Berger v. Waxman

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STACEY BERGER Appellant v. JONATHAN WAXMAN

No. 1851 EDA 2022

No. J-A05031-23

Superior Court of Pennsylvania

March 28, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered June 8, 2022 In the Court of Common Pleas of Montgomery County Civil Division at 2009-27364

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM

MURRAY, J.

Stacey Berger (Appellant) appeals from the order denying the petition for contempt she filed against Jonathan Waxman (Ex-Husband). We affirm in part, vacate in part, and remand with instructions.

Appellant filed a complaint in divorce on September 2, 2009. On October 30, 2013, following "multiple days of hearings," an arbitrator entered an award effecting a 60/40 split of the marital assets in Appellant's favor. Award, 10/30/13, at 1, 6. The arbitrator directed:

[Ex-]Husband and [Appellant] shall execute a Qualified Domestic Relations Order [] transferring $25,000 from [Ex-]Husband's Vanguard Investment and Individual Retirement Account … to [Appellant's] name. [Ex-]Husband shall retain the balance of his Vanguard Retirement and Individual Retirement Accounts, including the sum withdrawn by him in 2010.

Id. at 3-4. The arbitrator directed Ex-Husband to pay Appellant $646,257 "in cash or by certified check […] within ninety (90) days of the date of this Award." Id. at 6. The arbitrator further directed Ex-Husband to reimburse Appellant approximately $26,910.47 for shared expenses Appellant had paid, and credited Ex-Husband $50,406.18 for his payment of shared expenses. Id. at 14, 16-20.

On June 25, 2014, Appellant filed a petition for special relief to confirm arbitration awards and for contempt and enforcement. On October 14, 2014, the parties entered into a stipulated settlement agreement (Settlement Agreement). Pertinently, the Settlement Agreement provided:

4. [Ex-Husband] shall rollover his entire Vanguard retirement account balance to [Appellant]. [Ex-Husband] shall cooperate to achieve the rollover as soon as possible.

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9. [Ex-Husband] shall pay [Appellant] $730,025 in settlement of his financial obligations (other than those obligations addressed by the parties' support stipulation that they executed on October 14, 2014) to [Appellant] as follows:

a. [Ex-Husband] shall owe [Appellant] 6% interest per annum on the $730,025 commencing retroactively on January 31, 2014.

b. [Ex-Husband] will be credited as paying [Appellant] $30,800 toward the outstanding debt as of the date that [Ex-Husband's] entire Vanguard retirement account has been transferred to [Appellant].

c. Commencing on the first day of the first month following the entry of the divorce decree, [Ex-Husband] shall pay [Appellant] $4,528 per month toward the outstanding debt and shall continue making payments in that amount each month due on the first day of each month until November 30, 2015.

d. Commencing on December 1, 2015, [Ex-Husband's] payments to [Appellant] shall increase to $8,628 per month. The payments shall be due and payable on the first day of each month and continuing until December 31, 2017.

e. Commencing on January 1, 2018, payments from [Ex-Husband] to [Appellant] shall increase to $9,921 per month due and payable on the first of each month continuing until June 30 2018.

f. Commencing on July 1, 2018, payments from [Ex-Husband] to [Appellant] shall increase to $12,630 per month continuing on the first of each month until the loan is paid in full.

g. The parties will run an amortization chart after the Vanguard payment is made to determine the duration of the payments (i.e. when the debt from [Ex-Husband] to [Appellant] is repaid).

10. In the event that [Ex-Husband] sells any/all of his business interests (in whole or in part) or his or his business' commercial or personal real estate, any and all proceeds shall first be applied to any and all sums owed to [Appellant] by [Ex-Husband] before [Ex-Husband] shall be entitled to receive the net proceeds (after payment of any taxes due upon the sale and after the satisfaction of any loans required to be repaid as a result of the sale).

11. Any payments that [Ex-Husband] makes in addition to the monthly payments (including the $30,800 credit from the Vanguard Retirement payment) shall be applied directly toward the outstanding balance due to [Appellant]. The interest due on the debt shall be compounded.

12. [Ex-Husband] shall maintain life insurance to secure his obligations to [Appellant] and shall name [Appellant] as the sole beneficiary to the policy. [Ex-Husband] shall name [Appellant] as the owner of the policy; however, he is responsible for any and all payments to maintain the policy in the appropriate amount.

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16. This agreement does not supersede the Arbitration Awards but it does resolve the financial payments to be made to [Appellant] and others pursuant to the awards.

Settlement Agreement, 10/14/14, at 2, 4-6. The parties divorced on November 24, 2014.

On March 9, 2016, Appellant filed petitions for special relief and contempt. The trial court thereafter found Ex-Husband in contempt for failing to make two monthly payments to Appellant of $8,628.00 each as provided in the Settlement Agreement. Order, 4/21/16, at 1 (unnumbered). The court ordered Ex-Husband to pay Appellant $17,256.00 on or before April 30, 2016. Id.

In 2018, the parties executed a modification of the Settlement Agreement. They reduced Ex-Husband's payment from September 2018 to September 2019, to $8,000 per month, with interest of 8% per annum. Agreement for Modification of Equitable Distribution, 9/7/18.

On November 6, 2019, Appellant filed a petition for contempt and enforcement of the Settlement Agreement. On January 16, 2020, the parties entered into an agreement to reduce Ex-Husband's monthly payments from $12,630.00 to $8,000.00, effective November 1, 2019 through April 30, 2021. The parties reset the interest for this period to 7.5% per annum. Order ─ Short List, 1/16/20, at 1 (unnumbered).

Appellant filed the instant petition for contempt and enforcement of the Settlement Agreement on March 4, 2022. Petition for Contempt, 3/4/22, at 1-10. Appellant claimed Ex-Husband owed her $105,428.48 under the Settlement Agreement; she sought payment of that amount, along with strict compliance with various terms of the Settlement Agreement, plus counsel and accountant fees. Id. at 9.

Ex-Husband filed an answer and counterclaim on May 19, 2022. Ex-Husband maintained he was current with payments, had paid in advance, and owed no payments until November 2022. Answer and Counterclaim, 5/19/22, at 3 (unnumbered). Ex-Husband also sought counsel and accountant fees. Id. at 5 (unnumbered).

On May 25, 2022, the trial court held a hearing at which Appellant, Ex-Husband, and Appellant's accountant, Mary Jo Webb, testified. On June 8, 2022, the trial court issued an order denying Appellant's petition for contempt. Order, 6/8/22, at 1 (unnumbered). The court deemed Ex-Husband's amortization schedule, admitted into evidence at the hearing, to be "true and correct," and directed him to pay Appellant $17,204.54 in satisfaction of all remaining amounts owed under the Settlement Agreement. Id. At 1-2 (unnumbered). The court denied both parties' requests for counsel and accountant fees. Id. at 2. This timely appeal followed.^[1]

Appellant raises four issues on appeal:

1. Whether the trial court erred and committed an abuse of discretion by misapplying the law when it failed to find [Ex-Husband] owed Appellant […] more than $17,204.54 in a manner lacking reason?

2. Whether the trial court erred and abused its discretion when it failed to find [Ex-Husband] in contempt of the court order by failing to make payments after he made a lump sum payment?

3. Whether the trial court erred and abused its discretion in failing to order [Ex-Husband] to provide proof of life insurance on his life naming [Appellant] as the beneficiary in the amount owed for equitable distribution?

4. Whether the trial court erred and committed an abuse of discretion in failing to award [Appellant] counsel fees and accountant fees, including but not limited to her accountant witness fees for the contempt hearing?

Appellant's Brief at viii.

In her first three issues, Appellant challenges the trial court's denial of her contempt petition. Appellant's Brief at 1-17, 19-20. While Appellant initially claims the trial court misapplied the law, see id. at viii, her argument is fact-based. See id. at 1-17. Appellant argues the trial court erred in accepting Ex-Husband's "flawed amortization schedule[,]" which she contends "starts with the wrong amount owed to [Appellant]." Id. at 1, 3. Appellant maintains Ex-Husband's amortization schedule "fail[s] to begin accumulating interest on the proper date," and "stops counting interest as of June 2020[.]" Id. at 5, 7. Appellant also complains there is "no support" for Ex-Husband's lump sum payments, which allowed him to take a "payment holiday." Id. at 13. Lastly, Appellant asserts "the trial court erred in not ordering [Ex-Husband] to maintain life insurance in an amount equal to what was owed in equitable distribution[.]" Id. at 19.^[2]

"In 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) (footnote and citation omitted, emphasis added). "This Court will reverse a trial court's order denying a [ ] contempt petition only upon a showing that the trial court misapplied the law or exercised its discretion in a manner lacking reason." MacDougall v. MacDougall,...