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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ARIELA GESHURY                                              IN THE SUPERIOR COURT OF
                                                                  PENNSYLVANIA


                          v.

AMOTZ J. GESHURY

                                Appellant                        No. 131 EDA 2016


                       Appeal from the Order December 10, 2015
                 In the Court of Common Pleas of Montgomery County
                          Civil Division at No(s): 2006-10717


BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                                       FILED MARCH 08, 2017

        Appellant, Amotz            J.    Geshury, appeals from the        order   entered

December 10, 2015, dismissing his petition for contempt and awarding

Appellee, Ariela Geshury, attorney’s fees in the amount of $24,341.25. We

affirm.

        We adopt the following factual and procedural history from the trial

court’s opinion, which in turn is supported by the record.                 See Trial Court

Opinion (TCO), 5/19/16, at 1-7. The parties were married on May 25, 1980.

They jointly owned a bartending school, Crown Food and Beverage Institute,

Inc.,     also    known        by   its    fictitious   name,   Mixology   Wine    Institute

(“Crown/Mixology”). Appellee managed the daily operations of the business

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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while Appellant oversaw finances, filed tax returns, and handled regulatory

issues.

      In May 2006, Appellee filed a complaint in divorce. On June 8, 2006,

the court ordered that: (1) the parties were to grant one another immediate

and continued access to all financial records of their business; (2) neither

party was to alienate, dissipate, or transfer marital assets, including the

business; and (3) all checks written on any business account had to be

signed by all parties. On February 6, 2008, with the parties’ agreement, the

court modified its previous order, clarifying that Appellee would continue to

be responsible for the daily operation of the business and Appellant would

continue to manage the books, including debt, licensing, and accounting.

      In August 2008, the parties appeared before an equitable distribution

master with their completed marital settlement agreement.      The marriage

was dissolved by divorce decree on September 15, 2008;           the decree

incorporated the marital settlement agreement.     The agreement provided

that: (1) the June 2006 order would remain in effect; (2) the business would

continue to operate without changes to ownership; (3) all assets of the

business were to remain in the business; (4) all company liabilities would

remain the responsibility of both parties; (5) Appellee would continue the

role of managing the business; and (6) Appellant would continue to assist

with accounting, maintenance, and regulatory issues.

      However, both the situation between the parties and the business

degraded. Appellant did not adequately perform his duties or timely file tax

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returns.    Appellant took draws from the business, requesting they not be

classified as salary, and demanded that checks be written to him.        As a

result of Appellant’s actions, the company owed significant unpaid taxes to

the City of Philadelphia, the state of New Jersey, and federal liens. Appellee

paid the entirety of these debts from her personal funds.        During their

marriage, Appellant would not allow Appellee to hire an accountant.      As a

result of Appellant’s actions, Appellee hired independent accountants for tax

returns prepared for the years 2010 through 2014. Still, Appellant refused

to cooperate with the accountants or provide requested information.

      The financial situation of the company continued to deteriorate.      It

operated with outdated equipment, owed significant back rent, and Appellee

paid employees with personal funds. Although at one time Crown/Mixology

operated five locations, by November 2014, its sole remaining school ceased

enrolling students.    Appellee decided it was not feasible to continue

operating the business. She offered Crown/Mixology to Appellant in October

2014. Appellant responded that he was in Israel and requested to discuss

the issue at a later time.     However, Appellant never gave Appellee a

definitive response.

      Finally, Appellee closed Crown/Mixology. All of the old equipment was

scrapped.    Appellee began a new business, Aqua Vitae, which opened in

September 2014. Appellee also accepted a loan from her new husband to

cover Crown/Mixology’s debts. She has been repaying that loan.




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      On May 19, 2015, Appellant filed a petition for contempt, claiming that

Appellee had violated the marital settlement agreement by: (1) closing

Crown/Mixology without cause and opening an identical business; (2) failing

to provide Appellant with continued access to the financial accounts of the

business; and (3) failing to pay her portion of the marital debt.     Appellee

filed a response in opposition, requesting a demurrer and attorney’s fees.

      The trial court heard argument and testimony on the petition on

October 21, October 22, and December 9, 2015.           Appellant testified in

support of his petition.    Appellee, the parties’ sons, and two accountants

testified in opposition.   At the conclusion of the hearings, the court found

Appellant had come before the court with unclean hands, dismissed his

petition, and awarded attorney’s fees to Appellee.

      Appellant filed a motion for reconsideration, which the trial court

denied.   Appellant timely appealed and filed a court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).         The trial

court issued a responsive opinion.

      On appeal, Appellant raises the following questions for our review:

      I. Whether the lower court abused its discretion and erroneously
      disregarded substantial evidence in not finding [Appellee] in
      contempt of the order?

      II. Whether the lower court erroneously determined [Appellant]
      acted with unclean hands?

      III.  Whether the lower court erred in awarding [Appellee]
      attorney’s fees for [Appellant’s] good faith filing of the petition
      for contempt?


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Appellant’s Brief at 5 (unnecessary capitalization omitted).

      We review a contempt order for an abuse of discretion. See Harcar

v. Harcar, 982 A.2d 1230, 1234 (Pa. Super. 2009).         In this context, we

place a “great reliance” on the discretion of the trial judge. Langendorfer

v. Spearman, 797 A.2d 303, 307 (Pa. Super. 2002).

      First, Appellant claims that the court abused its discretion and

disregarded evidence when it found that Appellee was not in contempt of the

parties’ marital settlement agreement.      See Appellant’s Brief at 11-12.

Appellant suggests a number of reasons the court erred, including: (1)

Appellee was responsible for handling the taxes and returns, and he was

only required to “assist” with the books; (2) Appellee controlled the

operations and limited his access to financial information; and (3) Appellee

acted with unclean hands in closing Crown/Mixology and opening a similar

business. Id. at 12-17.

      In contempt proceedings, the burden of proof rests with the

complaining party to demonstrate by a preponderance of the evidence that

the respondent is in noncompliance with a court order.            Lachat v.

Hinchcliffe, 769 A.2d 481, 488 (Pa. Super. 2001). Accordingly, Appellant

was required to prove that Appellee was not complying with the court order.

Appellant did not meet this burden.

      Appellant’s claims are neither supported by the record, nor was his

testimony credible. To the contrary, the court found that: (1) the evidence

established that Appellant did not adequately perform his duties to the

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business; (2) Appellee made an effort to enable the business to stay in

operation, including performing duties that should have been done by

Appellant; (3) the language of the settlement order and Appellant’s own

testimony made it absolutely certain that he was in charge of the finances

and accounting; (4) due to Appellant’s failures, Appellee had no choice but

to become more involved in the finances; (5) Appellee testified credibly that

she had always provided Appellant with access to the business’s financial

records.   See TCO at 9-12.    These findings are supported by the record.

Thus, we discern no abuse of discretion.

     Second, Appellant claims that the court erroneously determined that

he had acted with unclean hands.     See Appellant’s Brief at 18.   Appellant

raises a number of arguments in this regard, including the contention he did

not violate the February 2008 order or prevent Appellee from filing the

company’s taxes herself.    Id. at 18-19.    Essentially, he challenges the

court’s factual determinations and complains that the trial court gave

improper weight to Appellee’s testimony. Id. We disagree.

     In matrimonial cases, the courts have full equity power and jurisdiction

to issue injunctions and other orders necessary to protect the interests of

the parties. See 23 Pa.C.S. § 3323; see also Lee v. Lee 978 A.2d 380,

387 (Pa. Super. 2009). A party seeking relief in a court of equity must come

with “clean hands” and act fairly and without fraud or deceit as to the

controversy at issue.   Lee, 978 A.2d 387; see also In re Adoption of

S.A.J., 838 A.2d 616, 625 (2003). If a party has not acted in good faith,

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they will not be allowed to benefit from those actions. Jacobs v. Halloran,

710 A.2d 1098, 1103 (Pa. 1998).

      In determining that Appellant had acted with unclean hands in filing

the instant petition, the trial court made the following factual findings: (1)

Appellant’s duties were to manage the business’s books, including IRS debt,

licensing, taxes, and accounting; (2) Appellant did not file tax returns or

filed them late; (3) Appellant did not pay any of Crown/Mixology’s debts and

Appellee has paid the debts from her personal funds; (4) Appellant did not

cooperate with accountants attempting to prepare corporate tax returns; (5)

Appellant regularly appeared at the business to demand money; and (6)

Appellee did not have knowledge of the years of unfiled tax returns, taxes,

interest, and penalties Appellant had accumulated.        As a result, the trial

court concluded that Appellant failed to perform his duties pursuant to the

February 2008 order.     The trial court found credible Appellee’s testimony.

The trial court did not find Appellant’s testimony credible.

      These conclusions are supported by the record, and we are bound by

the trial court’s determination of credibility.   Wade v. Huston, 877 A.2d

464, 465 (Pa. Super. 2005). Accordingly, we discern no abuse of discretion

in the trial court’s conclusion that Appellant acted with unclean hands.

Harcar, 982 A.2d at 1234.

      Finally, Appellant claims the lower court erred in awarding Appellee

attorney’s fees because the petition for contempt had been filed in good

faith. Appellant has waived this claim for failure to include it in his Pa.R.A.P.

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1925(b)   statement    of   errors   complained   of   on   appeal.   See

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“[a]ny issues not

raised in a [Rule] 1925(b) statement will be deemed waived.”)

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2017




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