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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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