Keahey, W. v. Keahey, G. ( 2015 )

J-A02035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WENDY ANN JONES KEAHEY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE BRUCE KEAHEY
Appellant No. 952 EDA 2014
Appeal from the Order Dated March 12, 2014
In the Court of Common Pleas of Delaware County
Domestic Relations at No(s): 164111368
2009-03221
GEORGE BRUCE KEAHEY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
WENDY ANN JONES KEAHEY
Appellee No. 1022 EDA 2014
Appeal from the Order Dated March 12, 2014
In the Court of Common Pleas of Delaware County
Domestic Relations at No(s): 09-15560
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 24, 2015
Appellant, George Bruce Keahey (“Husband”), appeals from the order
entered March 12, 2014, which found him in contempt of the trial court’s
three separate orders directing him to pay Wendy Ann Jones Keahy’s
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(“Wife”) counsel fees during their protracted and litigious divorce. After
careful review, we affirm.
We need not extensively detail the factual and procedural history of
this matter. We refer the reader to the trial court’s exhaustive recitation at
pages 4-24 of its opinion filed July 21, 2014.
By way of relevant summary, Husband filed a complaint in divorce on
November 30, 2009. While equitable distribution was pending, the trial
court entered an order on March 15, 2011, directing Husband to pay $500 in
counsel fees to Wife for Husband’s failure to pay a parking ticket and three
EZ-Pass violations he had incurred while driving a vehicle titled in Wife’s
name. Husband does not contest the trial court’s finding that he has never
paid Wife anything pursuant to this order.
On June 19, 2013, the trial court assessed $406.23 in counsel fees
against Husband due to his failure to appear at a scheduled hearing on
Wife’s counsel fees pendente lite. Once again, Husband does not assert that
he has paid Wife anything pursuant to this order.
Finally, on November 18, 2013, the trial court entered an order
awarding Wife $15,000 in interim counsel fees. Husband does not contend
that he has made any payments pursuant to this order, either.
Wife subsequently filed a petition for contempt against Husband,
alleging that he was in contempt of each of these three orders. The trial
court held a hearing on March 5, 2014, and subsequently entered an order
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finding Husband in contempt of each of the three orders, and ordered
Husband to pay to Wife the amounts set forth in each of the three orders, as
well as an additional $910 in counsel fees arising from the prosecution of the
contempt petition.
Husband filed a motion for reconsideration, which the trial court
denied. This timely appeal followed. Husband filed a Rule 1925(b)
statement with the trial court, listing 12 numbered issues, with multiple sub-
issues set forth as well. However, on appeal, Husband purports to raise but
a single issue: “Whether the lower court abused its discretion by holding the
Appellant in contempt on March 27, 2014.” This issue is broken down into 5
separate arguments in the argument section of Husband’s brief.
“As each court is the exclusive judge of contempts against its process,
we will reverse an order of contempt only upon a showing of a plain abuse of
discretion.” In re Contempt of Cullen, 849 A.2d 1207, 1210 (Pa. Super.
2004) (citation omitted). We further explained in In re Contempt of
Cullen the following:
To be punished for contempt, a party must not only have
violated a court order, but that order must have been definite,
clear, and specific—leaving no doubt or uncertainty in the mind
of the contemnor of the prohibited conduct. Because the order
forming the basis for civil contempt must be strictly construed,
any ambiguities or omissions in the order must be construed in
favor of the defendant. In such cases, a contradictory order or
an order whose specific terms have not been violated will not
serve as the basis for a finding of contempt. 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
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constituting the contemnor’s violation was volitional; and (3)
that the contemnor acted with wrongful intent. A person may not
be held in contempt of court for failing to obey an order that is
too vague or that cannot be enforced.
When holding a person in civil contempt, the court must
undertake (1) a rule to show cause; (2) an answer and hearing;
(3) a rule absolute; (4) a hearing on the contempt citation; and
(5) an adjudication of contempt....
Fulfillment of all five factors is not mandated, however. [T]he
essential due process requisites for a finding of civil contempt
are notice and an opportunity to be heard.
Id., at 1210-1211 (internal citations, quotation marks, and emphasis
omitted).
First, Husband argues that the March 15, 2011 order was too vague to
be enforced. Specifically, Husband contends that the order failed to set forth
a timeframe for compliance. As a result, Husband implicitly argues, he had
an effectively unlimited time to comply with the order. Put simply, this
argument is farcical. “In the absence of a definite time fixed by the decree,
the time must be construed as either forthwith or within a reasonable time.”
East & West Coast Service Corp. v. Papahagis, 25 A.2d 341, 342 (Pa.
1942). When construing an award of counsel fees, which is aimed at
reimbursing a party for expenses incurred in responding to dilatory or
abusive conduct, the absence of a prescribed time in the order indicates that
compliance is expected immediately. “Payable at the payor’s leisure,” as
argued by Husband, is not a reasonable or even rational construction of such
an order. As Husband does not provide a rational alternative, we cannot
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conclude that the trial court’s order was in any manner ambiguous or
insufficiently specific. Husband’s first argument on appeal therefore lacks
any arguable merit.
Next, Husband contends that he did not willfully violate the June 19,
2013 order, which directed him to pay Wife $406.25 in counsel fees within
20 days. Husband argues that he offered to deduct this amount from credits
allegedly due to Husband as a result of a previous overpayment of alimony
pendente lite to Wife. Once again, Husband’s argument strains credulity.
The trial court ordered Husband to pay this amount to Wife for counsel
fees incurred at a scheduled hearing where Husband, without good cause,
failed to appear. These were costs already incurred by Wife; thus, the 20
day limit was necessary to make Wife whole by allowing her to pay her
attorney in a timely manner. The setoff proposed by Husband would not
permit Wife to satisfy her costs until some undefined point in the future.
Furthermore, nothing in the order required Wife to accept such a setoff in
lieu of immediate payment. Once again, Husband’s argument on appeal
lacks arguable merit.
In his third argument, Husband asserts that the order finding him in
contempt is illegal, as he was never permitted to contest the reasonableness
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of the counsel fees assessed against him.1 For the third time in three
attempts, Husband’s argument on appeal is patently absurd. A payor who is
alleged to be in contempt of an order assessing alimony pendente lite may
not re-litigate the underlying alimony award in contempt proceedings. See
Schoffstall v. Schoffstall, 527 A.2d 567, 569 (Pa. Super. 1987). Rather,
the payor is entitled to litigate only his present ability to pay the award. As
Husband’s third argument on appeal centers on the propriety of the
underlying award of interim counsel fees, and not on his present ability to
pay, it lacks arguable merit.
Next, Husband contends that the trial court erred in not properly
determining whether Husband had the present ability to comply with the
underlying orders. Initially, we note that Husband’s argument on this sub-
issue consists of a single page, devoid of any citations to the record, save to
note a mistake in his own exhibit, or to legal authority. See Pa.R.A.P.
2119(b) and (c). “When issues are not properly raised and developed in
briefs, when the briefs are wholly inadequate to present specific issues for
review[,] a Court will not consider the merits thereof.” Branch Banking
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1
Husband’s argument regarding compliance with 15 U.S.C.A. § 1673, which
is allegedly applicable via 23 Pa.C.S.A. § 4348(g), is another attempt to
litigate the propriety of the underlying order, and therefore lacks any
arguable merit. In any event, there is no evidence of record that Husband’s
wages have been attached pursuant to either the November 18, 2013 order
or the March 12, 2014 order, and therefore compliance with section 1673 is
not mandated by subsection 4348(g).
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and Trust v. Gesiorski, 904 A.2d 939, 942-943 (Pa. Super. 2006). We
therefore find this issue waived on appeal.
In any event, the trial court did consider Husband’s ability to pay the
underlying orders. At the March 5, 2014 hearing, Husband testified that his
yearly expenses were $31,715.76, and that his yearly net income was
$48,321.03, after being adjusted for the amount he paid Wife in alimony
pendente lite. As noted by the trial court, these calculations did not take
into account Husband’s bonuses, tax refunds, or the tax implications arising
from paying alimony pendente lite. Even taken at face value, however,
Husband’s testimony is not sufficient to establish that he could not pay the
approximately $1,333 per month in counsel fees assessed by the underlying
orders. Husband’s fourth issue on appeal lacks arguable merit.
In his fifth and final issue on appeal, Husband asserts that the trial
court displayed undue bias against him during the proceedings. However,
once again, the majority of Husband’s argument consists of challenges to
the underlying orders and their effects. As stated previously, Husband was
not permitted to re-litigate the propriety of the underlying orders during the
contempt proceedings, and we may not reach these issues on appeal from
the order finding him in contempt.
In his remaining arguments, Husband contends that the trial court
exhibited undue bias in favor of Wife’s counsel and against Husband’s
counsel during the hearing. Even taking Husband’s assertions at face value,
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such behavior would not obviate the fact that Husband has failed to comply
with the underlying orders, and that the trial court’s finding that such failure
to comply was volitional was supported substantial evidence. We conclude
that Husband’s argument, even if accepted, fails to entitle him to any relief
on appeal.
As we conclude that none of Husband’s arguments on appeal have
arguable merit, let alone entitle him to relief, we affirm the order of March
12, 2014.
As discussed, Husband’s appeal is patently frivolous. Accordingly, we
exercise our authority to award, sua sponte, attorney’s fees and costs to
Wife. See Pa.R.A.P. Rules 2741(2); 2743; and 2744. Husband shall be
responsible for paying the attorney’s fees and costs. On remand, the trial
court is directed to determine the appropriate amount and set a date for
compliance.
Order affirmed. Case remanded for imposition of attorney’s fees and
costs. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
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