HomeMy WebLinkAbout2009-8051
T.D.S.,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
OF THE NINTH JUDICIAL DISTRICT
N.M.S.,
Defendant 2009-08051 CIVIL TERM
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF
APPELLATE PROCEDURE 1925(A)
PLACEY, C.P.J. 5 FEBRUARY 2018 *
PROCEDURAL HISTORY
This appeal arises out of the breach of a Marital Settlement Agreement
(MSA) by Respondent Plaintiff (Husband) for his continued harassment of Petitioner
Defendant (Wife) post-divorce. A Divorce Complaint was filed in November 2009,
and a Divorce Decree
(5) judges who have handled the contentious domestic actions between the parties,
including multiple support appeals, multiple protection from abuse complaints,
custody challenges, termination of parental rights, and multiple petitions for
emergency or special relief. Husband had been represented by the same attorney
throughout all these proceedings, until this instant appeal. Wife is on her third
attorney: the first withdrew early on because his fees were not paid
* Redacted for publication
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attorney voluntarily accepted disbarment, and the current
counsel.
On March 9, 2017, Wife sought reparations in three (3) counts against
Husband for his breach of the MSA that in part provides the parties shall not
harass on the alleged breach was held on
June 1, 2017, which resulted in another conference being scheduled and held on
August 2, 2017, allowing Wife time to obtain the admissible video files she claimed
in the MSA breach. Wife filed a request for discovery on July 26, 2017, to which
Husband denied general knowledge of the video sought by wife. A hearing was
held on the merits of the MSA breach on October 5, 2017. At the conclusion of that
hearing day, in chambers and off the record, to
provide the video copy held . Husbands lawyer
did not comply resulting in Wife having to file a second discovery request on
October 26, 2017. A decision on the merits was made on November 7, 2017.
In addition to the instant appeal of the enforcement of the MSA, Husband
has filed four (4) post-judgment motions that will be dealt with outside of this
opinion. Husband asserts eleven (11) errors on appeal, specifically:
Error One: The Trial Court abused its discretion by denying Husband his
fundamental procedural and substantive due process rights afforded to him
under the United States and Pennsylvania Constitutions.
Error Two: The Trial Court abused its discretion in awarding $4,000.00 "for
\[Husband's\] willful breach of the Marital Settlement Agreement'' because
such damages are not available for a breach of contract case and are too
speculative in nature with no testimony having been offered to support the
amount.
Error Three: Trial Court abused its discretion in awarding $4,000.00 "for
\[Husband's\] willful breach of the Marital Settlement Agreement'' because the
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equitable power to award such a sum was not delegated to it by the
Legislature and are too speculative in nature with no testimony offered to
support the amount.
Error Four: Trial court abused its discretion when it issued the November 6,
2017 Order because the record (including the digital audio tape which
must be archived and accessible under Pa. R.J.A. 4016 and its Comment)
show animosity toward Husband's former counsel and a lack of judicial
impartiality towards the Husband.
Error Five: The Trial Court abused its discretion by making a finding of fact
that Husband's former counsel failed to provide a copy of the private
detective's surveillance video depicting Wife and her paramour engaged in a
romantic encounter.
Error Six: The trial court abused its discretion when denying Husband's
motion to dismiss the case at the conclusion of Wife's testimony on October
5, 2017 and in holding that Husband had posted an edited video on You
Tube.
Error Seven: The trial court abused its discretion when denying Husband's
objection to the testimony of Wife's psychologist and allowing evidence of
emotional distress "damages" in a breach of contract action where there was
no allegation the breach of contract resulted in a physical injury.
Error Eight: The trial court abused its discretion in awarding counsel fees of
$3,742.26 under Paragraph 18 of the parties' Marital Settlement Agreement.
Error Nine: The trial court abused its discretion in not granting Husband's
motion to dismiss because the term appearing in Paragraph 3 of the Marital
Settlement Agreement that "Husband and Wife shall not molest, harass,
disturb or malign each other..." is too vague a term as to be enforceable.
Error Ten: The trial court abused its discretion by making a finding of fact
that Husband had a "gross inability to answer questions truthfully''. \[sic\]
Error Eleven: The trial court abused its discretion by utilizing any equitable
remedy because the Wife was precluded from seeking an equitable remedy
under the application of the equitable doctrine of laches.
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FACTS FROM PRIOR PLEADINGS, ENFORCMENT PLEADINGS, AND FINDING
OF FACTS FROM HEARING
This is an appeal on the post-divorce breach of the MSA by Husband;
however, it is cknowledged prior treatment of Wife
during the divorce proceedings so that one can gain perspective on the many facts
prior to the filing of and
hearing on the Motion for Breach of the Marital Settlement Agreement. These are
only his admissions and not any other acts Wife alleged Husband to have
committed during the marriage. This conduct only includes Husband
acknowledged prior, unilateral self-help actions that he earnestly believed to be
rational and justified because of Wife These actions include:
1. admitted that Husband removed many light bulbs in the marital
1
2.
connections to prevent Wife from running the air conditioner in his
main sleeping quarters during cold weather and from turning on the
2
3.
disconnected electrical breakers, and removed parts from the HVAC
unit for the marital residence all in an effort to combat Wife's malicious
3
behaviour
1
paragraph 10D, hereinafter Answer 5/10 at ___.
2
Answer 5/10 at 10F.
3
Answer 5/10 at 10G.
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4.
children will have to swim in the pool to stay cool since if the air
conditioning works the heat will also work and Wife will maliciously
4
5.
5
6. Husband was concerned about how his family was being negatively
viewed as a result of such untruths, Husband attempted to set the
record straight by sharing on Facebook the horrific nature of his
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experiences.
7. Husband has not placed restrictions on his Facebook account which
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means any member of the public can access his postings.
8.
8
9.
own opinions on Facebook. It is denied that Husband has done
anything more than exercise his First Amendment rights to free
9
4
Id.
5
Answer 5/10 at 10H.
6
verified Answer to Defendant's Petition for Special Relief and Petition for Award of
Counsel Fees, filed February 11, 2011, at paragraph 7, hereinafter Answer 2/11 at ___.
7
Answer 2/11 at 8.
8
Answer 2/11 at 5.
9
Answer 2/11 at 11.
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10.
when he suspected that Wife had been committing adultery and that
denies
the company obtained video f\] that
directly released to third parties other
copies of the video were
than to \[a non-party innocent injured spouse\] and undersigned
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counsel
.
11. Wife is not an innocent spouse in this real life and humorless
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enactment of The War of the Roses divorce; however, s
prior actions are useful facts to understanding this proceeding and are
duly noted supra.
12. A bifurcation hearing was held by this jurist, followed by entry of
multiple orders, both prophylactic and protective, to move the divorce
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toward a conclusion.
10
Answer 2/11 at 9 (emphasis added). Effective September 8, 2014, a person commits the
offense of unlawful dissemination of intimate image if, with intent to harass, annoy or alarm a
current or former sexual or intimate partner, the person disseminates a visual depiction of the
current or former sexual or intimate partner in a state of nudity or engaged in sexual conduct. 18
Pa.C.S. § 3131.
11
The War of the Rosesic comedy
concerning the decline of a marriage, wherein husband and wife went tit-for-tat in their bitter
th
divorce, and does not refer to the 15 century civil wars in England.
12
This includes, but is not limited to, a bifurcation hearing on January 14, 2014. A February 7,
2014 Order directing that the economic claims of the divorce proceeding be resolved no later
than June 6, 2014. A prophylactic Discovery Order issued February 2, 2014, to obtain
information necessary for the hearing before the Divorce Master. A protective Order entered
continued
September 16, 2014, in advance of the proceedings before the Divorce Master,
directing any award should not provide Husband any credit for alimony pendente lite payments,
which he never made, and further directed the Divorce Master to consider the superior financial
position Husband then enjoyed because of the non-payment over those many months. The
done by another jurist
subsequent to this jurist last custodial order and well after the October 2014 divorce.
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13. A twenty-four (24) page Marital Settlement Agreement (MSA) was
signed by the parties on October 2, 2014, and filed of record on
October 3, 2014.
14. A Divorce Decree was entered on October 14, 2014, which
incorporatedby reference the terms, provisions and conditions of the
Emergency
15. On October 17, 2014, Husband filed an Petition to
Enforce the Marital Settlement Agreement seeking an order directing
Wife to immediately execute the deeds to the parties' real estate
13
16. The Emergency Petition to Enforce Marital Settlement Agreement was
withdrawn and dismissed by praecipe on November 7, 2014.
17. No court action was taken
18. The last court action by this jurist prior to the MSA enforcement action
sub judice was a custody order based on a custody conciliation
conference dated April 7, 2015.
13
Blacks Law Dictionary defines emergency as a situation requiring immediate attention and
remedial action. Involves injury, loss of life, damage to the property, or catastrophic interference
with the normal activities. A sudden, unexpected, or impending situation.
https://thelawdictionary.org/letter/e/page/18/
ounsel noted in her email attached to the Emergency Petition
to was contingent on Wife signing the property deeds. This quid pro quo is hardly
a risk of injury, loss of life, damage to the property, or catastrophic interference with the normal
activities. There was no specified time constraint for execution of the deeds or payment
remission other than mutual cooperation language; hence, there was no emergency requiring
immediate remedial action.
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The relevant pleadings from the Motion for Breach of the Marital Settlement
Agreement, Answer with New Matter, reply to New Matter, prehearing
memorandum, and prehearing Court Orders are as follows:
19. Wife asserted a breach of the MSA by Motion filed on March 9, 2017,
seeking an award for damages for intentional infliction of emotional
distress in the amount of $200,000.00 and an award for sanctions.
Paragraphs 3 and 18 of the MSA respectively state, in pertinent parts,
as follows:
a. PERSONAL RIGHTS. Husband and Wife may, at all times
Each shall be free from all
hereafter, live separate and apart.
control, restraint, interference and authority, direct or
indirect, by the other.Husband and Wife shall not
\[\]
molest, harass, disturb or malign each other or the
respective families of each other
, nor compel or attempt to
compel the other to cohabit or dwell by any means or in any
manner whatsoever with him or her. Neither party will interfere
with the use, ownership, enjoyment or disposition of any
property now owned by or hereinafter acquired by the other.
(emphasis added).
b. BREACH. If either party hereto breaches any provision hereof,
the rightto
the other party shall have , at his or her election,
sue for damages for such breach, or seek such other
remedies or relief as may be available to him or her.
The
non-breaching party shall be entitled to recover from the
breaching party all costs, expenses and legal feesactually
incurred in the enforcement of the rights of the non-breaching
party. (emphasis added).
20. The three (3) violations specifically alleged are as follows:
a. \[Husband\] has demonstrated direct intent to control and interfere
in \[Wife\]'s life and the lives of her family members by mailing
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correspondence and a picture depicting the adoption of \[Wife\]'s
14
b.
YouTube which was explicit in nature and with the specific intent to
harass and destroy \[Wife\]'s character and reputation. \[Wife\]
contacted YouTube to have this video removed from being further
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a
c. with an employee of United
Parcel Service and demanded to know if he was familiar with
\[Wife\]'s current husband. This served no legitimate purpose and
was specifically with the intent to harass \[Wife\] and \[Wife\]'s current
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21. Husband generally denied the first two (2) averments and indicated he
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lacked sufficient information as to the third.
22.
frivolous with the intention to harass Husband in retaliation for the
and the subsequent adoption of
, and, therefore, Husband seeks
. More importantly,
asserts no affirmative defenses or alternative facts. Indeed it offers
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no other facts.
14
Motion for Breach of the Marital Settlement Agreement, filed March 9, 2017, at paragraph 3,
hereinafter Motion at ¶___.
15
Motion at ¶4.
16
Motion at ¶5. Evidence of this third alleged breach was not presented, and it was not
considered in the decision process.
17
April 11, 2017, at paragraphs 3 - 5, hereinafter Answer 4/17 at ¶___.
18
Answer 4/17 at ¶¶11 14.
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23. A prehearing conference was held on June 1, 2017, which resulted in
a second conference being scheduled to allow the parties, more
specifically Wife, to secure the necessary electronic documents
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and/or certificates for the scheduled breach hearing.
24. Prior to the second conference Wife filed a Request for Discovery on
July 2, 2017, seeking information on who produced the video of Wife,
under what production terms and cost, how many copies of the video
were made, and to whom were they sent, along with a request to
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provide any and all copies of the video.
25. Husband filed an Answer and Objections to this discovery request
asserting a general objectionclaiming the request is overbroad and
unspecific and does not include the date and time and subject matter
of the video sought. Further, the objection goes on to claim that any
videos or reports related to evidence obtained on behalf of counsel
are protected from disclosure as attorney work product and by
attorney/client privilege. Finally, Husband baldly asserts that any
such evidence is not relevant or material to the proceedings and
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constitutes a fishing expedition by Wife.
26. Wife filed a prehearing memorandum that outlined the case and
identified witnesses and exhibits in advance of the second
conference, but Husband did not file a prehearing memorandum.
19
Conference Order of Court, dated June 1, 2017.
20
Defendant's Request for Discovery, filed July 26, 2017.
21
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27. A hearing was held on October 5, 2017, and on November 6, 2017,
of $3,742.26, and further ordering Husband to pay Wife $4,000.00 for
his willful breach of the Marital Settlement Agreement, and specifically
awarded no amount for infliction of emotional distress as the marriage
had already exacted sufficient anguish on the parties and their
children to a point of irreconcilability.
th
The germane post-divorce facts found at the November 6 hearing are as
follows:
28. Wife testified that during the divorce she became aware, and
Husband acknowledged, that he had hired an investigator, who had
22
made a video of Wife engaged in sexual acts with another person.
29. Wife stated that Husband had shared the video with other people pre-
23
divorce.
30. Wife described the location of the 3 or 4 minute video as having been
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filmed by someone
31. In a stunning cross-examination question, and heretofore unknown to
22
Notes of Testimony of N.S.Y., October 5, 2017, at pages 6 7, hereinafter NT Y. at __. Notes of
Testimony, October 5, 2017, at pages 32 33, hereinafter NT at __.
23
NT Y. at 6 and 9.
24
Id. at 7.
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personally sent the video to
25
32. Wife received an email on November 1, 2014, from a sender
i wanna be
hosgetcaughttoo99@gmail.com that contained an internet hyperlink of
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https://www.youtube.com/watch?v=2F4pCrBPFE0.
33. Wife opened the email and clicked on the link to see an edited version
27
of the 2010 video Husband paid to have made.
34. Among other actions, Wife filed a privacy complaint with YouTube to
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have the video removed.
35. the filed prehearing memorandum that the
response received from Google Inc. regarding the YouTube video
posted contained no useful information; however, the video was
29
removed after two weeks.
36. then directed to the termination of her parental
rights in 2016, where Wife recounted that after about four (4) days of
25
Id. at 35. Dissemination of the described video is not only a Crimes Code violation as of
September 8, 2014, 18 Pa.C.S. § 3131, but is a clear violation of Rule 4.4(a) of the Rules of
Professional Conduct, Respect for Rights of Third Persons. Notice of this violation and a
transcript estimony were immediately sent to the Pennsylvania Disciplinary Board,
which explains the two separate transcripts for the same day of testimony.
26
Id. at 9 at page 1.
27
NT Y. at 10.
28
, page 2.
29
NT Y. at 13.
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testimony her parental rights were terminated by another jurist, which
30
became final in mid-October 2016.
37. In late-October 2016, Wife received a letter in the mail with the
name Karma A. Betch, and the physical address
of
posted as the return address. The letter was postmarked October 28,
31
2016, from Fairless Hills, 19030.
38. boys going through
32
the
39.
the courthouse when \[new Wife\] adopted the boys, and \[Husband\] did
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public, but I did post \[the picture\]
40. Husband went on in great detail to describe the video that he had (1)
previously acknowledged having distributed, and yet (2) generally
denied knowledge of in the April 2017 Answer, and (3) previously
does not include the date and time and subject matter of the video
otected from disclosure as
30
NT Y. at 20.
31
NT Y. , page 1.
32
NT Y. at 26.
33
NT at 31.
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evidence is not relevant or material to the proceedings and constitutes
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41. Husband continued on in lurid detail, maligning and casting further
aspersions against Wife that were not plead and had no relevance to
this post-divorce action, which he would not refrain himself from
35
presenting.
42. early and reined in when he tried to detail
36
43. All parties and counsel had previously been warned about hijacking
37
the testimonial process, and the hearing was ended.
a second request for discovery of the video
44. Wife thereafter filed ,
only now indicated albeit in chambers and
off the record that she had in a box in her garage and was directed
45. Thereafter, the court having heard sufficient testimony to decide the
case, a decision on the merits was made, in lieu of a continued
hearing that had originally been contemplated.
DISCUSSION
Statement of Law:
Luber
v. Luber, 614 A.2d 771, 773 (Pa.Super.1992), appeal denied, 535 Pa. 636, 631
34
NT at 33.
35
Id.
36
NT Y. at 4-5
37
NT Y. at 16.
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A.2d 1008 (1993). The law of contracts requires contractual terms that are clear
and unambiguous to be given effect without reference to matters outside the
contract. Carosone v. Carosone, 688 A.2d 733, 735 (Pa. Super. 1997). Further,
and the parties' intentions must be
ascertained from the entire instrument; effect must be given to each part of a
Id. (citations omitted). A marital settlement agreement incorporated but
not merged into the divorce decree survives the decree and is enforceable at law or
Stamerro v. Stamerro, 889 A.2d 1251, 1258 (Pa. Super. 2005)
The Divorce Code provides for enforcement of agreements, specifically that
a party may utilize a remedy or sanction set forth in this part to enforce the
agreement to the same extent as though the agreement had been an order of the
court except as provided to the contrary in the agreement.23 Pa.C.S. § 3105
(emphasis added).
For a person to be found in civil contempt, the moving party must prove that:
(1) the contemnor had notice of the specific order or decree that he
disobeyed; (2) the act constituting the violation was volitional; and (3) the
contemnor acted with wrongful intent. Marian Shop, Inc. v. Baird, 448 Pa.
Super. 52, 670 A.2d 671, 673 (1996). The order alleged to have been
definite, clear, and specificleaving no doubt or
be strictly construed. Id. (emphasis in original).
Gunther v. Bolus, 853 A.2d 1014, 1017 (Pa. Super. 2004).
be imposed for one or both of two
purposes: to compel or coerce obedience to a court order and/or to compensate the
contemnor's adversary for injuries resulting from the contemnor's noncompliance
Mrozek v. James, 780 A.2d 670, 674 (Pa. Super.
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2009-08051 Civil Term
non-compliance with an order of the court by
Diamond v. Diamond, 792 A.2d 597, 601 (Pa. Super. 2002).
The terms in paragraph 3 of the MSA molest, harass, disturb or malign
are not defined in the MSA; thus, any word or phrase, not otherwise defined, must
be construed according to rules of grammar and according to common and
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approved usage. 1 Pa.C.S. § 1903. The noun form of the verb harass,
harassment, is defined in Pennsylvania criminal law:
conveys a message without intent of legitimate communication or address by
oral, nonverbal, written or electronic means, including telephone, electronic
mail, Internet, facsimile, telex, wireless communication or similar
transmission.
38
The common usage of the words used in the MSA are:
Definition of molest
1: to annoy, disturb, or persecute especially with hostile intent or injurious effect;
2: to make annoying sexual advances to.
https://www.merriam-webster.com/dictionary/molest
Definition of harass
1 a: exhaust, fatigue;
b(1): to annoy persistently, (2): to create an unpleasant or hostile situation by uninvited
and unwelcome verbal or physical conduct;
2: to worry and impede by repeated raids.
https://www.merriam-webster.com/dictionary/harass
Definition of disturb
1 a: to interfere with;
b: to alter the position or arrangement of;
c: to upset the natural and especially the ecological balance or relations of;
2 a: to destroy the tranquility or composure of;
b: to throw into disorder;
c: alarm;
d: to put to inconvenience.
https://www.merriam-webster.com/dictionary/disturb
Definition of malign
1 a: evil in nature, influence, or effect;
b: malignant, virulent.
2: having or showing intense often vicious ill will.
https://www.merriam-webster.com/dictionary/malign
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4 Summ. Pa. Jur. 2d Criminal Law § 9:55 (2d ed.)
those created by the pleadings, and the defendant was limited to his pleaded
Ochs v. Reynolds
that a court should not decide a case on the basis of issues not raised by the
In re Estate of Scharlach, 809 A.2d 376, 382 (Pa. Super. 2002).
Application of Law to Facts: The reasoning behind the issuance of the Rules
to Show Cause that resulted in an Answer to the Motion and a reply to the New
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The intent was to clearly delineate the issues prior to the hearing,
thereby avoiding trial by ambush. In review of the pleadings and discovery, it was
any ambush. It is through this process this court sought to create a level playing
field for the parties while promoting efficient court proceedings.
The MSA became an enforceable court order by operation of the divorce
decree, which Wife maintains the agreement comprises a clear and unambiguous
contract and urged the MSA be enforced as written. The evidence presented
shows, by a preponderance of the evidence, that Husband sent the mail piece that
contained the adoption photo, which is a clear breach of the MSA requirements to
not molest, harass, disturb, or malign Wife, directly or indirectly.
39
Historically, the law has long required every issue to be founded upon some certain point, that
the parties may come prepared with their evidence, and not be taken by surprise, and the fact
finder may not be misled by the introduction of various matters. Minor v. Mechanics' Bank of
Alexandria, 26 U.S. 46, 46, 7 L.Ed. 47, __ (U.S. 1828)\]
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The October 2016 mail piece bore an official postal mark that shows it had
been transmitted in the normal course of postal business. The return address area
which in polite terms means that what goes around comes around, followed by the
where Wife was filmed in a video that was under the direct control of Husband or
his attorney and was not otherwise shown to be a publicly known situs of the video.
hyphenated one, and was sent to her new Dauphin County home address. All of
which was done in purposefully non-uniform penmanship in order to hide any trace
of authorship.
Inside the envelope was a copy of an undated photo of Husband, his new
wife, and two children with Judge Masland taken immediately after an adoption
; were written above the
picture. In Cumberland County adoptions are closed proceedings, so distribution of
this photo was limited again to Husband and his attorney.
The combination of all these facts show that the opportunity for this letter to
get to Wife in this fashion with this specific detail is only within a finite number of
people Husband and his attorney. It is abundantly clear that Husband, aided and
abetted by his now former counsel, is incapable of truthfulness in questions that
involve his now ex-wife.
ad hominem attack of Wife, rather than relevant
factual testimony, coupled with the use of legally dubious methods to gain
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advantage over Wife bespeaks of blatant inability to be candid. In fact,
Husband's patent inconsistency in the pleading and discovery responses, in stark
contrast to his testimony, was in a word shocking. prehearing
responses did not indicate any testimonial facts beyond denials and offered no
pattern of dishonesty throughout
the pleadings and testimony, coupled with Husbanddisingenuous and dilatory
responses with the discovery requests, support the finding that further proceedings
would be a waste of judicial time.
Wife has not shown that the November 2014 YouTube video as a breach.
efforts to obtain sufficient proof of authorship was not forthcoming from Google,
Inc., the parent company of YouTube. Clearly YouTube knows the poster as
indicated in the reply to the privacy complaint that they would be contacting the
poster to act upon the complaint, which did result in the removal of the video
albeit two weeks later. It is unknown what chilling effect the newly effective statue
this enforcement action.
The two (2) sanctions imposed for the breach relate specifically to the non-
compliance with the MSA by Husband. The legal fees are directly set forth in the
MSA, and in review, the fees are more than reasonable. Secondly, the sanctions
reasonably compensate Wife for her lost time and personal efforts spent on
enforcement of
make the Personal Rights section of the MSA a nullity absent personal injuries; this
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was not the intent of the MSA as written, nor is it otherwise a civilly enforceable
court order as incorporated into the Divorce Decree.
marital shortcomings are not dispositive of this matter as it was
post-divorce MSA breach. Wife has done so in the
circumstantial facts shown and when combined with Husband being the one with
the opportunity, motive, and intent to commit such continued harassment post-
divorce; the finding is the only direct conclusion
that can be found. legal gamesmanship throughout this enforcement
proceeding further serves to corroborate this finding of fact.
By the Court,
________________________
Thomas A. Placey C.P.J.
Distribution:
Steven Howell, Esq.
Damian J. DeStefano, Esq.
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