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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
MARTA M. LLAURADO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAVIER GARCIA-ZAPATA, : No. 1637 EDA 2015
:
Appellant :
Appeal from the Order Dated May 4, 2015,
in the Court of Common Pleas of Delaware County
Civil Division at No. 2013-00556
PACSES: 256113852
BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed March 21, 2016
Javier Garcia-Zapata appeals from the order entered May 4, 2015, by
the Court of Common Pleas of Delaware County, finding him in civil
contempt for failing to pay court-ordered support while having the financial
ability to pay and sentencing him to six months’ incarceration with release
conditioned on payment of $47,919.19 in arrearages. We affirm.
The record reflects that appellant and appellee Marta M. Llaurado
(“Wife”) married on October 10, 1989, and separated on March 21, 2012.
Wife filed a complaint for support on March 15, 2013, seeking support for
herself and the couple’s three minor children. By order dated June 27,
2013, the court ordered appellant to pay $7,814.92 per month in total
support and $780.00 per month in arrears, effective March 15, 2013. On
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August 26, 2013, Wife filed her first petition for contempt claiming
arrearages of $34,516.84 under the June 27, 2013 order.
The trial court summarized the remaining relevant factual and
procedural history as follows:
. . . . The record indicates that [a]ppellant agreed to
the entry of a support order in the amount of $6,496
per month in December of 2013. By March of 2014,
[appellant] had separated from his job where he
received a severance package which was attached
for purposes of support. On or about June 16, 2014,
[a]ppellant’s support was placed into Non-Financial
Obligation Status (NFOB) due to the fact that he had
no job. On that date, the first of many contempt
petitions was heard and held in abeyance. From
there, contempt petitions were filed and heard on
the following dates and all were held in abeyance
while [a]ppellant sought employment: July 14,
2014, September 11, 2014, December 15, 2014, and
February 2, 2015. On February 2, 2015, after
hearing that [a]ppellant obtained a job earning
$30,000 per year, the Honorable Judge Cartisano
imputed an earning capacity to [a]ppellant based on
an average of the income of the past couple years
and issued a support order totaling $4,943 per
month plus $494.00 towards arrearages.
Appellant had approximately fourteen months
to find a job commensurate with his ability and past
earnings of about $150,000 to $200,000 a year and
failed to do so. Instead, [a]ppellant took a job
offered by a former colleague that pays a meager
$30,000 per year. Throughout the period of time
that the case was in NFOB, the only significant
payments on the support order were not voluntary,
but were court ordered payments made from
liquidating assets. Since the issuance of the
February 2, 2015 Order [requiring monthly
payments] of $5,437.00, [a]ppellant has made
measly payments of $1,000 per month. . . .
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Trial court opinion, 7/24/15 at 5-6.
Appellant raises the following issues for our review:
1. Whether the Trial Court erred and/or abused
its discretion by finding the Appellant in
Contempt as the record in the case indicates
substantial compliance as well as a good faith
effort on his part to comply with the underlying
Support Order/Obligation?
2. Whether the Trial Court erred and/or abused
its discretion in setting the release amount at
$47,919.[19], as this is clearly both an
excessive amount as well as punitive in
nature?
3. Whether the Trial Court erred and/or abused
its discretion by failing to inquire into, or
otherwise establish a sufficient record as
required as a matter of law, concerning the
present and actual ability of [appellant] to pay
the underlying monthly support obligation
and/or the stated release amount of
$47,919.[19]?
Appellant’s brief at 4.
In considering an appeal from a contempt order, we place great
reliance upon the trial court’s discretion. Bold v. Bold, 939 A.2d 892, 894-
895 (Pa.Super. 2007) (citation omitted). As such, appellate review of a
contempt finding is limited to determining whether the trial court abused its
discretion. Id. (citation omitted).
Judicial discretion requires action in conformity with
law on facts and circumstances before the trial court
after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue
for decision, it misapplies the law or exercises its
discretion in a manner lacking reason. Similarly, the
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trial court abuses its discretion if it does not follow
legal procedure.
Id. (citations omitted). Therefore, we will reverse an order granting or
denying a civil contempt petition only upon a showing that the trial court
misapplied the law or exercised its discretion in a manner that lacked
reason. MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012)
(citation omitted). Moreover, we defer to the trial court’s credibility
determinations with respect to witnesses who have appeared before it
because that court has had the opportunity to observe their demeanor.
Habjan v. Habjan, 73 A.3d 630, 644 (Pa.Super. 2013).
Generally, in civil contempt proceedings, the complainant bears the
burden of proving that the defendant failed to comply with a court order.
MacDougall, 49 A.3d at 892 (citation omitted). To sustain a finding of civil
contempt, the complainant must prove by a preponderance of the evidence
that (1) the contemnor had notice of the order that she alleges the
contemnor disobeyed; (2) the act constituting the alleged violation was
volitional; and (3) the contemnor acted with wrongful intent. Id. (citation
omitted).
Here, appellant’s first and third issues dispute the trial court’s factual
findings that appellant’s failure to comply with the order was volitional and
that appellant acted with wrongful intent. Specifically, appellant complains
that the trial court abused its discretion by finding him in contempt because,
in appellant’s view, the record demonstrates that appellant substantially
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complied and made a good-faith effort to comply with the support order, and
to the extent that the record fails to demonstrate substantial compliance and
good faith, appellant contends that the trial court abused its discretion by
failing to develop a sufficient record to demonstrate appellant’s inability to
pay his monthly support obligation and arrearages. We disagree.
Appellant advances no argument that the trial court misapplied the law
or exercised its discretion in a manner that lacked reason.1 Rather,
appellant simply disagrees with the trial court’s factual findings. In its
opinion, the trial court summarized its reason as to why it found appellant in
contempt. After carefully reviewing the record, we conclude that the record
supports the trial court’s factual findings; specifically, with respect to
appellant’s extended period of unemployment and his acceptance of a
position paying a mere fraction of what he had previously earned.
Therefore, because the record supports the trial court’s factual findings, we
decline appellant’s invitation to revisit those factual findings on appeal.
Appellant next complains that the trial court abused its discretion in
setting appellant’s release amount at $47,919.19 because the amount was
excessive and punitive.
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
1
We note that in his brief, appellant complains that his arrearages were
miscalculated. At the contempt hearing, however, appellant admitted
several times that the calculation was correct. (Notes of testimony, 5/4/15
at 26-27, 29, 31-32.)
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of judicial power under the Constitution. Colbert v.
Gunning, 533 A.2d 471, 472 (Pa.Super. 1987). 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.
Id.
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. Id. A party must have violated a
court order to be found in civil contempt.
[Goodman v. Goodman, 556 A.2d 1379, 1391
(Pa.Super. 1989)]. The complaining party has the
burden of proving by a preponderance of evidence
that a party violated a court order. C.R. by the
Guardian of her Estate, Dunn v. The Travelers,
626 A.2d 588, 592 (Pa.Super. 1993). However, a
showing of non-compliance is not sufficient in itself
to prove contempt. Wetzel v. Suchanek, 541 A.2d
761, 762 (Pa.Super. 1988). If the alleged
contemnor is unable to perform and has in good faith
attempted to comply with the court order, contempt
is not proven. Id. (emphasis in original). The
alleged contemnor has the burden of proving the
affirmative defense that he has the present inability
to comply with the court order. Commonwealth ex
rel. Ermel v. Ermel, 469 A.2d 682, 683 (Pa.Super.
1983). A court cannot impose a coercive sentence
conditioned on the contemnor's performance of an
act which is incapable of performance. Crozer-
Chester Medical Center v. Moran, 560 A.2d 133,
137 (Pa. 1989). To impose civil contempt the trial
court must be convinced beyond a reasonable doubt
from the totality of evidence presented that the
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contemnor has the present ability to comply with the
order. Wetzel, 541 A.2d at 764.
Sinaiko v. Sinaiko, 664 A.2d 1005, 1009 (Pa.Super. 1995) (internal
quotation marks and parallel citations removed).
Appellant alleges that the trial court abused its discretion when it held
him in contempt because he did not have the present ability to comply with
the support order and pay arrearages of $47,919.19. As a result, appellant
alleges that the purpose of the contempt order was to punish him for
noncompliance. We disagree.
The record reflects that the trial court found that appellant failed to
meet his burden of proving that he had the present inability to comply with
the court order. At the contempt hearing, appellant admitted to liquidating
approximately $125,000.00 in assets that included a retirement account and
a boat. (Notes of testimony, 5/4/15 at 14-22.) Although appellant claimed
that he used all of the money to meet his own expenses, he did not produce
any evidence to substantiate his claim. (Id.) After hearing appellant’s
testimony, the trial court rejected it and found that appellant had the
present ability to comply with the order and set the release amount to
coerce him to comply. (Id. at 39-42; trial court opinion, 7/27/15 at 7). We
find no abuse of discretion.
Order affirmed.
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Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 3/21/2016
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Llaurado, M. v. Garcia-Zapata, J.
Combined Opinion