J-A30022-19
2020 PA Super 46
B.A.W. N/K/A B.A.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
T.L.W., III :
:
Appellant : No. 912 MDA 2019
Appeal from the Order Entered May 22, 2019
In the Court of Common Pleas of Schuylkill County Civil Division at
No(s): S-3416-2009
BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*
OPINION BY NICHOLS, J.: FILED: MARCH 3, 2020
Appellant T.L.W., III (Father) appeals the trial court’s contempt order
that imposed the sanction of incarceration pending his payment of $1,166.66,
which is one-third of the cost of a court-ordered custody evaluation. Father
argues that the trial court violated his right to due process and failed to
appoint counsel. Father also claims that the trial court failed to inquire into
his present ability to pay and that the trial court abused its discretion by
imposing an onerous purge condition for the contempt. Following careful
review, we are constrained to vacate the order, and remand for further
proceedings consistent with this opinion.
The parties are familiar with the extensive factual and procedural history
of this matter. Concerning the instant appeal, Father filed a pro se petition to
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* Retired Senior Judge assigned to the Superior Court.
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modify custody, and a hearing officer held a custody conciliation conference
on October 9, 2018. On October 10, 2018, the hearing officer recommended
a custody evaluation by Dr. Joseph Sheris, with Father paying one-third of the
evaluation’s cost and Appellee B.A.W., now known as B.A.C. (Mother), paying
the other two-thirds. On October 11, 2018, the trial court agreed and ordered
as follows:
1. . . . The costs of the home and custody evaluations shall be
$3,500.00 pus [sic] mileage; but it may increase if the issues are
especially complex or numerous individuals must be interviewed.
2. The cost of the evaluations shall be borne as follows and paid
to the evaluator subject to the [c]ourt’s right to allocate later:
Mother is to pay two-thirds and Father is to pay one-third of the
evaluation costs.
Order, 10/11/18. The trial court did not state the basis for the $3,500 cost of
the evaluations.1
In relevant part, because Father failed to pay, the trial court granted
several extensions of time. Consequently, because the custody conciliation
officer notified the trial court that Father failed to comply, the trial court
scheduled a rule to show cause hearing for May 9, 2019. Order, 3/27/19. The
trial court’s order advised Father “to show cause why [he] should not be held
in contempt for failure to comply with [the prior payment orders], which, after
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1 There is no apparent statutory authority for the fees.
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hearing, may result in sanctions, including possible incarceration and fines.”
Id.
On May 9, 2019, a custody hearing officer held the rule to show cause
hearing in which Father was pro se, and Mother was represented by counsel.
No trial judge was present.
At the proceeding, the hearing officer asked Father when he last worked.
N.T. Hr’g, 5/9/19, at 3. Father responded that he had worked last week as a
handyman on an as-needed basis, but that it was not a steady job. Id. at 4.
The hearing officer asked Mother’s counsel for Mother’s position, noting that
even if Father was jailed, the custody evaluation fee would not get paid. Id.
Mother’s counsel agreed but noted that Father took a vacation in Florida. Id.2
The hearing officer asked Father how he could afford it. Id. Father noted that
Father’s sister paid for the flight and that he was visiting his own father for
the first time in ten years. Id. at 4-5. Father, however, said he did not have
any documentation that his sister paid for the flight but that he could get it.
Id. at 5.
The hearing officer responded as follows:
Well, today is the day you were supposed to have it. So I guess
my recommendation’s going to be that you be held in contempt
and that you be given a date to pay it by, which will be really
quick, like a week or something. And if you don’t do it in that
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2Although the record did not establish when Father took his vacation, the trial
court’s order found that Father took his vacation “recently.” Order, 5/22/19.
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time, you’ll be directed to go to Schuylkill County jail and serve
some time in jail.
[Father]. And that’s going to—
[Hearing Officer]. Well, make you be in and out of jail until you
pay it.
[Father]. That’s what it is? I don’t make the income in order to
save the money to pay for it.
Id. at 5-6. The hearing officer observed that Father had seven months within
which to save $1,100, and Father countered that he had his income tax return
and he makes $900 per month. Id. at 6. Father claimed that his accountant
needed to file an extension before he could receive his tax refund. Id.
The hearing officer concluded:
Well, you might be able to borrow against it or whatever. Until
then, my recommendation is what I said. And you can take
whatever action you think is appropriate for the refund, if you can
expedite it or whatever. Okay. I have to run it by [the trial
judge]. Thank you.
Id. at 6-7. On May 16, 2019, the hearing officer, in an interoffice
memorandum addressed to the trial judge, attached the proposed contempt
order stating his belief that Father “is willfully refusing to pay for” the custody
evaluation. Interoffice Mem., 5/16/19.
On May 22, 2019, the trial court signed the hearing officer’s proposed
order, which briefly discussed the several extensions of time Father received
to pay his share. The order stated that Father was working part time, paying
for his living expenses, and recently flew to Florida. Order, 5/22/19. The
order ended with, “[u]nder these circumstances, and considering that [Father]
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has had over seven months to comply, the hearing officer finds that
[Father’s] failure to pay for his evaluations has been willful.” Id. (emphasis
added). The trial court’s order held Father in contempt, informed Father that
he could purge the contempt by paying $1,166.66,3 to the custody evaluator
by May 30, 2019. Id. The trial court ordered that if Father failed to pay by
the deadline, then
he shall report to [county prison] on May 31, 2019 at 4:00 p.m.
to serve 48 hours in prison and shall report each subsequent
Friday at 4:00 p.m. to serve 48 hours until after the end of the
weekend of August 2, 2019, or until he pays the amount due,
whichever shall first occur.
Id.
Father retained counsel, who timely filed a notice of appeal on June 5,
2019. Counsel also filed a Pa.R.A.P. 1925 concise statement of errors
complained of on appeal that same day. See Pa.R.A.P. 1925(a)(2), (b). On
June 6, 2019, Father filed an application for an emergency stay of the trial
court’s May 22, 2019 order in this Court, which this Court granted on June 19,
2019.
On appeal, Father raises the following issues, which we reordered for
review:
1. Did the trial court commit an error of law and violate Father’s
right to due process when it found him in contempt without
holding a hearing and delegated its authority to a hearing officer?
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3 The order actually stated $1,666.66, which is a typo, as the amount at issue
is $1,166.66 (one-third of the $3,500 custody evaluation fee).
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2. Did the trial court commit an error of law when it failed to
appoint counsel for Father once it determined Father faced
incarceration for contempt?
3. Did the trial court abuse its discretion when it found Father in
contempt without adequately inquiring into Father’s present
ability to comply with the order to pay costs?
4. Did the trial court abuse its discretion when it imposed a purge
condition that Father could not meet?
Father’s Brief at 5.
Initially, Father argues that the trial court cannot delegate its authority
to hold people in contempt to a hearing officer. Id. at 17. Father cites Sirio
v. Sirio, 951 A.2d 1188 (Pa. Super. 2008), for two supporting propositions:
(1) a trial court cannot designate a hearing officer to make findings of fact;
and (2) a trial court is required to “conduct a complete and independent review
of the evidence when ruling on exceptions.” Id. at 18 (quoting Sirio, 951
A.2d at 1196). In Father’s view, the trial court improperly transferred its
contempt power to the hearing officer, pointing out that the court’s order
stated that “the hearing officer finds that [Father’s] failure to pay for his
evaluations has been willful.” Id. at 18-19 (emphasis in original). Father
contends the order establishes that the trial court failed to render its own
findings of fact and conclusions of law. Id. at 19. Father also claims that the
trial court improperly expanded the authority of a hearing officer to determine
contempt. Id. at 20.
The standard of review is well-settled:
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This court’s review of a civil contempt order is limited to a
determination of whether the trial court abused its discretion. If
a trial court, in reaching its conclusion, overrides or misapplies the
law or exercises judgment which is manifestly unreasonable, or
reaches a conclusion that is the result of partiality, prejudice, bias
or ill will as shown by the evidence of record, then discretion is
abused.
In order to establish that a party is in civil contempt, there must
be proof by a preponderance of the evidence that the contemnor
had notice of the specific order that he or she is alleged to have
disobeyed, that the act that constituted the contemnor’s violation
was volitional, and that the contemnor acted with wrongful intent.
Thompson v. Thompson, 187 A.3d 259, 263 (Pa. Super. 2018) (citation
omitted), aff’d, ___ A.3d ___, No. 36 WAP 2018, 2020 WL 355372 (Pa. filed
Jan. 22, 2020).4
In In re Estate of DiSabato, 165 A.3d 987 (Pa. Super. 2017), this
Court stated:
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 of judicial power under the Constitution.
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.
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4 The parties agree that the order at issue addresses civil contempt. See
Father’s Brief at 16; Mother’s Brief at 12. Cf. Commonwealth v. Moody,
125 A.3d 1, 8-9 (Pa. 2015) (resolving challenge to finding of summary direct
criminal contempt). See generally Rouse Phila. Inc. v. Ad Hoc ’78, 417
A.2d 1248 (Pa. Super. 1979) (distinguishing criminal and indirect civil
contempt).
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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. A party must
have violated a court Order to be found in civil contempt. The
complaining party has the burden of proving by a preponderance
of evidence that a party violated a court Order.
However, a showing of non-compliance is not sufficient 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. The alleged contemnor has the burden
of proving the affirmative defense that he has the present inability
to comply with the court Order. A court cannot impose a coercive
sentence conditioned on the contemnor’s performance of an act
which is incapable of performance. To impose civil contempt the
trial court must be convinced beyond a reasonable doubt from the
totality of evidence presented that the contemnor has the present
ability to comply with the Order.
In re Estate of DiSabato, 165 A.3d at 992-93 (citations omitted).
In custody and visitation actions, the Pennsylvania Rules of Civil
Procedure distinguish the duties of a hearing officer from those of the trial
court. See Pa.R.C.P. 1915.4-1, -2 (discussing custody proceedings before a
hearing officer and the court); see also, e.g., Pa.R.C.P. 1910.25-1, -4, -5
(distinguishing the roles of hearing officer and the trial court in support
actions); Sirio, 951 A.2d 1196 (noting, in support action, that a trial court
“cannot delegate its duty as finder of fact”).5 Rule 1915.12 provides that only
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5 Specifically, Rule 1910.25-1 explicitly states that upon a determination of
willful noncompliance and a present ability to comply, the trial court must hear
the petition for contempt “for consideration of incarceration and other
appropriate sanctions.” Pa.R.C.P. 1910.25-1; see also id. 1910.25-4, -5.
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the trial court may find a respondent in contempt, and therefore, the trial
court must conduct the contempt hearing and not the hearing officer. See
Pa.R.C.P. 1915.12(d); Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001).
Accordingly, in the instant custody action, we are constrained to conclude that
the trial court erred by failing to convene the contempt hearing and by failing
to make its own findings of fact before determining Father in contempt. See
Garr, 773 A.2d at 189. The same is true in support actions. See Pa.R.C.P.
1910.25-4.
The instant trial court erred because it did not conduct its own
evidentiary hearing, and instead adopted the hearing officer’s factual
determination that Father’s failure to pay was willful. See Order, 5/22/19.
For the reasons stated herein, the relevant procedural rules clearly distinguish
the duties of the hearing officer from those of the trial court. Further, well-
settled caselaw has emphasized that only the trial court has the authority to
impose the sanction of imprisonment for contempt. See, e.g., In re Estate
of DiSabato, 165 A.3d at 992-93. Accordingly, we conclude that the trial
court misapplied the law and abused its discretion. See Thompson, 187 A.3d
at 263; In re Estate of DiSabato, 165 A.3d at 992. Cf. Sirio, 951 A.2d at
1196.6
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6 We acknowledge Father cites Sirio in support, but we note that case arose
in the context of a support proceeding, unlike the custody proceeding in this
case.
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Next, we address Father’s arguments in support of his second issue.
Father argues that when the trial court ordered incarceration, he was entitled
to appointed counsel. Father’s Brief at 34. In support, Father refers this Court
to Commonwealth ex rel. Brown v. Hendrick, 283 A.2d 722 (Pa. Super.
1971), and Commonwealth v. Diaz, 191 A.3d 850 (Pa. Super. 2018), among
other cases. Id.
In Brown, the defendant was ordered to pay $500 in support or serve
three months in prison. Brown, 283 A.2d at 723. The defendant filed a
petition for a writ of habeas corpus, which was denied. Id. On appeal, the
Brown Court reversed, holding that “due process of law . . . in the prosecution
of contempt . . . includes the assistance of counsel . . . .” Id. at 724 (citation
omitted).
Diaz involved a defendant’s failure to pay court-ordered fines and costs.
Diaz, 191 A.3d at 862. Of note is that the Diaz Court declined to “impose an
automatic right to court-appointed counsel for all civil contempt proceedings
involving an indigent defendant’s failure to pay court-imposed fines and
costs.” Id. Rather, in that case, sufficient procedural safeguards existed that
would prevent erroneous imprisonment. Id. However, the trial court failed
to apply any of the relevant procedures. For example, Section 9730 requires
a determination of a defendant’s financial ability to pay before ordering, inter
alia, imprisonment. See 42 Pa.C.S. § 9730. When such safeguards are
complied with, “upon the trial court’s determination at the civil contempt
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hearing that there is a likelihood of imprisonment for contempt and that the
defendant is indigent, the court must appoint counsel and permit counsel to
confer with and advocate on behalf of the defendant at a subsequent hearing.”
Diaz, 191 A.3d at 862.
Here, the trial court set the cost of the custody evaluation at $3,500,
with Father to pay a one-third share. Order, 10/11/18. The record does not
establish how the trial court arrived at that figure. As in Diaz, the trial court
imposed the cost, but unlike Diaz, the money is payable to a third party and
not the Commonwealth. See Diaz, 191 A.3d at 861. Nonetheless, the trial
court, much like the trial court in Diaz, held that Father would be imprisoned
if he failed to pay. See id. at 862. The trial court imposed incarceration as a
sanction, creating a clear likelihood of imprisonment. See id.; see also
Brown, 283 A.2d at 723-24. The trial court should have then ascertained
“whether [Father was] entitled to court-appointed counsel.” See Diaz, 191
A.3d at 866. Because the trial court failed to do so, it abused its discretion.
See Diaz, 191 A.3d at 865-66; Thompson, 187 A.3d at 263.
For the reasons stated herein, we vacate the trial court’s May 22, 2019
order, and remand this matter to the trial court in order to conduct a de novo
hearing to resolve the court’s rule to show cause as to why Father should not
be held in contempt. See Order, 3/27/19. If the trial court determines that
there is a likelihood that Father could be imprisoned for contempt and that
Father is indigent, the trial court must appoint counsel for Father. See Diaz,
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191 A.3d at 866. Because we vacate the order below and remand for further
proceedings, we need not address Appellant’s remaining two issues. 7 See
Commonwealth v. Merchant, 595 A.2d 1135, 1139 (Pa. 1991) (holding that
when reversing on one issue, there is no reason to address the remaining
issues); In re D.A., 801 A.2d 614, 618 (Pa. Super. 2002) (same).
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/03/2020
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7 With respect to those remaining two issues, we note, however, that in
resolving whether Father should be held in contempt, the trial court (and not
the hearing officer) must address Father’s present ability to pay, i.e., ability
to comply with the trial court’s order, and Father’s good faith efforts, if any,
to comply. See generally In re Estate of DiSabato, 165 A.3d at 992.
Because the trial court erred in holding Father in contempt, we need not
address whether the trial court abused its discretion in imposing the purge
condition, i.e., paying the disputed amount by May 30, 2019.
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