J-S08027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ALICE ALBERSTADT                           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM J. ALBERSTADT                      :
                                               :
                       Appellant               :   No. 1262 WDA 2019

                  Appeal from the Order Entered July 31, 2019
    In the Court of Common Pleas of Erie County Civil Division at No(s): No.
                                  10555-2018


BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                            FILED MARCH 20, 2020

       William J. Alberstadt (Appellant) appeals pro se from the order entered

July 31, 2019 in the Court of Common Pleas of Erie County granting the motion

for special relief filed by Alice Alberstadt (Appellee) seeking to recover alimony

and attorneys’ fees under a marital settlement agreement. We affirm.

       The parties’ dispute arises from their divorce and court-ordered alimony.

Appellee commenced the action below by filing a motion for special relief on

June 27, 2018, seeking to recover alimony and attorneys’ fees under a marital

settlement agreement and court order of June 8, 2018.1 On July 31, 2019,

the trial court entered an order granting Appellee attorneys’ fees, finding that
____________________________________________


1 Appellee filed for divorce on March 2, 2018. The June 8, 2018 order
concluded the divorce litigation. Appellant appealed from that order, which
appeal was docketed at 973 WDA 2018. The appeal was quashed on April 18,
2019 as Appellant failed to file a court-ordered Pa.R.A.P. 1925(b) statement.
Due to the pending appeal, Appellee’s motion for special relief was not heard
until June of 2019.
J-S08027-20



Appellant owed Appellee $18,920, and ordering a rollover of Appellant’s

investment account in partial satisfaction of the debt.      Appellant filed the

present appeal on August 7, 2019, and timely complied with Pa.R.A.P.

1925(b).

       Appellant raises the following issues on appeal:2

       I: Appellant was coerced by [Appellee and her] counsel . . .
       through deceitful acts and coercion over the years of separation
       and through financial fraud and duress from manipulation by
       [Appellee] and the abuse of discretions committed by the trial
       judge, and Appellant’s constitutionally protected rights were
       violated throughout the divorce proceedings, which deprived
       Appellant of the economic relief/distributions Appellant was
       entitled to by law.

       II: [Appellee] violated verbal contracts and the marital settlement
       agreement by fraudulent and undisclosed dissolving of financial,
       equitable and personal property during the separation and divorce
       proceedings for a financial windfall, without disclosing the same in
       financial disclosures to the court, which the court abused its
       discretion in not demanding the same to equally dissolve
       economic matters raised and preserved by Appellant, when
       evidence exists in court filings by Appellant, that [Appellee] sold
       marital settlement property, where the trial court ignored the
       same and granted full relief to [Appellee], in violation of the
       divorce code and law.

       III: Whether the trial court abused its discretion to issue an order
       awarding alimony, when [Appellee] received a windfall of financial
       gains and income, when Appellant was financially bankrupt and
       without income or financial means for basic living expenses to care
       for Appellant’s own expenses deprived by [Appellee] through
       fraud and financial disclosure to justify receiving alimony while
       living in a $385,000.00 Sarasota, Florida residence with income?

____________________________________________


2We note that Appellant’s brief in his prior appeal, docketed at 973 WDA 2018,
contains issues one through four raised here. Appellee’s motion does not
revive these issues, which were waived when his prior appeal was quashed.

                                           -2-
J-S08027-20


      IV: Whether the trial court abused its discretion to issue an order
      awarding attorney fees, when [Appellee] received a windfall of
      financial gains and income, when Appellant was financially
      bankrupt and without income or financial means for basic living
      expenses deprived by [Appellee] through fraud, contractual
      violations and financial [non]disclosures in seeking attorney fees?

      V: Whether [the trial judge] abused his discretion in his capacity
      as an elected official, to impose his personal bias, ill–will and
      partiality against [Appellant], where the record demonstrates that
      at each and every documented issue, violation of the marital
      settlement agreement committed by [Appellee], that [the trial
      judge] has ignored the prejudice, contractual violations and laws
      inflicted against [Appellant], and ruled in favor of [Appellee].
      Furthermore, [the trial judge] intentionally blocked [Appellant’s]
      funds illegally, issued outrage[ou]s attorney fees to an indigent
      defendant, and denied access to counsel. Additionally, [the trial
      judge] was requested to recuse himself, failed to address the
      matter as required of judges under the judicial rules of canon law,
      where the record overwhelmingly demonstrates that [the trial
      judge] has used his official position by forming a negative and
      bias[ed] opinion of [Appellant], due solely to [Appellant’s]
      unrelated criminal matter, and has used his power to inflict
      financial duress and burden on [Appellant], all the while favoring
      [Appellee], as supported by the record?

Appellant’s Brief at 4-5.

      We review a trial court’s decision to grant special relief in divorce actions

for abuses of discretion. Prol v. Prol, 935 A.2d 547, 551 (Pa. Super. 2007).

“[T]he 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.” Id. (citation omitted).

      We conclude that the trial court committed no error of law. The trial

court issued an articulate, thorough, and well-reasoned opinion, dated

October 15, 2019, determining that most of Appellant’s claims related to his

                                      -3-
J-S08027-20



prior quashed appeal. See Trial Ct. Op., 10/15/19, at 2. With regard to the

only viable claim, we adopt the trial court’s opinion.3 Id. at 1-3.

       Order affirmed. We direct the Prothonotary and the parties to attach

the trial court’s October 15, 2019 opinion to any future filings of this

memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2020




____________________________________________


3 We note that Appellee has asked for attorneys’ fees on appeal pursuant to
Pa.R.A.P. 2744. See Pa.R.A.P. 2744 (allowing counsel fees where “an appeal
is frivolous or taken solely for delay or that the conduct of the participant
against whom costs are to be imposed is dilatory, obdurate or vexatious”).
Based on the record before us, we cannot find that Appellant has taken this
appeal out of frivolity or for an improper purpose, or that Appellant’s conduct
is dilatory, obdurate, or vexatious. While we agree that the present appeal is
meritless, we also determine that Appellant’s conduct in prosecuting his
appeal does not meet the standards of Pa.R.A.P. 2744, and thus we decline to
award attorneys’ fees thereunder.

                                           -4-
                                                                                       Circulated 03/04/2020 11 :41 AM $




ALICE ALBERSTADT                                       IN THE COURT OF COMMON PLEAS

                            Plaintiff                  OF ERIE COUNTY, PENNSYLVANIA
               vs.                                     FAMILY DIVISION - DIVORCE

                                                                                                 -
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       October   /l , 2019:      This matter arises from a Motion for Special Relief filed June 27, 2018              1



(''Motion"), by Plaintiff, Alice Alberstadt (''Wife"), against Defendant, William Alberstadt

("Husband"). The Motion seeks to recover previously awarded alimony and attorney fees due from

Husband under a Martial Settlement Agreement, dated April 4, 2016 ("MSA"), and a prior trial court

order dated June 8, 2018.

I.     PROCEDURAL BACKGROUND

       Wife filed for divorce on March 2, 2018. She simultaneously filed an affidavit under section

3301(d) of the Divorce Code, 23 Pa.C.S.A. §3301, et seq. Husband filed a counter-affidavit on

March 28, 2018, opposing entry of a divorce decree and raising various economic claims. Litigation

ensued over the validity of the MSA, which concluded in Wife's favor by order dated June 8, 2018.

Husband appealed that order to the Superior Court. His appeal was quashed on April 18, 2019. See

973 WDA 2018.

       In the meantime, Wife filed the within Motion, seeking immediate freeze of an investment

account in Husband's name, and a hearing on Wife's demand that the balance of that account be

transferred to Wife in partial satisfaction of Husband's delinquent alimony and attorney fees




I
  The Motion was not heard until June of 2019 due to Husband's appeal of a prior order at 973 WDA
2018.
.r':

  obligations. The Motion also sought additional attorney fees for Husband's breach of the MSA

  which necessitated the Motion.

          An evidentiary hearing was held on July 30, 2019. Wife appeared, represented by counsel.

  Husband appeared prose by video-conference from SCI Fayette, La Belle, Pennsylvania. 2 On July

  31, 2019, the trial court entered an order granting Wife's Motion in its entirety. Husband timely filed

  his appeal on about August 7, 2019.

          The trial court entered a Pa.R.A.P. 1925(b) Order on August 16, 2019. Husband filed his

  statement of errors on September 3, 2019. Except possibly with respect to the second award of

  attorney fees, the five errors listed in Husband's statement of errors relate exclusively to matters

  previously raised and decided by the court's prior order of June 8, 2018, which became final when

  Husband's appeal at 973 WDA 2018 was quashed earlier this year.3

  II.     DISCUSSION

          Wife's claim for additional attorney fees set forth at paragraph 11 of her Motion is based

  on Article XVIII of the MSA, which states:

                                                  BREACH

                  If either party breached any provision of this Agreement, the other party shall
          have the right , at his or her election to due for damages for such breach or seek such
          other remedies or relief as may be available to him or herm including but not limited
          to these remedies provided by the divorce laws, and all other relevant laws, of any
          applicable jurisdiction, and specific performance. The party breaching this contract
          may be responsible for payment of legal fees and costs incurred by the other in
          enforcing the rights and responsibilities set forth in this Agreement, including fees
          and costs in pursuing collection of attorneys fees.




  2
     On August 25, 2014, Husband was sentenced to 8 to 16 years in prison after pleading guilty to
  involuntary deviate sexual intercourse with the parties' grandchild.
  3
     Husband mentions at paragraph V of his statement of errors, that he requested recusal, however, the
  court does not recall any such request and could not locate the same, to the extent it was by written
  motion, on the court docket. In any event, there is nothing in the record that would necessitate recusal in
  this case.


                                                       2
/




               If a party is unsuccessful in litigating the breach provisions contained herein,
       that unsuccessful party may be responsible for the payment of legal fees incurred by
       the successful party in defending the breach or enforcement action, including fees and
       costs.

(MSA, § XVIII). The Court found that Wife's Motion was filed in a reasonable effort to enforce her

entitlement to alimony under Article XIII of the MSA, of which Husband was in breach, and to

collect previously awarded attorney fees. Accordingly, Wife's claim for attorney fees incurred for

preparation and presentation of her Motion were granted in the amount of $1,750.00, which amount

was deemed reasonable based upon review of Wife's Attorney's Certification of Attorney Fees

submitted as Exhibit D. See, e.g. McMullen v. Kutz, 985 A.2d 769, 770 (Pa. 2009).

III.   CONCLUSION

       For all ofthe reasons set forth above, Husband's appeal should be dismissed, and the July 31,

2019 Order should be affirmed.




                                               BY THE COURT:




cc:    James H. Richardson, Jr., Esquire (for Plaintiff)
       William Alberstadt, Defendant, Pro Se




                                                  3
