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[U] McVay v. Addlespurger

Superior Court of Pennsylvania

November 18, 2013

JULIE MCVAY, Appellant


Appeal from the Order September 10, 2012 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD-04-004718-003, FD04-004718-002




Julie McVay ("Wife") appeals and Steven Addlespurger ("Husband") cross appeals from the trial court's order resolving Husband's exceptions to the domestic relations hearing officer's February 21, 2012 report and recommendation. The order on appeal imposed $2, 358.11 in costs against Wife as an additional sanction for her delay in complying with a support order directing her to pay $1, 706.02 into an escrow account as a credit against Husband's future child support obligations. We affirm in part and reverse in part.

Husband and Wife married on August 7, 1987. The couple separated during July 2004, and Wife filed a divorce complaint on September 2, 2004. Wife also filed a complaint in support on July 30, 2004 for support of herself and two children who were born during February 1990 and July 1996. Several years of contentious litigation followed, including multiple appeals to this Court.[1]

The following procedural history is relevant to our review. On July 28, 2008, the trial court presiding over the divorce proceedings entered an equitable distribution order ("2008 EDO"), resolving all of the economic claims between the parties. In pertinent part, the trial court determined that Wife owed Husband $21, 788.57, [2] and entered the 2008 EDO directing that Wife apply her obligation to Husband's child support arrears. Specifically, the order directed,

A. Husband's counsel shall prepare a consent Order to reduce Husband's arrears by the amount Wife owes Husband or reduce Husband's arrears to $0, if Wife's payment is more than Husband's current arrears.
B. If the amount of Wife's payment exceeds Husband's arrears, Wife is directed to pay the remaining amount to the domestic relations office. This amount will create a credit to insure future child support payments. See Nika v. Nika, 555 A.2d 1337 (Pa.Super. 1989); Petto v. Petto, 539 A.2d 1337 (Pa.Super. 1988).

Order of Court, 7/28/08, at 7. We quashed the ensuing appeal. Addlespurger v. Addlespurger, 964 A.2d 932 (Pa.Super. 2008) (unpublished memorandum).

On November 28, 2011, the domestic relations court found that, after applying the offset outlined in the 2008 EDO, Husband's child support arrears was reduced to $0, and pursuant to provision (B) of the 2008 EDO, Wife was required to pay the $1, 706.02 balance of her obligation into an escrow account as a credit against Husband's future support obligation. Under the domestic relations court's order, Wife was directed to pay the required amount by check payable to "Allegheny County Family Division" before December 15, 2011. Wife failed to file exceptions to the order or pay the entire credit by that date.

Thereafter, the domestic relations section filed petitions for contempt against Husband and Wife. In relation to Husband, the petition asserted that he failed to pay child support pursuant to an October 7, 2009 support order. As it relates to Wife, the petition alleged that she failed to comply with the November 28, 2011 order ("2011 DRO") directing her to pay the credit into the escrow account.

Both parties appeared pro se for the February 21, 2012 evidentiary hearing. During the hearing, it was revealed that the contempt petition and rule to show cause relating to Husband was issued in error. The hearing officer confirmed that the domestic relations section's electronic record, PACSES, had been corrected, and it treated the portion of the contempt proceedings relating to Husband as a compliance review hearing. Following the hearing, the officer issued a summary that the trial court subsequently entered as an order. That order adjudicated Wife in contempt for her non-compliance with the 2011 DRO. As Wife had paid only $20 toward the $1, 706.02 credit, the order set a purge condition requiring Wife to pay the remaining balance by 1:30 p.m. that afternoon. Wife satisfied the purge condition. The order was stamped "Temporary Order Pending Disposition of Exceptions." Order of Court, 2/21/12, at 1.

Acting pro se on March 8, 2012, Husband timely filed rambling exceptions wherein he referenced, inter alia, costs that he claimed he incurred to defend himself during the support proceedings generally.[3] Wife did not respond to Husband's exceptions or attend the subsequent oral argument on September 10, 2012. Following Husband's non-record argument, the trial court entered the order that is the genesis of the present appeal and cross appeal. That order denied the exceptions in part and granted Husband's request to assess additional sanctions against Wife for her contemptuous behavior. Specifically, the trial court awarded Husband $2, 358.11 for his alleged "costs, including postage copying/reproduction charges and time, " and it entered an order directing Wife to pay that amount within sixty days. This timely appeal followed pro se. Husband countered with a pro se cross appeal. Both parties complied with the respective orders to file a concise statement of errors complained of on appeal. The trial court issued a supersedeas pending our decision.

At the outset, we must determine whether Husband's cross appeal is timely filed. Husband had fourteen days from the date Wife served her notice of appeal to file a timely cross appeal. The appeal period is strictly construed, and we have no jurisdiction to expand the period or excuse the failure to file a timely notice of appeal. While Husband normally would have had to file his cross appeal on or before Tuesday, October 9, 2012, the date that courts re-opened following the legal holiday recognizing Columbus Day, since Wife served her notice of appeal by mail, Husband had three additional days to file a timely cross appeal. As the trial court received the notice of cross appeal on October 10, 2012, it is timely. See Pa.R.A.P. 903(b) (as amended effective May 9, 2012); Pa.R.A.P. 121 Note: Subdivision (e) ("The [2012] amendments to Rules 903(b), 1113(b) and 1512(a)(2) clarified that subdivision (e) [relating to additional time after service by mail] does apply to calculating the deadline for filing cross-appeals, cross-petitions for allowance of appeal and additional petitions for review."); Coney Island, II, Inc. v. Pottsville Area School Dist., 441 A.2d 747 (Pa. 1982) ("The policies dictating the non-application of rule 121(e) in matters in response to orders of court are not applicable in instances where a cross-appeal is sought under rule 903(b).").

We address Wife's contentions first. She presents the following issues for our review:

1. Did the lower court err and/or abuse its discretion by issuing the order of September 10, 2012 that inflicted a devastating financial burden on Mother and her children (see Hyle v. Hyle, 868 A.2d 601 (Pa.Super. 2005)?
2. Did the lower court err and/or abuse its discretion by not recognizing that Father is intertwining TWO SEPARATE issues —using Mother's issue of her incomplete equitable distribution payment to support his separate issue of time/expenses incurred for the contempt proceedings initiated against him by the Family Division due to his non-payment of child support in December, 2011?
3. Did the lower court err and/or abuse its discretion by placing a sanction against Mother for Father's time and expenses ($2, 358.11) without receiving receipts from him AND providing such proof to Mother as justification for the penalty imposed upon her (information is not available to Mother in Father's brief, in court order, on docket, with department of court records or within hard copy file for this divorce action)?
4. Did the lower court err and/or abuse its discretion by not recognizing that Father's "Administration Exceptions" stem from the Family Division initiating their standard contempt procedures against him for not paying his December, 2011 child support so the time and expenses he incurred because of HIS decision are HIS sole responsibility (see Father's admission below from February hearing transcript)?
5. Did the lower court err and/or abuse its discretion by not recognizing that Mother is not responsible for the Family Division's contempt process, and therefore, should not be penalized with reimbursing Father's pro se time and expenses incurred because HE CHOSE to ignore his child support obligation in December, 2011?
6. Did the lower court err and/or abuse its discretion by not recognizing that Father was capable of bringing his unpaid child support up-to-date at any time to avoid the Family Division's processes (and the subsequent time/expenses he complains of), but he chose not to do so until immediately before the February 21, 2012 hearing and then did not inform the Hearing Officer of payment until she concluded the hearing?
7. Did the lower court err and/or abuse its discretion by not recognizing that Father's exceptions were not tied back to the Hearing Officer's ACTUAL RULING (as is standard exception process) of February 21 but rather were complaints of the Family Division's contempt process begun against him last December?
8. Did the lower court err and/or abuse its discretion by not recognizing that Mother, as a U.S. citizen, has every legal and moral right to accept or refuse any and all mail delivered to her home according to the U.S. Postal Operations Manual, section 611, without fear of recrimination or penalty (which is part of the expenses/sanction placed against her on September 10)?
9. Did the lower court err and/or abuse its discretion by not recognizing that Father misrepresented his issues/complaints as "Administration Exceptions", and because of this, the Family Division directed Mother that her attendance was not required at the September 10 hearing since they were Father's exceptions and Mother had met her purge condition seven months earlier?

Wife's brief at 8-9.

We review the trial court's imposition of sanctions for an abuse of discretion. Rhoades v. Pryce, 874 A.2d 148, 151 (Pa.Super. 2005) (en banc). 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." See Bowser v. Blom, 807 A.2d 830, 834 (Pa. 2002) (citations omitted).

In imposing the additional sanctions for Wife's failure to comply with the 2011 DRO, the trial court first incorrectly attributed fault to Wife for the three-year delay between the 2008 EDO and the 2011 DRO determining that she owed Husband a credit against his future child support obligations. See Trial Court Opinion, 12/10/12, at 3-4. It continued, again inaccurately, that Wife disregarded a prior adjudication of contempt before she finally complied with the 2008 EDO and it referenced generally the costs Husband allegedly incurred to obtain her compliance. Id. at 4.

Thereafter, the court opined,
[I]t took in excess of three years, three Court Orders, and two contempt findings before [Wife] complied with [the July 25, 2008] Order. Father incurred costs in preparing and serving documents and pleadings in an effort to obtain [Wife's] compliance. He appeared in Court a minimum of seven times (scheduling and argument of two motions, two hearings, and exceptions argument). Father was also forced to expend additional monies to effectuate service of pleadings, as [Wife] routinely ignored and refused his mailings.
The award of costs and expenses to a party is within this Court's discretion. The offending party's conduct and behavior are factors to consider. Dalrymple v. Kilische, 920 A.2d 1275 (Pa.Super. 2007). Father requested reimbursement for numerous items at the hearing: costs, expenses, time, legal fees, and damage to his credit rating (N.T., 2/21/12, pp. 46, 52, 62, 74). In his exceptions, Father specifically requested reimbursement for costs and expenses in the amount of $2, 358.11. This Court determined that the award of such costs and expenses was reasonable and warranted based on the circumstances.

Trial Court Opinion, 12/10/12, at 4.

While the trial court's authority to impose sanctions for a party's failure to comply with its order is indisputable, herein, the certified record belies the trial court's findings both regarding Wife's responsibilities following the 2008 EDO and the scope of Husband's efforts.

First, we highlight that Wife was not adjudicated in contempt of the 2008 EDO, and she never contravened that order. Indeed, notwithstanding the trial court's protestation to the contrary, Wife was not obligated to initiate the calculations to determine if her equitable distribution payment to Husband would exceed his significant child support arrears. In actuality, the 2008 EDO directed Husband's counsel to draft the consent order to determine the precise figures. See Order of Court, 7/28/08, at 7. ("Husband's counsel shall prepare a consent Order to reduce Husband's arrears by the amount Wife owes Husband or reduce Husband's arrears to $0, if Wife's payment is more than Husband's current arrears."). Only after the entry of the consent order and the predicate determination that "Wife's payment exceeds Husband's arrears[, ]" was Wife required "to pay the remaining amount to the domestic relations office . . . [as] a credit to insure [Husband's] future child support payments." Id. Thus, the trial court's determination that Wife somehow contravened the 2008 EDO is simply wrong and the trial court erred to the extent that it imposed sanctions on that basis.

Additionally, to the degree that either party was responsible for the delay that preoccupied the trial court's sanction analysis, it was Husband rather than Wife. The certified record reveals that Husband failed to draft the consent order pursuant to the 2008 EDO and he did not seek to trigger the contemplated support reduction and determine the potential credit until November 5, 2011. On that date, Husband filed a self-styled "Motion to Correct/Remove Arrearages/Credit Child Support, " wherein he conceded his obligation to draft the consent order and explained that he was not financially capable to pay counsel to fashion the order. See Motion to Correct/Remove Arrearages/Credit Child Support, 10/5/11, at 2. Interestingly, Husband opined therein that his arrearage was $12, 945.82 as of January 2009 and that Wife was liable for the entire amount.[4] Id. Hence, the motion was useless insofar as it utterly disregarded the equitable distribution order dated October 27, 2008 concluding that [Wife']s obligation totaled $9, 377.47. Nevertheless, Husband's motion ultimately generated the 2011 DRO that applied the $9, 377.47 offset to the support arrears and finally calculated the $1, 706.02 credit. Significantly, notwithstanding the trial court's express reference to a pair of adjudications of contempt, neither Husband nor the equitable distribution court initiated any contempt proceedings against Wife during this period of her claimed inaction. Thus, even if the 2008 EDO created an obligation on Wife's part to recalculate Husband's support obligation, which it did not, the record will not sustain the trial court's finding that Wife was responsible for the three-year delay or that she was twice adjudicated in contempt based on that order. Those findings of fact are wholly contradicted by the record. There was only one petition for contempt leveled against Wife: the December 22, 2012 petition filed seven days after Wife failed to comply with the 2011 DRO directing her to pay $1, 706.02 to the domestic relations section by December 12th. Wife satisfied the purge condition almost immediately after the sanction was imposed.

Thus, even recognizing that Wife's equitable distribution payment and Husband's support arrears were inextricably intertwined, to the extent that Husband is due any costs as a result of Wife's inaction, those costs are properly limited to her contemptuous behavior relating to the 2011 DRO and the damages that flowed therefrom. The trial court's assessment of costs against Wife for items that are not associated with her non-compliance with the 2011 DRO is unreasonable.

In addition, assuming, arguendo, that the certified record supported the trial court's decision to impose sanctions against Wife, it could not sustain Husband's claim for costs in this case. There is no evidentiary record of Husband's damages and no indication in the record that the oral argument on Husband's exceptions was recorded. Without an evidentiary hearing or exhibits to substantiate Husband's costs totaling $2, 358.11, it is impossible to verify the accuracy of that amount.

The trial court references Husband's pro se exceptions and his submission of expenses during oral argument as the basis of its determination that the request was valid. Unfortunately for Husband, the argument was not part of the certified record and his exceptions do not shed any light on the authenticity of his alleged costs. For example, Husband's reference to counsel fees in his exceptions relates to an objection to his obligation to pay the fees of the counsel assigned to represent the county's interest in collecting child support from Husband. See Exceptions Amended Brief, 4/23/12, at 3. Significantly, Husband did not identify the amount of his obligation or assert that the fees should be imputed to Wife. Id. Moreover, while he did request "legal fees as to the time to represent the above issues [concerning Wife, ]" the "above issues" that he cited did not relate to Wife's contempt. Id. at 4. In reality, Husband's request for attorney fees was based upon what Husband believed he would have to pay to recoup $155, 000 that he alleged Wife stole from the marital estate, to alert authorities to Wife's alleged inappropriate receipt of welfare benefits, and to litigate liability for marital credit card debt. Id. He also complained that the family division failed to correct his credit reports and requested the trial court to assess fees against Wife for the credit bureaus' failure to update their reports. Id. at 3-4. Finally, Husband cites PACSES's inaccurate scheduling notice issued on January 18, 2012, that indicated that the contempt proceedings had been initiated against him, as additional grounds to assess costs against Wife for having to appear. Id. at 5. However, this feeble claim ignores that the hearing officer corrected the record, treated the pertinent portion of the proceedings as a compliance review[5], and dismissed the concomitant rule to show cause. As is evident from our review of the wide-ranging claims that Husband leveled in his pro se exceptions to the court's February 21, 2012 order, there is a conspicuous absence of verifiable statements regarding the actual costs that he claims he either expended or expects to incur. Since the certified record cannot sustain the imposition of sanctions totaling $2, 358.11 for Wife's noncompliance with the 2011 DRO, we reverse the portion of the trial court's order granting Husband's exceptions.

Next, we confront Husband's arguments. He levels the following claims.

[1.] The honorable court erred and failed to recognize the deficiencies . . . of the domestic relation services . . . in concert with the PACSES computer program are overbroad, [sic] to hold Steven Addlespurger in contempt for Julie McVays [sic] failure to pay the court as ordered, which provided the door to raise substantial issues.
[2.] The honorable court erred in not correcting the manifest mathematical errors of $7, 641.89 in favor of Steven Addlespurger.
[3.] The honorable court erred in not providing a default judgment in favor of Steven Addlespurger when Julie McVay failed to appear . . . to oppose motions and exceptions that were served approprately [sic] 5 times.
[4.] The honorable court erred in not providing a default judgment . . . in favor of Steven Addlespurger when Julie McVay failed to appear . . . after receiving a notice from the court . . . for oral arguments.
[5.] The honorable court erred when the court requested the oral argument from Steven Addlespurger then within 1 minute, stopped the argument, which conflicts with the first Amendment of the U.S. Constitution for redress of grievances and the Pennsylvania Constitution Article 1 Section 1.
[6.] The honorable court has failed to correct the manifest financial errors, with the false imprisonments, subrogating child support money which misled to defects of 45 CFR 302.51.

Husband's brief at 22-26 (arguments omitted).

The trial court disposed of Husband's claims as follows:

With respect to Father's cross appeal, he raises six issues, most of which are irrelevant or unintelligible, i.e. that this Court erred in stopping his argument within one minute, in failing to recognize PACSES and court deficiencies which resulted in contempt findings against him, and in failing to correct "mathematical" and "financial" errors and deficiencies in the domestic relations system.
First, at no time did this Court halt Father's argument "within 1 minute." To the contrary, Father was afforded a significant amount of time, during which he argued that he was entitled to reimbursement for fees, costs, and expenses. As to fees, Father sought $10, 000 in response to this Court's inquiry. Finding no basis for Father's request, and since both parties are pro se litigants, this Court rejected such an exorbitant demand. As stated above, this Court did find that Father should be reimbursed for expenses and costs due to Mother's behavior and conduct. Father submitted his expenses totaling $2, 358.11.
This Court awarded him the same. Thus, Father prevailed on this issue.

Trial Court Opinion, 12/10/12, at 5.

We agree with the trial court's rationale. First, Husband's challenge to the accuracy of the PACSES system and the deficiencies in the domestic relations system are irrelevant to the hearing officer's finding of contempt against Wife. Indeed, while we recognize that the PACSES docket momentarily identified him has the subject of the February 2012 contempt hearing, the hearing officer corrected the deficiency and confirmed in Husband's presence that the PACSES records were updated. N.T. 2/21/12, at 55-61. Moreover, to the extent that Husband implies that he was tainted by the misidentification, he simply ignores that his compliance record is abysmal and, as we previously discussed herein at footnote four, his habitual failure to satisfy his child support obligations is not the result of Wife's non-compliance with the 2011 DRO. Hence, his argument concerning the deficiencies of the domestic relation services generally and the PACSES computer system specifically is unpersuasive.

Next, Husband challenges the domestic relations court's November 2011 calculation of his arrears and the amount of the credit that Wife was required to pay pursuant to the 2011 DRO. Essentially, he argues that he was entitled to an additional credit of $7, 641.89. This assertion misses the mark, not only because it is belied by the record, but also due to Husband's failure to appeal that final order at the appropriate time. Accordingly, the determination of the $1, 706.02 credit is final. No relief is due.

Husband's third and fourth complaints are that the trial court did not enter default judgment in his favor due to Wife's failure to appear at the oral argument despite his attempt to serve her with notice of the hearing. Reiterating his prior argument, Husband contends that since Wife did not respond to defend against his exceptions, the trial court should have awarded him both the $7, 641.89 credit that he believes he was owed and his claimed costs totaling $2, 358.11. We disagree. Simply stated, we reject Husband's position that Wife's failure to attend the oral argument effectively compelled the trial court to award him his requested relief. In reality, Husband was required to prove his case notwithstanding Wife's absence. After hearing Husband's argument, the trial court disallowed the bulk of the request. The trial court's action was not legal error.[6]

We dispose of Husband's final two complaints collectively. First, he asserts that the trial court erred by limiting to one minute his oral argument in favor of his exceptions to the February 21, 2012 order. Next, Husband maintains that if he had been permitted to continue, he would have challenged the validity of the 2008 EDO wherein the equitable distribution court fashioned the underlying payment/credit scheme and directed him to pay the counsel fees of the attorney assigned to collect his support-related debts. Asserting that the order was the result of "extreme bias, " he continued that the order violated his "indefeasible rights . . . of enjoying life and liberty, . . . acquiring, possessing and protecting property and reputation, and of pursuing [his] own happiness." Husband's brief at 26. Additionally, he posits that, if given the opportunity, he would have addressed his "First Amendment [right] to redress grievances." Id.

As noted in its Rule 1925(a) opinion, the trial court denies that it cut short Husband's argument. While there is no record of the hearing, we observe that the crux of Appellant's would-be arguments involve the propriety of the 2008 EDO. That order, however, is unassailable at this late juncture, and Husband's challenges are irrelevant to the February 2012 order that is the basis of his exceptions. Thus, assuming arguendo, that the trial court did, in fact, terminate Husband's oral argument in favor of his exceptions before he could flush out the forgoing complaints, he cannot demonstrate that he was prejudiced by the court's alleged action. Accordingly, no relief is due.

For all of the foregoing reasons, we reverse the portion of trial court's order granting Husband's exceptions insofar as it imposed $2, 358.11 costs against Wife as an additional sanction for her contempt of the 2011 DRO, and we affirm the remaining aspects of the order denying Husband's exceptions.

Order affirmed in part and reversed in part. Case remanded.

Jurisdiction relinquished.

Judgment Entered.

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