Opinion
J-A35032-12 No. 424 WDA 2012 No. 478 WDA 2012
04-17-2013
DEBORAH L. TOMSON Appellant v. JOHN M. TOMSON Appellee DEBORAH L. TOMSON v. JOHN M. TOMSON APPEAL OF: POLLOCK BEGG KOMAS GLASSER & VERTZ LLC
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order February 27, 2012
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 09-000731-002
BEFORE: PANELLA, J., ALLEN, J., and STRASSBURGER, J. MEMORANDUM BY PANELLA, J.
Retired Senior Judge assigned to the Superior Court.
Appellants, Deborah L. Tomson ("Wife"), and Pollock, Begg, Komar, Glasser & Vertz, LLC ("Wife's Attorney"), appeal from the order entered February 27, 2012, in the Court of Common Pleas of Allegheny County. After careful review, we deny Appellee, John M. Tomson's ("Husband") motion to quash and pursuant to Wife's Attorney's appeal at 478 WDA 2012, we vacate the trial court's order in part, and pursuant to Wife's appeal at 424 WDA 2012, we reverse in part.
Following lengthy and contentious divorce proceedings, Husband and Wife agreed to a marital settlement agreement on January 24, 2012. In relevant part, the agreement provided that Husband would pay Wife $82,500.00 and Wife would execute "all necessary documents of further assurance ... including but not limited to numerous quitclaim deeds." Marital Settlement Agreement, 1/24/2012, at ¶¶ 3, 9.
Shortly thereafter, on Friday February 10, 2012, Husband's attorney sent the following e-mail to Wife's Attorney:
I'll messenger over the referenced documents, including the check, mid-morning Monday subject to the agreement that, if any of the documents aren't acceptable, you will not deliver or cash the check until all issues are resolved.Petition for Special Relief, 2/27/2012, at ¶ 6. On February 15, 2012, Wife's Attorney sent a letter to Husband's attorney, indicating that Wife would not sign the proffered deeds and affidavit. Husband's attorney responded on the next day with a letter requesting a return of the check, as it was delivered on the condition that it not be delivered or cashed until all issues were resolved. Wife's Attorney replied, on that same day, by letter indicating his belief that, despite acknowledging Husband's 2/10/2012 e-mail, there was no agreement to hold the check until all issues were resolved, and that he had delivered the check to his client.
Wife and Wife's Attorney have never alleged that they did not receive this e-mail. Indeed, Wife's Attorney acknowledged receipt of this e-mail in his subsequent letter to Husband's attorney. See letter, 2/16/2012, at 1.
On February 27, 2012, Husband filed an emergency petition for special relief, requesting the court to order Wife to sign the proffered documents and for counsel fees of $5,000.00 to be imposed upon Wife and Wife's Attorney. That same day, the trial court granted the petition in part, allowing Wife to present objections to the requirement to sign the documents, and imposing counsel fees of $3,000.00 upon Wife and Wife's Attorney.
Wife signed the pertinent quitclaim deeds, leaving only a proposed affidavit unsigned. Wife then filed a written objection to the proposed affidavit, and shortly thereafter filed the appeal docketed at 424 WDA 2012 from the February 27, 2012 order. On March 19, 2012, Wife's Attorney also filed an appeal from the February 27, 2012 order. In the meantime, Husband had filed a petition to compel execution of the proposed affidavit and seeking further counsel fees from Wife, which the trial court denied via order dated March 22, 2012.
Husband has filed a motion to quash Wife's and Wife's Attorney's appeals as interlocutory. Under the Pennsylvania Rules of Appellate Procedure, an appeal must be taken from a final order. See, e.g., In re Miscin , 885 A.2d 558, 561 (Pa. Super. 2005). A final order is defined as follows:
Rule 341. Final Orders; GenerallyPa. R.A.P., Rule 341. Thus, for purposes of the present case, an order is final and appealable if it disposes of all claims or if a statute expressly defines it as final.
(a) General rule. Except as prescribed in subdivisions (d), and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.
(b) Definition of final order. A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) any order that is expressly defined as a final order by statute; or
(3) any order entered as a final order pursuant to subdivision (c) of this rule.
Subdivision (c) applies when the trial court expressly determines an immediate appeal as to fewer than all the claims and/or parties would facilitate resolution of the entire case. Pa. R.A.P. 341(c). As there is no indication in the certified record of such a determination by the trial court Rule 341(b)(3) does not apply.
After careful review of the certified record, it is evident that the order Appellants seek to appeal is not a final order. The order did not dispose of Husband's claims in his emergency petition for special relief, nor have Appellants identified any statute that expressly defines the order as final. Wife's Attorney argues that the order is final as to it, as it is not a party to the underlying divorce action. However, this misidentifies the relevant action; the underlying action in this case is a contempt proceeding instituted by Husband's emergency petition for special relief. In his petition, Husband requested specific performance of terms of the marital settlement agreement, but also counsel fees from both Wife and Wife's Attorney. As such, Wife's Attorney was indeed a party to the underlying action.
Appellants argue in the alternative that the trial court's subsequent order dated March 22, 2012, perfected their appeal to this Court. Appellants point to the fact that this Court has found jurisdiction for interlocutory appeals where the final order was filed shortly thereafter, citing inter alia, Busse v. Busse, 921 A.2d 1248 (Pa. Super. 2007). While we do not conclude that Busse is directly on point, we agree that the rationale of substance over form applies equally well in the present case. As such, we conclude that the defect in our jurisdiction over this appeal was effectively cured by the trial court's March 22, 2012, order, which was a final order.
Turning to the merits of this case, we note that the only issue on appeal is the trial court's award of counsel fees to Husband. "As each court is the exclusive judge of contempts against its process, we will reverse an order of contempt only upon a showing of a plain abuse of discretion." In re Contempt of Cullen , 849 A.2d 1207, 1210 (Pa. Super. 2004) (citation omitted).
We further explained in In re Contempt of Cullen the following:
To be punished for contempt, a party must not only have violated a court order, but that order must have been definite, clear, and specific—leaving no doubt or uncertainty in the mind of the contemnor of theId., at 1210-1211 (internal citations, quotation marks, and emphasis omitted).
prohibited conduct. Because the order forming the basis for civil contempt must be strictly construed, any ambiguities or omissions in the order must be construed in favor of the defendant. In such cases, a contradictory order or an order whose specific terms have not been violated will not serve as the basis for a finding of contempt. To sustain a finding of civil contempt, the complainant must prove certain distinct elements: (1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) that the act constituting the contemnor's violation was volitional; and (3) that the contemnor acted with wrongful intent. A person may not be held in contempt of court for failing to obey an order that is too vague or that cannot be enforced.
When holding a person in civil contempt, the court must undertake (1) a rule to show cause; (2) an answer and hearing; (3) a rule absolute; (4) a hearing on the contempt citation; and (5) an adjudication of contempt....
Fulfillment of all five factors is not mandated, however. [T]he essential due process requisites for a finding of civil contempt are notice and an opportunity to be heard.
The trial court held that the parties had orally modified the marital settlement agreement through Husband's attorney's e-mail of Friday, February 10, 2012, and Wife's Attorney's failure to object to the e-mail. See Trial Court Opinion, filed 5/7/2012, at 9. As noted above, this e-mail indicated that the parties had previously agreed that Husband's $82,500.00 check to Wife was not to be delivered to Wife or deposited until all other issues under the marital settlement agreement were resolved. There is no evidence in the certified record that this previous agreement was in writing. Furthermore, there is no evidence in the record that this oral agreement was ever made an order of court, as the marital settlement agreement was.
Wife contends that, under the marital settlement agreement, Husband's payment of $82,500.00 to Wife was not conditioned upon any performance by Wife. As a result, Wife's argument continues, the trial court's reasoning constitutes an explicit finding that Wife had waived her rights under the marital settlement agreement. To address this argument, we must review the marital settlement agreement itself.
The interpretation of a contract is a question of law, for which our scope of review is plenary and our standard of review is de novo. See TruServ Corp. v. Morgan's Tool & Supply Co., Inc., 39 A.2d 293, 258 (Pa. 2012). "In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished." Id.
To give effect to the intent of the parties, we must start with the language used by the parties in the written contract. See Szymanski v. Brace , 987 A.2d 717, 722 (Pa. Super. 2009), appeal denied , 606 Pa. 688, 997 A.2d 1179 (2010). Generally, courts will not imply a contract that differs from the one to which the parties explicitly consented. See Kmart of Pennsylvania, L.P. v. M.D. Mall Associates, LLC , 959 A.2d 939, 944 (Pa. Super. 2008), appeal denied , 602 Pa. 667, 980 A.2d 609 (2008). We are not to assume that the language of the contract was chosen carelessly or in ignorance of its meaning. See id.
The actual agreement is a handwritten document, which was subsequently turned into an order of court via a consent order. Paragraph 3 of the agreement requires Husband to pay Wife $82,500.00 within 5 days of the parties' experts reaching an agreement upon the net disposable income of the respective parties available for child support purposes. Paragraph 9 of the agreement requires both parties to execute all necessary documents to implement the terms of the agreement, "including but not limited to numerous quitclaim deeds." Marital Settlement Agreement, 1/24/2012, at ¶ 9. Neither paragraph references the other. The only condition precedent explicit in paragraph 3 is that the parties' experts agree upon the respective net disposable income of the parties for child support purposes.
We conclude that under the marital settlement agreement, Husband's payment of $82,500.00 was not conditioned upon Wife's execution of the quitclaim deeds. Accordingly, we agree with Wife that the trial court's reasoning is proper only if Wife's Attorney's actions constituted a waiver of Wife's rights under the marital settlement agreement.
The Supreme Court of Pennsylvania has long held that
[a] waiver in law is the act of intentionally relinquishing or abandoning some known right, claim or privilege. ToBrown v. City of Pittsburgh , 186 A.2d 399, 401 (Pa. 1962) (emphasis in original) (internal quotation marks and citations omitted).
constitute a waiver of legal right, there must be a clear, unequivocal and decisive act of the party with knowledge of such right and an evident purpose to surrender it[.] Waiver is essentially a matter of intention. It may be expressed or implied. In the absence of an express agreement a waiver will not be presumed or implied contrary to the intention of the party whose rights would be injuriously affected thereby, unless by his conduct the opposite party has been misled, to his prejudice, into the honest belief that such waiver was intended or consented to. In short, the doctrine of implied waiver in Pennsylvania applies only to situations involving circumstances equivalent to an estoppel, and the person claiming the waiver to prevail must show that he was misled and prejudiced thereby.
Of importance here is the fact that no hearing was held in the trial court prior to the imposition of sanctions. The trial court opines that there was no need for an evidentiary hearing as the facts were well known to it and contained in Husband's pleadings. However, we conclude that based upon the record before us, there is no evidence to support several findings necessary to support the explicit reasoning underlying the trial court's award of attorney's fees.
First, there is no evidence whatsoever concerning Wife's knowing or intentional violation of a court order. On the record before us, the only court order is the consent order incorporating the marital settlement agreement. As discussed above, the agreement itself did not condition Wife's receipt of $82,500.00 from Husband upon Wife's execution of the quitclaim deeds. As such, we cannot conclude that Wife violated the consent order.
Second, there is no evidence of record that Wife was obdurate, dilatory, or vexatious. There is simply no evidence in this record capable of establishing what Wife knew about the communications between the parties' attornies, when she knew about it, and why she acted in the manner that she did. For example, and the fact that we are forced to speculate on this issue flows directly from the deficient factual record, it is possible that Wife's actions were entirely pursuant to the advice of Wife's Attorney. Under those circumstances, it would be difficult to establish that Wife's personal conduct was obdurate, dilatory, or vexatious.
Third, while we have concluded that the only court order in the record did not require Wife's Attorney to hold Husband's check until the quitclaim deeds were signed, it is possible that Wife's Attorney's conduct in this matter was obdurate, dilatory, or vexatious by dint of the alleged waiver of Wife's right to the check after the explicit condition precedent was met. However, there has been no hearing, and therefore no evidentiary record, on the issue of whether Wife's Attorney's failure to object to the terms in the February 10, 2012 e-mail prejudiced Husband. The record, as it currently stands, does not contain evidence capable of establishing that Wife's failure to sign the proffered documents prejudiced Husband.
Indeed, the trial court concedes that "Wife had a legitimate argument [that] ... there was no time frame [in the marital settlement agreement] for her execution of the documents[.]" Trial Court Opinion, 5/7/2012, at 10.
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The trial court also supports the sanctions against Wife's Attorney by referencing its inherent power to compensate victims of an attorney's dilatory conduct, citing Coburn v. Domanosky , 390 A.2d 1335 (Pa. Super. 1978). However, this power still requires a finding that a party suffered an injury due to inappropriate conduct by the attorney. See Coburn , 390 A.2d at 1338 ("If the record developed before the court showed that counsel's error ... resulted in expense to appellees..."). Here, as discussed above, Wife's Attorney's conduct in delivering the $82,500.00 check to Wife was not inappropriate under the marital settlement agreement. Furthermore, as also previously noted, the record does not currently support a finding that Wife's Attorney waived Wife's rights under the marital settlement agreement. However, the trial court also found that Wife's Attorney's "behavior, conduct, statements and contentions were lacking in veracity and candor, ... to the Court[.]" Trial Court Opinion, 5/7/2012, at 12. However, it is unclear from this record whether Husband suffered any loss from Wife's Attorney's behavior, conduct, statements and contentions to the trial court.
As a result, we are constrained to reverse the trial court's order directing Wife to pay attorney's fees to Husband, and vacate the trial court's order directing Wife's Attorney to pay the same. We do not foreclose on the possibility that an award of attorney's fees to Husband against Wife's Attorney is appropriate; we merely hold that the trial court's explicit reasoning for the award is unsupported by the record before us.
At 424 WDA 2012, Order reversed. At 478 WDA 2012, order vacated. Case remanded. Jurisdiction relinquished.
Strassburger, J., files a concurring statement.