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decided: November 22, 1976.



Marc Kranson, Pittsburgh, for appellant.

Samuel P. Kamin, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring and dissenting opinion. Spaeth, J., files a concurring and dissenting opinion in which Cercone, J., joins.

Author: Price

[ 243 Pa. Super. Page 351]

This is an appeal from a lower court order holding appellant in contempt for failing to make court-ordered support payments. On appeal, appellant raises three issues. We find that the matter must be remanded for a further finding as to the willfulness of the contempt.

A detailed review of all the background facts is not necessary to our immediate disposition of the case. It will suffice to note, appellant and appellee separated after nine years of marriage which produced four children. Appellee attempted, by recourse to The Pennsylvania Civil Procedural Support Law,*fn1 to secure the payment of support money from appellant, but was largely unsuccessful, notwithstanding various court proceedings and wage attachment orders. The first of several support orders was entered on December 1, 1969. The most recent modification was made on January 16, 1973, directing appellant to pay $50.00 per week.

On March 31, 1975, an order of the lower court informed appellant that he was apparently $8,508.25 in arrears on support orders. Appellant was directed to appear for a hearing on April 24, 1975.

[ 243 Pa. Super. Page 352]

Appellant appeared with counsel at the hearing. After taking testimony, the judge found that appellant was in contempt of court for failing to make the payments as provided by the various orders. At this time, appellant was informed that if he did not pay $2,000.00 on the arrearages within sixty days he would be imprisoned.

A second hearing was scheduled for July 15, 1975, to determine if appellant had paid the $2,000.00. The $2,000.00 had not been paid and appellant was imprisoned. Appellant appealed to our court and filed a motion in the lower court for an order of supersedeas. This motion was denied and appellant filed a similar motion with our court. We granted supersedeas.

Appellant first argues that the procedure followed by the lower court did not comply with the requirements for a civil contempt proceeding. Five elements are essential to a civil contempt adjudication: (1) a rule to show cause why an attachment should not issue, (2) an answer and hearing, (3) a rule absolute (arrest), (4) a hearing on the contempt citation, and (5) an adjudication of contempt. Simmons v. Simmons, 232 Pa. Super. 365, 335 A.2d 764 (1975). A review of the proceedings here employed indicates that appellant was procedurally afforded the requisite protection.

There is no doubt that the lower court order of March 31, 1975, informing appellant that he was in arrears on payments due on the various support orders and that he was to appear on April 24, 1975, for a hearing, constitutes a rule to show cause. Appellant did appear and at that time he orally answered the charge against him.

By informing appellant of the nature of the meeting scheduled for April 24, 1975, the court was in effect setting a date certain for appellant to answer the charges, i.e., the date of this first hearing. At this first hearing, appellant gave testimony concerning his income, expenses, and the amount of support he had paid. He also attempted

[ 243 Pa. Super. Page 353]

    to explain why he had failed to comply with the orders and why he had not petitioned for a modification of the order.

Following the taking of testimony, the judge found that appellant was in contempt of court. This finding was, admittedly, premature. The judge should have made the rule absolute and scheduled another hearing to determine the merits of the contempt charge. Instead, the judge gave appellant an opportunity to purge himself of the contempt by fulfilling a condition imposed by the court. The court set a date for a second hearing at which the issue of contempt would be finally adjudicated. If, at the second hearing, appellant had successfully complied with the condition promulgated by the court, the contempt finding would have been reversed. July 15, 1975, was set as the date for this second hearing.

At this second hearing, it became apparent that appellant had not successfully purged himself of the contempt citation. After once more hearing testimony as to appellant's financial history, the trial judge again found appellant in contempt and sentenced him to 30 days in the county jail in lieu of a $2,000.00 payment on the arrearages.

We are, therefore, faced with a situation wherein appellant was given two hearings before any official sanctions were leveled against him. Although the nomenclature ascribed to the various hearings by the lower court conveys, on the surface, a message inconsistent with the rules, when we bore through the terminology and extract the core of the hearings, we find that, in substance, the procedures employed comply with the requirements.

Although the hearing of April 24, 1975, resulted in a finding of contempt rather than a determination that the rule was not discharged, the result of the court's determination was the same as simply making the rule absolute. A second hearing was scheduled, thus affording appellant all of the necessary procedural requirements.

[ 243 Pa. Super. Page 354]

Appellant suffered no punishment until after the determination of contempt in the second hearing. He was informed of the charge against him and apprised of the means of purging himself of contempt and of avoiding punishment. That is all that is required by the rules.

Appellant next contends that the evidence elicited at the contempt hearing was insufficient to prove that he wilfully failed to comply with the court support orders. Our review of the evidence convinces us that, on the record presently before us, it is impossible to make an objective determination of the propriety of the contempt citation.

The Pennsylvania Civil Procedural Support Law provides as follows:

"(b) Any wilful failure to comply with any order of the court may be deemed a contempt of court and except in counties of the first class may be punishable by the court by commitment to the county jail or house of correction. In counties of the first class, any person who is found, after hearing, to have wilfully failed to comply with any order of the court may be adjudged in contempt of court and may be punished by the court by commitment to the county jail or house of correction until compliance with said order, but in no case for a period exceeding six (6) months, and the court in its order shall state the condition which upon fulfillment will result in the release of such person." Act of July 13, 1953, P.L. 431, § 9 (62 P.S. § 2043.39(b)), as amended.

"Wilful" has been defined as "an intentional, designed act and one without justifiable excuse." Commonwealth ex rel. Wright v. Hendrick, 455 Pa. 36, 40, 312 A.2d 402, 404 (1973).

In the case at bar, appellant testified that he had failed to pay the support orders because he was unemployed and had no funds. He also testified that his exwife

[ 243 Pa. Super. Page 355]

    was aware of his unemployed status and that he had notified a counselor in the Family Division of his employment problems. He stated that he assumed that the arrearages would not accumulate while he was unemployed, but he did admit that he did not apply for a cancellation of arrearages. However, appellant's positive evidence is clouded by indications that, at various times, he had failed to make any payments even when it appeared that he did have the requisite funds. For example, appellant often failed to make even token support payments from his unemployment compensation.

In any event, the lower court in its opinion stated ". . . the [appellant] did not offer any evidence which would excuse his conduct in failing to obey the Orders of Support." (emphasis added) Such a determination is not warranted by the testimony given. Appellant did attempt to explain and justify his non-compliance with the court orders. We must remand for a considered determination by the lower court as to whether appellant's conduct was "wilful" as defined in Commonwealth ex rel. Wright v. Hendrick, supra.

We have determined that an additional hearing is required, and we must further emphasize that if, on remand, the lower court again determines that appellant is in wilful contempt, the condition imposed upon appellant for purging himself of the contempt must be one which appellant is capable of performing. "An order committing a defendant to prison for a civil contempt until he does something which is apparently beyond his power to do is clearly an order which this Court cannot approve." Knaus v. Knaus, 387 Pa. 370, 380, 127 A.2d 669, 674 (1956). However, if appellant is presently unable to fulfill the conditions of the order because of some voluntary act on his part, done to avoid compliance, he will not escape sanction. As we said most recently in Barrett v. Barrett, 237 Pa. Super. 590, 595-96, 352 A.2d 74, 77 (1975):

[ 243 Pa. Super. Page 356]

"In support cases such as this, judges of the courts of common pleas are required to state the conditions which, if fulfilled, will cause the civil contemnor's immediate release from prison. See the Revised Uniform Reciprocal Enforcement of Support Act (1968), Act of Dec. 6, 1972, P.L. 1365, No. 291, § 42 (62 P.S. § 2043-1), et seq. See also Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956). The orders imposed by the lower court in the instant case contained the condition that appellant pay certain sums toward the arrearages in order to secure his release, in compliance with Pennsylvania law.

"Appellant incorrectly perceives the purpose of the orders imposed upon him. He believes that he was imprisoned because he is indigent. However, his characterization is not correct. He was imprisoned for willfully violating court orders with which he was fully capable of complying when the orders were entered. The fact that appellant may be indigent at present has no bearing on his failure to support his wife and children when he was able. Were we to agree with appellant's belief that no indigent may be imprisoned for civil contempt by willfully failing to support his dependents, even though the indigency was voluntarily created, the courts of the Commonwealth would lose all power to enforce support orders. We will not so hold."

In the instant case, the lower court stated: ". . . I am ordering you to serve 30 days in the County Jail, or if you pay the $2,000 you will be released immediately." (NT 15) Before we will sanction this order, we must have indication that appellant did not have the capability to fulfill the condition precedent to his release from prison, or, if he does not have the capability, he has wilfully caused his inability to avoid compliance. There is no such indication in the record now before us.

[ 243 Pa. Super. Page 357]

The supersedeas is terminated, the order of the lower court dated July 15, 1975, is vacated, and the case is remanded for further hearing consistent with this opinion.

HOFFMAN, Judge (concurring and dissenting).

I agree with the Majority that the procedure followed by the lower court substantially complied with the requirements of Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A.2d 263 (1969), and that appellant suffered no prejudice from any technical disparities. See also Simmons v. Simmons, 232 Pa. Super. 365, 335 A.2d 764 (1975). I also agree that we must remand for a hearing as to whether appellant "willfully" refused to pay the arrearages. See Commonwealth ex rel. Wright v. Hendrick, 455 Pa. 36, 312 A.2d 402 (1973). However, I do not agree that appellant may be committed to prison for civil contempt if he is presently unable to pay the arrearages specified by court order.

The Supreme Court in In Re Martorano, 464 Pa. 66, 78, 346 A.2d 22, 28 (1975), stated the test for distinguishing civil contempt from indirect criminal contempt as follows: "If the dominant purpose is to prospectively coerce the contemnor to comply with an order of the court, the adjudication of contempt is civil. If, however, the dominant purpose is to punish the contemnor for disobedience of the court's order or some other contemptuous act, the adjudication of contempt is criminal." See also Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956). If appellant cannot ...

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