J-S06003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUZANNE STAHL                                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CHRISTIAN STAHL

                            Appellant                  No. 1304 EDA 2016


                  Appeal from the Order Entered April 12, 2016
                In the Court of Common Pleas of Delaware County
                    Domestic Relations at No(s): 2012-006263


BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                               FILED JULY 14, 2017

       Christian Stahl (“Husband”) appeals pro se from the April 12, 2016

order entered in the Delaware County Court of Common Pleas denying his

amended petition for special relief in the nature of a request to vacate the

divorce decree and strike the property settlement agreement for lack of

disclosure and fraud and ordering that he pay counsel fees. We affirm.

       On August 2, 2002, Husband and Suzanne Stahl (“Wife”) married. On

July 23, 2012, Wife filed a complaint in divorce.1 On January 16, 2015, the


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       *
           Former Justice specially assigned to the Superior Court.
       1
        There have been numerous petitions filed in this matter, both in
divorce and in custody. In this memorandum, we discuss only the petitions
relevant to this appeal.
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parties signed a property settlement agreement.2        On February 17, 2015,

the trial court entered an order of divorce, which incorporated the property

settlement agreement. On November 18, 2015, Husband filed a petition for

special relief in the nature of a request to vacate the property settlement

agreement for lack of disclosure. On December 1, 2015, Wife filed a petition

to strike Husband’s petition for special relief for failure to state a basis upon

which relief can be granted and for failure to plead alleged fraudulent

behavior with specificity and failure to attach party verification.           On

December 18, 2015, Husband filed an amended petition for special relief in

the nature of a request to vacate the divorce decree and strike the property

settlement agreement for lack of disclosure and fraud (“amended petition to

vacate”). In his amended petition to vacate, Husband claimed, in part, that

Wife failed to disclose all marital assets and misrepresented the amount of

funds in a trust account.        On January 27, 2016, Wife filed an answer to

Husband’s amended petition to vacate, in which she requested counsel fees.

       On March 10, 2016 and March 11, 2016, the trial court held a hearing,

which it described as follows:

             A full and fair hearing on the Petition, Amended Petition
           and response thereto was scheduled to occur on March 10,
           2016.    At such time, [Husband] failed to appear as
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       2
        Husband was represented by counsel until January 2015.          On
January 8, 2015, Husband filed an entry of appearance as a self-represented
party and on January 12, 2015, counsel that had been assisting with the
property settlement agreement withdrew his appearance.



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           directed by the Trial Court. Indeed, the Court and [Wife],
           who was present with counsel, waited from 9:00 A.M. until
           11:00 A.M. before learning that [Husband] would not be
           appearing. [Husband’s] counsel,[3] after being contacted
           by Court staff, finally appeared at the March 10, 2016
           hearing and stated that he “thought” the hearing had been
           continued. When questioned as to why he thought this,
           Counsel could offer no reasonable explanation. Indeed,
           Counsel admitted he did not contact chambers or opposing
           counsel to verify or question whether the hearing had been
           continued.     Counsel at that time withdrew the initial
           Petition on the record and requested argument on the
           Amended Petition. (N.T. 3/10/2016, at p. 9). In spite of
           the fact that the allegations ple[]d in the Amended Petition
           were very fact specific and the Trial Court could not accept
           counsel’s mere representations without direct testimony,
           the Trial Court allowed [Husband’s] counsel to attempt to
           make argument. Indeed counsel for [Husband], without
           [Husband] present, could not produce evidence that
           information about various assets were not produced prior
           to [Husband] signing the Property Settlement Agreement.
           (N.T. 3/10/2016, at p. 77).           Although counsel for
           [Husband] represented to the Trial Court that [Husband]
           learned in July of 2015 that the trust amounts disclosed on
           the inventory on the Property Settlement Agreement were
           inaccurate, [Husband] by and through counsel, could
           provide no response to the Trial Court’s questions
           concerning the four (4) month delay in filing of the
           Petition. (N.T. 3/10/2016, at p. 86).

              [Husband’s] argument at the March 10, 2016 hearing
           was centered on an argument about intrinsic fraud relative
           to the Property Settlement Agreement. At the conclusion
           of the March 10, 2016 hearing, the Trial Court scheduled
           another day for the hearing so that [Husband] could be
           present to offer testimony and likewise to allow counsel for
           [Husband] the opportunity to submit case law in support of
           [Husband’s] intrinsic fraud argument. (N.T. 3/10/2016, at
           p. 107). The next hearing date, which occurred on March
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       3
        On May 27, 2016, Husband again filed an entry of appearance as a
self-represented party.



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           11, 2016, [Husband] abandoned his intrinsic fraud
           argument, now taking up an argument for setting aside
           the Property Settlement Agreement and opening the
           Divorce Decree on the grounds of extrinsic fraud. At this
           time, counsel for [Husband] made an oral motion to create
           a constructive trust under Section 3505(d) of the Divorce
           Code. Counsel for [Wife], Mr. Huffman, however, objected
           to the oral motion arguing that his preparation for the
           hearing was centered on [Husband’s] fraud argument. The
           Trial Court, therefore, denied [Husband’s] oral motion, but
           stated on record that [Husband] had the right to file a
           petition under this section, if he felt it was pertinent. (N.T.
           3/10 /2016, at p. 8).

                [Husband’s] new argument at the March 11, 2016
           hearing was an unsubstantiated accusation that extrinsic
           fraud occurred because [Wife] over-litigated the divorce,
           custody and support actions, which caused such an
           economic strain on [Husband] that he was under
           “economic duress” to sign the Property Settlement
           Agreement.      Besides having no basis in law, this
           accusation has no basis in fact. Indeed, a review of the
           docket reveals that there were petitions filed by both
           parties.    As outlined in detail above, a portion of
           [Husband’s] filings have amounted to mere frivolous
           filings. Furthermore, although directed by the Trial Court
           to provide case law, [Husband] failed to do so. The Trial
           Court likewise granted [Husband’s] request to submit a
           Memorandum of Law on the extrinsic fraud issue.
           [Husband’s] Memorandum of Law cites no cases to support
           his proposition and [Wife] spent time and resources
           drafting a response Memorandum. [Wife] attached to the
           response Memorandum an Affidavit attesting under oath
           that the time spent representing [Wife] at the March 10,
           2016 hearing, March 11, 2016 hearing, and responses to
           [Husband’s] pleadings related to the fraud issue cost
           Appellee $6,000.00 in legal fees.

Opinion, 6/27/2016, at 5-7 (“1925(a) Op.”) (unpaginated).4
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       4
       Wife had reiterated her request for counsel fees at the hearing, and
both counsel presented argument on the request. N.T., 3/11/16, 105-120.



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      On April 12, 2016, the trial court denied Husband’s amended petition

to vacate and ordered Husband to pay counsel fees to Wife’s counsel in the

amount of $6,000.

      Husband filed a timely notice of appeal. He raises the following issues:

         I. The honorable trial court abused its discretion in
         awarding [counsel] fees without finding or stating any
         basis for the award.

         II. The honorable trial court abused its discretion in not
         determining the parties ability to pay and the
         reasonableness of the award.

         III. The honorable trial court abused its discretion in not
         first hearing [Husband]’s motion to recuse.

         IV. The honorable trial court abused its discretion in failing
         to create a constructive trust with [Wife’s] assets omitted
         from the Delaware County pre-trial statement inventory
         and appraisement pursuant to Pa.R.C.P. § 1920.33 sua
         sponte pursuant to 23 Pa.C.S. § 3505(d).

         V. The honorable trial court abused its discretion in
         awarding [counsel] fees that were improperly requested in
         divorce.

Husband’s Br. at 6-7.

      In his first, second, and fifth issues, Husband challenges the award of

counsel fees.    Husband maintains the trial court abused its discretion

because it did not base its award of counsel fees on any factual findings, it

did not determine whether Husband was financially able to pay the award,

and the award would have a chilling effect and went against the general

principle that parties are responsible for their own fees.

      Our review of an order awarding counsel fees is:



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           limited solely to determining whether the trial court
           palpably abused its discretion in making a fee award. In
           re Estate of Liscio, 432 Pa.Super. 440, 444, 638 A.2d
           1019, 1021 (1994), appeal denied, 539 Pa. 679, 652 A.2d
           1324 (1994). If the record supports a trial court’s finding
           of fact that a litigant violated the conduct provisions of the
           relevant statute providing for the award of [counsel] fees,
           such award should not be disturbed on appeal. Id.

Berg v. Georgetown Builders, Inc., 822 A.2d 810, 816 (Pa.Super. 2003)

(quoting Thunberg v. Strause, 682 A.2d 295, 299 (Pa. 1996)).

       A party is entitled to reasonable counsel fees where he or she is

awarded fees “as a sanction against another participant for dilatory,

obdurate or vexatious conduct during the pendency of a matter.” 42 Pa.C.S.

§ 2503(7). Our Court has stated:

           Generally speaking, “obdurate” conduct may be defined in
           this context as “stubbornly persistent in wrongdoing.”
           WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 815
           (1987).      Conduct is “dilatory” where the record
           demonstrates that counsel displayed a lack of diligence
           that delayed proceedings unnecessarily and caused
           additional legal work. See Gertz v. Temple Univ., 443
           Pa.Super. 177, 661 A.2d 13, 17 n. 2 (1995).

In re Estate of Burger, 852 A.2d 385, 391 (Pa.Super. 2004).                 The

Pennsylvania Supreme Court has defined “vexatious” for section 2503(9)5

as: “An opponent also can be deemed to have brought suit ‘vexatiously’ if

he filed the suit without sufficient grounds in either law or in fact and if the

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       5
         We have stated that conduct that is “dilatory, obdurate or vexatious”
under section 2503(7) is similar to that which would constitute conduct that
is “arbitrary, vexatious or in bad faith” under section 2503(9). In re Estate
of Burger, 852 A.2d at 391.



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suit served the sole purpose of causing annoyance.” Berg, 822 A.2d at 816

(quoting Thunberg, 682 A.2d at 299).

     Here, the trial court conducted a hearing on the amended petition to

vacate.    At the hearing, the trial court heard testimony from Husband,

including on Husband’s finances. See, e.g., N.T., 3/11/16, 28-37. Further,

the trial court heard argument from both Husband’s counsel and Wife’s

counsel on the motion for counsel fees. Id. at 105-20.

     The trial court found Husband’s conduct was “dilatory, obdurate or

vexatious.” 1925(a) Op. at 7. It reasoned:

              The Trial Court’s decision in this instance is supported
          by ample evidence of record. As outlined in detail above,
          [Husband] blatantly disregarded the Trial Court’s
          instructions to be present at a hearing, which the Trial
          Court specially listed for disposition of [Husband’s] Petition
          and the Amended Petition. After judicial resources and
          [Wife’s] time were wasted awaiting a response with
          respect to whether [Husband] was appearing, [Husband’s]
          counsel attempted to make “legal argument,” which
          amounted to recitation of facts or which counsel had no
          first-hand knowledge. At the conclusion of the March 10,
          2016 hearing, the Trial Court instructed counsel to provide
          case law in support of his argument, which [Husband] then
          failed to provide. Indeed, after a whole day of hearing
          [Husband’s] argument on March 10, 2016, [Husband]
          appeared the very next day, March 11, 2016, abandoning
          his initial argument of intrinsic fraud and spent another
          day of testimony pursuing the theory of extrinsic fraud.
          [Husband’s] new legal theory of “economic duress” as
          extrinsic fraud was not supported by any case law or
          testimony, in spite of the Trial Court providing [Husband]
          additional time to craft a legal memorandum.

             Finding [Husband’s] Amended Petition completely
          without merit and unsupported by law, the Trial Court
          accepted [Wife’s] Affidavit of [Counsel] fees, which counsel

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            provided, requesting fees for approximately nine (9) hours.
            As the bulk of that time was spent in court, litigating this
            matter, the Trial Court had first-hand knowledge of the
            time expended.        The Trial Court therefore accepted
            [Wife’s] Affidavit of [Counsel] fees as reasonable. As for
            [Husband’s] ability to pay the [counsel] fee, testimony was
            presented at the hearing or previous hearings that
            [Husband] earns in excess of $100,000.00 a year.

Id. at 7-8. We conclude this was not an abuse of discretion.

       In his third issue, Husband claims the trial court should have

addressed his motion to recuse before ruling on the amended petition.6

       On March 8, 2016, Husband filed a motion to recuse Judge Cartisano.7

The caption of this motion states “[i]n custody,” rather than “in divorce.”

Judge Cartisano did not rule on it prior to denying the amended petition to

vacate. At the end of the March 11, 2016 hearing, Judge Cartisano and the

parties agreed to re-schedule a hearing in the custody matter because

Husband had filed a notice of appeal in the custody matter, which divested

the trial court of jurisdiction. N.T., 3/11/16, at 120-22. The trial court also

discussed the motion to recuse, which it stated was filed in the custody

matter.     Id. at 122.8    The trial court noted it would set a hearing for the

motion after this Court released the case. Id. Husband did not object. Id.
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       6
         Although we have found no order denying the recusal motion in the
certified record, the parties agree that Judge Cartisano eventually denied the
motion. Husband’s Br. at 40; Wife’s Br. at 7.
       7
        This case was re-assigned to Judge Cartisano in October 2015,
following the recusal of the Honorable Barry C. Dozer. 1925(a) Op. at 2.
       8
           On March 14, 2016, Wife filed a response to the motion to recuse.



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at 122-23. Based on this procedural posture, we conclude the trial court did

not abuse its discretion in not addressing the motion prior to ruling on the

amended motion to vacate.

      In his fourth issue, Husband claims the trial court abused its discretion

in failing to create a constructive trust.

      At the hearing on the amended petition to vacate, Husband made an

oral motion for a constructive trust.        The trial court noted that Husband

could not request a constructive trust by oral motion, stating:        “What is

before me is a Petition to Open the Divorce Decree because of fraud. That

may or may not be pertinent, but it’s the petition that’s been filed.” N.T.,

3/11/16, at 7. The trial court denied the motion, but stated: “[Y]ou have

the right to file, if you feel that section is pertinent.” Id. at 8.

      We conclude the trial court did not abuse its discretion in denying the

oral motion for constructive trust and informing Husband he could file an

petition seeking a constructive trust if pertinent.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2017




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