (Pa. 2001).

      The record in this case plainly discloses no abuse of discretion in the

trial court’s award of attorneys’ fees.      Appellant has continued to file

repetitive and duplicative petitions based on the same allegations of extrinsic

fraud. Appellant’s prior petitions based on the same alleged facts had been

litigated and finally determined by the court.      As the trial court noted,

appellant’s October 30, 2015 amended petition to open/vacate the divorce



                                    - 12 -
J. A10032/17 & J. A10034/17


decree for extrinsic fraud was the third such filing appellant has made on the

same issue.   (Trial court opinion, 7/7/16 at 11.)    The trial court ruled on

appellant’s allegations of extrinsic fraud on two prior occasions, and

appellant failed to file or perfect an appeal of those decisions. (Id. at 12.)3

In fact, appellant’s continuing pattern of obstreperous behavior and bad faith

conduct during the course of this litigation was detailed in the trial court’s

November 16, 2011 opinion. (Trial court opinion, 11/16/11 at 12.) The trial

court did not abuse its discretion in awarding appellee counsel fees due to

appellant’s repetitive and vexatious conduct.

      We now turn to the consolidated appeal at No. 2097 EDA 2016. This is

an appeal from the order of June 9, 2016, holding appellant in contempt for

failure to comply with the trial court’s order awarding counsel fees. The trial

court has summarized the relevant procedural history as follows:

                   On    July    13,     2015,    Plaintiff/Appellee
            (hereinafter “Plaintiff”) filed a Counter-Petition for
            Counsel Fees in this matter. On October 8, 2015,
            the court held a hearing on Plaintiff’s counter-
            petition. On October 14, 2015, the court issued an
            order granting Plaintiff’s counter-petition, and
            directing Plaintiff to provide the court, and
            Defendant/Appellant (hereinafter “Defendant”), with
            a detailed invoice of Plaintiff’s counsel fees incurred

3
  As recounted above, on January 12, 2015, the trial court denied appellant’s
July 7 and July 11, 2014 amended petitions. Appellant did not file an appeal
from that order. On July 10, 2015, appellant filed another pro se petition to
open/vacate the divorce decree, which was denied on October 8, 2015.
Appellant filed a timely notice of appeal from the October 8, 2015 order, but
was denied IFP status and failed to pay the requisite filing fees to perfect the
appeal. Instead, appellant filed another pro se petition to open/vacate the
divorce decree on October 30, 2015.


                                     - 13 -
J. A10032/17 & J. A10034/17


            for the preparation and litigation of Plaintiff’s defense
            to Defendant’s July 10, 2015 petition to open/vacate
            the parties’ divorce decree. On October 27, 2015,
            after receipt of Plaintiff’s invoice, the court issued an
            order requiring Defendant to reimburse Plaintiff
            $4,812.50 in counsel fees. Neither party perfected
            an appeal of either the October 14, 2015 order or
            the October 27, 2015 order.

                  On December 3, 2015, Plaintiff filed a Petition
            for Contempt. In the petition, Plaintiff alleged that
            Defendant had failed to reimburse Plaintiff’s counsel
            for counsel fees pursuant to the October 27, 2015
            order.[Footnote 1] On June 1, 2016, the court held
            a hearing on Plaintiff’s petition for contempt and
            Defendant’s answer and counterclaim.          At the
            hearing, Plaintiff was represented by Jack A.
            Rounick, Esquire, and Defendant represented herself
            pro se.

                  [Footnote 1]     On March 7, 2016,
                  Defendant filed an Answer to Contempt
                  and New Matter Counter Claim for
                  Contempt.

Trial court opinion, 11/4/16 at 1-2 (emphasis in original).

      On June 9, 2016, appellee’s petition was granted and appellant was

found in contempt of the October 27, 2015 order. (Id. at 3.) Appellant was

ordered to comply with the terms of the October 27, 2015 order by

reimbursing appellee’s counsel fees in the amount of $4,812.50 to

Attorney Rounick within 10 days.     (Id.)    Appellant was further ordered to

pay a fine of $500 to the Montgomery County Prothonotary within 30 days.

(Id.) Appellant’s counter-claim for contempt was denied. (Id.)




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J. A10032/17 & J. A10034/17


      On July 6, 2016, appellant filed a timely notice of appeal from the

June 9, 2016 order. Appellant complied with Pa.R.A.P. 1925(b), and the trial

court filed a Rule 1925(a) opinion.

      Appellant has raised the following issues for this court’s review:

            1.    The court erred and abused its discretion in
                  holding Appellant in willful contempt regardless
                  of her financial inability to pay attorney fees
                  erroneously awarded against her as an
                  indigent     party,   and     without   frivolous,
                  vexacious [sic], dilatory, or obdurate conduct,
                  and it is noted that the attorney fee order was
                  derived from a hearing that was conducted in
                  Appellant’s medical absence by the court
                  violating Appellant’s Civil Rights by denying her
                  a Public Accommodation for the hearing
                  pursuant to Title II of the Americans with
                  Disabilities Act.

            2.    The court erred and demonstrated a fixed-bias
                  against Appellant by denying her counter-
                  contempt against Appellee’s Willful contempt,
                  without Appellee appearing in court to be
                  cross-examined or to present evidence or
                  testimonial defense, thereby denying Appellant
                  enforcement of the affirmed divorce order
                  terms.

Appellant’s brief at 5, quoting Rule 1925(b) statement, 10/12/16 at 1.

            When considering an appeal from an Order holding a
            party in contempt for failure to comply with a court
            Order, our scope of review is narrow:        we will
            reverse only upon a showing the court abused its
            discretion. Hyle v. Hyle, 868 A.2d 601 (Pa.Super.
            2005), appeal denied, 586 Pa. 727, 890 A.2d 1059
            (2005).     The court abuses its discretion if it
            misapplies the law or exercises its discretion in a
            manner lacking reason. Id. To be in contempt, a
            party must have violated a court Order, and the



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J. A10032/17 & J. A10034/17


            complaining party must satisfy that burden by a
            preponderance of the evidence. Id.

Hopkins v. Byes, 954 A.2d 654, 655-656 (Pa.Super. 2008).

      In her first issue on appeal, appellant claims that the trial court abused

its discretion in awarding attorneys’ fees in the absence of vexatious or

obdurate conduct. Appellant also argues that the October 8, 2015 hearing

was conducted in her “medical absence” due to a permanent disability.

      Appellant failed to take an appeal from the October 27, 2015 order

directing her to pay appellee’s counsel fees in the amount of $4,812.50. The

October 27, 2015 order was final and appealable. Pa.R.A.P. 341; Kulp v.

Hrivnak, 765 A.2d 796, 798-799 (Pa.Super. 2000). Therefore, any claims

that relate to the October 8, 2015 hearing or the October 27, 2015 order are

waived.

      At any rate, for the reasons discussed above, in disposing of

appellant’s appeal at No. 1426 EDA 2016, this court has already determined

that the trial court did not abuse its discretion in awarding attorneys’ fees for

appellant’s vexatious conduct in this matter.4 Furthermore, as the trial court

observes, appellant has never raised a valid claim under the ADA or provided




4
  The October 27, 2015 order related to appellant’s July 10, 2015 petition,
whereas the March 31, 2016 order related to appellant’s October 30, 2015
petition. However, the analysis would be the same. Appellee is entitled to
be reimbursed for the cost of defending these repetitive, frivolous, and
vexatious petitions.


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any competent evidence that she has been designated as permanently

disabled. (Trial court opinion, 11/4/16 at 6 n.4.)

      Regarding her alleged inability to pay, appellant never presented any

evidence to support this claim.    In fact, appellant conceded that she pays

$555 per month to lease a Mercedes. (Notes of testimony, 6/1/16 at 9-10,

14-15.) Appellant never asked for an extension of time to pay the counsel

fees, or requested an installment plan. See Sinaiko v. Sinaiko, 664 A.2d

1005, 1009 (Pa.Super. 1995) (“The alleged contemnor has the burden of

proving the affirmative defense that he has the present inability to comply

with the court order.” (citation omitted)).

      Furthermore, appellant admitted that she did not comply with the

court order.   (Notes of testimony, 6/1/16 at 6-7.)   Sinaiko, 664 A.2d at

1009 (“The complaining party has the burden of proving by a preponderance

of evidence that a party violated a court order.” (citation omitted)). There

was no dispute that appellant failed to pay appellee’s counsel fees.

Appellant simply argued that she lacked the financial ability to pay without

providing any supporting evidence. Therefore, the trial court did not abuse

its discretion in finding appellant in civil contempt of its October 27, 2015

order.

      Next, appellant argues that she was denied the opportunity to

cross-examine appellee.    Appellee lives in England and did not attend the

June 1, 2016 contempt hearing; however, appellant did not dispute that she



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failed to pay counsel fees and appellee’s testimony was unnecessary.

Attorney Rounick appeared on appellee’s behalf.       In addition, appellant

never objected to appellee’s absence or argued that his testimony was

necessary for litigation of the contempt petition.     (Trial court opinion,

11/4/16 at 7-8.)     This issue was raised for the first time in appellant’s

Rule 1925(b) statement. (Id. at 8.) Appellant fails to indicate where in the

record this matter was preserved in the court below.    As such, it is being

raised for the first time on appeal and is deemed waived. Commonwealth

v. Williams, 980 A.2d 667, 671 (Pa.Super. 2009), appeal denied, 990

A.2d 730 (Pa. 2010), citing Pa.R.A.P. 2117(c) and 2119(e); Pa.R.A.P. 302(a)

(“[i]ssues not raised in the lower court are waived and cannot be raised for

the first time on appeal”).



      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2017




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