February 11, 2014
GENEANE S. THOMPSON, Appellee
LAMONT D. ROBINSON, Appellant BROOKE THOMPSON, Appellee
LAMONT D. ROBINSON, Appellant IVEY M. WILLIAMS, Appellee
LAMONT D. ROBINSON, Appellant BARBARA THOMPSON, Appellee
LAMONT D. ROBINSON, Appellant BETTY WILSON, Appellee
LAMONT D. ROBINSON, Appellant
Appeal from the Order entered April 30, 2013 in the Court of Common Pleas of Bucks County, Domestic Relations, at No(s): 2010-63361 (S) (407112037), 1988-61987 (S) (041002304), 2002-61336 (S) (937104450), 1986-60536 (S) (618002322), 1989-60583 (S) (17002310)
BEFORE: BENDER, P.J., OTT, J. and STRASSBURGER, [*] J.
In these consolidated appeals, Lamont D. Robinson (Appellant) appeals from the April 30, 2013 order finding him in civil contempt for failure to pay child support. We affirm in part, vacate in part, and remand the cases for further proceedings consistent with this memorandum.
Appellant is subject to support orders in each of the five cases captioned above, and was in arrears on all of them at the time of the hearing for a total of $32, 891.48. In each of the cases from the 1980s, Appellant was ordered to make monthly payments on arrears of approximately $43.40. In the 2010 case, Appellant was subject to an order to pay monthly $50.00 in support and $5.00 on arrears. In the 2002 case, the respective monthly payments were to be $130.36 and $21.73.
Appellant had not made a single payment in any of these cases for more than a year when he appeared pro se for contempt proceedings on April 30, 2013. The trial court found Appellant in contempt in each of the five cases and sentenced him to five consecutive sentences of six months of imprisonment, with a purge amount of $750.00 on each case.
Appellant, through counsel, timely filed a motion for reconsideration of the contempt sentences, claiming that he did not have the present ability to pay the purge amounts. On May 20, 2013, the trial court entered an order scheduling a hearing on the motion to take place on June 10, 2013. On May 30, 2013, Appellant timely filed a notice of appeal to this Court. The following day, the trial court entered an order cancelling the hearing on the motion for reconsideration.
Both Appellant and the trial court have complied with Pa.R.A.P. 1925. Appellant presents the following questions on appeal, which we have renumbered for ease of disposition.
[1.] Whether Appellant at a civil contempt hearing for failure to pay child support was denied his constitutional right to counsel when he was not provided counsel for the hearing?
[2.] Whether the trial court abused its discretion in finding the Appellant in contempt, where the Appellant's failure to pay support was not willful but due to his indigency?
[3.] Whether the evidence was insufficient to establish the Appellant had the present ability to comply with the trial court's orders to pay the purge amounts?
Appellant's Brief at 5 (trial court answers and some capitalization omitted).
We first address Appellant's argument that he was denied his constitutional right to counsel at the contempt hearing. Appellant relies upon the United States Supreme Court's decision in Turner v. Rogers, 131 S.Ct. 2507 (2011), to establish the claimed constitutional right. Therein, the Court held as follows.
We … hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).
We do not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody. … Neither do we address what due process requires in an unusually complex case where a defendant can fairly be represented only by a trained advocate.
Id. at 2520 (citations and quotations omitted; emphasis in original).
Appellant claims that there is no record that he received notice that his ability to pay was a critical issue, or that he was asked to provide relevant financial information. "Without these procedural safeguards, " he argues, "Appellant should have been provided with counsel." Appellant's Brief at 24. Further, Appellant argues that this case was complex because it "involved five orders, five plaintiffs, and subjected Appellant to two and one-half years [of] incarceration." Id.
The Bucks County District Attorney, as Title IV-D counsel,  notes that none of the plaintiffs in the cases appeared or was represented by counsel, and the Commonwealth did not make any argument at the hearing. The Commonwealth also argues that this case was not complicated: "Appellant owed money and had not paid in over a year. The question was why he failed to comply with the court orders, and Appellant was certainly capable of answering that question and presenting evidence on the issue without the assistance of an attorney." Commonwealth's Brief at 10.
Based on our review of the record, we cannot conclude that Appellant was denied a constitutional right to counsel in this case. We agree with the Commonwealth that the cases and issues were not complicated at all: (1) why did Appellant not pay, and (2) how much money did Appellant have the ability to pay at the time of the hearing. The other parties were not represented by counsel. Most importantly, procedural safeguards sufficient to satisfy due process do appear of record in this case. The March 13, 2013 order of court scheduling the contempt hearing provided as follows, in relevant part.
Legal proceedings have been brought against you alleging you have willfully disobeyed an Order of Court.
1. A critical issue in the contempt proceeding is your ability to pay and comply with the terms of the support order. If you wish to defend against the claims set forth in the attached Petition for Contempt, you may, but are not required to, file in writing with the Court your defenses or objections.
3. If the Court finds that you have willfully failed to comply with its order you may be found in contempt of court and committed to jail, fined, or both.
You will have the opportunity to disclose income, other financial information and any relevant personal information at the conference/hearing so that the Court can determine if you have an ability to pay. You may also tell the Court about any unusual expenses that may affect your income. Fill out the enclosed Income and Expense Statement form and bring it with you.
YOU HAVE THE RIGHT TO A LAWYER, WHO MAY ATTEND THE CONFERENCE/HEARING AND REPRESENT YOU. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
[Address and contact information for the Bucks County lawyer referral service.]
Order, 3/13/2013 (emphasis in original).
Under these circumstances, we conclude that the due process mandates of Turner v. Rogers have been met. Appellant's first issue entitles him to no relief.
We consider Appellant's remaining questions mindful of the following standard of review.
When considering an appeal from an Order holding a party in contempt for failure to comply with a court Order, our scope of review is narrow: we will reverse only upon a showing the court abused its discretion. The court abuses its discretion if it misapplies the law or exercises its discretion in a manner lacking reason.
Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009) (citations omitted).
Appellant challenges the trial court's determination that he was in contempt of court and that he had the ability to pay the set purge amount. The applicable law is as follows.
The purpose of a civil contempt order is to coerce the contemnor to comply with a court order. Punishment for contempt in support actions is governed by 23 Pa.C.S. § 4345. Section 4345 provides that
(a) General rule.—A person who willfully fails to comply with any order under this chapter, … may, as prescribed by general rule, be adjudged in contempt. Contempt shall be punishable by any one or more of the following:
(1)Imprisonment for a period not to exceed six months.
(2)A fine not to exceed $1, 000.
(3)Probation for a period not to exceed one year.
(b) Condition for release.—An order committing a defendant to jail under this section shall specify the condition the fulfillment of which will result in the release of the obligor.
To be found in civil contempt, a party must have violated a court order. Accordingly, the complaining party must show, by a preponderance of the evidence, that a party violated a court order. The alleged contemnor may then present evidence that he has the present inability to comply and make up the arrears. When the alleged contemnor presents evidence that he is presently unable to comply[, ] the court, in imposing coercive imprisonment for civil contempt, should set conditions for purging the contempt and effecting release from imprisonment with which it is convinced beyond a reasonable doubt, from the totality of the evidence before it, the contemnor has the present ability to comply.
Orfield v. Weindel, 52 A.3d 275, 278-279 (Pa.Super. 2012) (internal quotations and citation omitted).
Appellant first argues that the trial court abused its discretion in finding that his failure to comply with the support orders was willful. Appellant claims that the evidence showed that his failure to pay was based upon his indigency, not willfulness. Appellant's Brief at 27 (citing Wetzel v. Suchanek, 541 A.2d 761, 762 (Pa.Super. 1988) ("A showing of non- compliance with a court order is insufficient 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.")).
We discern no abuse of discretion in the trial court's finding of willful non-compliance. The trial court found Appellant's testimony incredible as to his earning capacity and his financial condition at the time: "It strains credulity to believe that [Appellant] did not have the ability to contribute some funds upon the payment of these arrears." Trial Court Opinion, 7/24/2013, at 7. Appellant had not paid a penny in any of the five cases in over a year. Although Appellant had been incarcerated for eight months of that time, he had done some work when he was not incarcerated and was earning enough money to pay rent at his own apartment. At the time of the hearing, Appellant lived rent-free with his sister, and claimed to be looking for work. Accordingly, the trial court reasonably concluded that a preponderance of the evidence showed that Appellant's refusal to make any payment whatsoever for more than a year was willful. See, e.g., Orfield, 52 A.3d at 279 (affirming finding of willful contempt based upon evidence that the appellant made only one small payment in a two-year period despite having earned some money under the table during that time).
Appellant also argues that the evidence was insufficient to prove that he had the ability to pay the purge amounts of $750.00 per case, or $3, 750.00 in total, at the time he was sentenced. We are constrained to agree.
The transcript of the hearing concerning Appellant's finances after he was released from jail in February 2013, provides en toto as follows.
The Court: Have you worked since then?
[Appellant]: No, sir. I've been seeking employment, so I went down and filed for welfare, and the doctor told me because of my blood pressure they gave me medical and everything.
The Court: How do you support yourself, let alone these children? How do you support yourself?
[Appellant]: Struggling right now. The last two months have been crazy. I mean, when I got out I tried to find a job.
The Court: Where do you live when you're not in jail?
[Appellant]: With my sister.
The Court: Where?
[Appellant]: Before I went to jail I was living in my own place in Philadelphia.
The Court: Where in Philly?
The Court: Whereabout in the Northeast?
[Appellant]: Penn Street.
The Court: Who paid your rent for that place in the Northeast?
[Appellant]: I was paying into it until I got locked up.
The Court: How were you paying the rent, were you working?
The Court: Where were you working?
[Appellant]: A little bit of self-employment, subcontracting, scrapping, whatever I can.
The Court: Are you able to do that now, self-employment?
[Appellant]: Well, now, no, because I don't have a vehicle anymore.
The Court: Why is that?
[Appellant]: Before I got locked up I ended up losing the vehicle and it went down on me and that was the end of that.
The Court: It broke down?
The Court: What kind of vehicle was it?
[Appellant]: It was a van, a '92 van.
The Court: So how did you get here today?
[Appellant]: My brother.
The Court: Is he here with you today?
[Appellant]: He is outside, yes.
The Court: Have you told him that you owe a lot of money for the support of children and maybe he could loan you some money?
[Appellant]: Well, that's why I couldn't get out the first time you locked me up.
The Court: Well, let's see. The last time you were sentenced to 60 days imprisonment. Do you remember that?
[Appellant]: On four different cases.
The Court: Four different cases. That was almost a year ago. And I'm sure I said to you, look, we are going to approve you for work release. Did they approve you for work release?
[Appellant]: I went there.
The Court: What happened?
[Appellant]: I couldn't get no job there.
N.T., 4/30/2013, at 3-6.
This record simply does not support a finding, beyond a reasonable doubt, that Appellant had the ability to pay $3, 750.00 on April 30, 2013. See, e.g., Barrett v. Barrett, 368 A.2d 616, 622-623 (Pa. 1977) (holding that there was insufficient evidence that Barrett had the ability to pay the purge amount of $1, 000.00; the trial court's finding that Barrett was not a credible witness as to his financial condition and that his paramour had access to $1, 000.00 did not validate the order); Orfield, 52 A.3d at 279-280 (vacating purge amount of $4, 244.00 where appellant admitted only that he could borrow $1, 000.00 and there was no evidence about the amount of money the appellant made); Hyle v. Hyle, 868 A.2d 601, 605 (Pa.Super. 2005) (holding the trial court erred in setting the purge amount at $2, 500.00 and ordering Hyle eligible for work release to earn the purge money, as the evidence did not show that he had the present ability to pay $2, 500.00).
Accordingly, we adopt this Court's holding in Hyle, supra, which provided as follows.
While we empathize with the trial court in its apparent frustration in dealing with Appellant, in a civil contempt proceeding a purge must be fashioned which the alleged contemnor has the present ability to meet. In this case, there is no evidence in the record that Appellant had the present ability to comply with the order, i.e., pay the purge amount, we are constrained to vacate the [portion of the] contempt order directing payment of [$750.00 for each case] and remand for the trial court to determine what conditions will be sufficiently coercive yet enable Appellant to comply with the order. Upon remand, the trial court is free to receive additional evidence to assist it in its determination.
Hyle, 868 A.2d at 606.
Order affirmed in part and vacated in part. Case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished.