Opinion
J-A33023-15 No. 136 EDA 2015
03-30-2016
JENNIFER DELLA GUARDIA Appellee v. JAMES DELLA GUARDIA Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated November 20, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No: No. 2010-04664 BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant James Della Guardia ("Husband") appeals from the November 20, 2014 order of the Court of Common Pleas of Montgomery County ("trial court"), which denied his petition for contempt and enforcement of a property settlement agreement executed between him and Appellee Jennifer Della Guardia ("Wife") and granted Wife's counterclaim, directing Husband to pay Wife $6,415.00 in attorney's fees. Upon review, we affirm.
The facts and procedural history underlying this appeal are undisputed. In 2010, Wife filed a complaint in divorce against Husband. On February 21, 2012, the parties entered into a "Stipulation for Agreed Order in Support" ("Stipulation Order"). Paragraph 5 of the Stipulation Order provides in relevant part:
"The Parties have entered into a comprehensive Property Settlement Agreement which includes a provision of alimony/alimony pendent [sic] lite for Wife as follows:
Stipulation Order, 2/21/12 at ¶ 5A. On February 22, 2012, Husband and Wife entered into a property settlement agreement ("PSA"), which incorporated and restated Paragraph 5 of the Stipulation Order. See PSA, 2/22/12 at ¶ 19. Moreover, Paragraph 24 of the PSA, pertaining to enforcement, provides:Husband is currently obligated to pay Wife alimony pendente lite at the rate of $4,452,00 per month. Husband shall continue to be so obligated through February 29, 2012. Commencing March 1, 2012 and for a period of 18 months thereafter, Husband shall pay to Wife as alimony/alimony pendente lite, the sum of $2,550.00 per month. This payment shall be non-modifiable in amount and duration. However, this obligation shall terminate upon earliest of the following: 1) Wife's cohabitation, 2) Wife's remarriage, 3) Wife's death, 4) Husband's death, or 5) August 31, 2013, provided all payments contemplated herein have been paid.
Each party further hereby agrees to pay and to save and hold harmless the other party from any and all reasonable attorney's fees, and costs of litigation that either may sustain, or incur, or become liable for, in any way whatsoever, or shall pay upon, or in consequence of any default or breach by the other of any of the terms or provisions of this Agreement by reason of which either party shall be obliged to retain or engage counsel to initiate or maintain or defend proceedings against the other at law or equity or both or in any way whatsoever; provided that the party who seeks to recover such reasonable attorney's fees, and costs of litigation must first be successful in whole or in part; before there would be any liability for said reasonable attorney's fees, and costs of litigation. It is the specific agreement and intent of the parties that a breaching or wrongdoing party shall bear the burden and obligation of any and all costs and expenses and counsel fees incurred by himself or herself as well as the other party. In endeavoring to protect and enforce his or her rights under this Agreement. The Court shall determine the reasonableness of the attorney fee award.Id. at ¶ 24. On February 28, 2013, Husband filed a "Petition for contempt and to Enforce Stipulation for Agreed Order in Support." Husband alleged that Wife was cohabiting with her paramour, Dan Falcone ("Mr. Falcone"), "since on or about October 25, 2010" in violation of the alimony provisions of the Stipulation Order and the PSA. Husband's Contempt and Enforcement Petition, 2/28/13, at ¶ 6. Based on this allegation, Husband argued that Wife was not entitled to any alimony payments made under the Stipulation Order. Wife answered the contempt petition, denying that she was cohabiting with anyone. Wife's Amended Answer, 1/22/14, at ¶ 6. Wife also raised a counterclaim for attorney's fees under Paragraph 24 of the PSA. Specifically, Wife requested counsel fees in the event she prevailed on Husband's contempt and enforcement petition. Id. at ¶ 22.
The trial court held hearings on Husband's petition for contempt and enforcement, at which Husband, Wife, the parties' minor daughter, and Mr. Falcone testified. The trial court summarized the testimony as follows:
At the . . . hearing, [Wife] testified . . . that she lived at her residence with only her two daughters until September, 2013, when her boyfriend, Dan Falcone, moved in. Prior to September, 2013, Mr. Falcone "occasionally" stayed at her residence overnight. [Wife] testified that prior to September, 2013, Mr. Falcone would stay overnight anywhere from "zero to five" nights in a two week period. Wife testified that that Mr. Falcone would keep his personal items such as clothes in an overnight bag only, and did not keep other personal belongings in her residence. [She] stated that Mr. Falcone never stayed overnight at her residence prior to September, 2013 when her two daughters were there.
The parties' daughter, [J.D.G.], testified . . . that on one occasion she took a picture of Mr. Falcone's laundry at her mother's residence and that Mr. Falcone would ". . . bring clothes and have them washed there." [She further] testified that between March, 2012 and September, 2013, Mr. Falcone
never stayed overnight at her mother's residence when she and her sister were living there. When asked by [Husband's] counsel if she had any direct information or knowledge that Mr. Falcone moved into [Wife's] residence before November, 2013, [J.D.G.] testified that she did not.Trial Court Opinion, 2/26/15, at 3-6. Following the hearings, and based on the foregoing findings, the trial court concluded that Wife and Mr. Falcone did not cohabit prior to September 2013. As a result, on November 20, 2014, the trial court denied Husband's petition for contempt and enforcement and granted Wife's request for attorney's fees under Paragraph 24 of the PSA. Husband timely appealed to this Court.
. . . [Husband] testified as to what he believed the nature of [Wife's] relationship was with Mr. Falcone prior to their moving in together in September, 2013. However, [Husband] testified to matters as far back as January, 2010, which is almost two years prior to the parties['] signing the [PSA]. Therefore, the majority of [Husband's] testimony was irrelevant for purposes of the issue before the court which was whether or not [Wife] had cohabit[ed with Mr. Falcone between February, 2012 and September, 2013. [Husband] testified that he had seen Mr. Falcone's car parked outside [Wife's] residence several times prior to September, 2013. [Husband] testified that in his "opinion," and that it was his "belief," that [Wife] and Mr. Falcone were living together prior to signing the PSA in February, 2012, yet despite this, he signed the agreement which includes the provision that alimony would terminate upon [Wife's] "cohabitation" with a man. [Husband] testified that he has never been inside Wife's residence.
. . . [Wife] testified . . . Mr. Falcone never paid rent at her residence, he never paid any of the bills, he never received mail there, he never did any household chores or helped to maintain the home, he never mowed the lawn, or cleaned the house. Prior to September, 2013, Mr. Falcone never ate breakfast or lunch at [Wife's] residence, but, occasionally, ate dinner there. [She] testified that she and Mr. Falcone did not support each other financially prior to September, 2013, and she did not hold Mr. Falcone out as her husband in the community.
Mr. Falcone testified . . . that he began living with [Wife] in September, 2013. Mr. Falcone testified that he paid rent at a separate address through August, 2013. He testified that prior to September, 2013, he never stayed overnight at [Wife's] residence when her daughters were present. [He] also testified that prior to September, 2013, he never paid rent or any bills at [Wife's] residence, he did not do any chores at the house or perform any maintenance on the property, and he did not keep personal items or clothing there. Mr. Falcone testified that prior to September, 2013, he never used [Wife's] home phone number as a number where people could reach him, and he never bought food for [Wife's] house. He stated that prior to September, 2013, he never held [Wife] out as a person who was either his wife or someone he was living with.
As directed by the trial court, Husband filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, raising ten assertions of error. First, Husband argued that the trial court's determination that Wife did not cohabi with Mr. Falcone was inconsistent with our Supreme Court's decision in Kripp v. Kripp , 849 A.2d 1159 (Pa. 2004). Second, Husband argued that the trial court's determination that Wife did not cohabit with Mr. Falcone was inconsistent with our decision in Moran v. Moran , 839 A.2d 1091 (Pa. Super. 2003). Third, Husband argued that the trial court's determination that Wife did not cohabit with Mr. Falcone was inconsistent with our decision in Miller v. Miller , 508 A.2d 550 (Pa. Super. 1986). Fourth, Husband argues that the trial court's determination that Wife did not cohabit with Mr. Falcone was inconsistent with our decision in Lobaugh v. Lobaugh , 753 A.2d 834 (Pa. Super. 2000). Fifth, Husband argued that the trial court's determination that Wife did not cohabit with Falcone was inconsistent with Section 507 of the Divorce Code, now codified at 23 Pa.C.S. § 3706. Sixth, Husband argued that the trial court abused its discretion in disallowing Michele Harris to testify as an expert in the field of "surveillance." Seventh, Husband argued that the trial court abused its discretion in disallowing Michele Harris to testify pursuant to Pa.R.E. 803(6), relating to records of a regularly conducted activity. Eight, Husband argued that the trial court erred in permitting Wife to present evidence after moving for a directed verdict at the close of Husband's evidence. Ninth, Husband argued that the trial court erred in awarding counsel fees to Wife. Tenth, Husband argued that the trial court erred in denying his petition for contempt and enforcement.
Section 3706 of the Divorce Code provides:
No petitioner is entitled to receive an award of alimony where the petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the petitioner within the degrees of consanguinity.23 Pa.C.S. § 3706.
In response, the trial court issued a Pa.R.A.P. 1925(a) opinion, addressing Husband's assertions of error in seriatim. First, the trial court concluded that the instant case was distinguishable from Kripp because the term cohabitation sub judice was unambiguous as used in the Stipulation Order and the PSA. The trial court noted that the term cohabitation here applied to Wife living with a member of the opposite sex. See Trial Court Opinion, 2/26/15, at 12. Second, the trial court concluded that Husband was not entitled to relief on his Moran argument. Specifically, the trial court determined that the case at bar was factually distinguishable from Moran in part because Wife and Mr. Falcone maintained separate residences between February 2012 and September 2013 and were not financially or socially interdependent. Id. at 13-14. Third, the trial court concluded that Husband was not entitled to relief under Miller . Fourth, the trial court concluded that Husband's argument under Lobaugh was without merit. Fifth, the trial court determined that Husband's argument under Section 507 of the Divorce Code likewise lacked merit. Sixth, the trial court concluded that it did not abuse its discretion in disallowing Michele Harris to testify as an expert in the field of "surveillance." Particularly, the trial court found that Husband "attempted to qualify Ms. Harris as an expert, seemingly, so Ms. Harris could testify about the contents of certain photographs and documents of which she herself had no firsthand knowledge. In fact, Ms. Harris testified that she personally never observed Mr. Falcone's car outside of [Wife's] residence." Id. at 16. The trial court declined to find her an expert in surveillance, because surveillance did not require any specialized, scientific, or technical knowledge beyond that of an average layperson. Id. at 16-17. Seventh, the trial court concluded that it did not abuse its discretion in disallowing Ms. Harris to testify under Rule 803(6), which permits introduction of business records as an exception to the hearsay rule. Eighth, the trial court concluded that it did not err in permitting Wife to proceed with her case in chief, after denying Wife's motion for a directed verdict at the close of Husband's evidence. The trial court noted that, even though Wife used the phrase directed verdict, she intended to seek a motion to dismiss or a compulsory nonsuit. Id. at 19. Ninth, the trial court concluded that it did not err in awarding Wife attorney's fees under Paragraph 24 of the PSA. Tenth, the trial court concluded that Husband's final argument was non-specific and vague and, as a result, did not merit relief. Alternatively, the trial court noted that Husband's last argument was redundant of his other arguments relating to cohabitation that the court properly rejected. The trial court determined that it did not err in holding that Wife did not cohabit with Mr. Falcone. Accordingly, Wife was not in contempt. Id. at 21-22.
We are puzzled by Husband's reliance on Miller , as it is similar to this case. In Miller , we determined that wife and her boyfriend did not cohabit because they shared only weekend sexual liaisons, they did not share a common home on a permanent basis, they maintained separate residences, and they did not mutually share their respective incomes and expenses. Miller , 508 A.2d at 555. Much like the boyfriend in Miller , Mr. Falcone only maintained one change of clothes in Wife's house.
We note that Lobaugh is markedly distinguishable from the case sub judice. There, this Court held that wife and boyfriend were cohabiting when they resided together in wife's house for three months, were affectionate towards one another (despite denying having sex), had meals together and went to church together. The boyfriend often took wife's boys to school, bought mattresses for each of the boys' bedrooms as well as wife's, received telephone calls at wife's home and made some minor household repairs. Lobaugh , 753 A.2d at 837.
We observe that Husband's fifth assertion of error is simply a rehash of his first four arguments.
As Wife points out, surveillance essentially involves only "watching and listening." Wife's Brief at 31.
Rule 803(6) provides in part:
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:Pa.R.E. 803(6).
. . . .
(6) Records of a Regularly Conducted Activity. A record (which includes a memorandum, report, or data compilation in any form) of an act, event or condition if,
(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a "business", which term includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor other circumstances indicate a lack of trustworthiness.
We note that Husband's argument is hard to follow: apparently, he thought Ms. Harris could, as a fact witness, authenticate notes and photos taken by other investigators in her office under Rule 803(6) and then testify as an expert as to the significance of these items. As noted earlier, however, the trial court properly declined to admit Ms. Harris as an expert in surveillance. Husband now seems to want to switch gears and have Ms. Harris testify as a fact witness. If Ms. Harris were to testify as a fact witness, Husband could not satisfy Rule 803(6). The "records" in question were notes and photos taken by other investigators. Because Ms. Harris did not take the notes or the photos herself, she would not be able to authenticate them. See U.S. Bank v. Pautenis , 118 A.3d 386, 401 (Pa. Super. 2015) (concluding that the court acted within its discretion in finding that bank's evidence regarding amount owed on loan by homeowner was insufficiently reliable to be admitted in mortgage foreclosure action under business records exception to hearsay rule, because representative of loan servicer could not authenticate documents created by bank or establish their trustworthiness).
Rule 226(b) provides that "[a]t the close of all evidence, the trial judge may direct a verdict upon the oral or written motion of any party." Pa.R.C.P. No. 226(b).
We agree with the trial court that Wife's slip of the tongue did not prejudice Husband; "gotcha" claims like Husband's are properly denied under Pa.R.C.P. No. 126, relating to liberal construction and application of the rules. See Green Acres Rehabilitation and Nursing Center v. Sullivan , 113 A.3d 1261, 1272 ("Rule 126 allows an equitable exception for parties 'who commit a misstep when attempting to do what any particular rule requires.' Rule 126 does not excuse a party's complete noncompliance with the rules, but Rule 126 'is available to a party who makes a substantial attempt to conform.'") (internal citation omitted).
On appeal, Husband essentially repeats these same arguments for our review. After careful review of the parties' briefs, the record on appeal, and the relevant case law, we conclude that the trial court's Rule 1925(a) opinion, authored by the Honorable Patricia E. Coonahan, cogently disposes of Husband's issues on appeal. See Trial Court Opinion, 2/26/15, at 7-22. We, therefore, affirm the trial court's November 20, 2015 order. We direct that a copy of the trial court's February 26, 2015 Rule 1925(a) opinion be attached to any future filings in this case.
When reviewing the dismissal of a contempt petition, our standard of review is well-settled: "[i]n reviewing a trial court's finding on a contempt petition, we are limited to determining whether the trial court committed a clear abuse of discretion. This Court must place great reliance on the sound discretion of the trial judge when reviewing an order of contempt." P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa. Super. 2012), appeal denied , 94 A.3d 1010 (Pa. 2014).
As wife correctly points out, to the extent Husband argues that the trial court erred in allowing him to introduce evidence of cohabitation predating the PSA, the argument is waived. Husband failed to raise this argument in his Rule 1925(b) statement. See Dietrich v. Dietrich , 923 A.2d 461, 463 (Pa. Super. 2007) ("When an appellant files a [Rule] 1925(b) statement, any issues not raised in that statement are waived on appeal."). Even if this argument was not waived, we do not appreciate its relevance. Husband's petition for contempt and enforcement was premised on alimony payments made under the Stipulation Order and the PSA. Thus, it is immaterial whether Mr. Falcone may have cohabited with Wife prior to the execution of the Stipulation Order and the PSA in February 2012.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/30/2016
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