Kochan v. Kochan

270 A.3d 1156 (Table)

Jennifer KOCHAN

v.Jon J. KOCHAN, Appellant

No. 473 MDA 2021

Superior Court of Pennsylvania.

Filed December 21, 2021

MEMORANDUM BY NICHOLS, J.

Appellant Jon J. Kochan (Husband) appeals from the order finding him in contempt. Husband contends that the record does not support the trial court's order granting the petition for contempt filed by Jennifer Kochan (Wife). We affirm.

We adopt the trial court's presentation of the facts and procedural history. See Trial Ct. Op., 6/11/21, at 1-2 (unpaginated); see also Kochan v. Kochan, 1291 MDA 2019, 2020 WL 6219573 (Pa. Super. filed Oct. 22, 2020) (unpublished mem.) (summarizing the parties' lengthy litigation history). Briefly, on September 14, 2018, the divorce master ordered Husband to remove his personal belongings from the marital property, which Wife occupied, within thirty days. Trial. Ct. Op. at 1. Husband failed to comply, and on October 19, 2018, Wife filed a petition for contempt. Pet. for Contempt, 10/19/18. On October 31, 2018, the trial court granted the petition, held Husband in contempt, and ordered that Husband could purge himself of contempt by removing his personal belongings, including two non-operable vehicles, within sixty days. Order, 10/31/18.

In late December 2018,¹ Husband removed some, but not all, of his personal belongings, and on December 28, 2018, Husband filed a petition for a sixty-day extension of time. Pet. for Extension of Time, 12/28/18. On January 2, 2019, the trial court denied Husband's petition for extension of time. Order, 1/2/19.

On July 19, 2019, Wife filed another petition for contempt, which alleged that she incurred expenses in removing Husband's remaining personal property, excluding the two non-operable vehicles, from the marital property.² Pet. for Contempt, 7/19/19. On January 25, 2021, Wife filed an amended petition for contempt, which reiterated her request for the trial court to find Husband in contempt of the October 31, 2018 order by failing to remove all of his belongings. Am. Pet. for Contempt, 1/25/21.

The trial court held an evidentiary hearing on March 17, 2021, at which Husband testified. In relevant part, Husband testified that it "was impossible" for him to remove his belongings "because they were not in the same placement as they were when [he] left." R.R. at 47a. Husband testified that movers and a constable were present, but that his belongings were not boxed and thrown in a pile. Id. at 60a. Husband asserted that his belongings were also arranged around his two non-operable vehicles, which he claimed prevented him from complying fully with the trial court's October 31, 2018 order. Id. at 47a, 61a. Husband also alleged that Wife's family prevented him from removing his belongings and that some of his belongings were missing. Id. at 51a, 60a. Husband estimated that the movers could only remove half of the items and neither vehicle. Id. at 47a, 60a-61a. Husband claimed that Wife told him that he was not allowed to return on another day to retrieve his remaining belongings. Id. at 60a, 63a.

Wife denied that she and her family interfered with or otherwise prevented Husband and the movers from removing his personal items. Id. at 73a, 76a. Wife testified that she contacted the movers, who told her that although they were scheduled to return before the court-ordered deadline, Husband could not schedule the constable. Id. at 76a. Wife testified that she then contacted the constable, who advised her that Husband told the constable that Husband could not schedule the movers. Id. Wife also testified that she placed Husband's remaining items, excluding his two vehicles, into a dumpster that was removed in February 2019. Id. at 69a-70a, 79a. Wife explained that she could not have a junk company remove Husband's two vehicles without their titles, which Husband refused to provide. Id. at 72a.

Following the hearing, the trial court granted Wife's petition on March 18, 2021:

AND NOW, this 17th day of March, 2021, after full hearing in the above-captioned matter, the court finds [Husband] in contempt of court.

IT IS FURTHER ORDERED that disposition of the contempt shall be held in abeyance to allow [Husband] to purge himself of the contempt by completing the following items no later than thirty (30) days from today's date:

1. Payment to [Wife's counsel] in the amount of $630.00 for dumpster reimbursement.

2. Payment to [Wife's counsel] in the amount of $750.00 for legal fees.

3. Deed for the marital property to be executed by [Husband].

4. The two (2) remaining vehicles on the marital residence to be removed at the cost of [Husband], with [Wife] assuring that access to all vehicles is free and clear.

5. QDRO to be executed by the parties as outlined by the Master's report from October of 2014.

IT IS FURTHER ORDERED that in the event that [Husband] complies with the above items, the contempt disposition hearing in the above-captioned matter shall be dismissed.

IT IS FURTHER ORDERED in the event that the above items have not been complied with, counsel for [Wife] shall petition for [a] disposition hearing. ...

Order, 3/18/21 (formatting altered).³

On April 16, 2021, Husband timely appealed, and he timely filed a court-ordered Pa.R.A.P. 1925(b) statement.⁴

Husband raises the following issues on appeal:

1. Whether the trial court committed a plain abuse of discretion in its court order ... dated March 17, 2021, in finding [Husband] in contempt of court?

2. Whether the findings of fact of the trial court were supported by substantial evidence?

Husband's Brief at 4.

We summarize Husband's arguments for both of his issues. In Husband's view, he removed most, but not all, of his belongings from the marital residence. Id. at 15. Husband reasons that Wife and her family prevented him from completing the removal of his belongings including his two vehicles. Id. at 15-16, 20-21. Husband contends that due to Wife's alleged interference, which was beyond his control, he was unable to comply with the trial court's order to remove all of his belongings by December 30, 2018. Id. at 16. For those reasons, Husband petitioned the trial court for an additional sixty days within which to finish removing his property, but the trial court denied the petition. Id. at 16-17. Husband concludes that he did not willfully disobey the trial court because he did not have the ability to comply. Id. at 18-19.

In B.A.W. v. T.L.W., 230 A.3d 402 (Pa. Super. 2020), this Court set forth the standard of review:

This court's review of a civil contempt order is limited to a determination of whether the trial court abused its discretion. If a trial court, in reaching its conclusion, overrides or misapplies the law or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias or ill will as shown by the evidence of record, then discretion is abused.

In order to establish that a party is in civil contempt, there must be proof by a preponderance of the evidence that the contemnor had notice of the specific order that he or she is alleged to have disobeyed, that the act that constituted the contemnor's violation was volitional, and that the contemnor acted with wrongful intent.

... The power to punish for contempt, including the power to inflict summary punishment, is a right inherent in the courts and is incidental to the grant of judicial power under the Constitution. The court may order civil or criminal contempt.

The characteristic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of contempt by complying with the court's directive. If he is given an opportunity to purge himself before imposition of punishment, the contempt order is civil in nature. If the purpose of the order is to punish despite an opportunity to purge, the order is criminal in nature.

A court may exercise its civil contempt power to enforce compliance with its orders for the benefit of the party in whose favor the order runs but not to inflict punishment. A party must have violated a court order to be found in civil contempt. The complaining party has the burden of proving by a preponderance of evidence that a party violated a court order.

However, a showing of non-compliance is not sufficient in itself to prove contempt. If the alleged contemnor is unable to perform and has in good faith attempted to comply with the court order, contempt is not proven. The alleged contemnor has the burden of proving the affirmative defense that he has the present inability to comply with the court order. A court cannot impose a coercive sentence conditioned on the contemnor's performance of an act which is incapable of performance. To impose civil contempt the trial court must be convinced beyond a reasonable doubt from the totality of evidence presented that the contemnor has the present ability to comply with the order.

B.A.W., 230 A.3d at 406-07 (citations and footnote omitted and formatting altered).

With respect to weighing testimony, this Court stated as follows:

The trial court, not the appellate court, is charged with the responsibilities of evaluating credibility of the witness and resolving any conflicts in the testimony. In carrying out these responsibilities, the trial court is free to believe all, part, or none of the evidence. When the trial court's findings are supported by competent evidence of record, we will affirm, even if the record could also support an opposite result.

Interest of D.G., 241 A.3d 1230, 1241 (Pa. Super. 2020) (citation omitted and formatting altered).

In Childress v. Bogosian, 12 A.3d 448 (Pa. Super. 2011), the husband appealed from the trial court's order granting the wife's petition to hold the husband in contempt. Childress, 12 A.3d at 465. The trial court acknowledged that the husband's and the wife's testimony "conflicted on the issue of contempt," but held that the "wife's testimony and evidence was credible, and [the] husband's testimony and evidence was not...