J-A34022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CATHERINE L. WEITZEL                            IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MARK B. WEITZEL

                         Appellant                   No. 2096 MDA 2012


              Appeal from the Order Entered October 16, 2012
               In the Court of Common Pleas of Berks County
                     Civil Division at No(s): 05 - 15447


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                            FILED JANUARY 07, 2016

      Mark B. Weitzel (“Husband”) appeals, pro se, from the order entered

October 16, 2012, in the Berks County Court of Common Pleas dismissing

his petition to hold his ex-wife, Catherine L. Weitzel (“Wife”), in contempt of

the court’s prior orders and the parties’ Post Nuptial Agreement (“PNA”). On

appeal, Husband argues the trial court abused its discretion in dismissing his

petition. We affirm.

      The facts and procedural history underlying this appeal are as follows.

On November 14, 2005, Wife filed a complaint in divorce.          The parties

entered into a counseled PNA on May 14, 2008, which provided, inter alia,

Husband would convey to Wife all his interest in the parties’ marital

residence, in consideration for which Wife was to secure a home equity loan
J-A34022-15



to pay Husband $25,000.1          Post Nuptial Agreement, 5/14/2008, at ¶¶ 21,

24.   The Agreement further provided that if Wife were unable to secure a

home equity loan within 90 days, she would pay Husband $10,000, followed

by $500 per month for 30 consecutive months. Id. at ¶ 24.            When Wife

failed to secure a home equity loan within 90 days, Husband filed a petition

to enforce the PNA on October 17, 2008. Thereafter, a divorce decree was

entered on March 20, 2009, and the agreement was incorporated into the

decree.

       Following an evidentiary hearing, on June 15, 2009, the trial court

granted Husband’s petition and directed Wife to pay Husband $10,000 within

90 days, and make 30 consecutive monthly payments of $500 thereafter.

See Order, 6/15/2009.            When Wife still failed to make the requisite

payments, Husband filed a petition for contempt on October 6, 2009, which

the trial court granted after a hearing on January 13, 2010. Husband filed a

second contempt petition on June 3, 2010, claiming Wife still had not paid

him the money owed under the PNA.                On October 13, 2010, the court

entered an order providing Wife with a reduced payment schedule, and



____________________________________________


1
  We note that, on April 30, 2008, Husband was convicted of, inter alia,
aggravated indecent assault for the sexual abuse of the parties’ minor
daughter, and sentenced, on August 28, 2008, to an aggregate term of five
to 10 years’ imprisonment, followed by two years’ probation.         See
Commonwealth v. Weitzel, 981 A.2d 938 (Pa. Super. 2009) (unpublished
memorandum), appeal denied, 993 A.2d 901 (Pa. 2010).



                                           -2-
J-A34022-15



directing her to execute a judgment note in favor of Husband’s counsel. 2

See Order, 10/13/2010.

        On December 2, 2011, Husband, proceeding pro se, filed the contempt

petition that is the subject of this appeal.3      He averred that Wife’s last

payment to him, pursuant to the court’s October 2010 order, was on

November 18, 2010.          He also indicated his prior attorney was no longer

representing him, and that his sister, Lisa Walker, to whom he awarded

power of attorney, would be the new payee. Walker signed the petition, and

included a verification signed by Husband.       Wife filed an answer and new

matter asserting, inter alia, that Walker had no standing in the matter, and

that Wife was insolvent.4

        On January 31, 2012, the trial court held a brief hearing during which

Walker, who is not an attorney, appeared for Husband. The court entered

an order in which it stated the hearing was “continued without date, to be

re-listed upon [Husband’s] request and assurance that he can and will be

personally present for the hearing.” Order, 1/31/2012. Thereafter, Husband

____________________________________________


2
    As noted supra, Husband was serving a prison sentence at that time.
3
    Husband has remained unrepresented in this appeal.
4
   Specifically, Wife claimed she lost the marital home in foreclosure
proceedings, due to her inability to refinance the property because Husband
never executed the documents to remove his name from the mortgage. See
Plaintiff’s Answer to Defendant’s Petition for Contempt Containing New
Matter, 1/27/2012, at ¶ 13.



                                           -3-
J-A34022-15



filed two motions for the production of documents, and when Wife did not

comply, he filed a motion to compel discovery. Thereafter, on September

12, 2012, Husband filed a motion to schedule the contempt hearing, and a

request to be present via video or telephone. The court granted Husband’s

request and scheduled a hearing. Following a hearing on October 16, 2012,

at which Husband appeared via telephone, the trial court dismissed

Husband’s petition for contempt and motion to compel discovery. Husband

filed a motion for reconsideration, which the trial court denied. This timely

appeal followed.5

       When reviewing the dismissal of a contempt petition, our standard of

review is well-settled:

       In reviewing a trial court’s finding on a contempt petition, we are
       limited to determining whether the trial court committed a clear
       abuse of discretion. This 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).
____________________________________________


5
  On November 29, 2012, the trial court ordered Husband to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Husband complied with the court’s directive and filed a concise statement on
December 20, 2012.

      However, on May 3, 2013, Wife filed a Notice of Bankruptcy.
Accordingly, on May 6, 2013, this Court entered a per curiam order staying
the appeal pending the bankruptcy proceedings. See Order, 5/6/2013. The
bankruptcy stay was subsequently lifted by order entered April 24, 2015,
when this Court was notified that the United States Bankruptcy Court for the
Eastern District of Pennsylvania had dismissed the case.        See Order,
4/24/2015. Wife did not file a responsive brief in this appeal.



                                           -4-
J-A34022-15



       Husband contends the trial court abused its discretion when it

dismissed his contempt petition.               Specifically, he argues the trial court

improperly considered his criminal conviction during the October 16, 2012,

contempt hearing because the conviction was unrelated to the issue of

Wife’s contempt.6       Husband’s Brief at 6-8.          Further, he claims the court

demonstrated bias and ill will when it dismissed his petition. Id. at 8.

       Husband also argues the trial court’s actions violated his constitutional

right to access to the courts and due process, as well as “overrode Pa. Rules

of Civil Procedure Rule 1930.3.”          Id. at 10.     He asserts his “incarceration

does not relieve [Wife] of her obligation to pay the agreed upon amount of

twenty-five thousand dollars ($25,000.00) in the PNA and the Lower Court’s

previous Contempt/Enforcement Orders.” Id. at 11. Moreover, he notes the

PNA was executed after he was convicted of the sexual abuse of the parties’

daughter. Husband states that, although the language of the PNA is clear,

Wife “has demonstrated a deliberate pattern of refusing to abide by the

terms of the PNA” and has, in fact, been found in contempt on three prior

occasions.    Id. at 16.     Accordingly, he contends the trial court abused its

discretion in dismissing his contempt petition.




____________________________________________


6
  Husband also asserts Wife testified falsely during the proceeding regarding
the age of their daughter, and Wife’s counsel provided incorrect information
to the court regarding Husband’s sentence. Husband’s Brief at 8-9.



                                           -5-
J-A34022-15



      The trial court stated, in its opinion, that it dismissed Husband’s

petition based on Husband’s “own dilatory behavior[.]” Trial Court Opinion,

1/2/2013, at 3. The court explained:

            At the October 16, 2012 hearing, [Husband] participated
      by telephone. The Court attempted to gather some information
      pertaining to the parties’ background and the posture of the
      case.    Upon the Court’s questioning [Husband], [Husband]
      demonstrated extreme reluctance and delay in answering the
      Court’s questions, gave evasive answers when [he] did answer,
      and at times displayed what appeared to the Court to be a
      refusal to answer. Not having all day to conduct what, with
      [Husband’s] cooperation, should have been a rather short
      hearing and becoming increasingly frustrated with [Husband’s]
      ongoing delay or refusal to answer the Court’s questions, the
      Court dismissed the Petition for Contempt and Motion to Compel.

Id. at 2.

      Pennsylvania Rule of Civil Procedure 1930.3 permits testimony at a

domestic relations hearing by telephone “[w]ith the approval of the court

upon good cause shown[.]” Pa.R.C.P. No. 1930.3. (emphasis supplied).

As the Rule specifically provides, telephonic testimony is acceptable only at

the discretion of the trial court.   In the present case, the court found

Husband “abused his privilege of being able to participate by telephone …

[and] eroded his credibility with his answers, or lack thereof, to the Court’s

questions.” Trial Court Opinion, 1/2/2013, at 2. The court further opined:

      If [Husband] wants a fair hearing, he will need to file the
      appropriate petitions or motions at a time when he is, as
      previously ordered, capable of being physically present for a
      hearing where the Court can view his body language and
      demeanor and otherwise assess his credibility and better impress
      upon him the need to answer the questions that he is asked with
      the truth, whole truth and no half-answers.


                                     -6-
J-A34022-15



Id.   The trial court emphasized that its ruling did not deprive Husband of his

opportunity to obtain relief. Rather, the court explained, Husband “still has

the   opportunity   to   present   his   case   if   and   when   he   can   arrange

transportation to be personally present.” Id.

      We find no reason to disturb the ruling of the trial court. Testimony by

telephone is permitted only with court approval. Pa.R.C.P. 1930.3. When,

in the court’s discretion, Husband abused that privilege, the court was acting

within its authority when it dismissed Husband’s petition.              We remind

Husband that, as the complaining party, he had the initial burden to show,

by a preponderance of the evidence, that Wife violated a court order.

Childress v. Bogosian, 12 A.3d 448, 465 (Pa. Super. 2011). Because he is

unavailable for the contempt hearing, he is unable to carry that burden.

Further, contrary to his argument, Husband is not out of court. He may still

seek to enforce the parties’ PNA when he can appear for a contempt hearing

in person.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2016


                                         -7-
