Sinaiko v. Sinaiko

23 Pa. D. & C.4th 86, 1995 Pa. Dist. & Cnty. Dec. LEXIS 187
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJanuary 20, 1995
Docketno. A06-88-6115-QKY-19
StatusPublished

This text of 23 Pa. D. & C.4th 86 (Sinaiko v. Sinaiko) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sinaiko v. Sinaiko, 23 Pa. D. & C.4th 86, 1995 Pa. Dist. & Cnty. Dec. LEXIS 187 (Pa. Super. Ct. 1995).

Opinion

SCOTT, J,

Peter Sinaiko, M.D., “husband,” has appealed our December 9, 1994 order [87]*87finding him in contempt of our February 18, 1994 order which directed that husband pay $39,936 in counsel fees to his former wife, Patricia Sinaiko, “wife.” Under our December 9, 1994 order, husband was remanded to the Bucks County Prison for a period of 14 days with a purge condition of the payment of $39,936. This opinion is written in support of our December 9, 1994 decision.

The history of this case is as follows: On October 1, 1990, at the time of an equitable distribution hearing scheduled before the undersigned, the parties entered into a property settlement agreement. The terms of the agreement were incorporated into a divorce decree granted on October 5, 1990. Contempt petitions followed on November 14, 1990, January 22, 1991, May 23, 1991 and December 16, 1991 for husband’s noncompliance with the economic terms of the agreement. These economic terms related to the equitable distribution aspects of the agreement and certain support related matters of the parties’ two children, Stephen and Daniel, principally payment of Stephen’s law school tuition, room and board. There was also a payment for Daniel’s summer expenses. This issue regarding Daniel was a very minor component of the contempt proceedings.

The last contempt petition resulted in the order of May 6, 1992 directing husband to pay approximately $41,000 to wife, principally for Stephen’s law school expenses. When husband did not comply with the terms of the May 6, 1992 order, wife reduced the order to judgment and issued a writ of execution with, the sheriff which [88]*88resulted in the attachment of husband’s Porsche. After the Porsche was attached, husband did resolve the matter, withdrew his appeal of the May 6, 1992 finding and the parties resolved all outstanding financial issues except the issues of payment of counsel fees for husband’s prior noncompliance. There was a series of hearings on the issue of counsel fees, which resulted in our February 18, 1994 order. Flusband appealed said order, but it was untimely, and as a result the appeal was quashed.

The February 18, 1994 order referred to paragraph 17 of the parties’ October 1, 1990 separation agreement, which stated that legal fees would be assessed against the party found to have breached the separation agreement. The February 1994 order assessed legal fees for noncompliance with the equitable distribution and certain support terms of the parties’ 1990 agreement, not for payment of counsel fees for representation during the divorce proceedings. After husband’s appeal of the February 1994 order had been quashed, wife reduced the order to judgment and made at least two attempts to satisfy the judgment. The first attempt was to attach the Porsche, a maneuver which had merited husband’s attention in the prior proceeding. At this point, husband managed to resist such attachment since the Porsche had been transferred into joint names with himself and his current wife in June 1994. The second attempt was to have Blue Cross/Blue Shield reimbursements which were due to husband’s medical practice paid to wife to satisfy the judgment. While there was not testimony on this point, by representation of the attorneys, it appears Blue Cross/Blue Shield took the position that the payments were due to husband’s [89]*89professional corporation, not to husband individually, and such payments could not be diverted to satisfy a judgment of this nature. The third attempt to satisfy the judgment is the subject of the instant petition. In the instant petition, wife’s attorney requested that husband’s stock in his professional medical corporation, of which he is the 100 percent shareholder, be transferred to wife until the judgment is satisfied or, in the alternative, that husband be remanded to the Bucks County Prison until the judgment is satisfied. The hearing on the petition was held on December 9, 1994. Counsel made argument on the issue of attaching husband’s stock. We agreed with husband’s attorney that stock in a professional corporation can only be held by the appropriate professionals, such as a physician, and, therefore, this remedy was unavailable to wife. We, therefore, heard testimony from husband as to his present ability to pay the order and wife’s testimony as to husband’s statements to her regarding such payment.

Wife first testified that after she received this court’s February 19, 1994 opinion, she contacted husband and essentially asked him if they could work out a resolution with the hope of keeping the lawyers out of it. She also indicated to him that she would accept partial payments toward the obligation. She stated that husband’s response was that he was not going to pay her anything and he did not care what the court said.

Husband’s position at the December 1994 hearing was that he could not afford to pay anything toward the counsel fees, even when this court asked what plan he would propose in an effort to meet the obligation. His plan was to pay nothing until his obligation for his son, Daniel, was completed in three years, when Daniel completed [90]*90college. Husband indicated that his income was down from the $300,000 to $400,000 personal gross at the time of the 1990 agreement to $160,000 personal gross in 1993. In support of this position, husband provided only the first two pages of his 1993 1040 personal tax return. He did not provide a professional corporate return, even though this had specifically been requested by wife’s counsel. To show that his expenses were extraordinary, husband produced exhibit R-4, showing that he owed approximately $26,000 in income tax. This was income tax for the 1993 tax year and on his alleged income of $160,000 he had only paid $15,000 in taxes even though approximately $40,000 was due based on the return. Husband further produced exhibit R-2 which indicated that by his accountant’s calculation he had to expend $69,000 in pre-tax money for his son, Daniel, for his obligations under the 1990 property settlement agreement. However, it is not disputed that the real yearly outlay is approximately $26,000 for Daniel’s college, plus about $13,000 in child support until Daniel is 21. Husband further indicated that he paid approximately $2,800 per month for his mortgage and that his mortgage was current. When asked by the court, regarding some of the assets that he had at the time of equitable distribution, he indicated that he had been taking money from his pension fund to pay various expenses related to his son, Daniel, and that he had approximately “$30,000 total” (N.T. p. 88) left. Again, no documentation was provided. Husband’s lawyer objected to questions regarding the pension fund, asserting that the court could not make husband withdraw money from his pension to pay the counsel fees.

On appeal, husband asserts the following issues:

[91]*91(a) Defendant/petitioner, appellee/wife herein, failed to present sufficient evidence to sustain a finding of willful disregard of the order dated February 18, 1994 to pay counsel fees under the property settlement agreement;

(b) The trial court incarcerated appellant/husband in violation of 42 Pa.C.S. §§4132 and 4133;

(c) The trial court incarcerated appellant/husband in violation of the United States Constitution; and

(d) The trial court abused its discretion by incarcerating appellant/husband for nonpayment of counsel fees under a property settlement agreement.

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Related

§ 3105
Pennsylvania § 3105(a)
§ 3502
Pennsylvania § 3502(e)
§ 4132
Pennsylvania § 4132
§ 4133
Pennsylvania § 4133

Cite This Page — Counsel Stack

Bluebook (online)
23 Pa. D. & C.4th 86, 1995 Pa. Dist. & Cnty. Dec. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sinaiko-v-sinaiko-pactcomplbucks-1995.