Berger, S. v. Waxman, J. ( 2023 )

J-A05031-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STACEY BERGER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JONATHAN WAXMAN : No. 1851 EDA 2022
Appeal from the Order Entered June 8, 2022
In the Court of Common Pleas of Montgomery County
Civil Division at 2009-27364
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED MARCH 28, 2023
Stacey Berger (Appellant) appeals from the order denying the petition
for contempt she filed against Jonathan Waxman (Ex-Husband). We affirm in
part, vacate in part, and remand with instructions.
Appellant filed a complaint in divorce on September 2, 2009. On
October 30, 2013, following “multiple days of hearings,” an arbitrator entered
an award effecting a 60/40 split of the marital assets in Appellant’s favor.
Award, 10/30/13, at 1, 6. The arbitrator directed:
[Ex-]Husband and [Appellant] shall execute a Qualified Domestic
Relations Order [] transferring $25,000 from [Ex-]Husband’s
Vanguard Investment and Individual Retirement Account … to
[Appellant’s] name. [Ex-]Husband shall retain the balance of his
Vanguard Retirement and Individual Retirement Accounts,
including the sum withdrawn by him in 2010.
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Id. at 3-4. The arbitrator directed Ex-Husband to pay Appellant $646,257 “in
cash or by certified check […] within ninety (90) days of the date of this
Award.” Id. at 6. The arbitrator further directed Ex-Husband to reimburse
Appellant approximately $26,910.47 for shared expenses Appellant had paid,
and credited Ex-Husband $50,406.18 for his payment of shared expenses.
Id. at 14, 16-20.
On June 25, 2014, Appellant filed a petition for special relief to confirm
arbitration awards and for contempt and enforcement. On October 14, 2014,
the parties entered into a stipulated settlement agreement (Settlement
Agreement). Pertinently, the Settlement Agreement provided:
4. [Ex-Husband] shall rollover his entire Vanguard retirement
account balance to [Appellant]. [Ex-Husband] shall cooperate to
achieve the rollover as soon as possible.
***
9. [Ex-Husband] shall pay [Appellant] $730,025 in settlement
of his financial obligations (other than those obligations addressed
by the parties’ support stipulation that they executed on October
14, 2014) to [Appellant] as follows:
a. [Ex-Husband] shall owe [Appellant] 6% interest per
annum on the $730,025 commencing retroactively on January 31,
2014.
b. [Ex-Husband] will be credited as paying [Appellant]
$30,800 toward the outstanding debt as of the date that [Ex-
Husband’s] entire Vanguard retirement account has been
transferred to [Appellant].
c. Commencing on the first day of the first month
following the entry of the divorce decree, [Ex-Husband] shall pay
[Appellant] $4,528 per month toward the outstanding debt and
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shall continue making payments in that amount each month due
on the first day of each month until November 30, 2015.
d. Commencing on December 1, 2015, [Ex-Husband’s]
payments to [Appellant] shall increase to $8,628 per month. The
payments shall be due and payable on the first day of each month
and continuing until December 31, 2017.
e. Commencing on January 1, 2018, payments from [Ex-
Husband] to [Appellant] shall increase to $9,921 per month due
and payable on the first of each month continuing until June 30,
2018.
f. Commencing on July 1, 2018, payments from [Ex-
Husband] to [Appellant] shall increase to $12,630 per month
continuing on the first of each month until the loan is paid in full.
g. The parties will run an amortization chart after the
Vanguard payment is made to determine the duration of the
payments (i.e. when the debt from [Ex-Husband] to [Appellant]
is repaid).
10. In the event that [Ex-Husband] sells any/all of his business
interests (in whole or in part) or his or his business’ commercial
or personal real estate, any and all proceeds shall first be applied
to any and all sums owed to [Appellant] by [Ex-Husband] before
[Ex-Husband] shall be entitled to receive the net proceeds (after
payment of any taxes due upon the sale and after the satisfaction
of any loans required to be repaid as a result of the sale).
11. Any payments that [Ex-Husband] makes in addition to the
monthly payments (including the $30,800 credit from the
Vanguard Retirement payment) shall be applied directly toward
the outstanding balance due to [Appellant]. The interest due on
the debt shall be compounded.
12. [Ex-Husband] shall maintain life insurance to secure his
obligations to [Appellant] and shall name [Appellant] as the sole
beneficiary to the policy. [Ex-Husband] shall name [Appellant] as
the owner of the policy; however, he is responsible for any and all
payments to maintain the policy in the appropriate amount.
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***
16. This agreement does not supersede the Arbitration Awards
but it does resolve the financial payments to be made to
[Appellant] and others pursuant to the awards.
Settlement Agreement, 10/14/14, at 2, 4-6. The parties divorced on
November 24, 2014.
On March 9, 2016, Appellant filed petitions for special relief and
contempt. The trial court thereafter found Ex-Husband in contempt for failing
to make two monthly payments to Appellant of $8,628.00 each as provided in
the Settlement Agreement. Order, 4/21/16, at 1 (unnumbered). The court
ordered Ex-Husband to pay Appellant $17,256.00 on or before April 30, 2016.
Id.
In 2018, the parties executed a modification of the Settlement
Agreement. They reduced Ex-Husband’s payment from September 2018 to
September 2019, to $8,000 per month, with interest of 8% per annum.
Agreement for Modification of Equitable Distribution, 9/7/18.
On November 6, 2019, Appellant filed a petition for contempt and
enforcement of the Settlement Agreement. On January 16, 2020, the parties
entered into an agreement to reduce Ex-Husband’s monthly payments from
$12,630.00 to $8,000.00, effective November 1, 2019 through April 30, 2021.
The parties reset the interest for this period to 7.5% per annum. Order ─
Short List, 1/16/20, at 1 (unnumbered).
Appellant filed the instant petition for contempt and enforcement of the
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Settlement Agreement on March 4, 2022. Petition for Contempt, 3/4/22, at
1-10. Appellant claimed Ex-Husband owed her $105,428.48 under the
Settlement Agreement; she sought payment of that amount, along with strict
compliance with various terms of the Settlement Agreement, plus counsel and
accountant fees. Id. at 9.
Ex-Husband filed an answer and counterclaim on May 19, 2022. Ex-
Husband maintained he was current with payments, had paid in advance, and
owed no payments until November 2022. Answer and Counterclaim, 5/19/22,
at 3 (unnumbered). Ex-Husband also sought counsel and accountant fees.
Id. at 5 (unnumbered).
On May 25, 2022, the trial court held a hearing at which Appellant, Ex-
Husband, and Appellant’s accountant, Mary Jo Webb, testified. On June 8,
2022, the trial court issued an order denying Appellant’s petition for contempt.
Order, 6/8/22, at 1 (unnumbered). The court deemed Ex-Husband’s
amortization schedule, admitted into evidence at the hearing, to be “true and
correct,” and directed him to pay Appellant $17,204.54 in satisfaction of all
remaining amounts owed under the Settlement Agreement. Id. at 1-2
(unnumbered). The court denied both parties’ requests for counsel and
accountant fees. Id. at 2. This timely appeal followed.1
Appellant raises four issues on appeal:
1Appellant and the trial court have complied with Pa.R.A.P. 1925; Ex-Husband
has not filed an appellee brief.
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1. Whether the trial court erred and committed an abuse of discretion
by misapplying the law when it failed to find [Ex-Husband] owed
Appellant […] more than $17,204.54 in a manner lacking reason?
2. Whether the trial court erred and abused its discretion when it
failed to find [Ex-Husband] in contempt of the court order by
failing to make payments after he made a lump sum payment?
3. Whether the trial court erred and abused its discretion in failing to
order [Ex-Husband] to provide proof of life insurance on his life
naming [Appellant] as the beneficiary in the amount owed for
equitable distribution?
4. Whether the trial court erred and committed an abuse of discretion
in failing to award [Appellant] counsel fees and accountant fees,
including but not limited to her accountant witness fees for the
contempt hearing?
Appellant’s Brief at viii.
In her first three issues, Appellant challenges the trial court’s denial of
her contempt petition. Appellant’s Brief at 1-17, 19-20. While Appellant
initially claims the trial court misapplied the law, see id. at viii, her argument
is fact-based. See id. at 1-17. Appellant argues the trial court erred in
accepting Ex-Husband’s “flawed amortization schedule[,]” which she contends
“starts with the wrong amount owed to [Appellant].” Id. at 1, 3. Appellant
maintains Ex-Husband’s amortization schedule “fail[s] to begin accumulating
interest on the proper date,” and “stops counting interest as of June 2020[.]”
Id. at 5, 7. Appellant also complains there is “no support” for Ex-Husband’s
lump sum payments, which allowed him to take a “payment holiday.” Id. at
13. Lastly, Appellant asserts “the trial court erred in not ordering [Ex-
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Husband] to maintain life insurance in an amount equal to what was owed in
equitable distribution[.]” Id. at 19.2
“In reviewing a trial court’s finding on a contempt petition, we are
limited to determining whether the trial court committed a clear abuse of
discretion. This Court must place great reliance on the sound discretion of
the trial judge when reviewing an order of contempt.” P.H.D. v. R.R.D., 56
A.3d 702, 706 (Pa. Super. 2012) (footnote and citation omitted, emphasis
added). “This Court will reverse a trial court’s order denying a [ ] contempt
petition only upon a showing that the trial court misapplied the law or
exercised its discretion in a manner lacking reason.” MacDougall v.
MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012). Thus, “even where the
facts could support an opposite result, ... we must defer to the trial [court] so
long as the factual findings are supported by the record and the court’s legal
conclusions are not the result of an error of law or an abuse of discretion.” In
2 Appellant references minimal legal authority.
The Rules of Appellate Procedure require the argument section of
an appellate brief to include “citation of authorities as are deemed
pertinent.” Pa.R.A.P. 2119(a). It is not the role of this Court to
develop an appellant’s argument where the brief provides mere
cursory legal discussion. Commonwealth v. Johnson, ... 985
A.2d 915, 925 (Pa. 2009) ...; see also In re C.R., ... 113 A.3d
328, 336 (Pa. Super. 2015) ... (“This Court will not consider an
argument where an appellant fails to cite to any legal authority or
otherwise develop the issue.”).
Lechowicz v. Moser, 164 A.3d 1271, 1276 (Pa. Super. 2017).
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re Adoption of S.P., 47 A.3d 817, 826–27 (Pa. 2012). We defer to the trial
court’s credibility determinations with respect to witnesses because the court
has had the opportunity to observe their demeanor. Habjan v. Habjan, 73
A.3d 630, 644 (Pa. Super. 2013).
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. P.H.D., 56 A.3d at 706, n.7 (emphasis added).
Upon review, we conclude the trial court did not abuse its discretion.
The trial court explained:
[T]he court did not find Ex-Husband in contempt because the
court did not find [Appellant’s] testimony and evidence in this
matter to be credible. [Appellant3] testified that she did not keep
track of any of Ex-Husband’s payments to her from the time that
Ex-Husband began making payments to her in 2014. [Appellant]
testified that she never kept any type of payment ledger or never
made notes as she received payments from Ex-Husband. N.T.
5/25/22 at p. 17. [Appellant] testified that she did not maintain
copies of the checks that Ex-Husband sent to her since 2014. N.T.
5/25/22 at p. 52. [Appellant’s] testimony was replete with
evidence of poor accounting.[4] Counsel for [Appellant] asked
3 Appellant testified she is an attorney specializing in family law. N.T.,
5/25/22, at 43, 52.
4 Appellant admitted to omitting payments from Ex-Husband, which resulted
in her adjusting the calculations in her contempt petition. N.T., 5/25/22, at
18-19, 43-44, 48-51. On direct examination, Appellant testified Ex-Husband
owed her $72,925.10 (rather than the $105,428.48 she claimed in her
petition, or the $143,000.00 she claimed in December 2021). Id. at 21, 51;
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[Appellant,] “If [Ex-Husband] made a payment to you and you
received a payment from a friend and maybe a payment from
somebody else and they were all deposited the same day, would
you be able to tell looking at your bank account statement who
paid you what?” [Appellant] replied “No.” N.T. 5/25/22 at p. 18.
In fact, [Appellant] testified that she only began making notes
regarding payments made to her by Ex-Husband on the Friday
prior to the May 25, 2022 hearing and only after Ex-Husband
provided her with copies of all of the payments that he made to
her since 2014.[5] N.T. 5/25/22 at p. 18. [Appellant] also testified
that she voluntarily allowed Ex-Husband to adjust the interest rate
and payment amounts on several occasions since 2014.
Unlike [Appellant’s] testimony[,] which the court did not find
to be credible, the court found Ex-Husband’s testimony to be
highly credible. Ex-Husband testified that he made a large lump
sum payment to [Appellant] in July 2020 in the amount of
$345,000.00[,] which represented the vast majority of the monies
owed to [Appellant] under prior Orders of court and agreements
between the parties. Ex-Husband testified that nothing in the
language of the prior orders of court or agreements between the
parties prohibited Ex-Husband from making lump sum payments
to [Appellant]. Ex-Husband testified and presented evidence that
the remaining monies owed to [Appellant] by Ex-Husband are
$17,204.54. The court ordered Ex-Husband to pay this amount
to [Appellant] in its Order of June 8, 2022. With respect to the
Vanguard IRA, Ex-Husband testified that he rolled over that IRA
to [Appellant] as he was required to do[,] and that the amount of
that IRA was $30,800.00.
Finally, the court’s review of the testimony and evidence
presented at the May 25, 2022 hearing indicates [Appellant] and
her counsel made little effort to resolve this case. [Appellant]
testified at the hearing that she believed that Ex-Husband should
Petition for Contempt, 3/4/22, at 9. On cross examination, Appellant admitted
to another “discrepancy” she discovered the morning of the hearing, which
further decreased the amount to $70,925.10. Id. at 49.
5 When asked on cross-examination why she did not attempt to obtain copies
of the deposited checks from her bank, Appellant stated that Ex-Husband
“needs to prove what he paid me.” N.T., 5/25/22, at 53.
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have been making continuous monthly payments to her[;]
however, [Appellant] waited fifteen (15) months since the date of
Ex-Husband’s last payment to [Appellant] in July 2020 to raise
any alleged non-payment issues to Ex-Husband and subsequently
to the court. It appeared to the court [Appellant] was attempting
to turn her own poor accounting of payments made to her by Ex-
Husband into a financial windfall for herself as [Appellant’s]
amortization schedules stated that Ex-Husband still owed
[Appellant] in the range of $70,000.00 to $143,000.00 rather than
the $17,204.54 that the court found Ex-Husband still owed to
[Appellant] based upon a review of the testimony and evidence
presented. With regard to the amortization schedule prepared by
[Appellant’s] accountant, Mary Jo Webb, as counsel for Ex-
Husband stated, the amortization schedule that Ms. Webb
prepared on [Appellant’s] behalf was constructed by using a web-
based program and therefore could have been completed by a
layperson with access to the internet and not necessarily by
someone with an accounting background. N.T. 5/25/22 at p. 13.
Ms. Webb testified that the amortization schedule that she
prepared on [Appellant’s] behalf was completed with speculative
information provided to Ms. Webb by [Appellant] and that Ms.
Webb did not independently verify the financial data [Appellant]
provided to Ms. Webb. N.T. 5/25/22 at p. 7. Therefore, the court
did not err in failing to apply the amortization schedule prepared
for [Appellant] by Ms. Webb.[6]
***
Here, Ex-Husband testified on direct examination that in
July[] 2020[,] he provided [Appellant] with proof of life insurance
via e-mail as he was required to do pursuant to paragraph twelve
6 Appellant attached “updated amortization schedules” to her brief.
Appellant’s Brief at 9; id. at Appendix D. This Court has held repeatedly that
copying material and attaching it to a brief does not make it part of the record.
See First Union Nat. Bank v. F.A. Realty Investors Corp., 812 A.2d 719,
724 n.3 (Pa. Super. 2002); In re M.T., 607 A.2d 271, 275 (Pa. Super. 1992).
Our review “is limited to those facts which are contained in the certified
record,” and evidence not contained in the record “does not exist for purposes
of our review.” Commonwealth v. O’Black, 897 A.2d 1234, 1240 (Pa.
Super. 2006). Therefore, we may not consider the “updated amortization
schedules” attached to Appellant’s Brief.
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(12) of the parties[’ Settlement Agreement]. Paragraph twelve
(12) of the [Settlement Agreement] states that Ex-Husband is to
pay for and maintain life insurance to secure his financial
obligation to [Appellant] and he shall name [Appellant] as the sole
beneficiary to the policy. The [Settlement Agreement] states that
Ex-Husband is responsible for any and all payments to maintain
the life insurance policy in the “appropriate amount.” Ex-Husband
testified that he maintained and provided proof to [Appellant] of
the life insurance in accordance with the above terms through
July, 2020, when Ex-Husband made a lump sum payment to
[Appellant] in the amount of $345,000, satisfying the vast
majority of his financial obligation to [Appellant] under prior
orders of court and agreements of the parties. N.T. 5/25/22 at p.
87. In addition, Ex-Husband testified that until [the parties]
appeared in court on May 25, 2022, [Appellant] had not asked Ex-
Husband for ongoing proof of life insurance since the proof that he
provided to [Appellant] in July, 2020.[7] N.T. 5/25/22 at p. 87.
Trial Court Opinion, 9/14/22, at 5-8 (footnotes added).
The record supports the trial court’s findings with one exception. The
trial court did not determine whether Ex-Husband paid the proper amount of
interest to Appellant. As noted, the interest rate varied and compounded.
After thoroughly reviewing the record, we are unable to ascertain whether
Appellant is owed additional interest. Accordingly, we vacate the award of
$17,204.54 and remand with instructions for a determination of whether
Appellant is owed additional interest. We otherwise discern no abuse of
discretion in the trial court’s determination that Ex-Husband was not in
contempt of the parties’ Settlement Agreement.
7 Appellant conceded Ex-Husband had previously showed her proof of the life
insurance policy, but claimed she did not know if he continued to maintain the
policy. N.T., 5/25/22, at 37.
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Finally, Appellant assails the trial court’s denial of her request for
counsel and accountant fees. Appellant’s Brief at 17-19. We likewise review
this decision for an abuse of discretion. Miller v. Miller, 983 A.2d 736, 743
(Pa. Super. 2009). The Divorce Code authorizes an award of counsel fees and
costs when a party has failed to comply with an order of equitable
distribution to effect compliance. 23 Pa.C.S.A. § 3502(e)(7). Here, the trial
court found Ex-Husband complied with the Settlement Agreement.
Accordingly, the court did not abuse its discretion in declining to award counsel
and accountant fees.
For the above reasons, we grant Appellant relief limited to her claim
regarding amortization and interest. Therefore, we vacate the award of
$17,204.54, and remand solely for the appointment of a special master, with
expertise in accounting, to review solely Ex-Husband’s amortization
schedules, as well as the October 30, 2013 arbitration award, the October
14, 2014 Settlement Agreement, the April 21, 2016 Order, the September 7,
2018 Agreement for Modification of Equitable Distribution, and the January
16, 2020 Order ─ Short List, to determine whether Appellant is owed
additional interest, and if so, the amount. The cost of the special master shall
be split equally between the parties. At the conclusion of review, the special
master shall submit a report and recommendation to the trial court. Each
party shall have the right to file exceptions, and the trial court shall enter a
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final order on the matter. In all other respects, we affirm the order of June 8,
2022.
Order affirmed in part and vacated in part. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 3/28/2023
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