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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


JONA E. MAIOLO                             :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
JOSEPH R. MAIOLO,                          :
                                           :
                         Appellant         :     No. 1190 MDA 2015

                  Appeal from the Order Entered June 16, 2015
               In the Court of Common Pleas of Lycoming County
                         Civil Division No(s): 14-20,738

BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                              FILED APRIL 05, 2016

        Appellant, Joseph R. Maiolo (“Husband”), appeals from the order of the

trial court granting the Motion for Sanctions that Appellee, Jona E. Maiolo

(“Wife”), filed and holding Husband in contempt of court. We affirm in part

and quash the appeal in part.

                          Factual and Procedural History

        Wife filed a Complaint in Divorce against Husband on June 3, 2014,

after four years of marriage. See Complaint, 6/3/14, at 1. On September

26, 2014,1 the trial court ordered Wife to continue to maintain health

insurance benefits for Husband and ordered Husband to reimburse Wife 50%

of the policy premiums (“September 26, 2014 Order”).

*
    Retired Senior Judge assigned to the Superior Court.
1
    This order was entered on the docket on October 7, 2014.
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     On October 1, 2014, Wife served multiple requests for documents and

interrogatories on Husband. Trial Ct. Op., 8/31/15, at 5. Husband did not

provide a response to the requests or file any objections to the requests. On

November 26, 2014, Wife’s counsel filed a Motion to Compel. Id.

     On December 4, 2014, the trial court held a hearing on the Motion to

Compel. At the hearing, Husband did not raise any objections to the

requests and the trial court granted Wife’s Motion to Compel and directed

Husband to provide full and complete responses to Wife’s discovery requests

within 30 days (“December 4, 2014 Order”).       Id.   Once again, Husband

failed not only to object to the requests, but also to provide the full and

complete responses to the request. Id.

     As a result of Husband’s failure to respond in any meaningful way to

the December 4, 2014 Order, Wife filed a Motion to Compel/Motion for

Sanctions (“Motion for Sanctions”) on May 1, 2015.

     In Count I of the Motion for Sanctions, Wife claimed that Husband

failed to provide her with any additional documents and consequently, was

in contempt of the December 4, 2014 Order. She averred that although her

counsel received partial answers to the discovery, most answers were “to be

provided” and Husband had not provided any meaningful information in

response to the December 4, 2014 Order.       Mot. to Compel, 5/1/15, at 1

(unpaginated).




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      In Count II of the Motion for Sanctions, Wife averred that Husband

violated the September 26, 2014 Order by failing to pay Wife 50% of the

health insurance premiums for the policies that Wife maintains for the

parties. Id. at 2 (unpaginated). Wife asserted that Husband pays her less

than 50% of the premiums because he arbitrarily deducts an amount that he

believes would be Wife’s tax benefit from the amount he owes her. Id.

      Wife also claimed that Husband sends her the reimbursement check on

the last day of the month, and not on the 15 th day of the month, resulting in

delayed payment, and, once, insufficient funds. Id.

      Wife, therefore, asked the trial court to find Husband in contempt,

enforce its order that Husband reimburse her the full 50% of the premium

on or before the 15th of each month, and award her reasonable attorney’s

fees. Id. at 3 (unpaginated).

      On May 8, 2015, the court gave the Husband thirty days’ notice that

the court would hear the Wife’s Motion for Sanctions on June 11, 2015. Trial

Ct. Op., 8/31/15, at 2. On June 10, 2015 at 4:14 PM, late in the afternoon

on the day before the hearing, Husband’s counsel sent a fax to the trial court

claiming that Husband would be “out of town” on the next day and

requesting that the court continue the hearing. Id. The trial court denied




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Husband’s request, and held the hearing as scheduled in Husband’s

absence.2

       Following the hearing, the trial court entered an order on June 16,

2015, granting Wife’s Motion for Sanctions as to Count I and finding

Husband in contempt of the December 4, 2014 Order requiring him to

provide full and complete answers to Wife’s discovery requests (“June 16,

2015 Order”). The court also ordered Husband to pay counsel fees to Wife’s

counsel in the amount of $500, unless Husband produced to Wife a series of

enumerated documents.3 Trial Ct. Order, 6/16/15, at 1-2 (unpaginated).

       The court also granted Wife’s Motion for Sanctions as to Count II,

finding Husband in contempt of the October 26, 2014 Order, which required

him to reimburse Wife 50% of the parties’ health insurance premiums. The

court found that husband owed Wife $226.45 and ordered Husband to remit

to Wife this amount within 30 days. The court did not sanction Husband for

this contempt.

       On July 10, 2015, Husband filed a Notice of Appeal of the June 16,

2015 Order. Husband and the trial court complied with Pa.R.A.P. 1925.




2
    Husband’s counsel appeared at the hearing on Husband’s behalf.
3
  The court ordered that this sanction would be suspended if Husband
provided full and complete discovery responses on or before July 17, 2015.
The record does not reflect, and Husband does not claim, that he provided
the discovery responses on or before that date.



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                                Issues on Appeal

      Husband raises the following issues on appeal:

            1.    Whether the      trial court erred by denying
            [Husband’s] motion    for continuance which prevented
            him from attending    the hearing to present testimony
            and evidence to the   court relevant to [Wife’s] petition
            for contempt.

            2.    Whether the trial court erred by finding [Husband]
            in contempt for failing to provide documentation
            pursuant to a discovery request by [Wife] when [Wife]
            was in possession of the information [Husband] needed
            to properly respond to the discovery request.

            3.     Whether the trial court erred in making the
            determination of contempt when [Husband] had already
            filed a request for a new determination of his share of
            the health insurance premium at the same time he filed
            a petition for spousal support.

            4.    Whether the trial court erred in failing to properly
            calculate the tax benefit to [Wife] when determining the
            amount to be paid by [Husband] for his share of the
            contribution to health insurance provided by [Wife’s]
            employer.

Appellant’s Brief at 5.

                               Legal Analysis

      Before addressing the merits of Husband’s issues, we must first

consider whether this Court has jurisdiction over this appeal.      It is well-

settled that an order declaring a party in contempt and imposing sanctions is

immediately appealable. Takosky v. Henning, 906 A.2d 1255, 1258 (Pa.

Super. 2006).     However, if the trial court does not impose sanctions or




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imprisonment, an order declaring a party in contempt is interlocutory and

not appealable. Id.

     The trial court’s June 16, 2015 Order found Husband in contempt of its

December 4, 2014 Order requiring Husband to provide full and complete

answers to Wife’s discovery requests and imposed a monetary sanction on

Husband for his failure to comply. Husband’s appeal from this portion of the

June 16, 2015 Order is, therefore, proper. Id.

     In contrast, the portion of the June 16, 2015 Order that found

Husband in contempt of the September 24, 2014 Order requiring Husband to

reimburse Wife for health insurance premiums she paid on Husband’s behalf

does not impose a sanction against Husband. Accordingly, the appeal of this

portion of the June 16, 2015 Order is interlocutory and we quash Husband’s

appeal as to these issues. Id.

     Now we turn to the substance of the portion of June 16, 2015 Order

that imposed sanctions on Husband for failing to respond to discovery

requests. Husband first argues that the trial court erred in not granting his

counsel’s request for a continuance of the hearing on the Motion for

Sanctions that his counsel made at 4:14 PM on the day before the hearing.

Appellant’s Brief at 10. Husband acknowledges that his counsel made the

request with short notice, but argues that he made the request as soon as

Husband became aware of his scheduling conflict.      Id.   Husband further




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argues that Wife would not have been prejudiced by a continuance. Id. at

10-11.

      In particular, Husband disputes the trial court’s characterization in its

Pa.R.A.P 1925(a) Opinion that Wife would have been prejudiced if the

hearing were delayed, claiming: (1) that the documents requested by Wife

were already mostly in her possession; and (2) a hearing on the proper

amount of Husband’s health insurance contribution was scheduled for June

29, 2015, and could have been resolved at that time.       Id. at 10-11.   We

disagree.

      We review a trial court’s decision to deny a continuance for an abuse

of discretion.   In re: J.K., 825 A.2d 1277, 1280 (Pa. Super. 2003).       “An

abuse of discretion is more than just an error in judgment, and, on appeal,

the trial court will not be found to have abused its discretion unless the

record discloses that the judgment exercised was manifestly unreasonable,

or the results of partiality, prejudice, bias or ill-will.”     Baysmore v.

Brownstein, 771 A.2d 54, 57 (Pa. Super. 2001).

      Here, Husband had more than 30 days’ notice of the hearing on Wife’s

Motion for Sanctions. Husband faxed his request for a continuance late in

the afternoon prior to the hearing and without explanation for his being “out

of town.”

      We note that Husband’s general statement of being “out of town”

faxed to the trial court late in the afternoon on the day before the hearing,



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without more, is in and of itself a proper reason to deny the request for

continuance. This late request inconveniences not only the other parties and

witnesses, but also the court’s schedule.

      A late request for a continuance deprives the trial court of the

opportunity to use its time in court effectively and efficiently. The trial court

intentionally notifies parties of a hearing thirty days before the hearing to

give the parties enough time to coordinate their schedules and to permit the

trial court to schedule another matter if the parties are unavailable.

      In this case, the trial court properly focused on the fact that delaying

the hearing would prejudice Wife’s interests in that the harm alleged by Wife

in her Motion “would have continued to affect Wife during the course of any

rescheduling.” Trial Ct. Op. at 3. We conclude that the trial court did not

abuse its discretion when it determined “[t]he late nature of Husband’s

request   without   cause   was   manifestly   unreasonable[,]”    and    denied

Husband’s request. Id.

      In his second issue, Husband argues that the trial court erred in

finding him in contempt for failing to produce documents pursuant to Wife’s

discovery requests and the December 4, 2014 Order.          Husband maintains

that the trial court abused its discretion in finding him in contempt because

he did not willfully and intentionally disobey the trial court’s order.

Appellant’s Brief at 12.      Husband did not challenge the trial court’s

imposition of sanctions against him.



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      We review the trial court’s finding of contempt, and sanctions it

imposes, for a misapplication of the law or clear abuse of discretion.

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

burden of proof rests with the complaining party to demonstrate that a party

is in contempt of a court order.      Id. To prevail on a contempt claim, the

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

the contemnor had notice of the order that has allegedly been violated; (2)

that the contempt was volitional; and (3) that the contemnor acted with

wrongful intent. Id.

      Here, the trial court noted in its Rule 1925(a) Opinion that it entered

the December 4, 2014 Order, granting Wife’s Motion to Compel and directing

Husband to provide full and complete responses to Wife’s discovery

requests.      Trial Ct. Op. at 5.   Husband’s counsel received a copy of the

order.   Id.     Husband did not object to the requests, but simply failed to

produce the requested documents.         Id.   Husband has not argued that he

provided the documents. Id. The trial court concluded that Husband acted

willfully and with wrongful intent and was, therefore, in contempt of the

December 4, 2014 Order. Id. We agree.

      Our review of the record confirms the trial court’s finding that

Husband’s failure to comply with the December 4, 2014 Order was willful

and intentional.




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      Husband has argued on appeal that he cannot provide the information

the Wife requested because the information is either in Wife’s possession or

is protected by Internal Revenue Service (“IRS”) regulations.

      The court finds these explanations disingenuous. If Husband, in fact,

believed that Wife had the information or IRS regulations protect the

information, Husband had every opportunity to file the appropriate motion

with the court. In fact, at the hearing on the discovery requests on

December 4, 2014, Husband did not mention either of these arguments.

      Moreover, Husband gave a contrary answer in his responses that the

information was “to be provided.” Record at 21-23. Husband was aware of

the December 4, 2014 Order and failed to respond to it in a meaningful way

even after having opportunities to object or respond.    Therefore, the trial

court properly concluded that Husband willfully and intentionally disregarded

the Order of December 4, 2014 and that Husband’s dilatory behavior will not

be tolerated.

      Based on the evidence of record, we conclude that the trial court acted

within its discretion in finding Husband in contempt and assessing sanctions

against Husband.




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      Order affirmed in part, appeal quashed in part.   Case remanded.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/5/2016




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