I.D. v. K.O.J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
I.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.O.J. :
:
Appellant : No. 1213 EDA 2019
Appeal from the Order Entered April 11, 2019
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): 13-01490 PACSES No. 475115926
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED MAY 18, 2020
K.O.J. appeals from the Court of Common Pleas of Philadelphia County
(trial court) order finding her in civil contempt for failure to pay child support
to I.D. and sentencing her to 30 days’ incarceration, with a purge condition of
$2,000. We affirm in part, vacate in part and remand for further proceedings.
I.
We glean the following facts from the certified record and the trial
court’s opinion.
On May 12, 2016, [I.D.] filed a complaint for child support against
[K.O.J.] for the support of two minor children. On August 14,
2017, after multiple continuances of the child support conference,
the court entered an interim order of support, in the amount of
$448.75. On August 21, 2017 and August 29, 2017, [K.O.J.] filed
support exceptions alleging that she was “sick and cannot to
work.” On December 8, 2017, this Court denied [K.O.J.'s] support
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* Retired Senior Judge assigned to the Superior Court.
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exceptions and entered a final order of support in the amount of
$448.75. On or about May 31, 2018, [I.D.] filed a petition for
contempt of support, with a hearing date scheduled for June 19,
2018, because of [K.O.J.'s] failure to pay her support obligation.
By agreement of the parties, the June 19, 2018 hearing was
relisted for July 17, 2018, for a payment review. On July 16, 2018,
[K.O.J.] filed a petition for modification of the existing order of
support, and, as a result, the contempt hearing scheduled for July
17, 2018, was relisted for October 30, 2018, pending outcome of
[K.O.J.'s] modification review. At the October 30, 2018 hearing,
the matter was relisted for January 11, 2019, for a status of
[K.O.J.'s] modification review and for a payment review. At the
January 11, 2019 hearing, the matter was relisted for April 11,
2019, with an order directing [K.O.J.] to “provide results of her
modification; a letter from social security disability regarding the
status of her claim; and an updated doctor’s note of diagnosis,
prognosis, and employability.”
Trial Court Opinion, 10/11/19, at 1-2.
At the hearing on I.D.’s petition to hold K.O.J. in contempt, K.O.J. was
the sole witness.1 K.O.J. admitted that she was aware that there was a court
order obligating her to pay $448.75 per month in child support, and with the
exception of a $200 payment she made on the day of the hearing, she had
not made any payments.2 She testified that she makes “a little bit of money”
working in a hair-braiding shop and had worked there for approximately four
years. K.O.J. had also owned her own hair salon until 2012, and she reopened
it in 2016, but she was unable to pay the rent and had to close again in 2017.
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1 K.O.J. testified with the aid of a French interpreter.
2 At the time of the hearing, K.O.J. owed over $13,000 in child support.
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When discussing K.O.J.’s income, I.D. confronted her with a support
demographic form that she had signed at her court date on October 17, 2018.
In that form, K.O.J. had stated that she had an ownership interest in a
business. K.O.J. testified at the contempt hearing that she did not own a
business in October 2018 and that her attorney had helped her fill out the
forms at previous court dates. At her court date in January 2019, K.O.J. again
had assistance in filling out the demographic form, and her representative
wrote that K.O.J.’s monthly income was $1,300. On the day of the contempt
hearing, K.O.J. filled out the form herself and left blank the space for her
weekly income.
K.O.J. testified that she does not make a fixed income through her
current job at the hair-braiding shop, but that she earns between $700 and
$900 per month and is paid in cash. K.O.J. presented receipts from the salon
showing that in January and February 2019, she earned between $95 and
$175 per week. In the demographic form from October 2018, K.O.J. had
stated that she earned $300 per week, but at the time of the contempt
hearing, she testified that she rarely earned that amount.
When she works at the hair-braiding salon, K.O.J. is paid approximately
half of the client’s fee for hair braiding, which differs depending on the style.
She does not pay a flat fee for use of a chair in the salon. K.O.J. cannot work
at all some weeks due to her headaches, and she is often unable to finish a
client’s hair because of headaches and back problems. In those cases, she
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splits her percentage of the fee with the employee who finishes the customer’s
braiding.
K.O.J. testified that she did not work during the two weeks prior to the
contempt hearing, but she was able to make a $200 payment that day because
she had received some money from her sister. K.O.J.’s monthly expenses
include $200 for rent, which is paid for by her daughter and sister. She owes
$240 per month for her car loan and $145 for car insurance. K.O.J.’s siblings
and daughter provide her with money to pay her bills, including her car loan
and utilities, and K.O.J. pays the remainder. Even so, K.O.J. testified that she
was three months’ late on her car payments and was behind on her gas bill.
When the trial court questioned K.O.J. as to how she was able to purchase a
car and secure financing on such a limited income, K.O.J. responded that at
the time she purchased the car, she had a second job as a home health aide.
She testified that she left that job because her back problems prevented her
from lifting patients.
After the close of testimony, I.D. requested that the trial court hold
K.O.J. in civil contempt, sentence her to 30 days of incarceration, and set the
purge amount at $2,000. He argued that K.O.J.’s testimony regarding her
income was incredible and inconsistent with the forms she filled out at prior
proceedings. K.O.J. argued that she did not have the ability to pay as she is
unable to work full time due to her health conditions, relies on family members
to pay her bills, and is in arrears on several of her bills.
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The trial court found K.O.J. in civil contempt and sentenced her to 30
days’ incarceration, with a purge condition of $2,000. K.O.J. then filed this
appeal.3, 4
II.
As K.O.J.’s first two claims of error on appeal are related, we address
them together.5 First, she argues that the trial court erred by failing to make
evidentiary findings at the conclusion of the contempt hearing regarding her
present ability to pay either the child support or the purge amount. Second,
she contends that the trial court erred in holding her in civil contempt and
setting the purge condition when the record does not support a finding that
she had the present ability to pay child support or the $2,000 purge amount.
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3The trial court did not order K.O.J. to file a concise statement pursuant to
Pa. R.A.P. 1925(b). I.D. has not filed a brief in this appeal.
4 The trial court sent a letter to this court on July 22, 2019, requesting that
K.O.J.’s appeal be dismissed as moot because she had completed her 30-day
sentence of incarceration. See Letter, 7/22/19. This court responded on July
25, 2019, declining to dismiss the appeal as moot based on our holding in
Warmkessel v. Hefner, 17 A.3d 408, 413 (Pa. Super. 2011). See Letter,
7/25/19. There, we held that the appellant’s challenge to his sentence for
civil contempt of a support order met an exception to the mootness doctrine
when, even though he had completed his sentence, he remained subject to
the same support order and he and other similarly situated defendants could
raise the same claim in the future. Warmkessel, supra.
5 “Appellate review of a contempt order is limited to deciding whether the trial
court abused its discretion. The trial court abuses its discretion if, in resolving
the issue for decision, it misapplies the law, exercises its discretion in an
unreasonable manner, or does not follow legal procedure.” Glynn v. Glynn,
789 A.2d 242, 248 (Pa. Super. 2001) (en banc) (citations omitted).
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A.
When an individual fails to comply with a court order to pay support, the
obligee may file a petition for contempt to seek enforcement of the order.
“[P]resent inability to comply is an affirmative defense to be proved by the
contemnor.” Travitsky v. Travitsky, 534 A.2d 1081, 1085 (Pa. Super.
1987).
[W]here, 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 purging the contempt and effecting release from
imprisonment with which it is convinced. Beyond a reasonable
doubt, from the totality of the evidence before it, the contemnor
has the present ability to comply.
Barrett v. Barrett, 368 A.2d 616, 621 (Pa. 1977). At the time of the
contempt hearing, the trial court “shall make a finding, on the record, as to
whether the respondent, based upon the evidence presented at the hearing,
does or does not have the present ability to pay the court-ordered amount of
support.” Pa. R.C.P. 1910.25-5(b).
A person who willfully fails to comply with a support order may be held
in civil contempt and sentenced to up to six months of incarceration, a fine,
or up to one year of probation. 23 Pa.C.S. § 4345(a). If the contemnor is
sentenced to incarceration, the trial court must then specify an appropriate
purge condition. 23 Pa.C.S. § 4345(b). This purge condition should not be
punitive; rather, “[t]he purpose of a civil contempt order is to coerce the
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contemnor to comply with a court order.” Childress v. Bogosian, 12 A.3d
448, 465 (Pa. Super. 2011) (citation omitted). Thus, a trial court abuses its
discretion by imposing a monetary purge condition if the contemnor does not
have the present ability to pay the purge amount. Id.; see also Hyle v.
Hyle, 868 A.2d 601, 605 (Pa. Super. 2005) (holding that trial court abused
its discretion in setting purge condition based on finding that contemnor could
earn the purge amount within “a short period of time”). The trial court’s
conclusion regarding the contemnor’s present ability to pay the purge
condition must be supported by the record and cannot be based on speculative
factors such as potential earning capacity or values of assets not in evidence.
See Travitsky, supra.
B.
K.O.J. first contends that the trial court erred by failing to make
evidentiary findings at the conclusion of the contempt hearing regarding her
present ability to pay either the child support or the purge amount. While the
trial court’s disbelief of K.O.J.’s testimony regarding her income is evident
throughout the proceedings, it failed to state “on the record” as required by
Pa. R.C.P. 1910.25-5(b), that at the time the finding of contempt was entered,
the foundation for its determination that K.O.J. had the present ability to pay
her $448.75 monthly child support obligation or the $2,000 purge condition.
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In Commonwealth v. Ragoli, 524 A.2d 933, 937 (Pa. Super. 1987),
we addressed an analogous situation under Pa. R. Crim. P. 1405(c),6 which
required that the trial court “state on the record the reasons for the sentence
imposed.” We stated that:
A reading of the Rule discloses one salient point, i.e., everything
which occurs in respect to the sentencing proceeding must be of
record; this means in open court. Such a practice has been woven
into our judicial system not only to afford the defendant the
opportunity to question the proceedings, but it avails the appellate
courts the advantage to assess any claims of error (be they related
to pre-trial, trial, post-trial or sentencing) from a fully developed
record and dispenses with a needless remand. See
Commonwealth v. Rivera, 339 Pa. Super. 242, 488 A.2d 642
(1985) (en banc); Pa.R.App.P. 1926. To the same effect, see Rule
1123, which, likewise, speaks in terms of the defendant being
advised of his rights “on the record.” Commonwealth v. Picker,
293 Pa. Super. 381, 439 A.2d 162 (1981).
Id. (emphasis in original).
In a contempt proceeding, the Rule’s requirement that a finding that a
contemnor “does or does not have the present ability to pay the court-ordered
amount of support” must be “on the record” is important because contempt
sentences are of short duration. This is what occurred here. K.O.J. was held
in contempt on April 11, 2019, while the trial court’s Pa. R.A.P. 1925(a)
opinion was not filed until October 10, 2019, well after she had served her 30-
day sentence.
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6 This rule has since been renumbered at Pa. R. Crim. P. 704.
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The question then is what is the remedy. Where there is noncompliance
by a trial court in placing finding “on the record,” generally, we have remanded
to the trial court to make the appropriate findings. See Ragoli, supra. In
Ragoli, we reversed the order and remanded the trial court to impose a
sentence with reasons set on the record.
Pa. R.C.P. 1910.25-5(b)’s requirement that a finding be placed on the
record at the time of the hearing is also similar to the requirement in Pa. R.
Crim. P. 581(I), governing suppression hearings, which requires suppression
courts to place certain findings of fact on the record at the conclusion of the
hearing. We have observed that suppression courts often wait until after the
fact, or until writing a Pa. R.A.P. 1925(a) opinion, to set forth findings of fact.
We disapprove of this practice but, in the interest of judicial economy, will
only remand for the suppression court to put findings on the record if the
court’s factual findings and reasoning were not placed on the record at a later
time. Compare Commonwealth v. Sharaif, 205 A.3d 1286, 1289-90 (Pa.
Super. 2019) (remanding for a new suppression hearing when the suppression
court did not make findings of fact on the record or file a Pa. R.A.P. 1925(a)
opinion and the presiding judge later retired), with Commonwealth v.
Parker, 161 A.3d 357, 360 (Pa. Super. 2017) (holding that remand for
noncompliance with rule was unnecessary when the suppression court failed
to put findings on the record at the conclusion of the hearing, but later filed a
Pa. R.A.P. 1925(a) opinion detailing its findings of fact and conclusions of law).
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In this case, while the trial court failed to comply with Pa. R.C.P.
1910.25-5(b)’s requirement that a finding regarding K.O.J.’s present ability to
pay support be placed on the record, it did file a Pa. R.A.P. 1925(a) opinion
where it stated reasons for deciding that she had the ability to pay child
support. Therefore, we find it unnecessary to remand, especially when K.O.J.
has already served her contempt sentence, and we proceed to the merits of
her claim.
C.
As to the merits, K.O.J. contends that the trial court erred in holding her
in civil contempt and setting the purge condition when the record does not
support a finding that she had the present ability to pay child support. In its
1925(a) opinion, the trial court provided the following reasons in support of
its order:
[K.O.J.] had the present ability to purge herself of the contempt.
[K.O.J.] was receiving roughly $140.00 to $300.00 a week in
income, and in addition, [K.O.J.] was receiving money from her
daughter, sister, and brothers. [K.O.J.], from inception of the
order of support and the contempt petition, continuously paid her
rent, car payment, car insurance, cell phone bill, and utilities.
Furthermore, [K.O.J.] had a car, which was an asset, and with
[K.O.J.'s] purported limited income she could still afford her car,
car insurance, and cell phone. In addition, as per [K.O.J.'s]
testimony, regarding her income, it was computed to be less than
$10,000 a year; therefore, an individual making less than
$10,000.00 a year cannot afford a car payment of $200.00 with
car insurance and other monthly and daily living expenses. Thus,
this Court determined that [K.O.J.'s] testimony regarding income
and assets was not truthful. Therefore, based on [K.O.J.'s]
income and additional monies received from her daughter, sister,
and brothers, this Court reasonably determined that [K.O.J.] had
the present ability to pay a purge amount of $2,000.00.
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Trial Court Opinion, 10/11/19, at 4. However, those findings are not
supported by the record. See K.M.G. v. H.M.W., 171 A.3d 839, 845 (Pa.
Super. 2017) (“Although we must afford the trial court great deference as the
fact-finder, to withstand appellate review, the trial court‘s factual findings
must have support in the record.”).
First, the evidence adduced at the hearing does not support the trial
court’s conclusion that K.O.J. had the present ability to pay the support
amount. K.O.J.’s uncontradicted testimony at the contempt proceeding
established that she had not been able to work for two weeks prior to the
contempt hearing. The most recent evidence pertaining to her income,
receipts from her work at the salon, indicated that for four weeks in January
and February 2019, she had been paid $160, $95, $140, and $175. Notes of
Testimony, 4/11/19, at 31-32. The receipts supported her testimony that she
rarely earns as much as $300 per week, and in an average month, she earns
$700 to $900. The trial court apparently relied on a demographic form that
K.O.J. had signed at her October 2018 court date to reach the conclusion that
she earns $300 per week. However, this information was approximately six
months out of date and cannot serve as a basis to find that she had the present
ability to pay child support at the April 11, 2019 contempt hearing.
Second, in addition to disregarding K.O.J.’s testimony about her present
income, the trial court misapprehended the amount of financial support that
K.O.J. was receiving from her family members. K.O.J. set forth, in detail, her
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monthly expenses and the amount of financial help she receives from family
to meet her obligations. Her monthly bills include $200 for rent, $240 for her
car, $145 for car insurance, $80 for electricity, approximately $200 for gas,
$50 for her cell phone, and $40 for internet service. Id. at 49-54. One of her
sisters gives her $300 toward her expenses, and her daughter pays for the
car loan, electricity and gas. Id. Even with help from her family, K.O.J.
testified that she was three months behind on paying her car loan and was
behind on her gas bill. Id. at 55-56.
Consequently, K.O.J. set forth uncontradicted evidence that she did not
have a present ability to pay over $400 per month in child support, even
though she did not dispute that she had willfully failed to comply with the
order.
Nevertheless, even though K.O.J. did not have the ability to pay child
support at the time of hearing, the trial court could still find her in contempt
for failure to make any effort to make child support payments throughout the
pendency of the support order when her income had been higher in the past.
In Orfield v. Weindel, 52 A.3d 275, 276 (Pa. Super. 2012), we affirmed a
judgment of civil contempt when the contemnor made one nominal child
support payment over the course of two years, during which he was
intermittently working under the table. However, no evidence was adduced
at the contempt hearing establishing the contemnor’s current income or ability
to pay the purge amount of over $4,000. We held that even though the
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contemnor did not have the present ability to comply with the support order,
the trial court did not err in holding him in contempt when he had made a
single child support payment over the course of two years, despite being
employed at various times during that period.
The factual circumstances here are on all fours with the factual
circumstances of Orfield. Following a conference and hearing during which
both parties presented evidence of their income, K.O.J. was initially ordered
to pay $448.75 per month in child support by an interim order in August 2017.
A final order of support was entered for that amount in December of that year.
I.D. filed the contempt petition in May 2018 after K.O.J. failed to make any
support payments, and K.O.J. did not file a petition to modify the support
order until July 2018. Modification had not been granted by the time of the
contempt hearing. K.O.J. concedes that she made a single payment of $200
in child support during the almost two years that the support order was in
effect, and that at the time of the contempt hearing, she was in arrears of
over $13,000. K.O.J. testified that she had been employed part-time at the
salon for four years, and the demographic support forms she submitted at
prior court dates indicated that her income fluctuated during that time. Even
so, she made no effort whatsoever to pay any child support during the almost
two years that the support order was in effect. As a result, the trial court did
not err in finding her in contempt.
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D.
Even if she was properly held in contempt, K.O.J. contends that the trial
court abused its discretion because the record does not support a finding that
she had the present ability to pay the $2,000 purge amount. As outlined
above, when a trial court finds that an individual is in contempt for failure to
comply in the past with a support order, but the contemnor presents evidence
of a present inability to pay, in sentencing the contemnor to incarceration, the
trial court must fashion a purge condition with which the contemnor can
presently comply. Barrett, supra. Thus, because K.O.J. presented evidence
of her present inability to comply with the order, the trial court was required
to make findings supported by the record beyond a reasonable doubt that she
had the present ability to pay the $2,000 purge amount. See Childress,
supra; Hyle, supra. Based on the same evidence outlined above, the record
does not support the trial court’s conclusion that K.O.J. had the present ability
to pay $2,000 to purge herself of the contempt.
As outlined above, K.O.J.’s uncontradicted testimony was that she had
not worked for two weeks prior to the contempt hearing and her receipts from
working in January and February 2019 showed that she had earned paychecks
of $160, $95, $140, and $175. N.T. at 47-48; 31-32. In the average month,
she earns between $700 and $900, and her ability to work varies depending
on her medical conditions. She did not offer any testimony nor was she
questioned regarding whether she had any savings or valuable assets. The
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trial court in its opinion regarded her vehicle as an asset, but there is no
evidence of record regarding the value of the car or her ability to sell the
vehicle. See Trial Court Opinion, 10/11/19, at 4. The trial court’s conclusion
that K.O.J. was untruthful about her earnings because she could not have
secured a car loan and maintained payments based on her reported income is
not supported by the record and is mere speculation.
Even if the trial court’s finding that K.O.J. earned, at the most, $300 per
week was supported by the record, this finding does not support the
conclusion, beyond a reasonable doubt, that K.O.J. had the present ability to
pay the purge condition of $2,000. See Travitsky, supra (holding that the
trial court abused its discretion in holding that the contemnor’s earning
capacity of $400 per week established that she had the present ability to pay
the $26,000 purge amount). Again, there was no evidence that K.O.J. had
any savings or other assets that would allow her to presently pay the purge
amount. Even if she had been able, notwithstanding her health conditions, to
earn the $300 per week, she was taken into custody and incarcerated
immediately following the hearing, allowing her no time to earn the purge
amount. N.T. at 66-68. The trial court’s reasoning in its Pa. R.A.P. 1925(a)
opinion for imposing the $2,000 purge amount is not supported by the
evidence of record.
While it did not err in holding K.O.J. in contempt, the trial court abused
its discretion in imposing the $2,000 purge amount because the record does
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not support the conclusion, beyond a reasonable doubt, that she had the
present ability to pay that amount. Accordingly, we affirm the finding of
contempt, but vacate in part and remand for the trial court to fashion a new
purge condition that would be sufficiently coercive, but with which K.O.J. could
presently comply. Orfield, supra.
III.
In her final issue, K.O.J. argues that the trial court erred in
demonstrating a pattern of bias and discrimination against her throughout the
contempt proceedings. She argues that the trial court engaged in “an ongoing
pattern of judicial bias manifested through bullying, intimidation, and veiled
threats to deny [K.O.J.] necessary language interpretation.” K.O.J.’s Brief at
32. K.O.J. apparently seeks to have the trial court disqualified from further
proceedings in this matter. Id. at 33-34. As this issue was not raised in the
trial court, it is waived.
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa. R.A.P. 302(a). “[A] party must seek recusal
of a jurist at the earliest possible moment, i.e., when the party knows of the
facts that form the basis for a motion to recuse. If the party fails to present
a motion to recuse at that time, then the party’s recusal issue is time-barred
and waived.” Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017) (citation
omitted). Further, our Supreme Court has held that this court does not have
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the authority to sue sponte order recusal of a trial court judge.
Commonwealth v. Whitmore, 912 A.2d 827, 834 (Pa. 2006).
As a general rule, the proper practice on a plea of prejudice is to
address an application by petition to the judge before whom the
proceedings are being tried. He [or she] may determine the
question in the first instance, and ordinarily his [or her] disposition
of it will not be disturbed unless there is an abuse of discretion.
This is, in part, to allow the requested judge to state his or her
reasons for granting or denying the motion and, as the allegedly
biased party, to develop a record on the matter.
Commonwealth v. Lucky, __ A.3d __, at *9-10 (Pa. Super. Feb. 13, 2020)
(quoting Whitmore, supra). K.O.J. must address her request for recusal to
the trial court in the first instance.7
Order affirmed in part and vacated in part. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
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7 K.O.J. cites Dimonte v. Neumann Med. Ctr., 751 A.2d 205 (Pa. Super.
2000), and Harman ex rel. Harman v. Borah, 756 A.2d 1116 (Pa. 2000),
for the proposition that her recusal claim is not waived if “it appears from all
the circumstances that a timely objection to perceived judicial misconduct
would be meaningless.” K.O.J.’s Brief at 34. However, as she acknowledges,
in both of those cases, the party seeking recusal raised the issue in front of
the trial court through a post-trial motion, allowing the court to address the
claim of bias or misconduct prior to appeal. Dimonte, supra, at 211;
Harman, supra, at 1125. The litigant seeking recusal has the burden of
establishing that raising the issue at the earliest possible time would have
been futile, and the mere allegation that the motion would have been denied
is not sufficient to establish futility. Harman, supra. We acknowledge that
post-trial motions are not permitted in contempt proceedings. Pa. R.C.P.
1910.25-6. However, as the trial court’s assessment of its own impartiality
and the appearance of bias is a “personal and unreviewable decision that only
the jurist can make,” we find it appropriate to be addressed by the trial court
in the first instance. See Overland Enter., Inc. v. Gladstone Partners,
LP, 950 A.2d 1015, 1021 (Pa. Super. 2008).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/20
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