J-S15022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JACQUELINE N. BUTKIEWICZ                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER J. BUTKIEWICZ                  :   No. 1304 WDA 2019

                 Appeal from the Order Entered August 7, 2019
     In the Court of Common Pleas of Butler County Civil Division at No(s):
                                FC 16-90802-D


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 30, 2020

        Appellant, Jacqueline N. Butkiewicz (“Wife”), appeals from the August

7, 2019 order dismissing her petition to enforce a marital settlement

agreement (“MSA”) for failure to join an indispensable party, Judy Hendricks

(“Hendricks”).       We affirm the trial court’s ruling that Hendricks is an

indispensable party, but vacate its dismissal and remand with instructions.

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

Wife and Christopher Butkiewicz (“Husband”), married in 2004. During the

course of their marriage, the parties borrowed money from Hendricks, Wife’s

mother, to purchase their marital residence (hereinafter, the “Loan”).




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*   Former Justice specially assigned to the Superior Court.
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      The parties later separated and subsequently entered into a MSA on

August 1, 2016. In paragraph four of the MSA, the parties agreed to repay

the Loan. Specifically, paragraph four of the MSA states:

      The parties agree that they have a loan with [] Hendricks.
      Husband shall send to Wife $458.62 monthly for his share of this
      loan. Said payments shall be made no later than the 10th of each
      month. Wife shall then make a payment no later than the 15th of
      each month to [] Hendricks in the amount of $917.24 until said
      loan is paid in full, at which time Husband’s obligation to send the
      monthly payment to Wife shall cease.

MSA, 8/1/16, at *3 (un-paginated).

      Additionally, in paragraph 25 of the MSA, the parties agreed to

“immediately list [the marital] residence for sale.” Id. at *7 (un-paginated).

The proceeds of the sale were to be distributed as provided in paragraph 26

of the MSA, which states:

      The parties agree that any proceeds from [the] sale shall be used
      to pay the following debts: [] Hendricks (window loan) and PNC
      Credit. Any proceeds remaining thereafter shall be split with
      Husband receiving $20,000[.00] and Wife receiving the remainder
      of the proceeds[.]

Id. at *7 (un-paginated). On May 25, 2017, the trial court entered a decree

of divorce dissolving the matrimonial bond between Husband and Wife. The

court also incorporated the MSA into the divorce decree.        Thereafter, the

parties sold the marital residence.

      On August 20, 2018, Wife filed a petition for contempt and enforcement

of the MSA. In her petition, Wife alleged that Husband violated paragraph

four of the MSA because he did not make the requisite monthly payment to

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Wife to repay the Loan. The trial court held a hearing on October 1, 2018,

and granted Wife’s petition on October 3, 2018.    In its order, the trial court

directed Husband to pay Wife “an additional $458.62 . . . each and every

month” until the total arrears, $3,668.96, was paid in full. Trial Court Order,

10/3/18, at 1.   This payment, per the court, “would be in addition to the

$458.62 payment that [Husband] owe[d] [Wife] pursuant to paragraph [four]

of the [MSA].” Id. Thus, pursuant to the court’s order, Husband was required

to pay Wife $917.24 a month until the total arrears was paid in full.

      Husband filed a motion for reconsideration and special relief.     In his

motion, Husband asserted that he could not maintain the payment schedule

as set forth in the trial court’s October 3, 2018 order.    As such, Husband

requested that he be directed to pay only $658.62 a month “until the [total

arrears] of $3,668.96 was paid in full.” Husband’s Motion for Reconsideration,

10/2018, at 2 (un-paginated).     Husband also requested that Wife provide

“fully executed copies of the written mortgage upon which [his] obligation is

based within [ten] days of execution of an [o]rder stemming from the

presentation of this [m]otion.” Id.

      The trial court granted Husband’s request for reconsideration on October

30, 2018, and scheduled a hearing for January 7, 2019. After the hearing,

the trial court ordered Husband to pay Wife $658.62 a month “until full

payment of $3[,]668.96 [is] paid.” Trial Court Order, 1/9/19, at 1.

      Subsequently, Wife filed a second petition for contempt, alleging that

Husband failed to comply with the trial court’s January 9, 2019 order.

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Specifically, Wife alleged that Husband failed to pay the arrearage payments

in April and May 2019, and also did not make the April payment of $458.62

as required under the MSA.       Thus, Wife requested the trial court to find

Husband in contempt of its January 9, 2019 order, direct Husband to pay Wife

a sum of $858.62, and resume the monthly payments as set forth in the trial

court’s January 9, 2019 order.

      Husband also filed a petition for contempt and enforcement of the MSA.

In his petition, Husband claimed that he did not violate the MSA because the

Loan was paid in full. Specifically, Husband alleged that the parties obtained

mortgages secured by the marital residence to repay the Loan and, as such,

Wife collected payments for a debt that had already been satisfied. Lastly,

Husband alleged that Wife violated paragraph 26 of the MSA because, after

the sale of the marital residence, she failed to pay him $20,000.00 as required.

      The trial court held a hearing on the petitions on August 6, 2019.      At

the hearing, Husband, Wife, and Hendricks testified. During Wife’s testimony,

she explained the circumstances under which the parties executed the Loan.

N.T. Hearing, 8/6/19, at 9-26. In addition, she testified that, since April 2019,

Husband failed to make the monthly and arrearage payments as required by

the trial court’s January 9, 2019 order. Id. Next, Hendricks testified and

asserted that, contrary to Husband’s claims, the Loan was not satisfied. Id.

at 29. Lastly, Husband testified and claimed that the Loan was already paid

in full because after the parties borrowed funds from Hendricks, they executed




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various mortgages on the marital property “to pay off the underlying [Loan].”

Id. at 44.

       Following Husband’s assertion, the trial court stated:

       We have an indispensable party here and I have no jurisdiction to
       hear this matter because there is an indispensable party. And that
       indispensable party is Mrs. [] Hendricks. She has something at
       stake in these proceedings. I don't think the [p]etition for
       [c]ontempt -- I don't think you can join her to a divorce action,
       for one thing. This has to be done by, I don't know who is going
       to start it, but there should be a [d]eclaratory [j]udgment [a]ction
       commenced by somebody, either [Wife] or [Husband], informing
       the [trial c]ourt that there is a dispute, what the dispute is and
       asking the [c]ourt to resolve it. But Mrs. Hendricks . . . has to be
       part of that proceeding.

Id. at 48. The trial court then entered an order dismissing the action. Trial

Court Order, 8/7/16, at 1. This timely appeal followed.1

       Wife raises the following issue on appeal:

       [Whether the trial court erred in concluding, sua sponte, that it
       lacked subject matter jurisdiction over Wife’s petition due to her
       failure to join an indispensable party and, in turn, dismissing the
       action?]

See generally Appellant’s Brief at 4.

       “The failure to join an indispensable party is a non-waivable defect that

implicates the trial court's subject matter jurisdiction.” N. Forests II, Inc.

v. Keta Realty Co., 130 A.3d 19, 28–29 (Pa. Super. 2015) (citation omitted).
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1 Wife filed a notice of appeal on August 23, 2019. On August 28, 2019, the
trial court filed an order directing Wife to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). Wife timely
complied. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
October 9, 2019.

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“Failure to join an indispensable party goes absolutely to the court's

jurisdiction and the issue should be raised sua sponte.” Orman v. Mortg.

I.T., 118 A.3d 403, 406 (Pa. Super. 2015) (citation omitted). “Whether a

court has subject matter jurisdiction presents a question of law, making our

standard of review de novo and the scope of our review plenary.” Id. at 407.

      With regard to whether a party is an indispensable party, this Court

previously explained the following:

      [A] party is indispensable when his or her rights are so connected
      with the claims of the litigants that no decree can be made without
      impairing those rights. If no redress is sought against a party,
      and its rights would not be prejudiced by any decision in the case,
      it is not indispensable with respect to the litigation. We have
      consistently held that a trial court must weigh the following
      considerations in determining if a party is indispensable to a
      particular litigation.

         1. Do absent parties have a right or an interest related to
         the claim?

         2. If so, what is the nature of that right or interest?

         3. Is that right or interest essential to the merits of the
         issue?

         4. Can justice be afforded without violating the due process
         rights of absent parties?

      In determining whether a party is indispensable, the basic inquiry
      remains whether justice can be done in the absence of a third
      party.

      In undertaking this inquiry, the nature of the claim and the relief
      sought must be considered.

Hendricks v. Hendricks, 175 A.3d 323, 328–329 (Pa. Super. 2017) (internal

citations omitted).



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       Upon review, we conclude that the trial court correctly determined that

Hendricks was an indispensable party. As stated above, Wife filed a petition

for contempt claiming that Husband violated the trial court’s January 9, 2019

order and the MSA because he failed to make the monthly installment and

arrearage payments to Wife to satisfy the Loan.               Husband, however,

contended that his obligation no longer existed because the Loan was already

paid in full. Thus, to determine whether Husband did, in fact, violate the trial

court’s previous order and the MSA, the trial court needed to decide whether

the Loan was satisfied.         No matter the trial court’s final determination–

whether it held that the Loan was or was not paid in full – it had “to resolve

an issue important to [] Hendricks.”           Trial Court Opinion, 10/8/19, at *2

(un-paginated). Accordingly, we agree with the trial court that Hendricks was

an indispensable party.2

       The trial court, however, dismissed the action because it concluded that

the parties were required to bring a declaratory judgement action and

“inform[] the [trial c]ourt that there is a dispute, what the dispute is and ask[]

the [c]ourt to resolve it.” N.T. Hearing, 8/6/19, at 48. This was unnecessary
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2 It is evident from our analysis that the payment status of the Loan was
related and essential to resolution of the claims raised by Husband and Wife.
We also conclude that the instant litigation raised due process concerns for
Hendricks. If Husband were to prove an overpayment on the Loan, Hendricks
may be subject to a claim seeking disgorgement of any sums that exceeded
Husband’s obligations under the MSA. See Hubert v. Greenwald, 743 A.2d
977, 980 (Pa. Super. 1999) (explaining that potential liability renders a party
indispensable). Moreover, Hendricks’ participation as a witness at the August
6, 2019 hearing would not be sufficient to protect, preserve, and vindicate any
legal interest she may have in the resolution of the parties’ claims.

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because “our Rules, in the Divorce section, provide a mechanism for the courts

to direct that such indispensable parties be added.”      Van Buskirk v. Van

Buskirk, 590 A.2d 4, 7 (Pa. 1991). Indeed, pursuant to Pa.R.C.P. 1920.34,

“[a]t any state of an action, the court may order the joinder of any additional

person who could . . . be[] joined in the action and may stay the proceedings

in whole or in part until such person [is] joined.” Pa.R.C.P. 1920.34. Thus,

the trial court erred in dismissing the parties’ cross-petitions. Instead, the

trial court should have simply ordered the litigants to join Hendricks as a party.

Accordingly, we vacate the trial court’s dismissal and remand with instructions

to direct the parties to effectuate Hendricks’ joinder as a party pursuant to

Pa.R.C.P. 1920.34.

       Conclusion as to indispensable party affirmed. Dismissal of action

vacated. Case remanded with instructions.3 Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2020




____________________________________________


3 The Prothonotary of this Court is hereby ordered to return the record to the
trial court.

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