J-S82026-17
2018 PA Super 64
BEVERLY L. CUNNINGHAM, : IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS TRUST : PENNSYLVANIA
BENEFICIARY :
:
:
v. :
:
:
ALVIN D. CUNNINGHAM, : No. 604 WDA 2017
INDIVIDUALLY, ALVIN D. :
CUNNINGHAM AS TRUSTEE, AND :
ALVIN D. CUNNINGHAM TRUST :
:
Appellant :
Appeal from the Order March 20, 2017
In the Court of Common Pleas of Somerset County Civil Division at
No(s): No. 68 Civil 2007
BEFORE: BENDER, P.J.E., STEVENS*, P.J.E., and STRASSBURGER**, J.
OPINION BY STEVENS, P.J.E.: FILED MARCH 20, 2018
Appellant/Defendant Alvin D. Cunningham, in his individual capacity,
appeals from the order entered in the Court of Common Pleas of Somerset
County on March 20, 2017, finding him in civil contempt for violating a prior
court order directing him to make monthly payments to his ex-wife,
Appellee/Plaintiff Beverly L. Cunningham, pursuant to the parties’ Family Trust
Agreement as incorporated in their Post Nuptial Agreement. Appellant
contends the remedy of contempt was unavailable where the underlying Trust
Agreement was never incorporated into the parties’ decree of divorce but was,
instead, an independent contract such that Appellees’ sole remedy for
Appellant’s nonpayment under the agreement was a breach of contract claim.
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* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-S82026-17
In the alternative, Appellant argues that even if the court could properly
enforce its prior order through the sanction of civil contempt, the evidence
established, inter alia, Appellant’s present inability to pay, the depletion of
trust funds through legitimate stock market losses, and his good-faith
willingness to convey his one-half of the marital home to Appellee as payment
of the court’s purging condition. We affirm.
The trial court’s Pa.R.A.P. 1925(a) opinion aptly sets forth the relevant
factual and procedural history:
Beverly J. Cunningham [Appellee] filed a Complaint against Alvin
D. Cunningham [Appellant] on January 25, 2007. In the
Complaint, Appellee aver[red] that the parties were formerly
husband and wife and that the parties were divorced at case
docketed at 16 Divorce 1997 in the Court of Common Pleas of
Somerset County. Compl. ¶ 3.
Appellee further aver[red] that in connection with the divorce
action, the parties entered into a Post Nuptial Agreement,
together with a Family Trust Agreement (hereinafter collectively
referred to as “Agreements”), dated November 1, 1996, which
were not incorporated into the Divorce Decree. Id. at ¶¶ 4, 5.
Appellee aver[red] that the Appellant had violated the terms of
the Agreements, and that the Post Nuptial Agreement was not
properly entered into as the Appellant failed to make a full
disclosure of his assets in connection with the same. Id. at ¶ 6.
[Appellant filed an Answer, New Matter, and Counterclaim raising
all applicable statutes of limitations, laches, and equitable
estoppel, among other claims. The basis for his res judicata
and/or collateral estoppel claim was the Honorable Judge Eugene
Fike’s September 14, 2004, ruling that the Agreements were not
incorporated into the Divorce Decree. Appellee filed an Answer to
Appellant’s New Matter and Counterclaim].
***
Appellee filed an Amended Complaint on March 31, 2010. In that
Amended Complaint, Appellee aver[red] that pursuant to the
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terms of the Agreements, Appellee is to receive certain periodic
payments which amount to $20,000.00 per year with an increase
in February of each year to be determined by the Consumer Price
Index. Am. Compl. ¶¶ 5, 9. It is averred that Appellant has failed
to comply with the provision requiring him to make these
payments to Appellee. Id. at ¶ 9. Additionally, Appellee aver[red]
that the Agreements were not properly entered into as the
Appellant failed to make a full disclosure of his assets in
connection with the Agreements. Id. at ¶ 8.
Appellant filed Preliminary Objections to the Amended Complaint
on September 17, 2010. . . . After oral argument on the
Preliminary Objections, The Honorable Judge David C. Klementik
held in his Order dated June 6, 2011, that:
[T]he Preliminary Objections to the Amended
Complaint are sustained to the extent that the Plaintiff
[Appellee] shall file an Amended Complaint within 30
days specifically detailing the nature of the violation
of the terms of the Post Nuptial Agreement and the
precise nature of the lack of disclosure of the
Defendant’s [Appellant’s] assets which became the
consideration for the Agreement; and,
Further, the Plaintiff shall include a separate count
which details the breach of the trust provisions by the
trustee and the nature of the remedy being requested.
Order, June 6, 2011.
Appellee filed a Second Amended Complaint on June 7, 2011. In
that Second Amended Complaint, Appellee aver[red] again that
Appellee and Appellant entered into the Agreements, that the
Agreements were in lieu of any future support for herself, that
Appellee is to receive certain periodic payments, and assert[ed]
three counts[, one for breach of contract and two in equity for
failure to disclose all assets owned and for mismanagement of the
Trust, respectively.] Second Am. Compl. ¶¶ 6, 8, 14, 25, 32, 41.
[Appellant filed Preliminary Objections to the Second Amended
Complaint on October 13, 2011. The court overruled these
Preliminary Objections on January 4, 2012. Eventually, Appellee
filed a motion for contempt on April 11, 2012, for Appellant’s
failure to comply with the Agreements, and Appellant filed
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Preliminary Objections and a Motion to Strike in response. On
April 30, 2012, Appellant filed a Motion for Summary Judgment,
in which he raised his previous claims of equitable estoppel,
laches, statute of limitations, and res judicata.]
Appellee filed an Amended Motion for Contempt/Motion to Enforce
on November 6, 2012[, in which she argued that Appellant had
made no payments whatsoever since August of 2011, and thus,
Appellee had been unduly prejudiced. Am. Mot. for
Contempt/Mot. to Enforce ¶ 3. Also on that date, Appellee filed
an Answer to Appellant’s Preliminary Objections/Motion to Strike.
Appellee argued that the court had jurisdiction despite the fact
that there was no court order because the court has jurisdiction
to order Appellant to be compliant with the terms of the
Agreements. Answer to Prelim. Obj’ns/Mot. to Strike ¶ 2. . . .
Appellee also filed an Answer to Appellant’s New Matter and
Counterclaim on that same date. Appellee claimed that the court
had jurisdiction to hear all of the issues raised in her Complaint,
that her acceptance of previous payments made by Appellant did
not constitute waiver and/or estoppel, that Appellant is not
entitled to any form of setoff or counterclaim for the fair market
value of the use of the marital home in accordance with the
Agreements, that Appellee has done all that she has been required
to do relative to the maintenance of the property and use of the
shed in accordance with the Agreements, that the terms of the
Agreements provide waiver of Appellant’s rights to any and all
claims of alimony and support, that Appellee maintained the
property to the best of her ability while not receiving payments
from Appellant, and that the issue of [her cohabitation with
another] is wholly irrelevant [to Appellant’s obligation to make
payments under the Agreements]. Answer to New Matter and
Countercl. ¶¶ 48, 50, 51, 52, 57, 1, 3.
In determining Appellant’s Amended Motion for Contempt/Motion
to Enforce, the Honorable Judge David C. Klementik held that the
Honorable Judge Eugene Fike’s ruling that the Agreements were
not incorporated into the Divorce Decree makes no statement
regarding the cause of action to enforce the provision of the
Agreements or whether Appellee was precluded from using
Divorce Code remedies and ordered the judgment be entered in
favor of Appellee and against Appellant pursuant to the
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undisputed lapse in payment by Appellant. Mem. & Order,
January 19, 2014, 3, 6.
[Judge Fike thereafter denied Appellant’s Motion for
Reconsideration on grounds that] Appellant does not contest he
has failed to make payments to Appellee in the preceding fourteen
months, that Appellant is bound by the Agreements to make
payments to Appellee even if the trust fund set forth in the
Agreements is depleted, and that the January 22, 2014, order was
an interim order and judgment based on Appellant’s admitted
default. Mem. & Order, February 20, 2014, 1, 2.
Appellant filed a Notice of Appeal [to this Court on February 21,
2014, but the Superior Court] held in a non-precedential decision
that the order in question was not a final order and . . . it lacked
jurisdiction to hear the appeal. [Memorandum Decision,]
February 27, 2015, 2, 3. [The Pennsylvania Supreme Court]
denied Appellant’s Petition for Allowance of Appeal on August 10,
2015.
Appellee filed another Motion for Contempt/Motion to Enforce on
January 5, 2017. Appellee again contended that Appellant was
required by the Agreements to make monthly payments to her,
that Appellant has failed to make any payments since August of
2011, that Appellee has been unduly prejudiced by Appellant’s
refusal to make payments, that the trial court has previously
ordered Appellant to make payments in accordance with the
Agreements, that the Appellant continued to refuse to make
payments to Appellee despite the court order, and she therefore
requested that the trial court issue an order holding Appellant in
contempt of court and issue appropriate sanctions. Mot. for
Contempt/Mot. to Enforce, January 5, 2017, ¶¶ 2, 4, 5, 7.
Appellant filed an Answer to the Motion for Contempt/Motion to
Enforce on January 13, 2017. Appellant claims that he has made
no payments because the Trust is insolvent “due to the market
collapse in 2007/2008,” and neither Appellant nor the Trust has
any financial resources to make the payments to Appellee.
Answer to Mot. for Contempt/Mot. to Enforce ¶¶ 3, 7.
Additionally, Appellant filed a Motion to Strike arguing that the
Motion for Contempt/Motion to Enforce is improper because
Appellee has refused offers by Appellant to convey the marital
property to allow her to sell the real estate and reiterating that
Appellant does not have the financial ability to make payments in
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accordance with the Agreements. Mot. to Strike ¶¶ 1, 2, 5.
Further, Appellant continued to object to this case proceeding
within the Divorce Code. Id. at ¶ 6.
After oral argument on Appellee’s Motions, the court ordered that
judgment was entered in favor of Appellee and against Appellant
in the amount of $111,666.66 . . . pursuant to the undisputed
lapse in installment payments by Appellant. Order, March 1,
2017, 1. It was additionally ordered that Appellant recommence
the monthly installment payments in the amount of $1,666.66,
pending a resolution of all other disputed factual and legal
matters. Id. at 1-2.
A hearing on Appellee’s Motion for Contempt/Motion to Enforce
was also ordered to be scheduled, in which any and all matters
raised in those motions, including Appellant’s ability or inability to
pay under the terms of the Agreements, would be addressed. Id.
at 22. Also at that argument, Appellant’s Motion to Strike
Appellee’s Motion for Contempt/Motion to Enforce was denied.
Order, March 1, 2017.
The hearing on Appellee’s Motion for Contempt/Motion to Enforce
was held on March 20, 2017. On the record, the trial court found
that “given the real estate holdings owned by the [Appellant] and
the amount of funds expended by [Appellant] in relation to the
rental and maintenance of the Florida property, that the
[Appellant] does have the current ability to pay the amounts owed
to [Appellee] under the terms of the [Agreements.]” Hr’g Tr.
80:18-24.
Appellant was found to be in contempt of the trial court’s orders
dated January 19, 2014, and March 1, 2017. Order, March 20,
2017. The trial court further ordered Appellant to make payment
to Appellee in the amount of $111,666.66 on or before June 20,
2017, and if the Appellant failed to make that payment and purge
himself of his contempt on or before June 20, 2017, that Appellant
shall be incarcerated for a period of sixty (60) days in the
Somerset County Jail. Id.
Appellant objected on the record to the Order arguing that the real
estate owned by him is jointly owned by himself and his current
wife and rearguing that these types of actions, which are purely
contractual, do not allow such contempt orders. Hr’g Tr. 82:10-
19. The trial court responded to the first objection:
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Clearly, the evidence today indicates that the two
parcels of real estate . . . were owned by Appellant in
his own name in August 2011 [. . . .] [T]o the extent
that he chose to add someone else’s name to those
assets which he owned in his own name,
unencumbered, that were available to meet his
obligations under the terms of the [A]greements and
this Court’s orders, then he does so at his own peril.
Hr’g Tr. 82:23-25, 83:1-14. [The trial court subsequently denied
Appellant’s Motion for Reconsideration.]
Appellant filed a Notice of Appeal on April 18, 2017. . . . The trial
court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal on April 28, 2017.
Appellant complied with this order. . . .
Trial Court Opinion, filed June 12, 2017, at 1-12.
Appellant presents the following issues for our review:
I. DID THE LOWER COURT ABUSE ITS DISCRETION
FINDING HUSBAND, APPELLANT, ALVIN D. CUNNINGHAM,
IN CIVIL CONTEMPT OF COURT AND INCARCERATING
HI[M] FOR 60 DAYS, SETTING $111,666.66 AS A PURGE,
FOR THE NONPAYMENT BY THE ALVIN D. CUNNINGHAM
TRUST TO THE APPELLEE BEVERLY L. CUNNINGHAM, WHEN
THE EVIDENCE PRESENTED SHOWED HIS PRESENT
INABILITY TO PAY BASED ON INCOME OF $662.00 A
MONTH FROM SOCIAL SECURITY?
II. DID THE COURT FAIL TO FOLLOW THE PROPER
PROCEDURES AS MANDATED BY THE APPELLATE COURTS
IN FINDING THE APPELLANT IN CONTEMPT?
III. DID THE IMPOSITION OF THE PAYMENT OF
$111,666.66 WITHIN 60 DAYS VIOLATE THE APPELLANT’S
RIGHT OF DUE PROCESS?
IV. WAS THE COURT ORDER IN ESSENTIAL INDIRECT
CRIMINAL CONTEMPT [SIC] LIMITED THE REMEDY TO A
FINE ONLY, 42 Pa.C.S.A. § 4132?
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V. CAN THE APPELLANT, ALVIN D. CUNNINGHAM,
INDIVIDUALLY BE FOUND IN CONTEMPT OF COURT AS HE
HAS PAID IN EXCESS OF $300,000 IN FUND[S FROM] THE
TRUST?
VI. IS SECTION 23 PA.C.S.A. § 3105(C) APPLICABLE TO
THIS CASE?
VII. DID THE TRIAL COURT ABUSE ITS DISCRETION IN
NOT ORDERING PAYMENTS AND NOT ALLOWING THE
HUSBAND TO CONVEY HIS ONE-HALF INTEREST IN THE
MARTIAL [SIC] HOME FOR CREDIT AGAINST HIS DEBT?
Appellant’s brief at 6.
This court's review of a civil contempt order is limited to a determination
of whether the trial court abused its discretion. Bold v. Bold, 939 A.2d 892,
894–895 (Pa.Super. 2007). “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.”
Gates v. Gates, 967 A.2d 1024, 1028 (Pa.Super. 2009).
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. Harcar v. Harcar, 982 A.2d 1230, 1235
(Pa.Super. 2009).
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Initially, Appellant contends that the trial court erred in finding him in
contempt for violating the trial court’s orders dated January 19, 2014, and
March 1, 2017, where he established his present inability to pay.
If the alleged contemnor is unable to perform and has, in good faith,
attempted to comply with the court order, then contempt is not proven.
Sinaiko v. Sinaiko, 664 A.2d 1005, 1010 (Pa.Super. 1995). The contemnor
has the burden to prove the affirmative defense that he lacks the ability to
comply. Commonwealth ex rel. Ermel v. Ermel, 469 A.2d 682, 683
(Pa.Super. 1983). The defense of impossibility of performance is available to
a party in a contempt proceeding if the impossibility to perform is not due to
the actions of that party. Commonwealth Dept. of Envtl. Resources v.
Pennsylvania Power Co., 316 A.2d 96, 103 (Pa.Cmwlth. 1974).1
While the burden is on the complaining party to prove noncompliance
by a preponderance of the evidence, the “present inability to comply is an
affirmative defense which must be proved by the alleged contemnor.” Barrett
v. Barrett, 368 A.2d 616, 621 (Pa. 1977).
With respect to the imposition of a purge condition, our Supreme Court
has held that:
where, as here, the court in civil proceedings finds there has been
willful noncompliance with its earlier support orders constituting
contempt but the contemnor presents evidence of his present
inability to comply and make up the arrears, the court, in imposing
coercive imprisonment for civil contempt, should set conditions for
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1 While not binding upon this Court, the decision of the Commonwealth Court
is instructive for present purposes.
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purging the contempt and effecting release from imprisonment
with which it is convinced [b]eyond a reasonable doubt, from the
totality of the evidence before it, the contemnor has the present
ability to comply.
Id., 368 A.2d at 621.
Here, the trial court relied on evidence that Appellant, for the relevant
time up to and including August 2011, owned exclusively two valuable and
unencumbered parcels of real estate—one a residential property in Maryland
and the other a farm consisting of a residential home and approximately 300
acres of land situate in Somerset County, Pennsylvania. At the hearing,
Appellant estimated the fair market value of each property to be $200,000.00.
N.T. 3/20/17 at 39-40.2 Appellant could have leveraged or liquidated these
properties, the court concluded, in order to meet his obligations to fund the
trust as necessary to cover arrearages and continue payments thereunder.3
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2 Specifically, Appellant testified that he believed his farm’s worth was
equivalent to that of a neighboring farm that recently sold for $200,000.00.
N.T. at 40.
3 By way of background, we note the trial court acknowledged that at the time
of the contempt proceedings in question Appellant and his current wife owned
the real estate parcels as a tenancy by the entireties. However, the court
inquired into whether Appellant performed the transfers with the intent to
avoid his duty under the parties’ Trust Agreement “to make any additional
contributions as required to fulfill the terms of his obligation.” Trial Court
Opinion, at 22.
In this vein, the trial court took judicial notice of the Pennsylvania Uniform
Fraudulent Transfer Act (“PUFTA”), 12 Pa.C.S.A. §§ 5105-5110, and
interpretive decisional law holding “that in Pennsylvania, ‘entireties property
is unavailable to satisfy the claims of the creditor of only one of the tenants,’
but that ‘when a spouse conveys individual property to a tenancy by the
entireties in fraud of creditors, the creditor may nevertheless execute against
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Moreover, to the extent the Maryland property serves as the primary
residence for Appellant and his wife, evidence adduced at the hearing
established that the couple nevertheless rented, year-round, a Sarasota,
Florida vacation home at $634 per month plus an additional monthly payment
of $30 in utilities. Hence, the trial court, as finder of fact, determined
Appellant was not credible when he testified that he lacked the ability to
comply with the court’s order requiring him to maintain payments to Appellee.
Because the record supports the trial court’s factual determination, we find no
error in the conclusion that Appellant failed to prove his affirmative defense
that he was unable to comply notwithstanding his good faith attempts to do
so.
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the property so conveyed.’” Trial Court Opinion, at 21 (citing Knoll v. Uku,
154 A.3d 329, 335 (Pa.Super. 2017) (quoting Garden State Standardbred
Sales Co. v. Seese, 611 A.2d 1239, 1243 (Pa.Super. 1992)). See 12
Pa.C.S.A. § 5109
It was only after the Trust became insolvent and Appellant ceased making
payments in August 2011 that Appellant remarried in September 2011 and
added his new wife’s name to the real estate parcels. Based on this evidence,
the court deemed the transfer fraudulent as that word is defined under PUFTA
because the creditor’s (Appellee’s) claim arose before the transfer, the debtor
(Appellant) made the transfer without receiving a reasonably equivalent value
in exchange for the transfer, and the debtor became insolvent as a result of
the transfer. Trial Court Opinion, at 21 (citing Knoll, 154 A.3d at 333).
The court determined, therefore, that Appellant had knowingly violated the
Trust Agreement’s provision requiring him to fund the Trust as needed to fulfill
his payment obligations to Appellee, as he knew his real estate assets were
available for liquidation to meet such obligations once the Trust assets had
dissipated. See Hearing Transcript, at 83. Nowhere in Appellant’s statement
of questions presented does he challenge the court’s findings in this regard.
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Furthermore, we reject Appellant’s contention that evidence failed to
establish beyond a reasonable doubt his present ability to pay the purging
condition. Appellant admitted that when the trust was depleted and he ceased
making payments to Appellee, he, alone, owned unencumbered real estate
with a present-day value of approximately $400,000.00. Rather than fulfill
his obligations under the parties’ agreement to support Appellee by resorting
to these assets, he transferred his ownership rights to a tenancy by the
entireties when he married his current wife. The court concluded that
Appellant entered this transaction with the specific purpose of depriving
Appellee of her rights under the parties’ agreement, and we discern no error
with this finding. We, therefore, reject Appellant’s contention that evidence
failed to establish beyond a reasonable doubt his present ability to pay the
purging condition set by the court.
In Appellant’s second and sixth issues, he argues that the court lacked
authority to use its equitable powers to enforce a private support agreement
that was never merged in the parties’ divorce decree. Appellant’s brief at 7
(citing Sonder v. Sonder, 549 A.2d 155 (Pa.Super. 1988) (en banc),
superceded by statute as stated in Sinaiko, supra. Instead, only the law of
contracts governed the parties’ agreement, Appellant maintains. “To jail a
person for failing to pay on his private agreement,” Appellant posits, “is
prohibited by our constitutions, state and federal, as imprisonment for debt.”
Appellant’s brief at 9. We disagree.
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In Sonder, this Court sitting en banc addressed, inter alia, whether the
trial court had erred when it held husband in contempt and ordered him to
pay a $10,000.00 purging condition to avoid commitment to jail for ninety
days. The husband argued that incarceration was an inappropriate sanction
for violating a support agreement not merged with a divorce decree. This
Court agreed, as the parties had rejected the benefit of Divorce Code
provisions calling for enforcement through court orders and enabling
procedures for contempt. Id., 398 A.2d at 165.
Sonder, however, “did not apply the 1988 amendments to the Divorce
Code which specifically authorize the incarceration of a party for failure to
comply with the terms of a separation agreement[,]” as the parties in Sonder
executed their agreement prior to 1988 and were thus not bound by the terms
of the amendments. Sinaiko, 664 A.2d at 1012. In Sinaiko, we explained
how the amendments specifically authorize a court to enforce a subsequent
agreement as if it had been an order of the court:
Sections 3105(a) and 3502(e) of the Divorce Code[] specifically
authorize the trial court to order commitment of the person for a
period of less than six months. Section 3105 provides in pertinent
part:
§ 3105 Effect of agreement between parties
(a) Enforcement.—A party to an agreement
regarding matters within the jurisdiction of the court
under [the Divorce Code], whether or not the
agreement has been merged or incorporated into the
decree, may utilize a remedy or sanction set forth in
[the Divorce Code] to enforce the agreement to the
same extent as though the agreement had been an
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order of the court except as provided to the contrary
in the agreement.
23 Pa.C.S.A. § 3105(a).
Section 3502 of the Divorce Code delineates the powers of the
court when a party fails to comply with the terms of an order of
equitable distribution or with the terms of a private agreement
between the parties. That section specifically provides:
(e) Powers of the court.—If, at any time, a party
has failed to comply with an order of equitable
distribution, as provided for in this chapter or with the
terms of an agreement as entered into between the
parties, after hearing, the court may, in addition to
any other remedy available under this part, in order
to effect compliance with its order:
******
(6) issue attachment proceedings, directed to the
sheriff or other proper officer of the county, directing
that the person named as having failed to comply with
the court order be brought before the court, at such
time as the court may direct. If the court finds, after
hearing, that the person willfully failed to comply with
the court order, it may deem the person in civil
contempt of court and, in its discretion, make an
appropriate order, including, but not limited to,
commitment of the person to the county jail for a
period not to exceed six months[.]
23 Pa.C.S.A. § 3502(e)(6).
Sinaiko, 664 A.2d at 1012–13.
As in Sinaiko, Appellant and Appellee entered into their Trust
Agreement after the 1988 amendments and subsequent verbatim
amendments took effect. Therefore, the trial court appropriately followed the
decision in Sinaiko by applying the enforcement provisions of Section 3105
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and imposing a lawful term of incarceration pursuant to Section 3502(e)(6)
should Appellant fail to pay the purging condition.
Sinaiko is likewise dispositive of both the latter part to Appellant’s third
issue and his fourth issue. In the latter part to Appellant’s third question, he
argues that the court’s order of incarceration violates Article 1, Section 16 of
the Pennsylvania Constitution, which provides:
§ 16 Insolvent Debtors
The person of a debtor, where there is not strong presumption of
fraud, shall not be continued in prison after delivering up his
estate for the benefit of his creditors in such manner as shall be
prescribed by law.
PA. CONST. art. 1, § 16. Appellant’s argument fails for the reasons expressed
in Sinaiko:
We reject Husband’s argument. Husband was found in civil
contempt, not criminal contempt, after the court gave him notice
and an opportunity to be heard. The court conducted an
evidentiary hearing where Husband was given the opportunity to
present his defense to Wife’s contempt petition. Likewise,
Husband was not jailed for failing to pay a debt contrary to the
provisions of the Pennsylvania Constitution. Husband was
sentenced to a conditional term of imprisonment as a coercive
sentence for civil contempt based on his failure to abide by a court
order. The court order was entered after the court found that
Husband was obligated to comply with the terms of the separation
Agreement he voluntarily entered into with Wife. As stated
earlier, the trial court acted within its statutory authority under
the terms of the Divorce Code when it sentenced him to fourteen
days in prison. Wife is more than just a creditor as that term is
used in the Constitutions. Husband’s debt to her arose as a result
of a court order—not just a private agreement between the
parties. The court had the power to enforce its order by means of
contempt and incarceration.
Id., 664 A.2d at 1015.
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In Appellant’s fourth issue, he baldly asserts that the court’s order
violated Sections 4132, Attachment and summary punishment for contempts,
and 4133, Commitment or fine for contempt, of the Judicial Code. As observed
in Sinaiko, “these statutes apply when a party is in direct criminal contempt
of court; that is when a party engages in misconduct in the presence of the
court with the intent to obstruct the judicial proceeding which actually
obstructs the administration of justice.” Here, as in Sinaiko, the trial court
imposed punishment as a sanction for his civil contempt based upon his failure
to comply with a previous order of the court. Accordingly, Sections 4132 and
4133 do not apply.
In the initial part to Appellant’s third issue, he argues the court violated
his procedural due process rights by ordering him to satisfy the purging
condition within 60 days of the order finding him in contempt. Trial courts
generally follow a five-step process in determining whether a trial court
complied with the procedural requirements for a finding of contempt: “(1) a
rule to show cause why an attachment should not issue, (2) an answer and
hearing, (3) a rule absolute, (4) a hearing on the contempt citation, and (5)
an adjudication.” Wood v. Geisenhemer–Shaulis, 827 A.2d 1204, 1208
(Pa.Super. 2003) (quotation omitted).
However, we have held that “[f]ulfillment of all five factors is not
mandated.” Id. “[W]hen the contempt proceedings are predicated on a
violation of a court order that followed a full hearing, due process requires no
more than notice of the violations alleged and an opportunity for explanation
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and defense.” Id. (quoting Diamond, 792 A.2d at 601). The record clearly
demonstrates that Appellant had notice of the contempt allegations and an
opportunity to respond. We, therefore, find no merit to this claim.
In support of his fifth issue, Appellant asserts that he may not be found
in contempt where he had already paid in excess of $300,000.00 to Appellee
from the Trust and had established that stock market losses endemic in the
late 2000s had depleted the Trust fund through no fault of his own.
Notwithstanding the credibility of Appellant’s testimony in this regard, the trial
court ruled that Appellant remained responsible to continue payments in
conformity with the parties’ agreement so long as he was able to do so. As
discussed above, the trial court deemed Appellant capable of funding the Trust
sufficiently to both erase arrearages and make future payments. Given a
record supportive of the trial court’s determination, we agree that Appellant’s
history of payments and lack of misfeasance with respect to the Trust did not
insulate him from the terms of his agreement with Appellee when he retained
the ability to comply with its payment terms.
Finally, in Appellant’s seventh issue, he charges error with the trial
court’s refusal to accept his offer to convey his one-half interest in the marital
residence, where Appellee continues to reside, as satisfaction of his purging
condition. This argument centers on Appellant’s position that Appellee may
then sell her residence and acquire the proceeds, which Appellant estimated
at $100,000.00. Her refusal to accept this offer, Appellant maintains, leaves
her with “unclean hands” so as to undermine her complaint against him.
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J-S82026-17
The court rejected Appellant’s proposal as having no foundation in either
law or reason, as no authority mandates acceptance of such a conveyance in
lieu of a conforming payment, and the benefit is specious, as it would leave
Appellee without a home. Under the parties’ agreement, Appellee may enjoy
sole use and possession of the home while also receiving payments due under
the agreement. The court determined Appellant has the ability to make
continued payments in accordance with this agreement. We, therefore,
discern no error of law or abuse of discretion in the trial court’s resolution of
this issue.
For the foregoing reasons, Appellant’s appeal fails.
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2018
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Cunningham, B. v. Cunningham, A.
Combined Opinion