Opinion
CN21-03285
07-19-2023
B.B. v. R.B.
Kara M. Swasey, Esquire [redacted] Attorney for Petitioner
Petition No.: 23-03924 Letter Order - Rule to Show Cause
Kara M. Swasey, Esquire [redacted] Attorney for Petitioner
LETTER ORDER
MICHAEL W. ARRINGTON, JUDGE
Dear Ms. Swasey & Mr. B___:
On July 19, 2023, the Court conducted a trial on the Petition - Rule to Show Cause filed by B___ B___ [Wife] against R___ B___ [Husband]. Wife alleges that Husband has violated the Court's Ancillary Order issued May 4, 2022. Specifically, Wife alleges that Husband fraudulently represented that the 1969 Camaro (the "Vehicle") was sold by Autoclassic of Delaware, LLC ("Autoclassic"), for $20,500 on August 31, 2022, when in actuality it had been sold by Autoclassic on August 27, 2022 for $45,500. The Court finds Husband in contempt for the reasons set forth below.
The Ancillary Order addressed the Vehicle that was purchased during the marriage, noting that the parties agreed that the value of the vehicle was $21,125. Husband had personally renovated the Vehicle and has great attachment to it. The agreed valued was based on a rough average of three appraisals provided by Husband. The parties further agreed that the Vehicle would be sold and the net sale proceeds divided equally.
Husband contacted Autoclassic and agreed to place the car for sale by consignment. Husband informed the owner of Autoclassic, J___B___, that he would accept $45,000 for the Vehicle when sold. Notwithstanding the covert discussions with Autoclasssic, Husband and J___B___ provided separate "bills of sale" dated August 31, 2022 purporting that the vehicle had been sold for $20,500 with a consignment commission of $2,000. J___B___ provided checks to the parties in the amount of $9,250 representing 50% of the purported net sale price.
Unknown to Wife, J___B___ had already sold the vehicle for $45,500 to a buyer in Leesburg, Virginia on August 27, 2022. J___B___ was far from "above board" in his dealings with his co-conspirator. He called Husband and asked if he would accept $43,000 for the Vehicle. Husband agreed. J B cut a second check to Husband for $21,500. J___B___ testified that he does not use a set fee or a percentage commission in his consignments. The total paid by J___B___ to the Bakers was $40,000 and not $43,000 as Husband had agreed to accept. J___B___ made $5,500 on the sale of the Vehicle, and not $2,000 as he had represented in the "bills of sale" as his commission. Husband feels cheated by J___B___. However, this Court does not have jurisdiction over J___B___ to enter an order. Husband will have to decide whether to pursue his claim in a court of appropriate jurisdiction.
Husband is contrite, albeit much too late to avoid consequence for his actions. He concedes that he was not honest and wants to "wipe the slate clean." The facts are that he conspired with J___B___ to provide false bills of sale that he knew were incorrect to persuade Wife into accepting less than 50% of the sale price of the vehicle. Wife was deceived for a while. Counsel for Wife requested document of the sale price but Husband and J___B___ resisted providing any of the correct documents. Wife incurred substantial costs to get to the heart of the matter at which point she discovered that she was not receiving that to which she was entitled under the Ancillary Order.
The Court first addresses the Rule to Show Cause standards. In order to prevail, a petitioner must prove by preponderance of the evidence that: (1) there is a valid Order; (2) Respondent had the ability to comply with the Order; (3) the Respondent violated the Order without legal excuse; and (4) Petitioner incurred harm as a result. Wife prevailed on all four prongs. The May 4, 2022 Ancillary Order is a valid court order. Husband had the ability to comply with the Order. Husband intentionally violated the Order because he was (and remains) angry with Wife. Wife was denied her rights under the Order. Consequently, Husband is in CONTEMPT of the May 4, 2022 Ancillary Order.
When a Respondent is found in contempt, the Court will order that the Petitioner be reimbursed for the costs of uncovering the wrong and prosecuting the case. The reimbursement includes all filing fees, attorney's costs, and related charges. Ms. Swasey will file with the Court an Affidavit of Attorney's Fees and Costs by Monday, July 24, 2023, and provide a copy to Husband. Husband shall have seven calendar days to send his response to the Affidavit of Attorney's Fees and Costs to [redacted] ___. The Court will decide on the amount of fees and costs to be awarded in a separate decision.
In this case, Husband had J___B___ prepare a fraudulent bill of sale indicating that the Vehicle had been sold for $20,500 reduced by a $2,000 commission, and provided each party with $9,250. In so doing, Husband represented that $9,250 was the fair amount to be received by each party under the Order. The remainder of the proceeds are fraudulent gains on the sale for which the Court must decide on distribution.
The Court finds that Wife should receive all of the fraudulent gains. Wife was wronged by the deception and presented a successful case establishing her right to those gains. In determining the gains, the Court accepts the representation that the costs of the sale were $2,000 as set forth on the fraudulent bill of sale. The vehicle sold for $45,500 and the $2,000 commission comes to 4% of the sale price which is reasonable. Therefore the Court will consider the sale price as $43,500. Husband received $9,250 which he represented as his full and fair share of the sold Vehicle. Wife is entitled to a total of $34,250 for which she received only $9,250. Husband owes Wife $25,000.
Husband is a blue-collar worker with limited funds being immediately available to him. However, he received a check in the amount of $21,500 from J B from which the bulk of his obligation can be satisfied. The difference is the subject of the dispute between Husband and J B that this Court is not authorized to resolve. However, Wife is not part of that dispute and should not suffer in equity.
The Court has sympathy for Husband's self-made situation. However, all actions have consequences and this Order addresses those items to which he must accept responsibility.
IT IS HEREBY ORDERED
1. Husband is found in CONTEMPT of the May 4, 2022 Ancillary Order.
2. Ms. Swasey shall submit an Affidavit of Attorney's Fees and Costs by July 24, 2023. Husband shall have seven calendar days to send his response to the Affidavit of Attorney's Fees and Costs to the Court at [redacted].
3. Husband is Ordered to pay $25,000 to Bayard, P.A. on behalf of Wife as follows:
a. $15,000 by Monday, July 24, 2023, and
b. $10,000 by December 19, 2023.
4. No interest shall be awarded provided that payments are made as Ordered herein. If payment is not made, Wife may file a motion to convert the unpaid balance to a judgment with interest at the legal rate accruing from the date such payment was due. No costs of collection may be added to the judgment.
IT IS SO ORDERED.