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Cunningham v. Cunningham

Superior Court of Pennsylvania

March 20, 2018

BEVERLY L. CUNNINGHAM, INDIVIDUALLY AND AS TRUST BENEFICIARY
v.
ALVIN D. CUNNINGHAM, INDIVIDUALLY, ALVIN D. CUNNINGHAM AS TRUSTEE, AND ALVIN D. CUNNINGHAM TRUST Appellant

         Appeal from the Order March 20, 2017 In the Court of Common Pleas of Somerset County Civil Division at No(s): No. 68 Civil 2007

          BEFORE: BENDER, P.J.E., STEVENS [*] , P.J.E., and STRASSBURGER [**] , J.

          OPINION

          STEVENS, P.J.E.

         Appellant/Defendant Alvin D. Cunningham, in his individual capacity, appeals from the order entered in the Court of Common Pleas of Somerset County on March 20, 2017, finding him in civil contempt for violating a prior court order directing him to make monthly payments to his ex-wife, Appellee/Plaintiff Beverly L. Cunningham, pursuant to the parties' Family Trust Agreement as incorporated in their Post Nuptial Agreement. Appellant contends the remedy of contempt was unavailable where the underlying Trust Agreement was never incorporated into the parties' decree of divorce but was, instead, an independent contract such that Appellees' sole remedy for Appellant's nonpayment under the agreement was a breach of contract claim.

         In the alternative, Appellant argues that even if the court could properly enforce its prior order through the sanction of civil contempt, the evidence established, inter alia, Appellant's present inability to pay, the depletion of trust funds through legitimate stock market losses, and his good-faith willingness to convey his one-half of the marital home to Appellee as payment of the court's purging condition. We affirm.

         The trial court's Pa.R.A.P. 1925(a) opinion aptly sets forth the relevant factual and procedural history:

Beverly J. Cunningham [Appellee] filed a Complaint against Alvin D. Cunningham [Appellant] on January 25, 2007. In the
Complaint, Appellee aver[red] that the parties were formerly husband and wife and that the parties were divorced at case docketed at 16 Divorce 1997 in the Court of Common Pleas of Somerset County. Compl. ¶ 3.
Appellee further aver[red] that in connection with the divorce action, the parties entered into a Post Nuptial Agreement, together with a Family Trust Agreement (hereinafter collectively referred to as "Agreements"), dated November 1, 1996, which were not incorporated into the Divorce Decree. Id. at ¶¶ 4, 5. Appellee aver[red] that the Appellant had violated the terms of the Agreements, and that the Post Nuptial Agreement was not properly entered into as the Appellant failed to make a full disclosure of his assets in connection with the same. Id. at ¶ 6.
[Appellant filed an Answer, New Matter, and Counterclaim raising all applicable statutes of limitations, laches, and equitable estoppel, among other claims. The basis for his res judicata and/or collateral estoppel claim was the Honorable Judge Eugene Fike's September 14, 2004, ruling that the Agreements were not incorporated into the Divorce Decree. Appellee filed an Answer to Appellant's New Matter and Counterclaim].
***
Appellee filed an Amended Complaint on March 31, 2010. In that
Amended Complaint, Appellee aver[red] that pursuant to the terms of the Agreements, Appellee is to receive certain periodic payments which amount to $20, 000.00 per year with an increase in February of each year to be determined by the Consumer Price Index. Am. Compl. ¶¶ 5, 9. It is averred that Appellant has failed to comply with the provision requiring him to make these payments to Appellee. Id. at ¶ 9. Additionally, Appellee aver[red] that the Agreements were not properly entered into as the Appellant failed to make a full disclosure of his assets in connection with the Agreements. Id. at ¶ 8.
Appellant filed Preliminary Objections to the Amended Complaint on September 17, 2010. . . . After oral argument on the
Preliminary Objections, The Honorable Judge David C. Klementik held in his Order dated June 6, 2011, that:
[T]he Preliminary Objections to the Amended Complaint are sustained to the extent that the Plaintiff [Appellee] shall file an Amended Complaint within 30 days specifically detailing the nature of the violation of the terms of the Post Nuptial Agreement and the precise nature of the lack of disclosure of the Defendant's [Appellant's] assets which became the consideration for the Agreement; and,
Further, the Plaintiff shall include a separate count which details the breach of the trust provisions by the trustee and the nature of the remedy being requested.
Order, June 6, 2011.
Appellee filed a Second Amended Complaint on June 7, 2011. In that Second Amended Complaint, Appellee aver[red] again that Appellee and Appellant entered into the Agreements, that the Agreements were in lieu of any future support for herself, that Appellee is to receive certain periodic payments, and assert[ed] three counts[, one for breach of contract and two in equity for failure to disclose all assets owned and for mismanagement of the Trust, respectively.] Second Am. Compl. ¶¶ 6, 8, 14, 25, 32, 41.
[Appellant filed Preliminary Objections to the Second Amended Complaint on October 13, 2011. The court overruled these Preliminary Objections on January 4, 2012. Eventually, Appellee filed a motion for contempt on April 11, 2012, for Appellant's failure to comply with the Agreements, and Appellant filed Preliminary Objections and a Motion to Strike in response. On April 30, 2012, Appellant filed a Motion for Summary Judgment, in which he raised his previous claims of equitable estoppel, laches, statute of limitations, and res judicata.]
Appellee filed an Amended Motion for Contempt/Motion to Enforce on November 6, 2012[, in which she argued that Appellant had made no payments whatsoever since August of 2011, and thus, Appellee had been unduly prejudiced. Am. Mot. for
Contempt/Mot. to Enforce ¶ 3. Also on that date, Appellee filed an Answer to Appellant's Preliminary Objections/Motion to Strike.
Appellee argued that the court had jurisdiction despite the fact that there was no court order because the court has jurisdiction to order Appellant to be compliant with the terms of the Agreements. Answer to Prelim. Obj'ns/Mot. to Strike ¶ 2. . . .
Appellee also filed an Answer to Appellant's New Matter and Counterclaim on that same date. Appellee claimed that the court had jurisdiction to hear all of the issues raised in her Complaint, that her acceptance of previous payments made by Appellant did not constitute waiver and/or estoppel, that Appellant is not entitled to any form of setoff or counterclaim for the fair market value of the use of the marital home in accordance with the Agreements, that Appellee has done all that she has been required to do relative to the maintenance of the property and use of the shed in accordance with the Agreements, that the terms of the Agreements provide waiver of Appellant's rights to any and all claims of alimony and support, that Appellee maintained the property to the best of her ability while not receiving payments from Appellant, and that the issue of [her cohabitation with another] is wholly irrelevant [to Appellant's obligation to make payments under the Agreements]. Answer to New Matter and Countercl. ¶¶ 48, 50, 51, 52, 57, 1, 3.
In determining Appellant's Amended Motion for Contempt/Motion to Enforce, the Honorable Judge David C. Klementik held that the Honorable Judge Eugene Fike's ruling that the Agreements were not incorporated into the Divorce Decree makes no statement regarding the cause of action to enforce the provision of the Agreements or whether Appellee was precluded from using Divorce Code remedies and ordered the judgment be entered in favor of Appellee and against Appellant pursuant to the undisputed lapse in payment by Appellant. Mem. & Order, January 19, 2014, 3, 6.
[Judge Fike thereafter denied Appellant's Motion for Reconsideration on grounds that] Appellant does not contest he has failed to make payments to Appellee in the preceding fourteen months, that Appellant is bound by the Agreements to make payments to Appellee even if the trust fund set forth in the Agreements is depleted, and that the January 22, 2014, order was an interim order and judgment based on Appellant's admitted default. Mem. & Order, February 20, 2014, 1, 2.
Appellant filed a Notice of Appeal [to this Court on February 21, 2014, but the Superior Court] held in a non-precedential decision that the order in question was not a final order and . . . it lacked jurisdiction to hear the appeal. [Memorandum Decision, ] February 27, 2015, 2, 3. [The Pennsylvania Supreme Court] denied Appellant's Petition for Allowance of Appeal on August 10, 2015.
Appellee filed another Motion for Contempt/Motion to Enforce on January 5, 2017. Appellee again contended that Appellant was required by the Agreements to make monthly payments to her, that Appellant has failed to make any payments since August of 2011, that Appellee has been unduly prejudiced by Appellant's refusal to make payments, that the trial court has previously ordered Appellant to make payments in accordance with the Agreements, that the Appellant continued to refuse to make payments to Appellee despite the court order, and she therefore requested that the trial court issue an order holding Appellant in contempt of court and issue appropriate sanctions. Mot. For Contempt/Mot. to Enforce, January 5, 2017, ¶¶ 2, 4, 5, 7.
Appellant filed an Answer to the Motion for Contempt/Motion to Enforce on January 13, 2017. Appellant claims that he has made no payments because the Trust is insolvent "due to the market collapse in 2007/2008, " and neither Appellant nor the Trust has any financial resources to make the payments to Appellee. Answer to Mot. for Contempt/Mot. to Enforce ΒΆΒΆ 3, 7. Additionally, Appellant filed a Motion to Strike arguing that the Motion for Contempt/Motion to Enforce is improper because Appellee has refused offers by Appellant to convey the marital property to allow her to sell the real estate and reiterating that Appellant does not have the financial ability to make payments in accordance ...

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