J-A28016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD MAZUREK                                 IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellant

                      v.

JOANNE RUSSELL

                           Appellee                  No. 257 EDA 2014


             Appeal from the Order Entered November 14, 2013
            In the Court of Common Pleas of Montgomery County
                       Civil Division at No.: 08-14339


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                       FILED DECEMBER 18, 2014

      Edward Mazurek (“Husband”) appeals the November 14, 2013 order,

in which the trial court found him to be in contempt of the parties’ property

settlement agreement (“PSA”). We affirm.

      A prior panel of this Court summarized the factual and procedural

history as follows:

      The parties were married on May 25, 1985, and are the parents
      of four children, two of whom [were] minors [in 2012]. On April
      20, [2010], the trial court entered a divorce decree incorporating
      by reference a PSA signed by the parties that same day. The
      PSA clearly states that Husband, who is an attorney, did not
      retain counsel, but instead chose to negotiate directly with
      [Joanne Russell (“Wife”)] and her attorney.

      On April 4, 2011, Wife filed a petition to enforce the PSA. She
      asserted that Husband: (a) failed to make a lump sum equitable
      distribution payment of $125,000.00 to her attorney as escrow
      agent; and (b) failed to provide her with proof of life insurance
      policies payable to her and to a trust for the benefit of the
      parties’ children as irrevocable beneficiaries upon Husband’s
J-A28016-14


       death. Wife also sought counsel fees and costs related to the
       enforcement of the PSA.

       The trial court held a hearing on October 19, 2011, at which
       Husband represented himself. By order dated November 1,
       2011, the court directed Husband to: (a) forward $125,000.00
       plus interest in the amount of $19,000.00 to Wife’s attorney as
       escrow agent; (b) provide proof of the existence of life insurance
       policies as set forth in the PSA; and (c) pay $3,700.00 in counsel
       fees and costs.

Mazurek v. Russell, 3159 EDA 2011, slip op. at 1-2 (Pa. Super. December

6, 2012) (citations to record omitted).            Husband appealed and this Court

affirmed the trial court’s order on December 6, 2012.

       On April 4, 2012, Wife filed a petition for contempt and enforcement of

the November 1, 2011 order. Husband filed a petition to revoke and rescind

a portion of the PSA on July 23, 2012.               Wife filed a motion to dismiss

Husband’s petition. Husband filed an application for supersedeas and Wife

filed an answer and counterclaim.              On April 26, 2013 and May 21, 2013,

Wife filed emergency petitions for contempt and for enforcement of the PSA.

The trial court held hearings on April 30, 2013, August 21, 2013, and

September 24, 2013 to resolve these outstanding issues.1

       On November 14, 2013, the trial court docketed its order that found

Husband in contempt of the November 1, 2011 order and granted Wife’s

____________________________________________


1
      We note that only the September 24, 2013 hearing transcript was
included in the certified record. Through informal inquiries, we were able to
obtain the April 30 and August 21 hearing transcripts. We remind Husband
that, even though he is pro se, as Appellant, it is his burden to ensure that
the record is complete or he runs the risk of waiver.



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April 4, 2012 petition for contempt.      Husband again was ordered to pay

interest on the lump sum, to pay the interest awarded in the November 1,

2011 order, to provide proof that required life insurance policies were in

effect, and to pay counsel fees to Wife’s counsel. In the November 14, 2013

order, the trial court also denied Husband’s petition to revoke and rescind a

portion of the PSA and awarded Wife’s counsel fees in association with

defending that petition. The court granted Wife’s counterclaim to Husband’s

application for supersedeas and awarded Wife counsel fees. Finally, the trial

court granted both of Wife’s emergency petitions for contempt and

enforcement. The court ordered Husband to pay the children’s outstanding

medical and dental bills, to provide proof of medical and dental insurance,

and to pay counsel fees to Wife’s attorney. The court also awarded counsel

fees in connection to the April 30, August 21, and September 24, 2013

hearings.

      On December 12, 2013, Husband filed a notice of appeal.       The trial

court ordered, and Husband timely filed, a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).       On February 14,

2014, the trial court filed its Pa.R.A.P. 1925(a) opinion.

      Husband raises the following issues for our review:

      1. Whether the trial court erred in finding [Husband] in
         contempt of Court for not complying with Section 9.1.4.3 of
         the Parties’ [PSA] where it is undisputed that the 1% monthly
         interest liquidated damages provision set forth in Section
         9.1.4.3 was not an approximation of damages that would be
         incurred as a result of a delay in [Husband’s] payment of
         $125,000 under the PSA, but was a penalty designed to

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       incent payment of the $125,000 to avoid the penalty and is,
       therefore, unenforceable as a matter of public policy.

     2. Whether the trial court erred in denying and dismissing
        [Husband’s] Petition to Revoke and/or Rescind Section
        9.1.4.3 of the Parties’ PSA where it is undisputed that the 1%
        monthly interest liquidated damages provision set forth in
        Section 9.1.4.3 was not an approximation of damages that
        would be incurred as a result of a delay in [Husband’s]
        payment of $125,000 under the PSA, but was a penalty
        designed to incent payment in terrorem of the $125,00 to
        avoid the penalty and is, therefore, unenforceable as a matter
        of public policy.

     3. Whether the trial court erred in awarding [Wife] $6,485.70 in
        attorneys’ fees in connection with [Husband’s] Petition to
        Revoke and/or Rescind Section 9.1.4.3 of the Parties’ PSA.

     4. Whether the trial court erred in finding [Husband] in
        contempt of its November 1, 2011 Order where, by the time
        the Court issued its November 13, 2013 [order] finding
        [Husband] in contempt, [Husband] had complied with all
        terms of the November 1 Order except for complying with the
        unenforceable liquidated damages provision set forth in
        Section 9.1.4.3 of the PSA.

     5. Whether the trial court erred in awarding [Wife] $4,876.50 in
        attorneys’ fees in connection with her April 4, 2012 Petition
        for Contempt and Enforcement of November 1, 2011 Order.

     6. Whether the trial court erred in finding [Husband] in
        contempt of court for allegedly not paying outstanding
        medical, dental and orthodontia bills for his children where
        there was no evidence that [Husband] failed to pay any
        outstanding medical, dental or orthodontia bills for his
        children as required by the PSA.

     7. Whether the trial court erred in concluding that the PSA
        required [Husband] to pay for a second set of cosmetic braces
        for one of his children where the PSA expressly provides that
        [Husband] is obligated to pay only orthodontic bills that are
        reasonably necessary for his children and there is absolutely
        no evidence that the cosmetic braces were reasonably
        necessary.



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       8. Whether the trial court erred in holding [Husband] in
          contempt for allegedly failing to provide proof of medical and
          dental insurance for his children where there was no evidence
          that [Husband] failed to provide such proof.

       9. Whether the trial court erred in awarding [Wife] $3,050.50 in
          attorneys’ fees in connection with [Husband’s] Petition for
          Supersedeas.

       10. Whether the trial court erred in awarding [Wife] $3008.00
          in attorneys’ fees in connection with her April 26, 2013
          Emergency petition for Contempt.

       11. Whether the trial court erred in awarding [Wife] $2,161 in
          attorneys’ fees in connection with her May 21, 2013
          Emergency Petition for Contempt.

       12. Whether the trial court erred in awarding [Wife] $8,595.00
          in attorneys’ fees in connection with her counsel’s attendance
          at hearings on April 20, August 21 and September 24, 2013.

       13. Whether the trial court erred in ruling that 42 Pa.C.S.A.
          §§ 4132 and 4133 and 23 Pa.C.S.A. §§ 3105(a) and 3502(e)
          each authorizes the Court to impose imprisonment, a fine,
          attorney’s fees and costs and wage attachments.

Husband’s Brief at 9-13 (emphasis in original).2


____________________________________________


2
      Husband’s statement of questions involved spans four pages of his
brief. While the 2013 amendments to the Rules of Appellate Procedure
eliminated the page limit for the statement of questions involved, “verbosity
continues to be discouraged.” Pa.R.A.P. 2116, Note. Further, the argument
section of the brief “shall be divided into as many parts as there are
questions to be argued.” Pa.R.A.P. 2119(a). In violation of this Rule,
Husband includes only two argument sections, with four subsections, in his
brief. Husband’s Brief at 25-45. To the extent that any of Husband’s stated
questions are not subsumed in his condensed argument sections, those
questions have been waived. See Commonwealth v. Jackson, 431 A.2d
944, 945 n.1 (Pa. 1981) (holding issue listed in statement of questions, but
not addressed in argument section, was waived).




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      Husband divides his argument into two main sections.         In the first

section of his brief, Husband challenges the trial court’s contempt findings.

      “When considering an appeal from an [o]rder holding a party in
      contempt for failure to comply with a court [o]rder, our scope of
      review is narrow: we will reverse only upon a showing the court
      abused its discretion.” Harcar v. Harcar, 982 A.2d 1230, 1234
      (Pa. Super. 2009) (quoting Hopkins v. Byes, 954 A.2d 654,
      655 (Pa. Super. 2008)). We also must consider that:

         Each court is the exclusive judge of contempts against its
         process.     The contempt power is essential to the
         preservation of the court’s authority and prevents the
         administration of justice from falling into disrepute. When
         reviewing an appeal from a contempt order, the appellate
         court must place great reliance upon the discretion of the
         trial judge.

      Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa. Super.
      2002) (quoting Garr v. Peters, 773 A.2d 183, 189 (Pa. Super.
      2001)). “The court abuses its discretion if it misapplies the law
      or exercises its discretion in a manner lacking reason.” Godfrey
      v. Godfrey, 894 A.2d 776, 780 (Pa. Super. 2006). Additionally,
      “[i]n proceedings for civil contempt of court, the general rule is
      that the burden of proof rests with the complaining party to
      demonstrate, by [a] preponderance of the evidence that the
      defendant is in noncompliance with a court order.” Lachat v.
      Hinchcliffe, 769 A.2d 481, 488 (Pa. Super. 2001). However, “a
      mere showing of noncompliance with a court order, or even
      misconduct, is never sufficient alone to prove civil contempt.”
      Id. Moreover, we recognize that:

         To sustain a finding of civil contempt, the complainant
         must prove certain distinct elements: (1) that the
         contemnor had notice of the specific order or decree which
         he is alleged to have disobeyed; (2) that the act
         constituting the contemnor’s violation was volitional; and
         (3) that the contemnor acted with wrongful intent.

         Stahl v. Redcay, 897 A.2d 478, 489 (Pa. Super. 2006).

Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013).



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      Husband first argues that he cannot be in contempt of the provision of

the order requiring him to pay interest, because that provision is

unenforceable.   Specifically, Husband contends that Section 9.1.4.3 of the

PSA provides that, should Husband be untimely in his payment of $125,000

into escrow, Husband shall pay “interest” on the overdue balance at a rate of

one percent per month. Husband asserts that this provision is a liquidated

damages    clause     and   that,   unless     the   damages   are   a   reasonable

approximation of expected losses from a default, it is unenforceable

pursuant to Pennsylvania public policy. Husband contends that a liquidated

damages clause cannot impose a penalty, but only can provide for

reasonable losses. Because Wife admitted that the one percent interest was

to act as a penalty and as an incentive for Husband to timely pay his

obligations, Husband argues that the provision is unenforceable and that he

cannot be in contempt for failing to comply with an unenforceable provision.

Husband’s Brief at 27-36.

      First, Wife responds that Husband has waived this issue because the

interest provision was part of the November 1, 2011 order, but when

Husband appealed that order, he did not raise the unenforceability of the

interest provision.   Wife argues that, by failing to include it in the initial

appeal, Husband should not get a second bite of the apple in this appeal.

Wife’s Brief at 27-31. Alternatively, Wife asserts that the interest provision

is not a liquidated damages clause.          Wife contends that the provision was

put in place to provide Wife with some funds if Husband was unable to pay

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the lump sum amount when it was due.             Wife also argues that, if the

provision is viewed as a penalty for non-payment, such penalty is

permissible and not against public policy as demonstrated by the court’s

ability to award interest on unpaid installments in equitable distribution,

citing 23 Pa.C.S.A. § 3502(e).     Wife’s Brief at 32-37.     The trial court also

found that Husband had waived this issue. Trial Court Opinion (“T.C.O.”),

2/14/2014, at 23.

      We agree with Wife and the trial court that Husband’s issue is waived.

Husband was aware of the imposition of interest resulting from section

9.1.4.3 of the PSA as early as the November 1, 2011 order in which he was

ordered to pay $19,000 pursuant to that section.           Husband appealed that

order but, at that time, did not object to section 9.1.4.3.

      Our Supreme Court has held that challenges to a civil verdict must be

raised and preserved at all stages.     Schmidt v. Boardman Co., 11 A.3d

924, 942 (Pa. 2011). Similarly, we have held that an issue must be raised

in the trial court at the earliest possible opportunity:

      On appeal the Superior Court will not consider a claim which was
      not called to the trial court’s attention at a time when any error
      committed could have been corrected. [O]ne must object to
      errors, improprieties or irregularities at the earliest possible
      stage of the adjudicatory process to afford the jurist hearing the
      case the first occasion to remedy the wrong and possibly avoid
      an unnecessary appeal to complain of the matter.

Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa. Super. 2000) (citations

omitted); see Foflygen v. Allegheny Gen. Hosp., 723 A.2d 705, 711 (Pa.



                                      -8-
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Super. 1999) (stating appellant must object “at the earliest possible

opportunity”). Here, Husband did not do that. He did not raise the issue

before the trial court when the interest provision first was imposed, nor did

he raise it in that appeal. Instead, he waited until after we had affirmed that

order on appeal. Then, he did not pay the interest, and raised the issue in

response to Wife’s petition to enforce. Because Husband did not raise this

issue before the trial court at his first opportunity, Husband has waived the

issue. See Hong, Foflygen, supra.

      In his second sub-issue, Husband asserts that Wife provided no

evidence that he failed to provide proof of the required life insurance

policies. Husband also argues that, at the second hearing date, he testified

that he had complied with that requirement. Husband’s Brief at 36-37.

      Wife responds that, because Husband did not provide proof of his life

insurance policies, she included the issue in her April 2012 petition for

contempt and enforcement of the PSA. Wife contends that Husband did not

provide proof until the August 2013 hearing that he had complied with the

order.   Because Husband did not comply until five months after being

ordered to comply “forthwith,” Wife maintains that the contempt finding was

appropriate. Wife’s Brief at 37-39. The trial court found that Husband did

not provide Wife with proof until April 2012.      Therefore, the trial court

concluded that Husband did not provide proof “forthwith,” and was in

contempt of the November 1, 2011 order. T.C.O. at 24.




                                     -9-
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      The parties’ PSA requires that Husband maintain life insurance policies

for the benefit of Wife and the children so long as he has financial obligations

to them.     Property Settlement Agreement, 4/20/2010, at 32-33 ¶16.

Further, Wife “shall be entitled to receive . . . a copy of the policy and all

renewals, and of any and all notices of premiums due and of default.” Id. at

33 ¶16.2.    In its November 1, 2011 order, the trial court ordered that

Husband “shall forthwith forward to [Wife’s counsel] proof of the existence of

life insurance policies . . . unless proof of the existence of these policies has

previously been provided to [Wife].” Order, 11/1/2011.

      Initially, Husband testified that the life insurance policies were in effect

and that he had previously provided Wife with proof of the policies, but that

he did not have any proof with him. He also stated that he disagreed that

he was under a continuing obligation to provide proof that the policies

remained in effect. Notes of Testimony (“N.T.”), 4/30/2013, at 45-48. At

the subsequent August 2013 hearing, Husband produced emails providing

proof of insurance in April 2012 and an authorization to allow Wife to obtain

information about the policies in May 2012. N.T., 8/21/2013, at 31-32.

      The trial court found Husband in contempt due to the approximately

six-month delay between the November 1, 2011 order that Husband provide

documentation “forthwith” and Husband’s provision of same.              We have

defined forthwith as “(1) immediately; without delay. 2. Directly; promptly;

within a reasonable time under the circumstances.” Lerner v. Lerner, 954

A.2d 1229, 1236 n.2 (Pa. Super. 2008) (citing Black’s Law Dictionary 664

                                     - 10 -
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(7th ed. 1999)). The order was clear, the trial court found Husband did not

timely provide the documentation, and there was no legitimate reason for

the failure to comply. Husband offered no explanation for the delay. Given

these circumstances, the trial court did not abuse its discretion in finding

Husband did not comply with the November 1, 2011 order.

      We address Husband’s third and fourth sub-issues together.         In his

third issue, Husband challenges the finding that he was in contempt for

failing to pay medical, dental and/or orthodontia bills for the children.

Husband argues that Wife did not produce evidence that Husband did not

pay any bills or that that the unpaid orthodontic bill was for necessary

treatment.    In the alternative, Husband argues that, if the orthodontic

treatment was necessary, his failure to comply was not volitional because he

had a reasonable belief that the treatment was not necessary.        Husband’s

Brief at 37-42. In his fourth issue, Husband challenges the finding that he

was in contempt for failing to provide proof of medical and dental insurance

for the children. In a one-sentence argument, Husband asserts there was

no proof of his failure to comply. Husband’s Brief at 42.

      Wife responds that Husband admitted that he allowed the medical and

dental insurance for the children to lapse despite his obligation to provide it.

Wife also asserts that Husband admitted that he did not pay for the entirety

of the orthodontia bills.   Wife argues that Husband knowingly and willfully

disregarded his obligations under the PSA. Wife’s Brief at 42-46. The trial

court agreed, finding that there was nothing in the record to suggest

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Husband’s conduct was not volitional and not done with wrongful intent.

T.C.O. at 31, 34-35.

      We agree with the trial court. Husband admitted that he allowed the

medical and dental insurance to lapse.       N.T., 4/30/2013, at 50.   He also

admitted that the PSA obligated him to provide that insurance for the

children.   Id. at 54-55, 58.   Husband testified that he chose to end the

dental insurance and instead just pay for treatments as they arose. Id. at

58. Husband paid part of the bill for orthodontic treatment, but did not pay

the remainder. Id. at 63-67. At the August 2013 hearing, Husband stated

that he did not have the dental insurance information with him and had not

paid the remaining orthodontic bill. N.T., 8/21/2013, at 34-35.

      The trial court found that Husband provided no explanation for his

failure to comply and that he willfully and wrongfully violated the clear

directive to maintain insurance and pay unreimbursed costs. T.C.O. at 31-

32, 35. We agree with the trial court that Husband chose to violate the PSA

and did so with wrongful intent.      Therefore, we affirm the trial court’s

contempt finding.      See Childress v. Bogosian, 12 A.3d 448, 466 (Pa.

Super. 2011) (affirming civil contempt in which trial court did not believe the

husband’s testimony about inability to pay and record evidence supported

trial court’s determination); Gunther v. Bolus, 853 A.2d 1014, 1017-18

(Pa. Super. 2004) (affirming contempt finding where the trial court did not

find the husband to be credible in his attempts to explain his failure to




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comply and he had a history of non-compliance).                 Thus, Husband’s

challenges in the first section of his brief do not merit relief.

       In the second section of Husband’s brief, he challenges the court’s

award of counsel fees to Wife.

         Our standard of review of the award of counsel fees
         pursuant to the Domestic Relations Code is for an abuse of
         discretion. See Bowser v. Blom, 807 A.2d 830, 834 (Pa.
         2002). An abuse of discretion is “[n]ot merely an error of
         judgment, but if in reaching a conclusion[,] the law is
         overridden or misapplied, or the judgment exercised is
         manifestly unreasonable, or the result of partiality,
         prejudice, bias or ill-will, as shown by the evidence of
         record.” Id. (citations omitted). “[R]eview of the grant of
         counsel fees is limited ... and we will reverse only upon a
         showing of plain error.” Isralsky v. Isralsky, 824 A.2d
         1178, 1192 (Pa. Super. 2003) (citation omitted).

       Kraisinger v. Kraisinger, 34 A.3d 168, 175 (Pa. Super. 2011).

Habjan, 73 A.3d at 642-43 (some citations modified).

   In its November 13, 2013 order, the trial court awarded Wife the

following counsel fees:

      $4,876.50 for the preparation and litigation of the April 2012 petition

       for contempt. Order, 11/13/2013, at 2 ¶1.

      $6,485.70 for preparation and litigation of Wife’s motion to dismiss

       Husband’s petition to revoke and rescind a portion of the PSA. Id. at

       ¶3.

      $3,050.50 in fees in her answer and counterclaim to Husband’s

       application for supersedeas. Id. at 3 ¶4.




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      $3,008.00 for preparation and litigation of Wife’s April 26, 2013

       emergency petition for contempt and enforcement. Id. at ¶5.

      $2,161.00 for preparation and litigation of Wife’s May 21, 2013

       petition for contempt and enforcement. Id. at 4 ¶ 6.

      $8,595.00 for appearances and hearings on April 30, August 21, and

       September 24, 2013. Id. at ¶7.

       Husband challenges each of these fee awards. Husband argues that

his conduct with regard to the various motions was not dilatory, arbitrary,

repetitive, or vexatious, and thus fees should not have been awarded.

Husband further asserts that Wife did not prove that the fees were

reasonable. Husband’s Brief at 42-45.

       Wife responds that she was required to file multiple petitions and

attend three hearings in response to Husband’s failure to comply with the

PSA and court orders.     Wife also argues that Husband’s challenge to the

interest provision was dilatory and obdurate because that challenge should

have been brought as part of the appeal of the November 2011 order. Wife

contends that Husband engaged in vexatious conduct when he filed for

supersedeas because he waited until eight months after he filed his appeal.

Wife asserts that her attorney submitted the counsel fees information and

proved that the fees were reasonable. Finally, Wife argues that counsel fees

were also appropriate pursuant to the PSA which provides that a breaching

party is liable for the other party’s costs and reasonable counsel fees. Wife’s

Brief at 46-49.

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       The trial court awarded fees pursuant to 23 Pa.C.S.A. § 5339.3 T.C.O.

at 25. The trial court found Husband’s conduct to be arbitrary, vexatious,

and repetitive and therefore, awarded counsel fees.           The trial court relied

upon the facts that Wife had been obligated to file multiple contempt

petitions to get Husband to comply with the PSA and the court orders; that

Husband did not provide “any legitimate reason” for his failure to comply;

and that Husband has been found in contempt previously, which resulted in

the November 1, 2011 order.            Id. at 25-26.    With regard to the fees for

revision/revocation of the PSA and the application for supersedeas, the trial

court found that both of Husband’s petitions were frivolous. Id. at 28, 30.

The trial court awarded fees for the hearings because it found that Husband

caused the need for the second and third day of the hearings. Id. at 38-39.

For all of the awards, the trial court found that Wife’s counsel provided

sufficient evidence that that fees were reasonable and necessary.

       While the section cited by the trial court was inapplicable to this

matter, counsel fees in divorce proceedings generally may be awarded upon

a finding of vexatious, arbitrary, or obdurate conduct.          See 42 Pa.C.S.A.

§ 2503(7).     Further, counsel fees may be awarded when a party fails to

comply with an equitable distribution order.           See 23 Pa.C.S.A. § 3502(e).


____________________________________________


3
       Section 5339 provides for an award of fees in child custody litigation.
However, under the appropriate section, the trial court nonetheless was
justified in awarding fees, as we discuss infra.



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Even through the trial court cited the incorrect section, we may affirm upon

any basis. Frank v. Frank, 833 A.2d 194, 195 (Pa. Super. 2003).

      Previously, where we affirmed a trial court’s finding that a husband

was in contempt of the marital settlement agreement, we also have affirmed

the counsel fee award for enforcement of the agreement pursuant to 23

Pa.C.S.A. § 3502(e)(7). Habjan, 73 A.3d at 643. Similarly, here, we have

determined that the findings of contempt against Husband were not an

abuse of the trial court’s discretion. The awards of fees in connection with

the contempt petitions for enforcement of the PSA or the November 2011

order and the hearings associated with those petitions were also not an

abuse of discretion.

      As for the remaining two awards, in both cases, the trial court found

that Wife incurred fees in defending against petitions by Husband that were

frivolous.

      The statutory provision at 42 Pa.C.S. § 2503(9) expressly
      permits a trial court to award reasonable counsel fees to a
      litigant when, inter alia, that litigant’s opponent initiated the
      action arbitrarily, vexatiously or in bad faith. An opponent’s
      conduct has been deemed to be “arbitrary” within the meaning
      of the statute if such conduct is based on random or convenient
      selection or choice rather than on reason or nature.            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 suit served the sole purpose of causing
      annoyance. Finally, an opponent can be charged with filing a
      lawsuit in “bad faith” if he filed the suit for purposes of fraud,
      dishonesty, or corruption.




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Hart v. Arnold, 884 A.2d 316, 342 (Pa. Super. 2005) (emphasis in

original).

      With respect to the fees awarded in association with Husband’s

petition for supersedeas, the trial court found that the petition was without

merit, arbitrary and vexatious. T.C.O. at 30. The trial court also found that

Husband filed the petition for the sole purpose of delaying a hearing on

Wife’s petition for contempt. Order, 7/31/2012. That is sufficient to support

the award of counsel fees for vexatious conduct. See Hart, supra.

      Similarly, Husband’s attempt to rescind the interest portion of the PSA

was deemed “arbitrary, vexatious, and groundless” by the trial court and

therefore, the fees awarded in connection with it were reasonable. T.C.O. at

28. Indeed, despite the trial court’s reliance upon Husband’s failure to raise

the interest provision in his prior appeal to find the argument waived, T.C.O.

at 22-23, Husband did not address this issue in his brief. We have found

this issue waived because Husband did not raise it at the first opportunity to

do so. Therefore, it is unlikely that Husband’s petition to rescind or revoke

would have merit. Unfortunately, this application is not within the certified

record. As such, we cannot review the petition and make a determination of

its frivolity.   Because it is Husband’s burden as appellant to provide a

complete record, see Kessler v. Broder, 851 A.2d 944, 950 (Pa. Super.




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2004),4 we must find that he has waived this challenge to the trial court’s

order. Thus, Husband’s second set of challenges also are unavailing.

       Finally, Wife has requested that she be awarded costs for the instant

appeal pursuant to Pa.R.A.P. 2744 and 2751. Wife’s Brief at 52-55.

       This Court has the authority to award reasonable counsel fees
       where it determines that an appeal is frivolous or taken solely for
       delay, or that the conduct of the participant against whom costs
       are to be imposed is dilatory, obdurate or vexatious. Pa.R.A.P.
       2744.    Our application of this rule is premised upon the
       following:

          In determining the propriety of such an award, we are ever
          guided by the principle that an appeal is not frivolous
          simply because it lacks merit. Rather, it must be found
          that the appeal has no basis in law or fact. This high
          standard is imposed in order to avoid discouraging litigants
          from bringing appeals for fear of being wrongfully
          sanctioned.

       Menna v. St. Agnes Medical Center, 690 A.2d 299, 304 (Pa.
       Super. 1997) (citations omitted).

Griffith v. Kirsch, 886 A.2d 249, 255-56 (Pa. Super. 2005) (citation

modified).

       Instantly, we do not find that Husband’s appeal had no basis in law.

Specifically, the trial court did not provide a proper citation for its counsel

fees award.      T.C.O. at 25.        That alone would provide Husband with a

justification in law to challenge those awards despite the lack of merit to that


____________________________________________


4
     While it would not be a substitute for the certified record, we note that
Husband did not include the petition in his reproduced record.



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J-A28016-14



challenge. Therefore, we decline to award Wife costs pursuant to Pa.R.A.P.

2744.

        Order affirmed.

        President Judge Gantman joins the memorandum.

        Judge Jenkins files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2014




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