Tomassetti v. Suarez

MARY TOMASSETTI, EXECUTRIX Appellant v. ROBERT J. SUAREZ, JR., CHRISTINE COLLINS SHUBERT, BANKRUPTCY TRUSTEE OF THE BANKRUPTCY ESTATE OF ROBERT J. SUAREZ Appellees

No. 1004 EDA 2022

No. J-S33018-22

Superior Court of Pennsylvania

February 22, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered March 31, 2022 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s) D08068485

BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.

MEMORANDUM

KING J.

Appellant Mary Tomassetti, executrix of the estate of Patricia Ann Suarez, appeals from the order entered in the Philadelphia County Court of Common Pleas, which imposed sanctions after the court found Appellant in contempt of a prior order.^[1] We affirm.

The trial court opinion set forth the relevant facts and procedural history of this appeal as follows:

The original parties in this action, Patricia Ann Suarez ("Wife") and Robert J. Suarez, Jr. ("Appellee" or "Husband"), were divorced by a decree entered on October 21, 2013, the same day on which Wife died after an illness. The matter of equitable distribution of marital property was bifurcated from the decree in divorce. Husband had filed a bankruptcy action in the United States Bankruptcy Court for the Eastern District of Pennsylvania, and Christine Collins Shubert, as trustee of Husband's bankruptcy estate, is an additional defendant ("Appellee" or "Bankruptcy Trustee"). Thereafter, Appellant, Wife's sister and executrix of Wife's estate, was substituted as Plaintiff.

The court entered a final order on July 15, 2019, resolving the claims for equitable distribution and counsel fees. As provided in the equitable distribution order at paragraph No. 31 J, Wife's estate was awarded a 100% interest in real property located at 3725 Ronnald Drive, Philadelphia, Pa., contingent upon payment to Appellee(s) of $90,000 within 120 days of the entry of the order. It further provided that if Wife's estate failed to pay Appellee(s) $90,000 within 120 days of the entry of the order, the property at 3725 Ronnald Drive would be listed for immediate sale. The net profit from the sale would be split evenly between Appellant and Appellees.²

² The final order of July 15, 2019 also disposed of all other items of marital property. The net effect of the disposition of the other assets was for Appellant to pay Appellee(s) $75,549.22.

Husband filed an appeal from the order (No. 2333 EDA 2019), and Appellant filed a cross-appeal (No. 2617 EDA 2019). The Superior Court discontinued Appellant's appeal pursuant to her praecipe for discontinuance on January 2[9], 2020. The Superior Court dismissed sua sponte Husband's appeal on June 16, 2020, for failure to file a brief.

Litigation at the trial court level recommenced on July 30, 2020, with the filing of a motion for contempt by the Bankruptcy Trustee. Appellant filed an answer thereto on August 31, 2020. On December 29, 2020, Appellant filed a motion to enforce the July 15, 2019 order, and the Bankruptcy Trustee filed an answer to that motion on January 25, 2021. These motions were resolved by the court in an order entered on April 16, 2021.

The order entered April 16, 2021, provided verbatim:

Motion for contempt and to enforce distribution of assets filed on 7/30/20 by … bankruptcy trustee … and petition to enforce court decision of 7/15/19 filed on 12/29/20 by [Appellant] are resolved as follows:

The order of 7/15/19 shall be complied with in all respects, specifically, [Appellant] shall have 100% interest in real property at 3725 Ronnald Drive, Philadelphia, Pennsylvania contingent upon payments to [Appellees] of $90,000 within 120 days of the entry of this order. If [Appellant] fails to pay [Appellees] $90,000 within 120 days of the entry of this order, the property at 3725 Ronnald Drive, Philadelphia, Pennsylvania shall be listed for immediate sale. Upon sale of the property, the net profit shall be split evenly between [Appellant] and [Appellees] on a 50-50 basis.

[Appellees] shall have 100% interest in real property at 11733 Waldemere Drive, Philadelphia, Pennsylvania.

[Appellees] shall have 100% interest in real property at 5 Oneida Trail, Albrightsville, Pennsylvania.

On May 24, 2021, Appellant filed a petition for special relief seeking reconsideration or clarification of the April 16^thorder. This petition was denied on May 26, 2021, without a hearing.

* * *

On June 23, 2021, a motion for contempt and for distribution of assets was filed by the Bankruptcy Trustee. Appellant filed an answer thereto on July 15, 2021. After a hearing on August 4, 2021, the court entered the following order, verbatim:

Motion for contempt and to enforce distribution of assets filed by the [bankruptcy trustee] on June 23, 2021 is resolved as follows:

Parties shall comply with the order of 7/15/19 in all respects. If parties do not comply by 9/24/21, the bankruptcy trustee … shall have the property located at 3725 Ronnald Drive, Philadelphia, PA, listed for immediate sale.

Counsel fees in the amount of $10,000.00 are awarded to Attorney, Robert Seitzer, Esquire, payable to … bankruptcy trustee by 8/31/21.

Counsel fees in the amount of $5,000.00 are awarded to Attorney, Lawrence Abel, Esquire, payable to … bankruptcy trustee by 8/31/21.

On September 7, 2021, Appellant filed a second petition to enforce the July 15, 2019 order. Also on September 7, 2021, Appellant filed an appeal to Superior Court from the order of August 4, 2021 (No. 1789 EDA 2021). Once again, Appellant filed a praecipe for discontinuance, and the Superior Court discontinued Appellant's appeal on October 15, 2021.

In the meantime, Appellant had filed a petition for special relief with the trial court on September 24, 2021, seeking to compel the Bankruptcy Trustee's compliance with the orders of July 15, 2019 and August 4, 2021, and to extend the date to obtain compliance of these orders from September 24, 2021 to November 24, 2021. The Bankruptcy Trustee filed an answer on October 20, 2021. On November 2, 2021, the Bankruptcy Trustee filed a petition for contempt against Appellant, to which Appellant filed an answer with new matter on December 2, 2021. The Bankruptcy Trustee filed an emergency motion to compel Appellant to provide proof of insurance for the property at issue on December 9, 2021, and Appellant answered and made a counterclaim on January 10, 2022.

On December 6, 2021, and on December 10, 2021, the court issued rules returnable for hearing on January 14, 2022. After that hearing, the court entered an order subject to [a separate and pending appeal] at Docket No. 431 EDA 2022.

Order entered January 14, 2022

The order of January 14, 2022, provided, verbatim:

The property located at 3725 Ronnald Drive, Philadelphia, PA shall be listed for sale forthwith.

The trustee in bankruptcy has the sole authority to execute the sale of the property.

The trustee shall choose the realtor and notify [Appellant] with the full contact information of the realtor.

[Appellant] shall provide the trustee with keys to the property by 3:00 p.m. on 1/18/22.

[Appellant] shall add [Appellees] as additional insureds to the insurance policy covering the property.

[Appellant] shall provide evidence that the insurance policy is in full force to the trustee by 3:00 p.m. by 1/20/22. This insurance policy shall be in full force until the sale of the property.

The lien in the amount of $13,297.42 held by Discover Banks shall be paid by the trustee.

The amount of $75,549.22 plus interest in the amount of $11,332.38 shall be paid to the trustee by 3:00 p.m. on 1/18/22.

Counsel fees as set forth in the order of 8/4/21 shall be paid today. Interest in the amount of $324.75 shall be paid today.

* * *

On January 2[1], 2022, the Bankruptcy Trustee filed another emergency contempt motion against Appellant, alleging that she failed to provide keys to the Ronnald Drive property, that she failed to comply with the insurance provision, that she failed to pay per the July 15, 2019 order, and that she failed to pay counsel fees per the August 4, 2021 order and the January 14, 2022 order. On January 26, 2022, the court issued a rule to show cause to address the Bankruptcy Trustee's contempt motion and set a hearing date for March 16, 2022. On March 15, 2022, Appellant filed an answer to the pending emergency contempt motion.

(Trial Court Opinion, filed 6/21/22, at 2-7) (internal record citations and some footnotes and emphasis omitted).

The court conducted an evidentiary hearing on March 16, 2022. Immediately following the hearing, the court entered an order finding Appellant in contempt of the January 14, 2022 order. Specifically, the court noted that Appellant failed to: 1) provide the trustee with the keys to the property; 2) make the required payment of $75,549.22 plus interest; and 3) failed to pay counsel fees as directed.^[2] The court relisted the matter for a hearing to determine Appellant's ability to pay a monetary sanction for contempt. After the next hearing on March 31, 2022, the court ordered Appellant to pay counsel fees to the trustee in amount of $17,500.00. The court also sentenced Appellant to sixty (60) days in prison with a purge factor of $53,208.08.^[3]

Appellant timely filed a notice of appeal on April 14, 2022. On April 19, 2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant timely filed her Rule 1925(b) statement on May 10, 2022.

Appellant now raises one issue on appeal:

Did the Family Court commit legal error by ordering [Appellant] to pay funds, in excess of the funds belonging to the Estate, then holding her in contempt for failing to pay and incarcerating her until all liquid funds of the estate were

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