J-S51045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.M., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
M.K.P.,
Appellee No. 1497 EDA 2014
Appeal from the Order Entered April 25, 2014 in the Court of Common Pleas of Philadelphia County Domestic Relations at No.: 1105994; Pacses #553112291
Appellee No. 1720 EDA 2014
Appeal from the Order Entered May 15, 2014 in the Court of Common Pleas of Philadelphia County Domestic Relations at No.: 1105994
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 24, 2015
In these consolidated cases, Appellant, S.M. (Mother), appeals from
the trial court’s April 25, 2014 order entering a final child support
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S51045-15
determination, and its May 15, 2014 order directing her to pay the
attorney’s fees and court costs of Appellee, M.K.P. (Father), for her failure to
comply with the court’s discovery order. We affirm.
This case has a voluminous and protracted procedural history. We
take the relevant factual and procedural background from the trial court’s
December 12, 2014 opinion and our independent review of the record.
The parties are the parents of one child, C.M., born in November 2010
(Child). Mother is a self-employed attorney with an office in Philadelphia.
Father is the founder and president of Union Packaging, LLC, (Union) a paper
board manufacturing company located in Yeadon, Pennsylvania.1
On February 14, 2011, Mother filed a complaint for child support. The
trial court established Child’s paternity on March 23, 2011. On May 18,
2011, after a pre-trial conference, the court entered an interim order
directing Father to pay $1,596.00 per month in child support, plus $160.00
in arrears. The parties sought discovery, and on November 23, 2011,
following a hearing, the court entered an order directing the parties to
provide “satisfactory and complete answers [to] reciprocal requests for
production of documents” within twenty days. (Order, 11/23/11)
(capitalization omitted). The order advised: “if available documents are not
1 Father is also the 100 percent shareholder of Providence Packaging Group, Inc., (Providence) the S-Corporation that owns Union. (See Master’s Report, 1/24/14, at 15, 17; Father’s Brief, at 10).
-2- J-S51045-15
produced, upon a petition for contempt, sanctions shall be imposed.” (Id.)
(capitalization omitted); (see also N.T. Hearing, 11/23/11, at 41) (court
ordering parties to provide answers to discovery and warning that failure to
comply will result in sanctions).
On January 10, 2012, Mother filed a motion to compel responses to
discovery requests. On January 13, 2012, she filed a petition for contempt.
Father filed an answer with new matter on January 20, 2012. On February
16, 2012, the trial court entered an order resolving Mother’s petition and
Father’s response by agreement of the parties.
On March 15, 2012, Father filed a motion for sanctions against Mother
for her failure to comply with the court’s November 23, 2011 order
respecting discovery. See Pa.R.C.P. 4019(a)(1)(viii). The court held a
hearing on September 17, 2012, at which it addressed outstanding discovery
issues. On that same date, it entered an order addressing the tax
information to be supplied by both parties, in which it directed Father to
provide his 2011 tax return to the court within five days of submission to the
Internal Revenue Service (IRS).
The master held hearings on the matter of child support in April and
June 2012. On October 31, 2012, the master entered a proposed order
directing Father to pay $2,771.94 per month in support, effective February
4, 2011, plus $228.06 in arrears. Both parties filed exceptions, and
following a hearing, the court remanded the matter to the master for further
-3- J-S51045-15
proceedings on the issues of Mother’s imputed income, reasonable childcare
expenses for Child,2 and Father’s net income.
On February 6, 2013, the trial court found Mother in contempt of
discovery proceedings, with sanctions to be determined by March 8, 2013.
Pursuant to the court’s directive, Father submitted a certification of costs
and attorney’s fees on February 11, 2013. Mother submitted a response
contesting Father’s certification of costs and fees on February 25, 2013.
The support master held additional hearings in June and November
2013. On January 24, 2014, the master filed a report stating his
determinations that Mother has a gross annual earning capacity of
$75,000.00, and Father’s annual income is $394,506.00. He also concluded
that, while childcare was a necessary expense for Child, weekly daycare
expenses of $255.00 were reasonable, but weekly nanny-care expenses of
$525.00 were excessive. He entered a proposed order directing Father to
pay $2,924.90 per month effective February 14, 2011, $3,031.05 per month
effective March 1, 2013, and $2,941.00 per month effective June 1, 2013,
plus $200.00 per month towards arrears.
Both parties filed exceptions, and on April 25, 2014, following a
hearing, the trial court entered an order denying the parties’ exceptions and
making the master’s January 24, 2014 proposed order a final order. On May ____________________________________________
2 A nanny cared for Child until April 2012, at which time Child began attending the daycare program in which he currently is enrolled.
-4- J-S51045-15
15, 2014, the court entered an order directing Mother to pay $5,000.00 in
attorneys’ fees and $1,513.50 in court costs to Father’s attorney as a
sanction for contempt in the discovery matter. The order advised: “this
award takes into account the nature of the contempt, the ability of [Mother]
to pay and a review of the charges in relation to the case as a whole.”
(Order, 5/15/14) (capitalization omitted). Mother filed timely notices of
appeal.
On June 12, 2014, the trial court ordered Mother to file concise
statements of errors complained of on appeal within twenty-one days. See
Pa.R.A.P. 1925(b). Mother filed concise statements on July 7, 2014.3 The
court filed an opinion on December 12, 2014, in which it addressed the
issues Mother raised in her Rule 1925(b) statements. See Pa.R.A.P.
1925(a).4 ____________________________________________
3 We observe that Mother filed her Rule 1925(b) statements four days after the deadline set by the trial court. (See Order, 6/12/14; Rule 1925(b) Statements, 7/07/14). Although this failure generally results in waiver of all claims on appeal, “there are still operative exceptions to Rule 1925(b) waiver with regard to timeliness.” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (en banc). One such exception is error in the court’s Rule 1925(b) order, because “it is the trial court’s order that triggers an appellant’s obligation[.]” Id. (citation omitted). Instantly, the court’s order failed to advise that any issue not included in a timely filed statement shall be deemed waived; thus, it did not comply with the technical requirements of Rule 1925(b). See Pa.R.A.P. 1925(b)(3)(iv). Under these circumstances, where there is an error in the court’s order, we decline to find waiver of Mother’s issues on appeal on the basis of her untimely Rule 1925(b) statements. 4 This Court consolidated the appeals sua sponte on July 2, 2014.
-5- J-S51045-15
Mother raises fourteen issues for our review:
1. Whether the [trial] [c]ourt erred when it permitted [Father] to deduct $600,000 of his majority or wholly controlled business’ I.R.S. § 179 accelerated depreciation from his income available for calculating child support[?]
2. Whether the [trial] [c]ourt erred in finding that [Father’s] $5.7 million company is not a substantial asset to warrant an upward deviation from the support guidelines[?]
3. Whether the [trial] [c]ourt erred in finding that [Mother’s] earning capacity is $75,000 when the record provides no factual support for the finding and there was no finding of willful underemployment[?]
4. Whether the [trial] [c]ourt erred in finding multi-millionaire [Father] with no physical contact with [C]hild may avoid paying nanny care expense because he objected to the expense[?]
5. Whether the [trial] [c]ourt abused its discretion when it denied Mother’s discovery request to obtain [Father’s] tax returns filed with the I.R.S. absent a showing of fraud?
6. Whether the [trial] [c]ourt erred as a matter of law in issuing monetary sanctions 465 days after the [c]ourt ordered deadline of March 8, 2013?
7. Whether the [trial] [c]ourt erred as a matter of law in finding civil contempt without a hearing on February 6, 2013?
8. Whether the [trial] [c]ourt erred in issuing monetary sanctions after it denied [Father’s] contempt motions on January 13, 2012 and February 16, 2012[?]
9. Whether [the trial] [c]ourt erred in issuing monetary sanctions when [Father] did not file on the record a certification of costs and attorney fees as directed by the [c]ourt’s order dated February 6, 2013[?]
10. Whether the [trial] [c]ourt erred as a matter of law when it did not follow the procedures outlined in Rule 1910.25, et seq. and failed to serve the required contempt notice[?]
-6- J-S51045-15
11. Whether the [trial] [c]ourt erred as a matter of law in finding of contempt when it did not find that [Mother] willfully violated a court order[?]
12. Whether the [trial] [c]ourt erred as a matter of law in finding of civil contempt when it did not conduct a hearing to determine whether [Mother] willfully [] violated a court [order?]
13. Whether the [trial] [c]ourt, without a hearing, considered [Mother’s] ability to purge the contempt when the outstanding [c]ourt [o]rder required no action of [Mother?]
14. Whether the [trial] [c]ourt abused its discretion when it awarded $5,000 money sanction which exceeds [Mother’s] combined monthly income and child support award[?]
(Mother’s Brief, at unnumbered pages 8-9).
Initially, we observe that Mother’s first five issues challenge the trial
court’s April 25, 2014 child support order. Our standard of review is as
follows: Appellate review of support matters is governed by an abuse of discretion standard. When evaluating a support order, this Court may only reverse the trial court’s determination where the order cannot be sustained on any valid ground. 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. The principal goal in child support matters is to serve the best interests of the children through the provision of reasonable expenses.
J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015) (citation omitted).
“[A] master’s report and recommendation are to be given the fullest
consideration, especially on the issue of the credibility of witnesses.”
-7- J-S51045-15
Kraisinger v. Kraisinger, 928 A.2d 333, 344 (Pa. Super. 2007) (citation
and internal quotation marks omitted).
In her first issue, Mother argues that the trial court erred in failing to
add the IRS section 179 tax depreciation deductions made by Union in 2010
to Father’s income available to calculate child support. (See Mother’s Brief,
at unnumbered pages 11-16).5 This issue does not merit relief.
When a payor spouse owns his own business, the calculation of income for child support purposes must reflect the actual available financial resources of the payor spouse. In addition,
Our jurisprudence is clear [ ] that the owner of a closely-held corporation cannot avoid a support obligation by sheltering income that should be available for support by manipulating salary, perquisites, corporate expenditures, and/or corporate distribution amounts. By the same token, however, we cannot attribute as income funds not actually available or received by the party.
Fitzgerald v. Kempf, 805 A.2d 529, 532 (Pa. Super. 2002) (citations and
quotation marks omitted).
Depreciation and depletion expenses should be deducted from gross income only when they reflect an actual reduction in the personal income of the party claiming the deductions. . . .
* * * ____________________________________________
5 Section 179 of the IRS Tax Code allows a business to deduct the full purchase price of financed or leased equipment for the current tax year. See Section 179.Org, (September 21, 2015), http://www.section179.org/section_179_faqs.html.
-8- J-S51045-15
. . . Depreciation is an accounting mechanism which allocates the original cost of an asset to the periods in which the asset is used. Depreciation does not result in income. Rather, when depreciation expense is claimed, taxable income is decreased by the amount so claimed, resulting in a “marginal income tax savings,” not an increase in income.
The presence of a depreciation deduction (on a federal income tax return) or a depreciation expense (on consolidated financial statements) simply signals that a corporation has made capital expenditures, the costs of which it seeks to allocate to the periods in which the assets underlying the capital expenditures are being used. Only by asserting that the capital expenditures, for which depreciation deductions are currently being claimed, were made with cash flows that should have instead been disbursed to the shareholders, can it be argued that a corporation is improperly sheltering cash flows.
* * *
. . . When it is alleged that the corporation has sheltered cash flows . . . it must be shown that the cash flows could have been disbursed to shareholders. In cases where cash flows which could have been disbursed to shareholders have instead been disbursed for business expenses, the corporation must show that the expenditures were necessary for the continued operation and smooth running of the business in order to refute an allegation that the corporation has sheltered cash flows.
Labar v. Labar, 731 A.2d 1252, 1255-57 (Pa. 1999) (emphasis added)
(citations, footnotes, and original emphasis omitted).
Here, Father testified that Union took the section 179 tax deduction for
depreciation of equipment used in the manufacturing of folding cartons for
the fast-food industry. (See N.T. Hearing, 6/27/13, at 122-24). He
explained that it was Union’s custom and practice to take the tax deduction
for equipment since its founding in 1999, and that it followed these same
-9- J-S51045-15
accounting principles in 2010-12. (See id. at 125-26). He further testified
that this method of accounting and the section 179 deductions were not put
in place with the purpose of sheltering his income. (See id. at 126). He
points out that he did not learn that he was Child’s father until March of
2011, well after this practice was implemented, and months after the 2010
tax year ended. (See Father’s Brief, at 9).
The master found that Father testified credibly as to Union’s practice of
taking the 179 deductions and that Mother provided no credible evidence
that Father was sheltering income to avoid child support. (See Master’s
Report, at 18). He concluded that it was not appropriate to add the
depreciation expense into Father’s income for the purpose of determining
child support. (See id.). The trial court reviewed the matter and agreed
with the master’s assessment. (See Trial Ct. Op., at 10). After review of
the record, we conclude that the trial court did not abuse its discretion in
disposing of this issue. See J.P.D., supra at 889; see also Kraisinger,
supra, at 344 (concluding depreciation deductions for equipment properly
excluded from husband’s income where he credibly testified that purchases
were necessary business-related expenses and not taken to avoid support
obligation). Mother’s first issue does not merit relief.
In her second issue, Mother contends that the trial court failed to
consider Father’s largest asset, his 5.7 million dollar company, in
- 10 - J-S51045-15
determining that an upward deviation from the support guidelines is not
warranted. (See Mother’s Brief, at unnumbered pages 16-17).6 Mother
argues that an upward deviation is appropriate because Father’s business
asset is more than ten times his income. (See id.). This issue does not
merit relief.
Child support actions are governed by Pennsylvania Rules of Civil
Procedure 1910.1 through 1910.50. See J.P.D., supra at 889. The amount
of a child support award is calculated generally on the bases of the parties’
monthly net income. See Pa.R.C.P. 1910.16-2. Rule 1910.16—1(d)
provides:
(d) Rebuttable Presumption. If it has been determined that there is an obligation to pay support, there shall be a rebuttable presumption that the amount of the award determined from the guidelines is the correct amount of support to be awarded. The support guidelines are a rebuttable presumption and must be applied taking into consideration the special needs and obligations of the parties. The trier of fact must consider the factors set forth in Rule 1910.16-5. The presumption shall be rebutted if the trier of fact makes a written finding, or a specific finding on the record, that an award in the amount determined from the guidelines would be unjust or inappropriate.
Pa.R.C.P. 1910.16-1(d). Rule 1910.16—5 allows for deviation from the
guideline amount. It provides:
6 We note that Father does not agree with Mother’s representation that the value of Union is $5.7 million dollars. (See Father’s Brief, at 11 n.2). He does not provide an alternative valuation. (See id.).
- 11 - J-S51045-15
(a) Deviation. If the amount of support deviates from the amount of support determined by the guidelines, the trier of fact shall specify, in writing or on the record, the guideline amount of support, and the reasons for, and findings of fact justifying, the amount of the deviation.
Note: The deviation applies to the amount of the support obligation and not to the amount of income.
(b) Factors. In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider:
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) the relative assets and liabilities of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children;
(8) in a spousal support or alimony pendente lite case, the duration of the marriage from the date of marriage to the date of final separation; and
(9) other relevant and appropriate factors, including the best interests of the child or children.
Pa.R.C.P. 1910.16-5.
“The trier of fact is to consider all the relevant factors in determining
whether a deviation is warranted; any one factor is not necessarily
determinative.” Suzanne D. v. Stephen W., 65 A.3d 965, 972-73 (Pa.
Super. 2013) (citation omitted).
- 12 - J-S51045-15
Here, Mother relies on Suzanne D., supra, to support her contention
that an upward deviation is warranted based on Father’s substantial
business interests. (See Mother’s Brief, at unnumbered page 17). She
claims that, under Suzanne D., “[a]n asset that more than doubles the
obligor’s income is sufficient reason to deviate from the support guidelines.”
(Id.). She maintains that the court considered only Father’s car, bank
account balances, and real estate in analyzing whether a deviation is
appropriate. (See id. at 16). We find this argument unpersuasive for the
following reasons.
First, the Suzanne D. Court discusses the appropriateness of an
upward deviation based on the receipt of substantial monetary gifts, and
the facts of that case are inapposite to the instant case, which does not
involve gifts. See Suzanne D., supra at 973.
Further, a review of the record reflects that the trial court considered
the relevant factors in considering a deviation from the guidelines, including
the total amount of income Father receives in the form of salary, bonuses,
and distributions as president of Union and 100 percent shareholder of
Providence. (See Trial Ct. Op., at 11; Master’s Report, at 15-18). The court
explained the basis for its decision as follows:
At the master’s hearing, Father testified that, in addition to his annual income of $394,506, he owns a 2006 BMW purchased by Union Packaging, and he maintains a checking and savings account with a balance of $15,000 and a 401k valued at $250,000. (See Master’s Report, at 19). Father owns several properties in Philadelphia including his personal residence which
- 13 - J-S51045-15
he purchased for $400,000 in 2008, a condominium he purchased for $300,000 in 2006 (for which his mortgage payment is $1,800, his condominium association fees are $230, and he collects rent in the amount of $1,500 monthly), and a residence jointly owned by him and his estranged wife, which they purchased for $230,000 in 1996. (See id.). The master found Father’s 2010 Schedule E reflected a loss in the amount of $20,803 and determined that Father therefore has no rental income. (See id.).
Father’s expenses include a $3,160 monthly mortgage payment (including homeowners insurance, real estate taxes and condominium association fees) for his personal residence and a car insurance payment in the amount of $1,600 annually. (See id.). Father also has additional court-ordered support obligations to his estranged wife and their daughter in the amount of $2,900 per month, collectively. (See id. at 20).
In consideration of the above-mentioned factors, [the master] concluded that the amounts and types of assets and expenses of Father were not so unusual or extraordinary so as to warrant a deviation from the guidelines. (See id. at 19). For the past two years, Mother has been receiving approximately $3,000 per month in child support, which amounts to nearly $36,000 annually on behalf of the parties’ three-year-old child. Giving the fullest consideration to the master’s findings and based on the fact that Mother’s testimony has been largely incredible since the inception of the instant support action, the court found no reason to deviate from the support guidelines.
(Trial Ct. Op., at 11-12) (record citation formatting provided; one record
citation omitted).
After review, we discern no abuse of discretion in the trial court’s
determination that an upward deviation from the guidelines is not
appropriate in the instant case. See J.P.D., supra at 889. Mother’s second
issue lacks merit.
In her third issue, Mother argues that the trial court erred in imputing
an earning capacity of $75,000.00 to her, where the record provides no
- 14 - J-S51045-15
factual support for this determination and there was no finding of willful
underemployment. (See Mother’s Brief, at unnumbered pages 17-19).
Mother avers that she has had the same income since Child was born in
2010, and that she is limited to working forty hours per week because of her
childcare responsibilities. (See id., at unnumbered page 18). This issue
does not merit relief.
Where a party assumes a lower paying job or willfully fails to obtain
appropriate employment, the court is permitted to determine the support
obligation based on the party’s assessed earning capacity. See Woskob v.
Woskob, 843 A.2d 1247, 1254 (Pa. Super. 2004). Rule 1910.16—2(d)(4)
addresses earning capacity, and provides:
Earning Capacity. If the trier of fact determines that a party to a support action has willfully failed to obtain or maintain appropriate employment, the trier of fact may impute to that party an income equal to the party’s earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity. In order for an earning capacity to be assessed, the trier of fact must state the reasons for the assessment in writing or on the record. Generally, the trier of fact should not impute an earning capacity that is greater than the amount the party would earn from one full-time position. Determination of what constitutes a reasonable work regimen depends upon all relevant circumstances including the choice of jobs available within a particular occupation, working hours, working conditions and whether a party has exerted substantial good faith efforts to find employment.
Pa.R.C.P. 1910.16—2(d)(4).
- 15 - J-S51045-15
In addressing this issue, we are mindful that “[t]he trial court, as the
finder of fact, is entitled to weigh the evidence and assess the credibility of
witnesses.” Morgan v. Morgan, 99 A.3d 554, 559 (Pa. Super. 2014),
appeal denied, 113 A.3d 280 (Pa. 2015) (citation omitted).
Here, Mother testified that, before Child was born, she earned
approximately $75,000.00. (See N.T. Hearing, 6/27/13, at 114). After
Child was born, she worked part-time for approximately fifteen hours per
week, and she increased her hours over time to forty hours per week. (See
id. at 106-07, 109, 116). Paystubs Mother submitted show a gross biweekly
salary of $800.00 ($20,800.00 annually). (See Master’s Report, at 7-8).
Mother testified that she is unable to generate the same amount of income
that she earned before Child was born because she cannot work the number
of hours necessary to develop new business. (See N.T. Hearing, 6/27/13, at
108, 115). However, the master noted several inconsistencies in the
evidence and stated that Mother’s “testimony has been less than credible
regarding her income and expenses.” (Master’s Report, at 9; see id. at 10).
The trial court also rejected the evidence Mother put forth on this issue as
not credible and made an express determination that she is “underworking.”
(Trial CT. Op., at 13).
After review of the record, we see no reason to disturb the trial court’s
credibility determination and its decision to impute an earning capacity of
$75,000 to Mother. See Morgan, supra at 559; Woskob, supra at 1254.
Mother’s third issue lacks merit.
- 16 - J-S51045-15
In her fourth issue, Mother maintains that the trial court erred in
allowing Father to avoid payment of nanny-care expenses of $525 per week
over a two-year period where he is a multi-millionaire and is not involved
with Child. (See Mother’s Brief, at unnumbered pages 19-22). She argues
that the court erroneously concluded that nanny-care is not a reasonable
expense but that a daycare at a facility at a rate of $255.00 per week is
reasonable. (See id. at unnumbered page 20). This issue does not merit
relief.
Rule 1910.16—6(a) provides in pertinent part:
Additional expenses permitted pursuant to this Rule 1910.16-6 may be allocated between the parties even if the parties’ incomes do not justify an order of basic support.
(a) Child care expenses. Reasonable child care expenses paid by either parent, if necessary to maintain employment or appropriate education in pursuit of income, shall be allocated between the parties in proportion to their net incomes and added to his and her basic support obligation. . . .
Pa.R.C.P. 1910.16—6(a).
Here, the record reflects that, although the parties’ share legal custody
of Child, Mother did not consult Father prior to hiring a nanny or enrolling
him in daycare. (See N.T. Hearing 6/27/13, at 69-70, 74-76; Master’s
Report, at 13). Once Mother replaced nanny-care with daycare for Child, the
actual cost of childcare was reduced significantly, by more than half. (See
N.T. Hearing 6/27/13, at 70; Master’s Report, at 13). The court determined
that the expense of nanny-care was not reasonable where comparable
- 17 - J-S51045-15
childcare services were available at a much lower cost, especially in light of
Mother’s failure to discuss the appropriate mode of childcare with Father.
(See Trial Ct. Op., at 15-16). The court also noted that Mother’s testimony
regarding her large nanny-care payments did not comport with her
testimony regarding her low income. (See id. at 16).
After review of the record, we discern no abuse of discretion in the
trial court’s disposition of this issue. See J.P.D., supra at 889. Mother’s
fourth claim does not merit relief.
In her fifth issue, Mother asserts that the trial court abused its
discretion when it denied her discovery request to obtain Father’s federal tax
returns absent a showing of fraud. (See Mother’s Brief, at unnumbered
pages 22-23). Although she acknowledges that the court did grant her
motion and ordered Father to produce his tax returns, she complains that
the court did not permit her to obtain the returns directly from the IRS.
(See id.). This issue is waived for multiple reasons.
First, Pennsylvania Rule of Appellate Procedure 1925(b) requires an
appellant to “concisely identify each ruling or error that [she] intends to
challenge with sufficient detail to identify all pertinent issues for the judge.”
Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.” Pa.R.A.P. 1925(b)(4)(vii); see also Greater Erie Indus. Dev.
Corp., supra at 224 (“[F]ailure to comply with the minimal requirements of
- 18 - J-S51045-15
Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.”) (case
citation and emphasis omitted).
Here, with respect to this issue, Mother’s Rule 1925(b) Statement
reads: “Whether the [c]ourt abused its discretion when it denied Mother’s
discovery request to obtain [Father’s] tax returns filed with the I.R.S. absent
a showing of fraud?” (Rule 1925(b) Statement, 7/07/14, at 2 ¶ 5). The trial
court concluded that Mother’s claim is factually inaccurate because, contrary
to her assertion, it did grant Mother’s motion and ordered Father to provide
his tax returns. (See Order, 9/17/12; Trial Ct. Op., at 17; see also Father’s
Brief, at 19 (averring “Mother inaccurately states the facts in this matter.”)).
The court was not able to address Mother’s specific allegation that it should
have permitted her to obtain the tax returns directly from the IRS because
Mother did not identify this claim in her Rule 1925(b) statement. Thus, she
waived the issue for purposes of appeal. See Pa.R.A.P. 1925(b)(4)(ii), (vii).
Furthermore, in her argument spanning less than one page, Mother
utterly fails to develop her claim with citation to, and discussion of, pertinent
legal authority. (See Mother’s Brief, at unnumbered pages 22-23);
Pa.R.A.P. 2119(a)-(b), 2101. Thus, her claim is waived for this reason as
well.7
7 We note that Mother’s argument appears disingenuous, given that the court ordered Father to produce his tax returns and Father complied. (See Order, 9/17/12; Master’s Report, at 15-16).
- 19 - J-S51045-15
Mother’s remaining nine issues challenge the trial court’s May 15, 2014
order imposing sanctions on her for violation of its discovery order, and
directing her to pay Father’s attorneys’ fees and court costs.
. . . The decision whether to sanction a party for the failure to comply with a discovery order, and the degree of that sanction, are within the discretion of the trial court. This Court will disturb such a sanction only where the trial court has abused its discretion. The propriety of the sanction is determined by examining: (1) the prejudice caused to the opposing party and whether that prejudice can be cured; (2) the defaulting party’s willfulness or bad faith in failing to comply with the order; (3) the number of discovery violations, and; (4) the importance of the precluded evidence in light of the failure.
Jacobs v. Jacobs, 884 A.2d 301, 305 (Pa. Super. 2005) (citations omitted).
In her sixth issue, Mother claims that the court erred by issuing a
monetary sanction against her 465 days after its own deadline. (See
Mother’s Brief, at unnumbered page 23). Specifically, she argues that the
court’s action violated Canon 3B.(1) of the Code of Judicial Conduct. (See
id.). This issue merits no relief.
At the outset, we observe that this issue is not properly before this
Court. “It is beyond cavil that the Court of Judicial Discipline has jurisdiction
over the general subject matter [of] determining whether an individual
engaged in judicial misconduct.” In re Melograne, 812 A.2d 1164, 1167
(Pa. 2002); see also In re Lokuta, 11 A.3d 427, 434 (Pa. 2011), cert.
denied, 132 S.Ct. 242 (2011) (stating judicial officer has right to appeal final
adverse order of Court of Judicial Discipline to Pennsylvania Supreme Court).
Mother, in effect, concedes this point in her brief, stating “[o]f course, it is
- 20 - J-S51045-15
not the authority of the appellate courts, in deciding controversies between
litigants, to decide whether a judge has violated the canon of the Code of
Judicial Conduct.” (Mother’s Brief, at unnumbered pages 23-24). Thus,
Mother’s sixth claim is not properly before us and we decline to address it.
In her seventh issue, Mother argues “the [c]ourt erred as a matter of
law in finding civil contempt without a hearing on April 25, 2013.”8
(Mother’s Brief, at unnumbered page 24). This issue is waived and would
not merit relief.
First, Mother’s single-paragraph argument on this issue is largely
incoherent,9 contains inconsistencies in dates, and makes bald statements
such as “[t]he statue [sic] requires a hearing,” (id.), without citation to any
legal authority. Thus, she waived this undeveloped issue for purposes of
appeal. Pa.R.A.P. 2119(a),(b); 2101.
Second, “[i]ssues not raised in the lower court cannot be raised for the
first time on appeal and are considered waived. Pa.R.A.P. 302(a).” Green v.
Green, 69 A.3d 282, 286 (Pa. Super. 2013). Here, at the conclusion of the
April 25, 2014 exceptions hearing, both parties agreed that the issue of ____________________________________________
8 This date differs from the date Mother references in her statement of the questions involved (February 6, 2013). (See Mother’s Brief, at unnumbered page 8). 9 For example, Mother states: “The court did not hold a hearing on May 15, 2014. The hearing that lead [sic] to the May 15, 2014 hearing was held on April 25, 2013.” (Mother’s Brief, at unnumbered page 24).
- 21 - J-S51045-15
contempt and the award of counsel fees could be disposed of based on the
their previously submitted briefs, and that oral argument on the matter was
unnecessary. (See Exceptions Hearing, 4/25/14, at 99-101). Thus,
Mother’s issue is waived for this reason as well.
Moreover, to the extent we can discern it, Mother’s issue would not
merit relief. “Neither notice nor a hearing is a necessary prerequisite to the
imposition of sanctions pursuant to Pa.R.C.P. 4019.” Hein v. Hein, 717
A.2d 1053, 1056 (Pa. Super. 1998) (citation omitted); see also Sahutsky
v. Mychak, Geckle & Welker, P.C., 900 A.2d 866, 870 (Pa. Super. 2006),
appeal denied, 916 A.2d 1103 (Pa. 2007) (noting neither notice nor hearing
are prerequisite to imposition of sanctions pursuant to Rule 4019). Thus,
“[Mother’s] contention that the trial court was required to hold a hearing
before imposing sanctions is meritless.” Hein, supra at 1056. Therefore,
Mother’s seventh issue is waived and would not merit relief.
In her eighth issue, Mother argues “the [c]ourt erred in issuing
monetary sanctions after it denied [Father’s] contempt motions on January
13, 2012 and February 16, 2012.” (Mother’s Brief, at unnumbered page
24). This claim lacks record support.
Specifically, the record reflects that Mother filed a petition for
contempt on January 13, 2012, that Father filed an answer with new matter,
and that the court entered an order resolving Mother’s petition and Father’s
answer on February 16, 2012. (See Order, 2/16/12; Trial Ct. Op., at 19).
Father filed his motion giving rise to the court’s imposition of monetary
- 22 - J-S51045-15
sanctions on March 15, 2012, approximately one month after entry of the
February 16, 2012 order. Based on this record, we agree with the trial court
that Mother has failed to explain how the court’s disposition of two prior
pleadings affect Father’s subsequent motion for sanctions. (See Trial
Ct.Op., at 19). Mother’s eighth issue is specious.
In Mother’s ninth issue, she claims that the trial court erred in issuing
monetary sanctions when Father did not file on the record a certification of
costs and attorney fees. (See Mother’s Brief, at unnumbered page 25). She
claims that the court deprived her of the opportunity to “cross-examine the
veracity of evidence” pertaining to this issue. (Id.). This claim does not
The trial court addressed Mother’s contention as follows:
Mother is correct that Father’s certification of costs was not filed and docketed. However, Father did in fact submit a certification of costs and attorney’s fees, along with a supporting brief, directly to the [trial court], as ordered. Mother was properly served, and counsel for Mother submitted a reply brief to the [trial court] as well. (See Father’s Certification of Costs and Attorney’s Fees, 2/11/13, Certificate of Service; Mother’s Response to Father’s Certification of Costs and Attorney Fees, 2/25/13, at unnumbered pages 1-7). Given the fact that the court did not order the certification of costs to be formally filed and intended to use it as an aid in determining the amount of sanctions to be imposed, this [c]ourt accepted Father’s certification of costs as an additional evidentiary exhibit. The court made no error in doing so.
(Trial Court Op., at 20) (record citation formatting provided).
After review, we discern no abuse of discretion in the trial court’s
disposition of this issue. See Jacobs, supra at 305. The record reflects
- 23 - J-S51045-15
that Father complied with the court’s directive and that Mother responded to
his certification of costs and attorney fees. Mother’s ninth issue lacks
merit.10
In Mother’s tenth issue, she argues “the [co]urt erred as a matter of
law when it did not follow the procedures outlined in [Pa.R.C.P.] 1910.25, et
seq. and failed to serve the required contempt notice.” (Mother’s Brief, at
unnumbered page 25). She argues “[t]he support contempt statute requires
[n]otice and a hearing.” (Id.) (citation omitted). This issue lacks merit.
Rule 1910.25 addresses enforcement of support orders and a finding
of civil contempt related thereto. See Pa.R.C.P. 1910.25(a). However, in
the instant case, Mother was found to be in contempt for her failure to
comply with the court’s order regarding discovery—not child support. (See
Father’s Motion for Sanctions against Mother, 3/15/12; Trial Ct. Op., at 8);
see also Pa.R.C.P. 4019(a)(1)(viii) (authorizing court to enter appropriate
order where party fails to comply with order respecting discovery). Thus,
Rule 1910.25 does not apply in the instant case. Mother’s tenth issue is
specious. ____________________________________________
10 We note that Mother’s reliance on Pennsylvania v. Ritchie, 480 U.S. 39 (1987), a United States Supreme Court criminal case involving confrontation clause issues, is unavailing because the issue addressed in that case is inapposite to Mother’s ninth claim. (See Mother’s Brief, at unnumbered page 25); see also Ritchie, supra at 42-43 (addressing “whether and to what extent a State’s interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant’s Sixth and Fourteenth Amendment right to discover favorable evidence.”).
- 24 - J-S51045-15
In her eleventh issue, Mother argues that the trial court erred by
finding her in contempt when it did not find that she willfully violated a court
order. (See Mother’s Brief, at unnumbered page 26). This issue does not
Rule 4019 provides, in pertinent part:
Rule 4019. Sanctions
(a)(1) The court may, on motion, make an appropriate order if
* * * (viii) a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.
* * * (c) The court, when acting under subdivision (a) of this rule, may make
(4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010;
(5) such order with regard to the failure to make discovery as is just.
Pa.R.C.P. 4019(a)(1)(viii), (c)(4),(5).
Here, the trial court explained:
Father properly filed a petition for sanctions on March 15, 2012 for Mother’s failure to cooperate with the discovery process in accordance with this [c]ourt’s November 23, 2011 [o]rder requesting, among other things, monetary sanctions “for reasonable expenses including, but not limited to, attorney’s fees, incurred in obtaining an order of compliance.” (Father’s Motion for Sanctions against Mother, 3/15/12, at unnumbered page 3, ¶ 17, subsection e). The November 23, 2011 [o]rder granted cross motions to compel discovery and directed both
- 25 - J-S51045-15
parties to provide “satisfactory and complete answers [to] reciprocal requests for production of documents . . . within twenty (20) days.” (Order, 11/23/11). In addition, the order specifically states that “if available documents are not produced, upon petition for contempt, sanctions shall be imposed.” (Id.). As Mother failed to provide the requested financial documents, the court properly found her in contempt on February 6, 2013 and imposed sanctions in the form of counsel fees on May 15, 2014.
(Trial Court Op., at 19; see also id. at 21) (record citation formatting
provided); (see also N.T. Hearing, 9/17/12, at 63) (court stating that
Mother “has been dragging her feet and . . . raising more red flags” in failing
to provide discovery).
After review of the record, we discern no abuse of discretion in the
trial court’s disposition of the issue. See Jacobs, supra at 305. Mother’s
eleventh issue does not merit relief.
In Mother’s twelfth issue, spanning a single page, she simply reiterates
her argument that the court erred in finding her in contempt without holding
a hearing to determine if she willfully violated the discovery order. (See
Mother’s Brief, at unnumbered page 27). This issue fails for the reasons
previously discussed in this memorandum.
We will address Mother’s thirteen and fourteenth arguments together
because they are related. In Mother’s thirteenth issue, she argues that the
court erred in imposing sanctions without considering her ability to purge
herself of the contempt, where the outstanding court order required no
action on her behalf. (See id., at unnumbered page 28). In her fourteenth
issue, she contends that the court’s award of $5,000.00 in counsel fees was
- 26 - J-S51045-15
an abuse of discretion because the sanction exceeds her combined monthly
income and child support award. (See id.). These issues do not merit
Sanctions for civil contempt can be imposed for one or both of two purposes: to compel or coerce obedience to a court order and/or to compensate the contemnor’s adversary for injuries resulting from the contemnor’s noncompliance with a court order. Attorneys’ fees and other disbursements necessitated by the contemnor’s noncompliance may be recovered by the aggrieved party in a civil contempt case. Because an award of counsel fees is intended to reimburse an innocent litigant for expenses made necessary by the conduct of an opponent, it is coercive and compensatory, and not punitive. . ..
Rhoades v. Pryce, 874 A.2d 148, 152 (Pa. Super. 2005), appeal
denied, 899 A.2d 1124 (Pa. 2006) (citations omitted).
This Court has stated that “a court may not convert a coercive
sentence into a punitive one by imposing conditions that the
contemnor cannot perform and thereby purge [her]self of the
contempt.” Orfield v. Weindel, 52 A.3d 275, 279 (Pa. Super. 2012)
(citation omitted).
Here, the trial court explained that it:
. . . intentionally waited until Mother’s earning capacity was determined in order to establish her ability to pay and impose sanctions accordingly. (See Order, 5/15/14). Based on the finding that Mother’s earning capacity is $75,000.00 annually, this [c]ourt determined that $5,000 in counsel fees was reasonable to compensate Father for his expenditures on the litigation while compelling Mother to comply with the [discovery] order.
- 27 - J-S51045-15
. . . Mother’s assertion that the $5,000 sanction exceeds her combined monthly income and child support award is factually incorrect[.] . . . [T]he trial court determined Mother’s annual net earning capacity was $75,000; said income computes to $6,250 monthly. Additionally, the current support order requires Father to pay over $3,000 to Mother monthly (including arrears). (See Order 4/25/14).
Based on the certification of costs and fees submitted by Father’s counsel, the court found that $5,000 would serve to compensate Father for most of his expenditures resulting from Mother’s noncompliance with the [discovery] order. Furthermore, because Mother has repeatedly demonstrated contemptuous behavior during the pendency of the instant litigation and has continuously been found incredible, the court imposed a monetary sanction it believed was harsh enough to coerce her into following its current order. The court did not abuse its discretion nor did it impose a punitive sanction, as Mother is more than capable of paying the $5,000 . . . It should also be noted that the court in fact determined the $5,000 figure after taking into consideration Father’s request for more than $21,000 in counsel fees. (See Father’s Certification of Costs and Attorney’s Fees, 2/11/13, at unnumbered page 2).
(Trial Ct. Op., at 22-23) (record citation formatting provided).
After review of the record, we discern no abuse of discretion in the
trial court’s disposition of these issues. See Jacobs, supra at 305.
Mother’s thirteenth and fourteenth issues lack merit.
Orders affirmed.
- 28 - J-S51045-15
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/24/2015
- 29 -