Liebersohn, A. v. Dyer, D.A.

• Court: Superior Court of Pennsylvania
• Decided: March 31, 2021
• Docket: 879 MDA 2020
• Status: Unpublished

Opinion

J-A03024-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANDREA LIEBERSOHN : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DAVID A. DYER : No. 879 MDA 2020

Appeal from the Order Entered January 29, 2020, in the Court of Common Pleas of Lycoming County, Civil Division at No(s): FC-2012-0020925-DI.

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 31, 2021

A.L. (Wife) appeals, pro se, the decision by the Lycoming County Court

of Common Pleas to find her in contempt for a second time, after Wife failed

to pay D.A.D. (Husband’s) attorney’s fees following her first contempt.1 We

affirm.

The factual and procedural background is as follows. On January 24,

2020, the trial court determined Wife violated the parties’ settlement

agreement when she harassed Husband. Specifically, the court determined

Wife harassed Husband when she sought to hold him in contempt of a

temporary Protection From Abuse (PFA) order, even though the parties agreed

to settle all previous PFA claims. The court ordered Wife to pay Husband

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1Wife’s appeal from the first contempt finding is separately listed before this panel. See 341 MDA 2020. J-A03024-21

$3,000 in attorney’s fees he incurred to oppose Wife’s wrongful action. Wife

appealed that decision, but she did not apply for a stay pending appeal,

pursuant to Pa.R.A.P. 1731(b). Thus, Wife was obligated to comply with this

sanction while her appeal was pending.

In order to fully comply, Wife had to pay Husband’s counsel by February

24, 2020. Wife eventually paid, but only on February 28, with a check dated

February 26, after Husband filed a second petition for contempt. On June 3,

2020, the trial court held a brief hearing on Husband’s second contempt

petition; both parties appeared with counsel. See generally N.T., 6/3/20, 1-

18.

Wife conceded she had an obligation to pay the sanction even though

her appeal was pending, and she admitted the payment was late. However,

she maintained her noncompliance lacked wrongful intent. She testified she

waited to pay the sanction because the parties initially discussed using a

payment plan. Negotiations about the payment plan fell through – if they

were ever seriously considered – and on February 19 (five days before the

deadline), Wife initiated the transfer process. Wife testified she used

electronic banking through USAA, because she did not have access to paper

checks. In other words, Wife went on USAA’s website and directed the bank

mail a paper check to Husband’s counsel. Wife testified that when she initiated

the transfer process, she realized the earliest arrival date available was

February 26 (two days after the deadline). See id. at 11-12; see also Wife’s

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Brief at 19. Wife testified she then informed her counsel of the scheduled

payment and estimated arrival date. See id.; see also Wife’s Exhibit 1.

Husband’s counsel argued Wife demonstrated willful noncompliance,

notwithstanding Wife’s reasons for the delay. First, Husband’s counsel

contended Wife had the responsibility to ensure the payment was made on

time. Second, Husband’s counsel averred they were not informed the check

was in the mail, and if had they been, they would not have prepared a

contempt petition. Husband’s counsel stated they even gave Wife a two-day

grace period before filing the second contempt petition, but that the date of

the check suggested it was not even issued until after the petition was filed.

The court determined Wife was again in contempt and ordered her to pay

$418, the cost that Husband’s counsel charged to bring the second petition.

Wife appealed and presents the following questions, which we reorder

for ease of disposition:

1. Did the lower court commit errors of law in finding [Wife] in contempt where [Wife] should have been afforded absolute immunity and where the original order should be found invalid?

2. Did the lower court commit an error of law or abuse of discretion in finding [Wife] in contempt where [Husband] lacked standing to bring his petition for contempt?

3. Did the lower court commit an error of law and/or abuse of discretion in holding [Wife] in contempt where [Husband] failed to supply sufficient evidence to prove the required elements of that finding?

4. Did the lower court commit errors of law and/or plain errors in holding [Wife] in contempt based on

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assumptions contradicted by the facts presented, the evidence, and its own reasoning?

5. Did the lower court commit an error of law and/or abuse of discretion in failing to consider [Wife’s] ability to comply with its order and where the terms created an extreme hardship for [Wife]?

Wife’s Brief at 2-3 (superfluous capitalization omitted).

Before we reach the merits of Wife’s appeal, we address whether she

properly preserved these five issues. In her Rule 1925(b) concise statement,

Wife originally submitted 15 issues to the trial court. The trial court opined

that most of those issues related to Wife’s first contempt appeal and had no

bearing on the instant matter. See Trial Court Opinion (T.C.O.), 8/10/20, at

*4-5 (not paginated). Similarly, we conclude Wife’s first two appellate issues

relate to her previous appeal and are thus waived. However, Wife properly

preserved her third, fourth, and fifth issues. We begin with our analysis by

observing our standard of review of contempt orders.

On appeal from an order holding a party in contempt of court, our scope

of review is very narrow, and we place great reliance on the court’s discretion.

Thomas v. Thomas, 194 A.3d 220, 225 (Pa. Super. 2018) (citing 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.”

Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa. Super. 2009). “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 failing into disrepute.” Habjan v. Habjan, 73

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A.3d 630, 637 (Pa. Super. 2013). We are also mindful that this Court defers

to the credibility determinations of the trial court with regard to the witnesses

who appeared before it, as that court has had the opportunity to observe their

demeanor. Garr, 773 A.2d at 189 (citations omitted). Absent an error of law

or an abuse of discretion, we will not disrupt a finding of civil contempt if the

record supports the court’s findings. Thomas, 194 A.3d at 225.

“In proceedings for civil contempt of court, the general rule is that the

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

[contemnor] is in noncompliance with a court order.” MacDougall v.

MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012). “To sustain a finding of

civil contempt, the complainant must prove, by a preponderance of the

evidence, that: (1) the contemnor 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.” Id. Nevertheless, “a mere showing of noncompliance with a court

order, or even misconduct, is never sufficient alone to prove civil

contempt.” Habjan, 73 A.3d at 637.

“The imposition of counsel fees can serve as a sanction upon a finding

of civil contempt.” Sutch v. Roxborough Memorial Hospital, 142 A.3d 38,

69; Rhoades v. Pryce, 874 A.2d 148, 152 (Pa. Super. 2005), appeal denied,

899 A.2d 1124 (Pa. 2006). The purpose of awarding counsel fees in this

context is “to reimburse an innocent litigant for the expenses the conduct of

an opponent makes necessary, such as the cost of the contempt hearing, so

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it can be coercive and compensatory but it cannot be punitive.” Sutch,

supra at 69. We review an award of contempt sanctions in the form of

counsel fees for an abuse of discretion. Mrozek v. James, 780 A.2d 670, 674

(Pa. Super. 2001).

We reiterate Wife waived her first two issues, so we turn to her third

matter. Wife alleges there was insufficient evidence to prove she was in

contempt. Specifically, Wife limits her contention to the third element of the

three-part contempt analysis; she concedes the first two elements were

satisfied, insofar as she understood she had an obligation to pay Husband’s

fees, and the check arrived four days late. See MacDougall, supra.

However, Wife claims she did not act with the requisite, wrongful intent. Wife

presents two primary arguments to support her claim.

First, Wife argues she lacked wrongful intent, because she informed her

counsel that the transfer was initiated on February 19 and that the payment

might arrive late. See Wife’s Brief at 20. The trial court concluded that Wife’s

excuse was not enough. Indeed, the trial court seemed to specifically fault

Wife for not contacting Husband’s counsel to explain the delay. See T.C.O.,

at *2-3. Wife argues she was not authorized to communicate directly with

Husband’s counsel, perhaps in reference to Rule of Professional Conduct 4.2,

which prohibits communication between a lawyer and the opposing litigant,

when the lawyer knows the opposing litigant has representation, without the

consent of the other lawyer. See Pa.R.P.C. 4.2. However, Wife conceded that

she does communicate directly with Husband’s counsel, on another matter

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involving Husband, where she proceeds without representation. Moreover,

Wife did not inform Husband that she initiated the transfer. See N.T. at 14.

In our narrow review, we conclude Wife’s argument is meritless. Wife

had a responsibility to ensure the payment arrived on time. Although a

courtesy call to Husband or his counsel, by either Wife or her attorney, might

have persuaded Husband not to bring a second contempt petition, it does not

follow that the same obviated Wife from her responsibility to timely comply.

Ultimately, the decision rested with the trial court. We cannot say the court

erred or that its decision lacked reason. See Harcar, 982 A.2d at 1234.

Wife advances an alternative reason why she lacked wrongful intent.

She claims her payment’s late arrival was the bank’s fault. See Wife’s Brief

at 19. Wife testified that “online [banking] was the only method that I have,”

meaning she had no ability to send her own paper check to Husband’s counsel,

but instead had to direct her bank to transfer the funds. See N.T., at 10. This

testimony was refuted by Husband, when he explained he utilizes paper

checks from USAA, which can be issued to customers upon request. Id. at 14-

15.

The trial court was not persuaded by Wife’s justification, and in our

narrow review, we cannot conclude the court’s decision lacked reason.

Although we observe the testimony that access to a USAA ATM was

complicated, Wife had the funds on February 19, with five days to comply with

the court’s order. She chose not to ensure her compliance. That Wife did not

have paper checks is not an excuse, but rather a reason why Wife should have

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given herself extra time to comply with the order. Whether she had difficulty

ascertaining the funds, sending the funds, or was frustrated that Husband

and/or Husband’s counsel refused her installment proposal, Wife was content

to let the check arrive when it arrived. The trial court did not abuse its

discretion when it inferred Wife’s wrongful intent.

In Wife’s fourth appellate issue, we address whether the court’s decision

was against the weight of the evidence. We review weight claims for an abuse

of discretion. Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super.

2019). We note further that appellate review of a weight claim is highly

deferential.

A reversal of a verdict is not necessary unless it is so contrary to the evidence as to shock one’s sense of justice. The weight of the evidence is exclusively for the finder of fact, who is free to believe all, none or some of the evidence and to determine the credibility of the witnesses. The fact- finder also has the responsibility of resolving contradictory testimony and questions of credibility. We give great deference to the trial court’s decision regarding a weight of the evidence claim because it had the opportunity to hear and see the evidence presented.

Id. (internal citations and quotations omitted).

Here, the trial court weighed the following facts. Wife was sanctioned

for her harassment. She did not seek to stay that order pending appeal. She

acknowledged she had to pay Husband, but she delayed while hoping to

achieve more favorable terms than those ordered by the court. When

rebuffed, Wife made no effort to timely comply, even though she had actual,

prior knowledge that her desired mode of transfer would cause the payment

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to arrive late. Two after the deadline, with no check in hand, Husband’s

counsel brought a second contempt petition. The court further sanctioned

Wife for the expense of bringing this second contempt petition ($418) and

gave her 60 days to comply.

As mentioned above, we are mindful that each court is the exclusive

judge of contempts against its process, perhaps especially so in a litigious and

acrimonious family law case such as this, where the trial court seeks to

prevent its process from failing into disrepute. See Habjan, supra. Viewing

the court’s decision through this lens, we cannot the court abused its

discretion.

Wife’s final appellate issue concerns her affirmative defense. On that

matter, we have said:

If the alleged contemnor is unable to perform and has, in good faith, attempted to comply with the court order, then contempt is not proven. The contemnor has the burden to prove the affirmative defense that [s]he lacks the ability to comply. The defense of impossibility of performance is available to a party in a contempt proceeding if the impossibility to perform is not due to the actions of that party.

Cunningham v. Cunningham, 182 A.3d 464, 471 (Pa. Super. 2018)

(internal citations omitted).

Wife argues the court erred when it determined Wife did not prove she

had an inability to timely pay the $3,000. During the hearing, Wife testified

she had difficulty coming up with the money to pay the $3,000 award:

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I know that I sent correspondence to you [(Wife’s counsel)] multiple times. I received back correspondence back from you as well as your secretary that you both reached out to [Husband’s counsel] multiple times with no, um, I guess return agreement on a payment plan. Um, so I was - - I knew that the money needed to be paid. It was my intent to pay it. I sent the money on the 19th [of February]. It was not my intent to have it delivered late. Um, I don’t have any control over the mail and, like I said, I don’t have any physical checks or any other way to get that money out there. I know I spoke to you stating that, again, it was a hardship and I needed to borrow money and make sure that there was going to be money in the account to be able to have the check clear. And then when I hadn’t heard from you by the 19th I knew that I - - I needed to send the money at that time.

N.T., 6/3/20, at 9.

Clearly the trial court was not persuaded by Wife’s claim that she lacked

the ability to comply. First, Wife lays her tardy payment at Husband’s feet.

She claims she approached Husband about using a payment plan on January

24, 2020 – the day the court ordered the sanction. See Wife’s Brief at 23.

However, Wife’s own testimony indicated she chose to delay sending the

money, hoping Husband would be amicable to a payment plan. In other

words, the lateness was not due to an impossibility to perform, i.e. the fact

she had to borrow the money and then wait for the money to clear. Rather,

Wife’s tardiness had more to do with her decision to wait until the 11 th hour

to see whether she had to pay it all at once. Once it became apparent to Wife

that Husband would not accept installment payments, Wife began the transfer

process. By that time, however, Wife’s use of her preferred method of paying

bills – online banking with USAA – meant the check would arrive late. Even

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then, Wife had five days to find an alternative option, but instead she chose

to initiate the transfer, regardless of whether it arrived on time. Under these

facts, we conclude the court did not abuse its discretion when it determined

Wife failed to prove this affirmative defense.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/31/2021

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