Opinion
CN08-04937 Petition 21-01198
11-02-2021
Joann Szafranski v. Bruce W. Nickel, Jr.
Bonnie S. Gladu, Esquire Schmittinger & Rodriguez, P.A. Shauna T. Hagan, Esquire
Petition Type: Rule to Show Cause
Bonnie S. Gladu, Esquire
Schmittinger & Rodriguez, P.A.
Shauna T. Hagan, Esquire
LETTER DECISION AND ORDER
Felice Glennon Kerr Judge
Dear Ms. Gladu and Ms. Hagan:
The Court held a hearing on this Petition on July 26, 2021 and issued an Order on July 26, 2021 keeping the record open for an additional 90 days so that the parties could both attempt to locate bank statements from 2009 when B N("Husband") alleges he paid J S ("Wife") the money he owed her from his 401 (k). Wife's counsel, Ms. Hagan advised the Court on October 25, 2021 that she was not able to obtain any documents from PNC bank from 2009 and neither was her client or Ms. Gladu.
Procedure and Background
The parties were divorced on October 31, 2008 and the Court retained jurisdiction over property division, counsel fees and court costs. Wife completed her portion of the Rule 16 (c) Financial Report. Husband did not complete his portion. On January 9, 2009, the Court gave Husband until January 28, 2009 to complete the financial report or Wife could file for default judgement. Husband did not complete the financial report and Wife's attorney filed a Motion for Default Judgement which was granted on February 17, 2009. The default order dealt only with Husband's retirement benefits. The Motion for Default Judgement stated that Husband had already bought Wife out of the marital home. Husband was ordered to sign the QDRO for the pension and to pay Wife $9,190.00 for the 401(k) which was cashed out. The Order gave Husband 90 days to pay the $9,190.00 or Wife could record the Order as a judgement with the prothonotary. Wife filed this Rule to Show Cause on January 21, 2021. The Court continued the case twice due to the need to obtain documentation and finally heard the case on January 26, 2021.
Discussion
A finding of contempt is left to the Court's sound discretion, but the Court must find by clear and convincing evidence that a violation of a Court order has occurred before holding a party in contempt. It is not a defense, in a contempt proceeding, that the party did not have the subjective intent to violate the Court's Order. Even upon a finding of contempt, the Court is not obligated to impose sanctions if it perceives that the party is making a good faith effort to remedy the problems which necessitated the action.
M.B. v. E.B., 28 A.3d 495, 500 (Del. Fam. Ct. 2011).
Div. of Family Services v. A.B., 980 A.2d 1045, 1050 (Del. Fam. Ct. 2009).
M.B. v. E.B., 28 A.3d at 500; see also J.B. v. R.L., 2016 WL 2591327, at *21 (Del. Fam. Ct. 2016).
There are three criteria which must be met for a party to prove civil contempt: 1) there must be a valid order; 2) the alleged contemptor must have the ability to abide by the order; and 3) the alleged contemptor must have disobeyed the order. The burden of proving the contempt by clear and convincing evidence is on the party claiming the contempt.
M.B. v. E.B., 28 A.3d at 500.
Id.
There is no dispute that there is a valid order. There is no evidence that Husband is or was unable to abide by the Order. Husband claims that he did abide by the Order and that he paid Wife $10,000.00 before he left for Alabama where he was relocated in 2009. Wife sent Husband a text which Husband introduced as Exhibit 1 in which Wife states that Husband owes her money from the refinance of the marital home. This text is alleged to have been sent in July, 2020. However, the Order which Wife alleges Husband violated did not deal with the marital home. In fact, the Motion for Default which was filed by Wife's attorney alleged that Wife had already received her buy-out from the marital home and that all that remained to be divided were the retirement benefits. Thus, Wife seems to have been confused about what Husband owed her. However, Wife denied that Husband ever paid her the $9,190.00 from the February 17, 2009 Order.
Since both parties had different stories the Court gave them more time to try to obtain records. While it is accurate that the Court would ordinarily require the party who claims to have paid the funds to provide proof of payment, there was a 12-year period between the time the Order was entered and the date this Petition was filed. Both parties and their attorneys were unable to obtain records from PNC that far back. Additionally, Wife never recorded the Order as a Judgment with the prothonotary which would have secured the sum due. "Equity aids the vigilant, not those who slumber upon their rights." Due to Wife's delay, Husband is unable to obtain proof from the bank that he paid Wife $9,190.00 and Wife is also unable to obtain her own bank records which she alleges would show no large deposits in that time. Wife bears the burden of proof in a Rule to Show Cause and the Court is unable to find by clear and convincing evidence that Husband has failed to pay the $9,190.00.
Equitable maxim.
The Petition is DENIED.
Very truly yours,