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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 Addlespurger v. Addlespurger, 964 A.2d 932 (Pa.Super. 2008) (unpublished memorandum).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 ...

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