J-A06022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LINDA LEVENSON                               :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                      Appellant              :
                                             :
                                             :
              v.                             :
                                             :
                                             :
STANTON LEVENSON                             :   No. 1139 WDA 2017

                   Appeal from the Order July 10, 2017
 In the Court of Common Pleas of Allegheny County Family Court at No(s):
                            FD 99-003878-006

LINDA LEVENSON                               :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
              v.                             :
                                             :
                                             :
STANTON LEVENSON                             :
                                             :
                      Appellant              :   No. 1189 WDA 2017

                   Appeal from the Order July 10, 2017
 In the Court of Common Pleas of Allegheny County Family Court at No(s):
                             FD99-3878-006



BEFORE:     BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                                  FILED JUNE 25, 2018

      This is an appeal by Linda Levenson (“Wife”) from the denial, in part,

of   her   contempt    petition   and   a   cross-appeal   by   Stanton   Levenson

(“Husband”). We affirm in part and reverse in part.

      This matter had its genesis in 1999 when Wife filed a complaint for

support.    The parties had married in 1966 and separated in 1998.           They

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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have two adult children, a son with special needs and a daughter. Husband

filed a divorce complaint in April of 2000.    The matter was bifurcated, a

divorce decree was granted on December 26, 2001, and equitable

distribution ensued.   In 2004, the parties cross-appealed from an order of

alimony, equitable distribution, and counsel fees.    This Court affirmed the

trial court on all issues in a memorandum decision.             Levenson v.

Levenson, 863 A.2d 1238, 599 and 711 WDA 2003 (Pa. Super. 2004)

(unpublished memorandum).

      The trial court summarized the facts and procedural history of the

current matter, beginning with Wife’s filing of the instant contempt petition.

             Wife sought to hold Husband in contempt of a Consent
      Order of [c]ourt signed by the parties on February 26, 2010.
      Wife claimed that Husband willfully failed to make alimony
      payments in accordance with paragraph one of the Consent
      Order, and failed to pay premiums required to maintain a life
      insurance policy with Wife as the beneficiary.      Following a
      [contempt] hearing on November 30, 2016, the Hearing Officer
      issued a Recommendation . . . finding Husband in contempt for
      failing to make timely alimony payments. She recommended
      that he purge by paying in full and on time going forward. The
      Hearing Officer found Husband not to be in contempt of the
      provision requiring him to make payments on a life insurance
      policy. It was recommended that Wife be awarded attorneys’
      fees of $3000.

             Both parties filed exceptions to the Recommendation. By
      Order dated July 10, 2017, the [c]ourt ordered Husband to make
      two lump sum payments on arrearages in addition to paying
      alimony in full and on time. All other exceptions and cross
      exceptions were dismissed. Wife timely appealed, and Husband
      filed a cross appeal.




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Trial Court Opinion, 10/26/17, at 2–3.      Both parties and the trial court

complied with Pa.R.A.P. 1925. We consolidated the appeals sua sponte on

August 23, 2017.

      Wife raises the following issues in her Statement of Questions Involved

in her brief:

         1. Did the Trial Court err by failing to properly determine the
            amount of arrearages owed?

         2. Did the Trial Court err in failing to require Husband to
            make adequate payments on the arrearages owed?

         3. Did the Trial Court err by failing to impose adequate purge
            conditions and sanctions upon Husband for his
            contemptuous conduct in failing to make requisite alimony
            payments?

         4. Did the Trial Court err by failing to enforce Paragraph 7 of
            the February 26, 2010 Consent Order providing that
            alimony would be $6,000.00 per month and/or in finding
            that the provisions of Paragraph 7 were unenforceable
            and/or overly punitive under the circumstances?

         5. Did the Trial Court err by failing to enforce the provisions
            of the February 26, 2010 Consent Order regarding
            Husband’s obligation to pay all premiums necessary to
            maintain Wife as beneficiary on life insurance in the
            amount of $200,000.00 until such time as he fully retires?

         6. Did the Trial Court err in failing to require Husband to
            compensate the Wife for his failure to maintain the
            requisite life insurance, including but not limited to by
            contributing to and/or establishing a fund for Wife to be
            distributed to her at the time of Husband’s death?

         7. Did the Trial Court err by failing to require Defendant to
            fulfill his obligations regarding life insurance under the
            February 26, 2010 Consent Order as a result of Wife’s
            failure to send him notification that the premiums were
            due under the circumstances and especially since the

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                 February 26, 2010 Consent Order did not provide that Wife
                 was required to send any notification to Husband and his
                 obligation to maintain the life insurance was not
                 conditioned in any way on Wife providing him with notice
                 that the premiums were due?

               8. Did the Trial Court err in failing to find Husband in
                  contempt with regard to Paragraph 4 of the February 26,
                  2010 Consent Order and/or in failing to enforce Paragraph
                  4 of the Consent Order which required Husband to
                  continue to pay all premiums necessary to maintain Wife
                  as beneficiary on life insurance in an amount of $200,000?

               9. Did the Trial Court err in failing to award Wife all and/or
                  adequate counsel fees she incurred with regard to these
                  proceedings in accordance with the provisions of the
                  February 26, 2010 Consent Order and/or as a sanction for
                  Husband’s contempt and/or bad faith conduct?

          10. Did the Trial Court err by failing to adequately enforce the
              provisions of the February 26, 2010 Consent Order?

Wife’s Brief at 2–4.

         In his cross-appeal, Husband raises the following two issues in his

brief:

          I.     Whether the trial court erred in finding Husband in
                 contempt regarding the payment of monthly alimony, and
                 in requiring Husband to make two lump sum payments on
                 arrearages in the amount of $20,000 each.

         II.     Whether the trial court erred in awarding Wife counsel
                 fees.

Husband’s Brief at 38.

         The trial court described the Consent Order dated February 26, 2010,

and filed on March 1, 2010, as “prepared by the parties in full settlement of




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dueling Petitions for Modification of Alimony.” Trial Court Opinion, 10/26/17,

at 3. That order provided:

            AND NOW, to wit, this 26th day of February, 2010, upon
       consent of both parties, it is hereby ORDERED, ADJUDGED and
       DECREED:

             1. Effective January 1, 2010, [Husband] shall pay alimony
       to [Wife] in the amount of $5,500.00 per month until such time
       as he fully retires and is no longer working at all. Payments are
       due on or before the first day of every month beginning with
       March, 2010. The first payment is due on March 1, 2010.
       Pursuant to the PACSES[1] system, a payment shall not be
       overdue as long as it is paid by the end of the month.

             2. The alimony payments provided for herein shall not be
       subject to modification for any reason including but not limited
       to any changes in circumstances of any kind for a period of two
       years from the date of this Order.

            3. [Husband] shall pay $20,000.00 to [Wife’s] counsel for
       counsel fees in monthly installments of $500.00 per month
       beginning on January 1, 2011. All counsel fee payments shall be
       made on or before the 1st day of every month, beginning with
       January 1, 2011.     If [Husband] becomes more than three
       months behind in his counsel fee payments, the total amount of
____________________________________________


1 Pennsylvania Automated Child Support Enforcement System (“PACSES”) is
a computer program used by the domestic relations office, “which exists
pursuant to Title IV–D of the Social Security Act, 42 U.S.C. §§ 651–69b, is
certified by the Child Support Enforcement Office of the U.S. Department of
Health and Human Services, and is implemented by state law.” Tauro v.
Dep’t of Pub. Welfare, 384 C.D. 2009, 2009 WL 9102314, at *2 (Pa.
Cmwlth., filed October 13, 2009) (unpublished memorandum); Moser v.
Renninger, 116 A.3d 1107, 1114 and 1114 n.3 (Pa. Super. 2015). Because
PACSES is electronically linked to a variety of governmental and private
agencies and institutions, it is able “to immediately locate and identify an
obligor’s income, income sources and assets.”            Pa.R.C.P. 1910.19,
Explanatory Comment—2000. “[I]dentification through these automated
methods provides a basis for modifying both the current support obligation
and the rate of repayment on either past due or overdue support.” Id.



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     counsel fees shall be increased to $30,000.00 to be paid at the
     rate of $1,000.00 per month thereafter.

            4. [Husband] shall continue to pay all premiums necessary
     to maintain [Wife] as beneficiary on life insurance in an amount
     of $200,000.00 as required by prior Court Order of 2003 until
     such time as he fully retires. [Husband] shall transfer ownership
     of this policy to [Wife] within 15 days of the date of this Order.
     In entering into this Order, [Husband] authorizes [Wife] to
     contact the insurance agent and/or company in order to
     determine if the requisite insurance is in effect. Once the policy
     is transferred to [Wife], copies of all statements and premium
     notices shall be mailed to [Wife] and bills for premiums mailed to
     [Husband].

           5. The above provisions are in full settlement of both
     parties’ Petitions for Modification of Alimony.

           6. [Husband] shall at least continue to be responsible for
     all of [the parties’ son’s] medical expenses. [Wife] will not
     proceed on her Petition for Enforcement of an Agreement
     regarding [their son’s] expenses at this time but reserves the
     right to reschedule a hearing on that Petition. The hearing
     scheduled on that Petition for Enforcement on March 1 and 2,
     2010 is hereby continued generally. [Wife] may reschedule the
     hearing on that Petition by Praecipe.

            7. The alimony amount is conditioned upon [Husband’s]
     timely compliance with all the provisions of this Order. If
     [Husband] fails to make payments provided for herein on time,
     including but not limited to any premium payment to maintain
     the life insurance as provided in ¶ 4, and/or fails to bring all
     alimony payments due current by the end of each year, the
     amount of alimony will be $6,000.00 per month instead of
     $5,500.00. In such event, the $6,000.00 per month alimony
     payment shall be retroactive to January 1, 2010 regardless when
     [Husband’s] failure to make any such payments on time shall
     occur. Payments on arrearages shall be $500.00 per month.
     Arrearages and/or over payment are set at 0.00 as of December
     31, 2009.

           8. The provisions of ¶ 7 above shall not be interpreted to
     provide [Husband] with an excuse for failing to comply with the
     terms of this Order and are not in lieu of [Wife’s] other remedies

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      for enforcement of the provisions of this Order. It is understood
      and agreed that in the event of [Husband’s] failure to comply
      with any of the provisions of this Order, [Wife] shall have all
      enforcement remedies available as provided in Pennsylvania law,
      including but not limited to proceedings for contempt, counsel
      fees, incarceration and/or any other sanctions the [c]ourt deems
      appropriate.

             9. If [Husband] fails to comply with any of the provisions
      of this Order, he will be responsible for all counsel fees and costs
      [Wife] incurs in seeking to obtain his compliance.

            10. The parties will execute a modified PACSES order[]
      containing the above provisions.

           11. The hearing scheduled for March 10, 2010 is hereby
      cancelled.

Consent Order, 3/1/10, at 1–3.

      Appellate review of a contempt order is limited to determining whether

the trial court abused its discretion. Bold v. Bold, 939 A.2d 892, 894–895

(Pa. Super. 2007). “If a trial court, in reaching its conclusion, overrides or

misapplies the law or exercises judgment which is manifestly unreasonable,

or reaches a conclusion that is the result of partiality, prejudice, bias or ill

will as shown by the evidence of record, then discretion is abused.” N.A.M.

v. M.P.W., 168 A.3d 256, 261 (Pa. Super. 2017) (quoting Gates v. Gates,

967 A.2d 1024, 1028 (Pa. Super. 2009)). However, “[t]his Court must place

great reliance on the sound discretion of the trial judge when reviewing an

order of contempt.” P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa. Super. 2012)

(citation omitted). “To sustain a finding of civil contempt, the complainant

must prove, by a preponderance of the evidence, that: (1) the contemnor


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had notice of the specific order or decree which he is alleged to have

disobeyed; (2) the act constituting the contemnor’s violation was volitional;

and (3) the contemnor acted with wrongful intent.”          MacDougall v.

MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012) (citing Lachat v.

Hinchcliffe, 769 A.2d 481, 489 (Pa. Super. 2001)).

     Initially, we note that Wife failed to comply with the briefing

requirements of our Rules of Appellate Procedure. As provided in Pa.R.A.P.

2101, appellate briefs “shall conform in all material respects with the

requirements of these rules,” and failure to do so may result in the brief

being quashed or dismissed.     Id.   Issues are waived when they are not

addressed in conformance with the rules.        Moses Taylor Hospital v.

White, 799 A.2d 802, 804 (Pa. Super. 2002) (citing Korn v. Epstein and

DeSimone Reporting Group, 727 A.2d 1130, 1135 (Pa. Super. 1999));

Hrinkevich v. Hrinkevich, 676 A.2d 237, 241 (Pa. Super. 1996).

     Most egregiously, Wife does not provide argument individually for each

issue she has set forth in her Statement of Questions Involved, pursuant to

Pa.R.A.P. 2116. Pa.R.A.P. 2119 provides, in pertinent part, as follows:

     The argument shall be divided into as many parts as there are
     questions to be argued; and shall have at the head of each
     part—in distinctive type or in type distinctively displayed—the
     particular point treated therein, followed by such discussion and
     citation of authorities as are deemed pertinent.




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Pa.R.A.P. 2119(a). Wife’s organization of her arguments, in that the claims

do not correspond with the issues presented, hampers our review.

Nevertheless, we address the issues that are raised.

      We have discerned that Wife, rather than presenting argument on the

ten questions listed in the Statement of Questions Involved, instead asserts

three basic claims that may be viewed as groupings of the issues. All three

groups have at their base the premise that the trial court failed to enforce

the Consent Order.     First, she asserts that the alimony arrearages were

improperly calculated, and the trial court failed to enforce Paragraph 7 of the

Consent Order. Second, Wife contends the trial court erred when it failed to

enforce the provisions requiring Husband to maintain the life insurance

policy as provided in Paragraph 4 of the Consent Order. Third, Wife avers

that the trial court erred in refusing to order Husband’s payment of all of

Wife’s counsel fees as provided in Paragraph 3 of the Consent Order.

      Wife first asserts that the trial court “ignored th[e] evidence and

declined to find Husband in contempt.”      Wife’s Brief at 11.   She further

argues that the trial court erred in failing to enforce the express terms of

Paragraph 7 of the Consent Order wherein Husband’s monthly alimony

payment was to have increased from $5,500 per month to $6,000 per

month, retroactive to 2010, in the event of his noncompliance with the

order.   Wife’s Brief at 8, 10; Consent Order at ¶ 7.     Wife maintains that

Husband was living a successful attorney’s “high life” while failing to pay


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alimony. Wife’s Brief at 10. Wife suggests that the trial court, in construing

the Consent Order as a contract, erred in determining that Paragraph 7 was

a penalty clause and therefore, was unenforceable. Rather, Wife contends

the trial court “should have seen the required increase set forth in Paragraph

7 of the Consent Order as an enforceable provision to compel Husband to

pay off his mounting arrears.” Id. at 18. Wife’s theory is as follows:

            In this case, Husband has been in arrears, in varying
      amounts, since 2013. [The] parties do not dispute that his
      current arrears in terms of his base alimony obligations amount
      to $23,000. Per the terms of the Consent Order, Husband’s
      yearly alimony obligation ($5,500 x 12 months) is $66,000.
      Husband’s current base arrearages are 35% of his annual
      obligation. He has offered no evidence that the increase in his
      support obligation per Paragraph 7 of the Consent Order from
      $5,500.00 per month to $6,000.00 per month is disproportionate
      to the size of his current arrearages. Therefore, because there is
      no evidence that the increase in his monthly obligation is
      disproportionate compared to what he currently owes, this Court
      must conclude that the Trial Court erred in holding that
      Paragraph 7 is an unenforceable penalty.

Wife’s Brief at 19 (footnote and internal citations to the record omitted)

(citing Palmieri v. Partridge, 853 A.2d 1076, 1081 (Pa. Super. 2004)).

      Husband agrees with the trial court that Paragraph 7 of the Consent

Order is an unenforceable penalty clause.       Husband’s Brief at 14.     He

maintains that the clause has no relation to damages, “it is simply a

punishment.” Id. at 17. He suggests that Paragraph 7 “improperly fixes, in

advance, damages to Wife for any breach, without relation to a reasonable

forecast of just compensation and despite the fact that the harm is capable

of quick and accurate estimation.” Id. at 25 (emphasis in original).

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      The Hearing Officer determined, and the trial court agreed, that

Husband had the ability to pay alimony, and his nonpayment was willful.

Contrary to Wife’s claim, the trial court indeed found Husband in contempt of

court regarding his monthly alimony obligation.    Order, 12/27/16; Order,

7/10/17.    The trial court did hold, however, that Husband was not in

contempt due to noncompliance with Paragraph 7, and it refused to impose

the $500 alimony increase per month, retroactive to 2010.        Trial Court

Opinion, 10/26/17, at 5.    In this regard, the trial court agreed with the

Hearing Officer that the alimony increase of $500 per month, retroactive to

February 26, 2010, was a penalty, or liquidated-damages provision, and

therefore, it was unenforceable. Order, 12/27/16; Order, 7/10/17.

      We agree with the trial court’s explanation, which is supported by the

record, as follows:

      There is no dispute regarding Husband’s failure to make his
      alimony payments on time. Husband fell behind the first year
      and remained behind through the date of the hearing. From
      2010 through 2015, Husband was not far enough behind to
      justify Wife pursuing the matter. Wife took no action to compel
      alimony payments until the arrears were over $20,000. At the
      time of the hearing, arrears were $23,000. Husband contends
      that he did not have the financial ability to make the payments,
      and cannot be held in contempt. Husband introduced evidence
      of his decreasing income, outstanding tax obligations, and other
      debts. The Hearing Officer found that Husband had the ability to
      pay, and that his failure to pay was willful. In 2016, he had
      gross receipts of $280,000.00. This was in line with previous
      years. . . . That same year, he took a two-week trip to Italy, he
      leased a new apartment, leased a new Mercedes Coup, and
      made numerous trips to Florida. He belongs to a country club,
      and eats dinner out four nights per week. The [c]ourt agreed
      that Husband had the ability to make his alimony payments and

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     that his failure to comply with the Consent Order was willful.
     The Hearing Officer recommended that he purge by paying in full
     and on time going forward. No additional purge conditions were
     imposed.

            Wife seeks to impose the penalty provisions of Paragraph
     seven which require[] Husband to pay $6000 per month
     retroactive to February 26, 2010 if [he] fails to make any
     payment on time. Wife sought additional arrears of $41,500, or
     $500 per month for the six years and eleven months since the
     [filing of the] Consent Order. The Hearing Officer found that the
     provision increasing the alimony payment by $500 per month
     back to February 26, 2010 was a penalty, or liquidated damages
     provision, and unenforceable. The [c]ourt agrees. A Consent
     Order is a contract and must be construed as such. It is not a
     legal determination by the [c]ourt of the matters in controversy.
     It is merely an agreement between the parties. Laird v. The
     Clearfield & Maiming Railway Company, 846 A.2d 118 (Pa.
     Super. 2004); Lower Frederick Twp. v Clemmer. 543 A.2d 502,
     510 (Pa. 1988). For a penalty provision in a contract to be valid
     and enforceable, the provision must be a reasonable forecast of
     the possible harm to the non-breaching party.         Palmieri v.
     Partridge, 853 A.2d 1076, 1080 (Pa. Super. 2004).           Here,
     Husband was only in arrears a few thousand dollars between
     2010 and 2015. Wife made no effort to enforce the Consent
     Order or seek sanctions. According to Wife, this was not enough
     money worth fighting over in [c]ourt. The [c]ourt finds that the
     provision is not a reasonable forecast of harm to Wife, but was
     meant to punish Husband for failing to make timely payments.
     As such, it is tantamount to a penalty and not enforceable.

Trial Court Opinion, 10/26/17, at 4–5.

     In reaching this conclusion, we reject Wife’s contention that the trial

court’s construction of the Consent Order “as if it were a contract” resulted

from “flawed” reasoning.   Wife’s Brief at 11–12.   In VanKirk v. Vankirk,

485 A.2d 1194 (Pa. Super. 1984), the parties agreed to the husband’s

payment of alimony, and the agreement was encompassed in a consent

order.   Id. at 504.   When the husband ceased making payments and the

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wife sought enforcement, this Court noted that the agreement for the

payment of alimony, which was not the result of an alimony award but

rather, was the result of the parties’ agreement, was to be enforced “in

accordance with the same rules of law applying to determining the validity of

contracts generally.” Id. at 505.

      We similarly reject Wife’s contention that Palmieri, 853 A.2d at 1081,

compels the conclusion that the trial court “erred in holding that Paragraph 7

is an unenforceable penalty.”    Wife’s Brief at 19.   First, in Palmieri, the

damages at issue resulted from a home-buyer’s breach of a sales agreement

and were comprised of the cost due to the sellers for the time the property

was not on the market and the lesser sales price they later had to accept.

Here, Wife seeks “damages” of an extra $40,000 that Husband did not

“cause.” According to the Consent Order, any failure to pay by Husband is

not tied to compensation for Wife, but to a punishment.

      Second, as the trial court held, for a penalty provision in a contract to

be enforceable, the provision must be a “reasonable forecast of the possible

harm to the non-breaching party.”      Trial Court Opinion, 10/26/17, at 5.

Paragraph 7 fixes, in advance, damages to Wife for any breach, without

relation to a reasonable forecast of the possible harm to Wife. The record

reflects that at the end of 2013, Husband was in arrears $2,130; at the end

of 2014, arrearages totaled $6,890.          N.T., 11/30/16, at 85–86.    Wife

allegedly made no effort to enforce the Consent Order or seek sanctions


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because she allegedly concluded it was not enough money worth fighting

over in [c]ourt. Id. at 85. We agree that the provision is not a reasonable

forecast of harm to Wife, but was meant to punish Husband for failing to

make timely payments.     As such, it is tantamount to a penalty and not

enforceable.

     As our Supreme Court has explained:

            Liquidated damages is a term of art originally derived from
     contract law; it denotes the sum a party to a contract agrees to
     pay if he breaks some promise, and which, having been arrived
     at by a good faith effort to estimate in advance the actual
     damage that will probably ensue from the breach, is legally
     recoverable...if the breach occurs. A penalty, by contrast, is
     fixed, not as a pre-estimate of probable actual damages,
     but as a punishment, the threat of which is designed to
     prevent the breach.          Thus, contracting parties may
     provide for pre-determined liquidated damages in the
     event one party fails to perform, particularly in
     circumstances where actual damages would be difficult to
     estimate in advance or to prove after a breach occurs.
     See...Restatement (Second) of Contracts, § 356(1) (“Damages
     for breach by either party may be liquidated in the agreement
     but only at an amount that is reasonable in the light of the
     anticipated or actual loss caused by the breach and the
     difficulties of proof of loss; a term fixing unreasonably large
     liquidated damages is unenforceable on grounds of public policy
     as a penalty.”).

     . . . [W]e have indicated that liquidated damages in actions in
     contractu may be awarded only in cases where the amount is
     reasonable and there is a difficulty in assessing the harm that
     would be caused by a breach. This position reflects the public
     policy of this Commonwealth favoring reasonableness in
     contractual stipulations generally. See...Kunkle v. Wherry,
     189 Pa. 198, 201, 42 A. 112 (1899) (observing that one basis
     for the unenforceability of contractual penalties is that a party
     should not be allowed to profit from the other’s default).




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Pantuso Motors, Inc. v. Corestates Bank, N.A., 798 A.2d 1277, 1282–

1283 (2002) (citations omitted) (emphasis added).

      In Geisinger Clinic v. Di Cuccio, 606 A.2d 509 (Pa. Super. 1992),

this Court affirmed the trial court’s decision to uphold a liquidated damages

clause in the face of Mr. Di Cuccio’s challenge that it constituted an invalid,

unenforceable penalty clause. Di Cuccio had entered a contract containing

the clause in question when he sold his business to Geisinger and went to

work for that entity.   Therein, we observed, “Early in the history of our

[C]ourt, we delineated the four criteria to differentiate a liquidated damages

provision from a penalty or forfeiture term . . . .” Id. at 516. Those four

benchmarks include:

         1. “When, independently of the stipulation, the damages
            would be wholly uncertain and incapable or very difficult of
            being ascertained, except by mere conjecture, then the
            damages will usually be considered liquidated:”

         2. “Where a party binds himself in a sum named not to carry
            on any particular trade, business or profession, within
            certain limits or within a specified period of time, the sum
            named will be regarded as liquidated damages and not as
            a penalty:”

         3. “A sum fixed as security for the performance of a contract
            containing a number of stipulations of widely different
            importance, breaches of some of which are capable of
            accurate valuation, for any of which the stipulated sum is
            an excessive compensation, is a penalty.”

         4. “When the covenant is for the performance of a single act
            or several acts, or the abstaining from doing some
            particular act or acts, which are not measurable by any
            exact pecuniary standard, and it is agreed that the party
            covenanting shall pay a stipulated sum as damages for a

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               violation of any of such covenants, that sum is to be
               deemed liquidated damages and not a penalty.”

Id. at 516 (quoting Stover v. Spielman, 1 Pa. Super. 526, 530–531

(1896)).2

       We have no hesitation in concluding, as did the Hearing Officer and the

trial court, that Paragraph 7, by its express terms, is a punishment clause.

The retroactive increase has no relation to a calculation of damages or any

actual loss.     The same penalty, retroactive payment of $500 per month,

applies to “a number of stipulations of widely different importance,”

Geisinger, 606 A.2d at 516, i.e., failure to pay the insurance premium,

failure to pay alimony, or to fall short by any amount before year’s end.

Indeed, Paragraph 7 is conditioned “upon [Husband’s] timely compliance

“with all the provisions” of the agreement. Consent Order, 3/1/10, at ¶ 7

(emphasis added).

       As we stated in Holt’s Cigar Co. v. 222 Liberty Associates, 591

A.2d 743 (Pa. Super. 1991):

       Nearly a century ago our [S]upreme [C]ourt quite aptly
       articulated the policy against the enforcement of penalties in
       actions ex contractu:

               Where the breach of agreement admits of
               compensation, the recovery may be limited to the
               loss actually sustained, notwithstanding a stipulation
               for a penalty. This rule is founded upon the principle
____________________________________________


2 Because Geisinger involved a covenant-not-to-compete clause, not all of
the above criteria are relevant to this case.



                                          - 16 -
J-A06022-18


           that one party should not be allowed to profit by the
           default of the other, and that compensation and not
           forfeiture is the equitable rule.

Id. at 747. In Holt’s Cigar, an action for damages and injunctive relief due

to breach of a commercial lease, the trial court imposed an award based on

an agreed-upon liquidated-damages provision that provided for a payment

of $500.00 per day when the tenant was unable to conduct business due to

the defendant’s construction activities. The issue on appeal was whether the

liquidated-damages provision was compensation or a penalty. We held that

     [t]he question [of whether stipulation is a penalty or a valid
     liquidated-damages provision]...is to be determined by the
     intention of the parties, drawn from the words of the whole
     contract, examined in the light of its subject-matter and its
     surroundings; and in this examination we must consider the
     relation which the sum stipulated bears to the extent of the
     injury which may be caused by the several breaches provided
     against, the ease or difficulty of measuring a breach in damages,
     and such other matters as are legally or necessarily inherent in
     the transaction.

Id. at 747–748. Based on testimony in the record, we concluded that the

fixed sum bore no reasonable relation to anticipated or probable damages but

was a penalty to discourage delay.       Since the award did not represent

compensation for damages sustained, we reversed and vacated it.          Id. at

749. Thus, for all of the above reasons, we agree with the trial court that

Paragraph 7 of the Consent Order is a punishment and therefore, it properly

concluded the provision is not enforceable.

     Wife’s next issue relates to Husband’s failure to maintain a life

insurance policy in the amount of $200,000.00 naming Wife as beneficiary,

                                    - 17 -
J-A06022-18


as allegedly required by a 2003 court order and as described in Paragraph 4

of the Consent Order. Wife explains in her brief:

       The MetLife Insurance policy in question had been in effect since
       the 1990s and the premiums were always the same amount
       ($810.00) and always due in January and June each year. (Tr.
       at 21-23, R.R. at 85a -87a. Husband failed to pay the premiums
       on this policy and, as a result, the policy lapsed in 2013. Tr. at
       30, R.R. at 94a. See also Jan. 26, 2016 Letter from [Wife’s
       counsel] to [Husband], Exh. G, R.R. at 231a (“I met with Wife on
       Friday because she informed me that you have allowed your Met
       Life Insurance policy to lapse...according to Wife, it lapsed in
       October of 2013”).

Wife’s Brief at 20.

       Husband testified that he is not insurable due to his health, N.T.,

11/30/16, at 79, but Wife maintains that fact was not established in the

record. Wife’s Brief at 23 (citing N.T., 11/30/16, at 79–81). Wife avers that

Husband’s testimony was merely self-serving, and the trial court’s reliance

on it was error. Wife’s Brief at 24.3

       This issue involves Paragraph 4 of the Consent Order, which provides:

       4. [Husband] shall continue to pay all premiums necessary to
       maintain [Wife] as beneficiary on life insurance in an amount of
       $200,000.00 as required by prior Court Order of 2003 until such
       time as be fully retires. [Husband] shall transfer ownership of
       this policy to [Wife] within 15 days of the date of this Order. In
       entering into this Order, [Husband] authorizes [Wife] to contact
       the insurance agent and/or company in order to determine if the
       requisite insurance is in effect. Once the policy is transferred to
       [Wife], copies of all statements and premium notices shall be
       mailed to [Wife] and bills for premiums mailed to [Husband].
____________________________________________


3 Wife’s cited support for her claim is a case that has been withdrawn and is
awaiting reargument before the Court en banc.



                                          - 18 -
J-A06022-18



Consent Order, 3/1/10, at 2.

     Wife asserts that her mailing of the bills to Husband was not a

condition precedent to Husband’s payment of the premiums. Wife’s Brief at

21. She suggests Husband could have requested the premium notices to be

mailed to him directly, but he failed to do so.   Id.    Indeed, Paragraph 4

states such bills are to be mailed to Husband, but it is unclear whether it

was Wife’s responsibility or an arrangement Husband was to make with the

insurance company. Wife maintains that even if Husband is not insurable, a

fact she contends is not proven in the record, his obligation pursuant to the

Consent Order is not extinguished. Wife’s Brief at 24.

     Husband agrees with the trial court that Wife was required to send the

bills, and then Husband was to make payment.         Husband’s Brief at 29.

Thus, he asserts Wife’s action was a condition precedent to his performance.

Id. at 30–31. Husband points out that the insurance policy lapsed in 2013,

but Wife did not address the issue until 2016. Id. at 31. Husband further

avers that the trial court had no basis to overturn the Hearing Officer’s

credibility determination on this issue. Id. at 33. In this regard, the trial

court stated:

           Husband transferred ownership of the policy to Wife and
     paid the premiums for all bills she mailed to him. From time to
     time, Wife failed to send Husband the bills and he did not pay
     them. Each time, Husband paid the bills late and the insurance
     company accepted the late payments. Husband complained to
     Wife that she needed to send him the bills when she received
     them. Husband testified that he did not independently keep

                                   - 19 -
J-A06022-18


      track of when the premiums were due. He relied on Wife to send
      him the bills. Her obligation was to send him the bills, and his
      obligation was to pay those bills. Wife again failed to send
      Husband bills and the policy lapsed for non-payment of premium
      in October of 2013. Husband sent in the late payment and
      sought to have the policy reinstated. The insurance company
      returned his late premium and refused to reinstate the policy.
      The insurance company claimed that Husband was no longer
      insurable based on his age and health.

            Wife contends that her failure to send him the bills was
      immaterial as Husband was well aware what the premium was,
      and when it was due. Wife admits that Husband is no longer
      able to obtain the previous coverage at his current age and
      health. Wife asks that he be required to pay $5000 per month
      into an escrow account to be held for Wife’s benefit to
      compensate for his failure to maintain the policy.

Trial Court Opinion, 10/26/17, at 5–6. Thus, the trial court agreed with the

Hearing Officer that Husband was not in contempt for the lapse of the

insurance policy.

      We note that while Wife asserted in the contempt petition the same

phrase included in Paragraph 4 of the Consent Order, that a 2003 order

required the maintenance of life insurance, Wife has not identified such

order for our review, nor have we discovered any such order in the certified

record.   The provision at the end of the Paragraph 4, “Once the policy is

transferred to [Wife], . . . bills for premiums [shall be] mailed to [Husband],”

does not clearly identify whether Wife was required to mail the invoices to

Husband or whether the bills were to be mailed directly to Husband from the

insurance company. However, the testimony before the Hearing Officer was

that Wife owned the life insurance policy and Husband had “no access to


                                     - 20 -
J-A06022-18


information relating to the policy . . . .” N.T., 11/30/16, at 30, 47. Husband

testified on cross-examination, “I had no access to the bills and [Wife] failed

to turn them over in a timely fashion.       By the time I got them, we were

already past the period, so a number of times I had to come up with a

premium which reinstated the policy.” Id. at 49.

      The Hearing Officer, looking at the language of Paragraph 4, noted

that it provided that bills for premiums “shall be mailed” to Husband, and

she asked Husband whether bills were mailed to him, assumedly from the

insurance company, and Husband responded, “Never.” Id. at 53. Husband

again offered unrebutted testimony that in 2013, when he last attempted to

reinstate the policy, he “was told it was cancelled because [he was] no

longer insurable. That’s why the premium was returned.” Id. at 52.

      As previously noted, the trial court found, from this testimony before

the Hearing Officer, that it was Wife’s obligation to send Husband the bills,

and it was Husband’s obligation to pay the bills.        Trial Court Opinion,

10/26/17, at 5–6. The trial court relied upon the Hearing Officer’s credibility

determination, as follows:

             The Hearing Officer found that Husband was credible, that
      he did not let the policy lapse intentionally. In determining
      issues of credibility, the Master’s findings must be given the
      fullest consideration because it was the Master who observed
      and heard the testimony and demeanor of the various witnesses.
      Rothrock v. Rothrock, 765 A.2d 400 (Pa. Super. 2000). Based
      on the credibility determination of the Hearing Officer, the
      [c]ourt found that Husband was not in contempt of Paragraph 4
      of the Consent Order.


                                    - 21 -
J-A06022-18


Trial Court Opinion, 10/26/17, at 6.

      Similarly, this Court defers credibility determinations. As we stated:

      [I]t is within the province of the trial court to weigh the evidence
      and decide credibility and this Court will not reverse those
      determinations so long as they are supported by the evidence.
      Sternlicht v. Sternlicht, 822 A.2d 732, 742 (Pa. Super.2003),
      aff’d, 583 Pa. 149, 876 A.2d 904 (2005). We are also aware
      that “a master’s report and recommendation, although only
      advisory, is to be given the fullest consideration, particularly on
      the question of credibility of witnesses, because the master has
      the opportunity to observe and assess the behavior and
      demeanor of the parties.” Moran v. Moran, 839 A.2d 1091,
      1095 (Pa. Super. 2003) (citing Simeone v. Simeone, 380 Pa.
      Super. 37, 551 A.2d 219, 225 (1988), aff’d, 525 Pa. 392, 581
      A.2d 162 (1990)).

Childress v. Bogosian, 12 A.3d 448, 455–456 (Pa. Super. 2011). Because

the   evidence   of   record   supports     the   Hearing   Officer’s   credibility

determinations, N.T., 11/30/16, at 30–32, 48–53, as upheld by the trial

court, we conclude that the trial court properly found that Husband was not

in contempt of Paragraph 4 of the Consent Order. Harcar v. Harcar, 982

A.2d 1230, 1236 (Pa. Super. 2009) (This Court defers to the credibility

determinations of the lower court with regard to the witnesses who appeared

before it, as that court has had the opportunity to observe their demeanor).

      Wife’s final issue relates to Paragraph 9 of the Consent Order and

assails the trial court’s award to Wife of counsel fees in the amount of

$3,000, the amount awarded by the Hearing Officer. Wife points out that

Paragraph 9 of the Consent Order states, “If [Husband] fails to comply with

any of the provisions of this Order, he will be responsible for all counsel fees


                                       - 22 -
J-A06022-18


and costs [Wife] incurs in seeking to obtain his compliance.” Wife’s Brief at

27.

      At the November 30, 2016 hearing, Wife established that from January

of 2016 until November of 2016, Wife incurred $8,634.50 in legal fees

relevant to her pursuit of her contempt petition. N.T., 11/30/16, at 22–24,

Exhibit 4. Husband responds that the fees were unreasonable and inflated,

and he maintains he should not pay any fees.        Husband’s Brief at 35–37,

58–59.   We also consider Husband’s argument in his cross-appeal on this

issue, as it is relevant here.   Husband argues that it was unreasonable to

award Wife counsel fees when Husband was not held in contempt as to the

life insurance, and was unable to comply with the alimony provision of the

Consent Order. He suggests such an award merely makes it more difficult

for Husband to meet his alimony obligations in the first instance. Husband’s

Brief at 58.

      We rely on the trial court’s explanation in affirming the imposition of

$3,000 in attorney’s fees in favor of Wife, as follows:

            Paragraph nine of the Consent Order provides that “If
      [Husband] fails to comply with any of the provisions of this
      Order, he will be responsible for all counsel fees and costs [Wife]
      incurs in seeking to obtain his compliance.” Wife claims to have
      incurred in excess of $10,000 in counsel fees for the contempt
      proceeding, an amount which is reasonable. Husband argued
      that the fees requested were either not incurred as a result of
      the issue for which he was held in contempt, and were not
      reasonable for a simple, straight forward contempt hearing. The
      Hearing Officer awarded Wife $3000, noting that this was
      approximately one-third of her request.         As Wife was only
      successful in establishing that Husband failed to comply with one

                                     - 23 -
J-A06022-18


       of the provisions of the [Consent] Order, the [c]ourt found no
       reason to overturn the recommendation of the Hearing Officer.

Trial Court Opinion, 10/26/17, at 6–7.

       We find this explanation reasonable.        We have determined that the

trial court correctly resolved the issues before it; thus, Wife remains

successful in establishing Husband’s noncompliance with only one provision

of the Consent Order. We have affirmed the unenforceability of Paragraph

7, supra. An award of counsel fees is within the discretion of the trial court,

and we may reverse only upon a finding of abuse of that discretion. Marra

v. Marra, 831 A.2d 1183, 1188 (Pa. Super. 2003).           We find no abuse of

discretion on this issue.

       We turn to Husband’s cross-appeal. Husband maintains the trial court

erred in finding Husband in contempt regarding the payment of monthly

alimony, and in requiring Husband to make two lump sum payments on

arrearages in the amount of $20,000 each.4          Second, as noted above, he

assails the award of counsel fees to Wife.         We have determined that the

award of counsel fees was proper, as was the trial court’s determination that

Husband was in contempt of the Consent Order for nonpayment of alimony.

       In a further attempt to support why he should not be held in contempt

for nonpayment of alimony, Husband suggests that the court erred in

____________________________________________


4  Husband offers no citation to case law in support of his two-paragraph
claim regarding the lump-sum payments. Husband’s Brief at 56–57.



                                          - 24 -
J-A06022-18


crediting the fact that some months Husband can meet expenses and some

months he cannot do so. Husband’s Brief at 51. The whole of this argument

is merely to point out Husband’s allegedly dire financial situation and the

reasons for the choices he makes. Id. at 52. He suggests that because he

is seventy-five years old and has “alimony’s Sword of Damocles hanging

over his head for life, he should be able to enjoy some leisure activities,

such as golf.”      Id. at 54.      This statement supposedly explains why he

belongs to a country club; it has no effect on our conclusion regarding the

propriety of the trial court’s decision to hold Husband in contempt for

nonpayment.

       Therefore, the only issue remaining in this cross-appeal is the

propriety of the order requiring Husband to make two lump-sum payments

of $20,000 each.       At the November 30, 2016 hearing before the Hearing

Officer, testimony and evidence submitted by the parties showed that the

alimony arrearages have fluctuated significantly in recent years. Both Wife

and Husband submitted printouts of PACSES documents detailing Husband’s

alimony payments and the balance of his arrearages.5          Exhibit 3, N.T.,

____________________________________________


5  The exhibits admitted during the November 30, 2016 hearing are not in
the certified record before this Court; they appear only in the Reproduced
Record. We will consider the exhibits. See WMI Grp., Inc. v. Fox, 109
A.3d 740, 744 n.5 (Pa. Super. 2015) (Where the certified record did not
include necessary exhibits but the reproduced record did so, we would
consider the exhibits because they were “part of the reproduced record and
neither party ha[d] disputed their accuracy.”) Herein, Wife’s exhibits were
(Footnote Continued Next Page)


                                          - 25 -
J-A06022-18


11/30/16, at 17–18; R.R. at 181a–195a; Exhibit C, N.T. 11/30/16, at 25–26,

35; R.R. at 214a–223a. At the end of 2014, Husband was $6,890 in arrears,

while on May 2, 2016, Husband was $48,037.95 in arrears. Exhibit C, N.T.,

11/30/16, at 25–26; R.R. 215a, 221a.                During the November 30, 2016

hearing, the parties established that Husband was $23,000 in arrears as of

the day of hearing. N.T., 11/30/16, at 66–67. Wife’s counsel acknowledged

multiple times during the hearing that Husband’s arrearages totaled

$23,000.     Id. at 17–18, 64–69.              The Hearing Officer noted Husband’s

November, 2016 $5,500 payment and confirmed that the arrears stood at

$23,000. Id. at 17.

      Notwithstanding Wife’s counsel’s admission that the arrearages totaled

$23,000 as of the date of the hearing, Wife continued to assert that the

Court should find Husband owed a significantly larger sum to include the

additional amounts contemplated by Paragraph 7 of the Consent Order, for

total arrearages of $64,500. N.T., 11/30/16, at 17–19.6 The Hearing Officer

rejected applicability of Paragraph 7, the trial court agreed, and we have

rejected applicability of the paragraph as well, infra.


(Footnote Continued) _______________________

admitted into evidence, and the Hearing Officer heard and ruled on
objections. N.T., 11/30/16, at 5–24. Similarly, Husband’s exhibits were
admitted into evidence after objections were ruled upon. Id. at 24–35.

6 Counsel’s reference at the hearing to a February 26, 2000 consent order is
an obvious typographical error. N.T., 11/30/16, at 18.



                                         - 26 -
J-A06022-18


      The Hearing Officer, in rejecting enforceability of Paragraph 7 and

holding Husband in contempt for nonpayment of alimony, stated in the

interim order: “The further finding of the court is that [Husband] is in

contempt regarding payment of the monthly support obligation and may

purge by maintaining employment and paying the current obligation as

directed, in full and on a monthly basis.”   Interim Order, 12/27/16, at 1.

The trial court made the order final on July 10, 2017, with the following

alteration:

             AND NOW, to wit, this 10 day of July 2017, Wife having
      filed exceptions to the Recommendation of the Hearing Officer
      dated December 27, 2016, and Husband having filed cross
      exceptions, it is hereby ORDERED, ADJUDGED, AND DECREED as
      follows.

             [Wife’s] exceptions are granted in part. Husband, shall,
      in addition to paying on time and in full each month, shall
      pay two lump sum payments on arrearages on October 1,
      2017 and on February 1, 2018 on the amount of $20,000
      each. All other exceptions and cross exceptions are dismissed
      and with the exception of the above change, the
      Recommendation dated December 27, 2016 shall be entered as
      a final order.

Order, 7/10/17 (emphasis added).

      The trial court, in its opinion, erroneously stated that “[Husband] paid

a total of $2000 to Wife in all of 2016.” Trial Court Opinion, 10/26/17, at 4.

This statement is not supported by the record.     During the November 30,

2016 hearing before the Hearing Officer, both parties submitted PACSES

documents as evidence, showing each monthly charge to Husband, each

alimony payment to Wife, and an updated balance after each transaction.


                                    - 27 -
J-A06022-18


Exhibit C, N.T. 11/30/16, at 25–26, 35; R.R. at 214a-223a.     The PACSES

documents demonstrate Husband made payments in every month of 2016

except October. Id.

     Similarly, Husband submitted Exhibit D, a summary of his gross

receipts from January 2005 to November of 2016 and the amount of alimony

he paid each of those months to Wife. Exhibit D, N.T. 11/30/16, at 26-28,

35; R.R. at 224a.     While introducing Exhibit D into evidence, Husband’s

counsel represented that the exhibit showed Husband paid $9,000 toward

alimony in November 2016, and Wife’s counsel interjected that Wife actually

received $12,000 that month.    N.T., 11/30/16, at 27–28.    Thus, Husband

had made an additional $3,000 payment between the creation of Exhibit D

and the hearing.    Exhibit D reveals that Husband paid Wife $63,016.23 in

alimony in 2016 as of the November 30, 2016 hearing, not including the

additional $3,000 Wife’s counsel stated on the record that Husband had paid

in November. Exhibit D, N.T., 11/30/16, at 26-28; R.R. at 224a. Therefore,

the record demonstrates that as of November 30, 2016, Husband paid over

$66,000 in alimony to Wife.    This is consistent with the amount Husband

asserted he paid in 2016 in his brief, and contradicts the trial court’s

statement that Husband had only paid $2,000 in alimony that year.

     Moreover, despite Husband’s inclusion of an exception challenging the

payment of two lump-sum payments of $20,000 each, the trial court failed

to address the propriety of the payment. The trial court acknowledged in its


                                   - 28 -
J-A06022-18


opinion that arrearages stood at $23,000 at the time of the hearing. Trial

Court Opinion, 10/26/17, at 4.   Thus, the trial court has wholly failed to

explain the order of payment of “two lump sum payments on arrearages” in

“the amount of $20,000 each,” when arrearages were nearly one-half that

amount. We note that the final order appealed required Husband to pay “on

time and in full each month.”    Order, 7/10/17; see also Interim Order,

12/27/16 (“The further finding of the court is that [Husband] is in contempt

regarding payment of the monthly support obligation and may purge by

maintaining employment and paying the current obligation as directed.”).

     The trial court did not provide any analysis of the arrearages nor any

explanation of how it arrived at its conclusion in the July 10, 2017 order.

The record does not support any basis for such an order.      Thus, we are

compelled to conclude that the trial court abused its discretion in ordering

two $20,000 payments on arrears.        See Bold, 939 A.2d at 894–895

(“Judicial discretion requires action in conformity with law on facts and

circumstances before the trial court after hearing and consideration.

Consequently, the court abuses its discretion if, in resolving the issue for

decision, it . . . exercises its discretion in a manner lacking reason.”).

Therefore, we will reverse that portion of the order and remand to the trial

court for imposition of a payment on arrearages that is supported in the

record.




                                   - 29 -
J-A06022-18


     Order reversed regarding payments on arrearages; order affirmed in

all other respects.   Case remanded for proceedings consistent with this

Memorandum. Jurisdiction relinquished.

     P.J.E. Bender joins the Memorandum.

     Judge Strassburger files a Concurring and Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2018




                                  - 30 -
