Chromack, N. v. Williams, T. ( 2016 )

J-S71029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICOLE SEVILLE CHROMACK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TOMMY WILLIAMS,
Appellant No. 733 WDA 2015
Appeal from the Order March 18, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD09005135
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 29, 2016
Appellant, Tommy Williams, appeals from the order denying him
permission to proceed in forma pauperis (“IFP”) on a custody complaint.
After careful consideration, we reverse and remand.
Appellant is the noncustodial parent of two children, ages six and
seven. On March 13, 2015, Appellant petitioned to file a custody complaint
IFP, and on March 18, 2015, a hearing on that request was conducted. On
March 27, 2015, the trial court entered an order denying Appellant’s petition
on the grounds that “petitioner makes over the guideline amount.” Order,
J-S71029-15
3/27/15.1 Appellant filed an appeal on April 22, 2015. Both Appellant and
the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Did the trial court err in denying [Appellant’s] petition to
proceed in forma pauperis to seek partial custody of his children
and modification of a support order, despite [Appellant’s]
monthly income of only $600 and substantial child support and
student loan obligations?
Appellant’s Brief at 4.
We first note that this issue is properly before us as our Supreme
Court has held that “an order denying in forma pauperis status is a final,
appealable order.” Amrhein v. Amrhein, 903 A.2d 17, 19 (Pa. Super.
2006) (quoting Grant v. Blaine, 868 A.2d 400, 402 (Pa. 2005)).
Furthermore, “[i]n reviewing a trial court’s resolution of an application to
proceed in forma pauperis, we reverse only if the court abused its discretion
or committed an error of law.” Id. at 19. An abuse of discretion is not
merely an error in judgment but requires a finding of bias, partiality,
prejudice, ill will, manifest unreasonableness, or misapplication of law.
Commonwealth v. Tickel, 2 A.3d 1229, 1234 (Pa. Super. 2010).
It is well-established that “[a] party who is without financial resources
to pay the costs of litigation is entitled to proceed in forma pauperis.”
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1
At the end of the March 18, 2015 hearing, Appellant was also advised that
the trial court was denying the petition because Appellant made “well over
the guideline amount.” N.T., 3/18/15, at 5.
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Pa.R.C.P. 240(b). That party is required to file a petition and an affidavit
describing in detail the inability to pay the costs of litigation. Pa.R.C.P.
240(c). The rule expressly prescribes that the affidavit requires, inter alia,
the following information from the applicant: present or past salary and
wages, other types of income within the preceding year, other contributions
for household support, property owned, available assets, debts, and
obligations, and persons dependent for support. Pa.R.C.P. 240(h).
This Court has explained the following regarding IFP petitions:
The mere filing of a praecipe for IFP status will not
automatically establish the petitioner’s right to proceed in that
status. The court must satisfy itself of the truth of the averment
of inability to pay. If it believes the petitioner’s averments,
there is no requirement that the court conduct an evidentiary
hearing. The trial court has considerable discretion in
determining whether a person is indigent for purposes of an
application to proceed in forma pauperis. However, in making
that determination, it must focus on whether the person can
afford to pay and cannot reject allegations contained in an
application without conducting a hearing.
Amrhein, 903 A.2d at 19-20.
In this case, Appellant filed a petition to proceed IFP. Petition,
3/13/15, at 1-6. With that petition, Appellant filed a “verified financial
statement” in which he provided information on his income, assets,
dependents, debts, and obligations. Id. at 3-6. As such, Appellant made a
prima facie showing that he could not afford legal counsel. Thus, the trial
court could not reject these allegations without conducting a hearing.
Amrhein, 903 A.2d at 20.
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The record reflects that on March 18, 2015, a proceeding was
conducted on Appellant’s request to proceed IFP. While the trial court refers
to the proceeding as an evidentiary hearing, we cannot agree that it was
sufficient for purposes of Pa.R.C.P. 240. A review of the hearing transcript
reveals2 that the only questions the trial court directed to Appellant were
related to his income and the number of minors living with him. N.T.,
3/18/15, at 3-5. After obtaining information regarding Appellant’s income
and household dependents, the trial court referenced “current guidelines” 3 it
was reviewing. Id. at 5. Following consideration of those guidelines, the
trial court advised Appellant: “I am going to have to deny. You make well
over the guideline amount. Sorry.” Id.
Thus, the trial court considered only Appellant’s income and household
dependents measured against income guidelines in determining Appellant’s
eligibility for IFP status. Such limited assessment is improper under
Pa.R.C.P. 240. Additionally, we addressed this issue in Amrhein and held
that a trial court’s consideration of only income measured against guidelines
without consideration of other obligations and monthly expenditures for
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2
In its opinion, the trial court indicates that Appellant failed to obtain and
make part of the record the March 18, 2015 hearing transcript. Appellant
acknowledges this delay. Appellant’s Brief at 6. The March 18, 2015,
transcript is currently part of the record before us.
3
The transcript does not reflect the specific guidelines the trial court relied
upon.
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purposes of an IFP request constituted error of law. Amrhein, 903 A.2d at
22. Accordingly, we are constrained to conclude that in this case the trial
court erred in considering only Appellant’s monthly income and dependents
measured against guidelines in denying Appellant’s IFP request.
As a result, we remand this matter for a hearing consistent with
Pa.R.C.P. 240. During that hearing, the trial court should consider evidence
of Appellant’s income, assets, dependents, obligations, and monthly
expenditures pursuant to Pa.R.C.P. 240 in evaluating Appellant’s IFP
petition. We decline Appellant’s invitation to grant IFP status herein.
Although Appellant has made a prima facie showing of his inability to pay for
counsel, we remind Appellant of his obligation to present evidence
supporting this claim at the hearing.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/2016
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