Lehrman, J. v. Lehrman, M. ( 2016 )

J-S60030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENNIFER LEHRMAN, IN THE SUPERIOR COURT OF
N/K/A JENNIFER DEIFER PENNSYLVANIA
Appellant
v.
MICHAEL LEHRMAN
Appellee No. 3145 EDA 2015
Appeal from the Order Entered September 16, 2015
In the Court of Common Pleas of Northampton County
Civil Division at No(s): No. C-48-CV-2012-258
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED NOVEMBER 01, 2016
Jennifer Lehrman, N/K/A Jennifer Deifer (Deifer), appeals from the
order entered in the Court of Common Pleas of Northampton County on
September 16, 2015, ordering her to return $42,250.00 to her ex-husband,
Michael Lehrman (Lehrman), and to pay $1,000.00 for attorney’s fees. In
this timely appeal, Deifer raises two issues. She claims (1) the trial court
erred in issuing the order without permitting her to conduct discovery or to
have a hearing on the matter, and (2) there is insufficient evidence to
support the order. The trial court considered Deifer’s actions to have been
an improper attempt at “self-help” to correct perceived injustices in the
parties’ property settlement. Our review of this matter shows that by taking
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S60030-16
the $42,500.00 at issue, Deifer was attempting to bypass a legal challenge
to the equitable distribution order that had been entered years earlier in
their divorce action. Accordingly, after a thorough review of the certified
record, submissions by the parties and relevant law, we affirm.
We relate the facts of this matter as stated by the trial court in its
Pa.R.A.P. 1925(a) opinion of April 1, 2016.
On September 16, 2015, [Lehrman’s] counsel presented a
Petition for Special Relief to the Court. [Deifer] and her counsel
appeared in opposition. The circumstances as presented to the
Court were that the parties were divorced and had executed a
property settlement agreement, which provided that the marital
home was to be sold and the proceeds split. N.T. 9/16/15 at 2.
[Lehrman] deposited his share, $42,250, into a bank account, to
which he believed [Deifer] no longer had access. Id. at 3.
[Lehrman] learned that between July 28 and August 27, 2015,
[Deifer] had withdrawn all the money from this account. Id. at
4. As a result of the record made before the Court, it was
ordered that: [Deifer] return the $42,250 withdrawn from the
account within one day; and that [Deifer] pay [Lehrman] $1,000
for counsel fees.
Trial Court Opinion, 4/1/2016 at 1.
In addition to the above facts, Lehrman’s petition contains the
following relevant averments:
5. Paragraph 5 of the Property Settlement Agreement provides
that the parties shall sell the real estate located at 3828
Dogwood Road, Danielsville, Northampton County, Pennsylvania
18038 and shall split equally (50/50) the net proceeds from the
sale of the property.
6. The real estate was sold and each party received in excess of
forty thousand dollars ($40,000.00).
-2-
J-S60030-16
7. [Lehrman] deposited his money in an account [] at National
Penn Bank not knowing that [Deifer] still had access to this
account.
8. On July 28, 2015, [Deifer] unlawfully made two twenty
thousand dollar ($20,000.00) withdrawals from the above
account. See Exhibit “C.”
9. On August 17, 2015, [Deifer] unlawfully withdrew one
thousand dollars ($1,000.00) from the above account. See
Exhibit “D.”
10. On August 27, 2015, [Deifer] unlawfully withdrew one
thousand two hundred fifty dollars ($1,250.00) from the above
account. See Exhibit “E.”
11. [Deifer] is not entitled to any of the money that she
withdrew from this bank account.
12. [Lehrman] is requesting that this Honorable Court enter an
order directing [Deifer] to immediately return this money to him.
13. [Lehrman] is requesting that this Honorable Court order Wife
to pay attorney’s fees to [Lehrman] for having to prepare and
present the instant petition.
Petition, 9/16/2015 at 1-2.1
Paragraph 22 of the Property Settlement Agreement, dated September
16, 2013 and appended to the petition as Exhibit “B,” provides that if legal
action is required to effectuate the performance of the agreement, then the
____________________________________________
1
Although the petition was docketed on the same date as the hearing before
the trial court, there is no claim that the petition was not timely served upon
Deifer. Indeed, the notes of testimony reveal that Deifer was present at the
hearing, had been sworn in to testify, and had brought bank records with
her. See N.T., 9/16/2015 at 6.
-3-
J-S60030-16
party found to be in default shall pay all expenses, including reasonable
attorney’s fees, incurred in connection with such enforcement proceedings.
Our standard of review is as follows:
[A] petition for Special Relief, is authorized by Pa.R.C.P. 1920.43
relating to divorce or annulment. A panel of this court has held
that a grant of relief under this rule is within the sound discretion
of the trial court and is an exercise of the court's equitable
powers. Jawork v. Jawork, 378 Pa.Super. 89, 548 A.2d 290
(1988). An appellate court will not reverse absent an abuse of
that discretion. Id. See also, DeMatteis v. DeMatteis, 399
Pa.Super. 421, 582 A.2d 666 (1990).
Frank v. Frank, 587 A.2d 340, 342 (Pa. Super. 1991).
Additionally, Rule 1920.43 states, in relevant part:
(a) At any time after the filing of the complaint, on petition
setting forth facts entitling the party to relief, the court may,
upon such terms and conditions as it deems just, including the
filing of security,
(1) issue preliminary or special injunctions necessary to
prevent the removal, disposition, alienation or
encumbering of real or personal property in accordance
with Rule 1531(a), (c), (d), and (e); or
(2) order the seizure or attachment of real or personal
property; or
(3) grant other appropriate relief.
Pa.R.C.P. 1920.43(a)(1), (2), (3).
In Deifer’s first issue, she claims the trial court erred in disposing of
Lehrman’s petition without permitting her to conduct discovery and have a
full hearing to challenge the allegations. Deifer bases her argument on the
requirements found in the Pennsylvania Rules of Civil Procedure 206.4,
-4-
J-S60030-16
206.6, and 206.7, as well as local rule N206.4(c). The Pennsylvania rules
require the petitioner to append a rule to show cause to the petition, 2 allows
the respondent 20 days to file an answer3 and then provides for the taking
of discovery as to disputed facts.4 However, this argument does not account
for Pa.R.C.P. 206.1 which defines “petition” as “an application to strike
and/or open a default judgment or a judgment of non pros,” or “any other
application which is designated by local rule, numbered Local Rule 206.1(a),
to be governed by Rule 206.1 et seq.”5 Lehrman’s petition did not seek to
open or strike a default judgment or non pros and Deifer has not referred to
or provided this Court with a copy of Local Rule N206.1(a). In fact, the
official website for the Northampton County Court of Common Pleas does not
list a Local Rule N.206.1(a).6 Accordingly, as there is no N206.1(a), we do
not agree with Deifer that the instant petition is governed by the attendant
rules she has cited. Rather, we agree with Lehrman that his petition was
filed pursuant to Pa.R.C.P. 1920.43, supra, which allows the trial court
greater discretion in the manner of proceeding.
____________________________________________
2
Pa.R.C.P. 206.4(a)(1).
3
Pa.R.C.P. 206.6(a).
4
Pa.R.C.P. 206.7(a)-(d).
5
Pa.R.C.P. 206.1(a) and (b), respectively.
6
See http://courtrule.northamptoncounty.org/
-5-
J-S60030-16
Rule 1920.43 specifically addresses requests for special relief in
matters relating to divorce. The subject matter of the instant petition was
funds derived from the sale of marital property. Specifically, Lehrman
alleged Deifer had improperly removed his share of the proceeds of the sale
of the marital home and was refusing to return same. We believe this brings
the petition fairly within the scope of Rule 1920.43.
Due to the emergency nature of Lehrman’s petition, we find no abuse
of discretion in the trial court’s refusal to grant Deifer extended time to
conduct discovery. Also, as the trial court points out in its Pa.R.A.P. 1925(a)
opinion, the resolution of the petition simply returns the parties to the status
quo ante and does nothing to preclude Deifer from filing her own challenge
to the property settlement, thereby seeking the funds to which she believes
she is entitled. In light of the above, Deifer is not entitled to relief on this
issue.
In her second issue, Deifer contends there was insufficient evidence to
support the trial court’s grant of relief. We disagree.
As noted above, the trial court granted relief pursuant to Pa.R.C.P.
1920.43. As such, the petition is essentially an appeal to the equitable
powers of the court and the grant of relief is within the sound discretion of
the trial court. Argument was held before the court on September 16, 2015,
and was based upon the factual averments contained in the petition. The
trial judge had before her those averments, the certified record, exhibits, as
well as the arguments by counsel. The parties were sworn in to testify, but
-6-
J-S60030-16
neither did. However, there is nothing in the notes of testimony that
indicates the parties were forbidden from testifying. The certified record
demonstrates the parties entered into a property settlement agreement on
September 6, 2013 and were subsequently divorced in September 20, 2013.
Counsel for Deifer reviewed the bank statements counsel for Lehrman
brought to court and conceded the statement showed a $41,069.30 deposit
had been made on September 30, 2013, after the divorce and at the time of
closing on the sale of the marital home. N.T. 9/16/2015 at 11, 13. The trial
judge had before her the exhibits clearly demonstrating that Deifer had
withdrawn $42,500.00 from the account in question, in July and August,
2015, approximately two years after Lehrman deposited the funds. See
Petition for Emergency Relief, 9/16/2015, Exhibits “C”, “D”, and “E”. These
facts were not contested at argument. Lehrman argued Deifer had taken
the money because she believed she was owed money from Lehrman’s
401(k). N.T. 9/16/2015 at 4-5. Further, counsel for Deifer also conceded
Deifer did not agree with the court’s resolution of Lehrman’s 401(k). Id. at
8. Counsel for Deifer also opined Deifer was owed money because she had
provided in excess of $50,000.00 while Lehrman was in prison to keep the
home from foreclosure. Id. at 7-8. No matter her reasoning, counsel for
-7-
J-S60030-16
Deifer argued she took money from what proved to be a joint account and,
therefore, she was simply entitled to take the money.7
The trial court made no determination regarding the ultimate merits of
either Lehrman’s or Deifer’s underlying claims. Without conceding the
merits of either parties’ position, the trial court noted that even if Deifer
were to be proven correct, she had engaged in “self-help”8 by simply taking
money from Lehrman. This she was not entitled to do. The equities of the
matter, at that time, therefore resided with Lehrman, and the court’s order
simply returned the parties to their original position prior to Deifer’s attempt
at “self-help.”
We also note that an effect of Deifer’s actions, had relief not been
granted, would have been to shift the ultimate burden of proof from Deifer
to Lehrman. Deifer believed that the property settlement agreement was
tainted by Lehrman’s failure to properly disclose information and by the
court’s failure to account for money she contributed while Lehrman was
____________________________________________
7
Rule 1920.43 incorporates by reference Pa.R.C.P. 1531 regarding
injunctive relief. Rule 1531 grants the trial court broad equitable powers to
issue, under certain circumstances, preliminary or special injunctions without
a hearing and based upon averment. Given the equally broad equitable
powers granted the trial court under Rule 1920.43, it appears the trial court
would have the same ability to grant such relief as necessary, subject to an
abuse of discretion.
8
N.T., 9/16/2015 at 5.
-8-
J-S60030-16
incarcerated, so she took money from him.9 However, the proper method of
challenging the property settlement is through legal proceedings, not by
simply taking money. In such a proceeding, Deifer would have the burden
of proof of demonstrating grounds to set aside the property settlement
agreement. Here, instead, Deifer seeks to have Lehrman prove she was not
entitled to the money. Such a shifting of the burden of proof would be an
inequitable result, essentially encouraging a party who believed he or she
was entitled to property to simply take it, in order to force the opposing
party into action for the return of it.
Accordingly, Deifer is not entitled to relief on this issue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2016
____________________________________________
9
Deifer, in her Rule 1925(b) statement claims Lehrman intentionally
misrepresented the status of his 401(k), as well as leading her to incorrectly
believe that certain items of property including a four-wheeler,
Harley-Davidson motorcycle, guns and cash, had been forfeited to the
Commonwealth as a result of his criminal prosecution. See Pa.R.A.P.
1925(b) statement at 1-2.
-9-