MYLENA K. DRAKE, BY AND THROUGH HER ATTORNEY IN FACT JERRY DRAKE, Appellant
PAUL G. HURLER, Appellee
Appeal from the Order Entered May 24, 2013, In the Court of Common Pleas of Tioga County, Civil Division, at No. 356 FS 2011.
BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ.
Appellant, Mylena K. Drake ("Drake"), by and through her attorney in fact Jerry Drake, appeals from the order entered on May 24, 2013, that dismissed her petition for contempt filed against her former husband, Paul G. Hurler ("Hurler"). After review, we are constrained to vacate the order entered on May 24, 2013, vacate a subsequent order entered on April 25, 2013 that granted reconsideration, and direct the trial court to reinstate the order entered on January 23, 2013.
The trial court set forth the relevant facts and procedural history of this matter as follows:
The background of this case begins with a divorce of the parties and a marital settlement agreement disposing of their property, including [the 2007 Harley Davidson Soft Tail Deuce] motorcycle mentioned above. The terms of the agreement provided that Paul Hurler was to make all payments on the Harley Davidson Financial Loan and to refinance the loan within three months from date of execution of the Agreement on May 14, 2012. Mylena Drake's contempt petition alleged that Paul Hurler had failed to make payments as required by the agreement and as a result, she was required to make one payment to avoid a default on the loan. She further alleged that Hurler had refused to comply with the requirement that he refinance the loan. The agreement provided that Drake would become sole and separate owner of the 2007 Soft Tail Deuce Motorcycle if Hurler failed to refinance the loan within three months. Drake sought payment of attorney's fees and expenses in her attempts to enforce the Agreement, which we denied.
Hurler failed to appear before the court on the date and time scheduled on the contempt petition, which was January 23, 2013. As a result, the petition was granted and Hurler was directed to turn over possession of the motorcycle to Drake, and to execute the title and pay associated costs and fees. However, the court granted a Motion for Reconsideration of that order as neither [Hurler] nor his attorney received a copy of the Contempt Petition. A copy of the hearing order was mailed to [Hurler], so he was aware that some sort of court hearing had been scheduled. On the date of the hearing, Hurler's fiancé went into what was thought to be labor and required medical attention which caused Hurler to miss the scheduled court date. On February 20, 2013, Thomas A. Walrath, Jr., Esquire, prepared and filed an Answer to the averments alleged in the petition for contempt, not knowing that the order had been signed on January 23, 2013. The court then directed that the matter be rescheduled to allow for proper service of the contempt petition and the opportunity to present testimony in order to consider the merits of the petition.
Mylena Drake was not present at the May 24, 2013 contempt hearing and also had not appeared at prior proceedings. Her "attorney in fact, " Jerry Drake was present in the courtroom at the time of the second hearing, but counsel for Ms. Drake did not call him to present testimony[.] Mr. Paul Hurler presented uncontroverted testimony as to his efforts to comply with terms of the agreement. The original motorcycle which was owned by Paul Hurler and valued at $18, 000, and for which Hurler paid cash, was traded for the 2007 Soft Tail [at issue here, ] leaving a balance owed of roughly $4, 000. Mr. Hurler's attempts to refinance that debt were continually thwarted by Drake's actions. Drake was employed by Harley Davidson and had the financing placed in her name alone, therefore, each time Hurler attempted to learn the total amount needed to pay off the debt, he was told by Harley Financial that he was not privy to that information since Mylena Drake was the only account holder. Hurler asked Drake to place his name on the account so that he could obtain the information he needed to comply with the refinancing requirement contained in the agreement. However, her response to his request was simply to laugh and tell him to make a payment. Hurler testified that he was able to pay off the debt but was prevented from doing so.
Hurler was eventually able to learn the payoff amount via friends that work for Harley Financial but was still not permitted to make a payment in the full remaining amount of $641. He made the maximum payment that Harley Financial would allow of $400 and then forwarded a check in the amount of $241 to Annette Maza, Esquire, counsel for Drake.
Trial Court Opinion, 7/23/13, at 1-3. At the conclusion of the hearing, the trial court found that Hurler was not in contempt of the settlement agreement and that Drake had thwarted Hurler's efforts to satisfy the terms of the agreement. Id. The trial court dismissed Drake's petition for contempt and directed Drake to return the motorcycle to Hurler. Order, 5/24/13. On June 5, 2013, Drake filed a timely notice of appeal.
On appeal, Drake raises five issues for this Court's consideration:
I. Whether the trial court erred in permitting reconsideration of its order of January 23, 2013?
II. Whether the trial court erred in not enforcing the parties' contractual obligation pursuant to their ...