Lambert, D. v. Hameed, K. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DANA L. LAMBERT, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEMAL M. HAMEED,
Appellant No. 1010 MDA 2014
Appeal from the Order May 27, 2014
In the Court of Common Pleas of Lebanon County
Domestic Relations at No(s): 2002-5-0075
BEFORE: BOWES, WECHT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 30, 2014
Kemal M. Hameed (“Father”) appeals from the May 27, 2014 order
refusing his request to vacate a contempt order entered on January 21,
2014. We quash this appeal.
Dana L. Lambert (“Mother”) instituted this support action against
Father seeking support for their minor child, and a support order was
entered against Father in 2002. Father thereafter left Pennsylvania and
began to reside in Maryland. He sporadically paid support, but was soon in
default of his support obligations. Mother instituted contempt proceedings in
2002, a hearing was scheduled for May 28, 2002, and Father did not appear.
A bench warrant was issued for his arrest. Even while Father
continued to avoid his support obligations, he exercised custodial rights over
the child. He would not personally appear in court in connection with the
custody proceedings in order to avoid service of the bench warrant, which
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remained active until January 2014. At that time, Mother was able to
convince the District Attorney of Lebanon County to seek extradition of
Father from Maryland. Father was arrested at his home and returned to
Pennsylvania.
On January 21, 2014, the trial court held a contempt hearing, which
was not transcribed and is not contained in the certified record on appeal.
Following that hearing, the court issued an order, which reads as follows:
A. The Defendant is the father of one child who is now 12 years
of age. Since this support order was entered in 2002, the
Defendant has paid very sporadically. There are current
arrearages totaling $25,862.65.
B. To her credit, the Plaintiff has permitted the Defendant to
maintain a relationship with his daughter even though he has
not paid support. In fact, the Defendant litigated custody
issues in Lebanon County in absentia [sic] that were resolved
so that he would have a relationship with his daughter.
Nevertheless, the Defendant never appeared in Court because
he knew that the Domestic Relations bench warrant would be
enforced had he done so.
C. The Defendant has lived in jurisdictions other than PA for at
least the past 10 years. He has had periodic contact with the
Domestic Relations Office but has never appeared in Lebanon
County Court and has been a fugitive from this Court for a
considerable period of time.
D. In 11 years that this support obligation has been docketed,
the Defendant made only 14 payments. The Defendant
acknowledged that he has not upheld this responsibility to his
daughter and he acknowledged that he should have done
better.
E. The Defendant indicates that he is not now employed but has
a job prospect. In addition, the Defendant indicated that he
did work as a contractor for the Defense Intelligence Agency
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for several years. During this time period, the Domestic
Relations Office received nothing in child support.
F. It is obvious that this Defendant has done everything in his
power to hide from his support obligation. The extent to
which the Defendant has ignored his obligation is
breathtaking.
Accordingly, the Defendant is found in contempt. He is
directed to be incarcerated in the Lebanon County Correctional
Facility for a period of six months. The Defendant may purge
himself of this contempt by payment in the amount of $25,000.
BY THE COURT
Order of Court, 1/21/14, at 1-2.
The contempt finding was premised upon Father’s failure to appear for
the May 28, 2002 support hearing as well as his failure to pay ordered
support. We observe that the January 21, 2014 order was valid under
§§ 4344 and 4356 of Title 23, which pertain to contempt, in the child
support setting. Section 4344 relates to an obligor’s failure to appear and
states:
A person who willfully fails or refuses to appear in response to a
duly served order or other process 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 $500.
(3) Probation for a period not to exceed six months.
23 Pa.C.S. § 4344.
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Section 4345 governs contempt for noncompliance with a support
order and states:
(a) General rule.--A person who willfully fails to comply with
any order under this chapter, except an order subject to section
4344 (relating to contempt for failure of obligor to appear), 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.
23 Pa.C.S. § 4345
On February 6, 2014, an attorney entered an appearance on Father’s
behalf, but she failed to file an appeal from the January 21, 2014 order. On
April 3, 2014, counsel filed a motion to reduce the purge amount. That
motion was denied. On May 23, 2014, Father filed a pro se petition seeking
habeas corpus relief from the contempt finding. He then filed this appeal
from the May 27, 2014 order denying that request. In his pro se brief,1
Father contends that he was wrongfully found to be in contempt of court on
January 21, 2014, in that he had not paid support sporadically since he “paid
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1
The brief fails to conform to the Rules of Appellate Procedure in various
respects, including the omission of a Statement of Questions Involved. We
have been able to discern the outlined allegations from the body of the brief.
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over 31,000 since the year 2002.” Appellant’s (unnumbered) brief at 2. He
also avers that he made more than fourteen child support payments and did
not willfully fail to appear for the 2002 support hearing. Finally, Father
contests the purge condition with respect to his jail term. He argues that
there was no evidence presented at the hearing indicating that he had the
ability to pay the amount in question. See Godfrey v. Godfrey, 894 A.2d
776 (Pa.Super. 2006). Mother has not filed a brief in this matter.
Initially, we must address whether this appeal is timely as that
question implicates our jurisdiction and must be raised sua sponte. In re
R.Y., Jr., 957 A.2d 780 (Pa.Super. 2008). A notice of appeal must be filed
within thirty days of entry of the order in question. Pa.R.A.P. 903(a).
Herein, Father did not file a timely notice of appeal from the original finding
of contempt, which was issued on January 21, 2014.
Father did file a habeas corpus petition, which is not considered a
substitute for filing an appeal. Commonwealth ex rel. Budd v. Maroney,
211 A.2d 479 (Pa. 1965). The writ of habeas corpus is a creature of English
common law. Commonwealth v. Wolfe, 605 A.2d 1271 (Pa.Super. 1992).
The ancient writ was issued where a person had been unlawfully detained in
violation of due process and was a civil remedy regardless of whether the
petitioner was detailed under civil or criminal process. Id. In Pennsylvania,
the common law writ was supplanted by statutory enactment. See 42
Pa.C.S. § 6501 (“The privilege of the writ of habeas corpus shall not be
suspended, unless when in the case of rebellion or invasion the public safety
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may require it.”); 42 Pa.C.S. § 6502 (a) (“General rule.--Any judge of a
court of record may issue the writ of habeas corpus to inquire into the cause
of detention of any person or for any other lawful purpose.”). The writ does
not apply in a criminal setting if post-conviction relief is otherwise available.
42 Pa.C.S. § 6503.2
While Father did file a writ challenging his imprisonment, it is
nevertheless the law that: “As an extraordinary remedy, habeas corpus may
be invoked only when remedies in the ordinary course have been exhausted
or are not available; the writ is not a substitute for appellate review.”
Wolfe, supra at 1273 (emphasis in original). Herein, Father was found in
contempt on January 21, 2014. He engaged an attorney within the time
frame for filing an appeal, but no appeal was filed. All of the contentions
presently raised in Father’s brief could have been pursued by the filing of a
direct appeal from the January 21, 2014 contempt order. Hence, the
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2
That provision states:
(a) General rule.--Except as provided in subsection (b), an
application for habeas corpus to inquire into the cause of
detention may be brought by or on behalf of any person
restrained of his liberty within this Commonwealth under any
pretense whatsoever.
(b) Exception.--Where a person is restrained by virtue of
sentence after conviction for a criminal offense, the writ of
habeas corpus shall not be available if a remedy may be had by
post-conviction hearing proceedings authorized by law.
42 Pa.C.S. § 6503.
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petition for writ of habeas corpus was an attempt to circumvent the
requirements for filing a timely direct appeal from the contempt order.
Habeas corpus was improperly invoked, and this appeal is untimely. We also
note that Father’s jail sentence was for six months, and that term expired on
June 21, 2014. This fact renders moot his contention that the purge amount
was improper based upon the fact that the court failed to ascertain whether
he had the financial means to satisfy that amount.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2014
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