Spencer, C. v. Spencer, L.

J-S43014-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CLINTON W. SPENCER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LYNNETTE D. SPENCER :
:
Appellant : No. 2025 MDA 2018
Appeal from the Order Entered November 21, 2018
In the Court of Common Pleas of Centre County
Civil Division at No(s): 11-1931
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED NOVEMBER 08, 2019
Appellant, Lynnette D. Spencer (“Wife”), appeals from the order entered
in the Centre County Court of Common Pleas, which found her in contempt of
court and imposed sanctions in the form of counsel fees in favor of Appellee,
Clinton W. Spencer (“Husband”). We affirm.
The relevant facts and procedural history of this case are as follows.
Husband and Wife married on October 31, 1998, and separated in August
2010. Husband filed a complaint for divorce and equitable distribution on April
27, 2011. On August 9, 2012, the court entered a divorce decree, reserving
jurisdiction over the issue of equitable distribution. The court held an
equitable distribution hearing on January 27, 2016, which neither Wife nor her
counsel attended. On February 29, 2016, the court entered an equitable
distribution order requiring Wife to pay Husband $89,830.65.
____________________________________
* Former Justice specially assigned to the Superior Court.
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Husband filed a petition for contempt on May 2, 2018, based on Wife’s
failure to make any payments to Husband. On July 25, 2018, Wife filed an
answer and new matter, and the court held a hearing on the contempt
petition. The court held an additional hearing on October 17, 2018. By order
filed on November 19, 2018, with service of the order on November 21, 2018,
the court found Wife in contempt and ordered her to serve six (6) months’
incarceration. The order contained a purge condition of $500.00 per month
beginning in January 2019, and continuing until all money owed was paid.
The court also awarded Husband $2,000.00 in counsel fees. Wife timely filed
a notice of appeal on December 14, 2018. On December 31, 2018, the court
ordered Wife to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), which Wife timely filed on January 22, 2019.
Wife raises three issues for our review:
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY THE ORDER, [FILED] ON NOVEMBER 19,
2018, FINDING [WIFE] IN CONTEMPT FOR FAILING TO
COMPLY WITH THE EQUITABLE DISTRIBUTION ORDER
INASMUCH AS [WIFE] DID PROVE BY THE REQUISITE
STANDARD [WIFE’S] PRESENT INABILITY TO PAY UNDER
SUCH EQUITABLE DISTRIBUTION ORDER?
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY THE ORDER, [FILED] ON NOVEMBER 19,
2018, FINDING [WIFE] IN CONTEMPT FOR FAILING TO
COMPLY WITH THE EQUITABLE DISTRIBUTION ORDER
INASMUCH AS THE TRIAL COURT PREDICATED ITS
DETERMINATION OF [WIFE’S] PRESENT INABILITY TO PAY
UNDER SUCH EQUITABLE DISTRIBUTION ORDER ON
[WIFE’S] POTENTIAL, FUTURE ABILITY TO PAY AND
ESTIMATES THEREOF?
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WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY THE ORDER, [FILED] ON NOVEMBER 19,
2018, AWARDING COUNSEL FEES TO [HUSBAND]
INASMUCH AS, UNDER THE FACTS AND CIRCUMSTANCES
OF RECORD, [WIFE] DID NOT ENGAGE IN CONDUCT
WARRANTING THE AWARD OF COUNSEL FEES, NOR DID
THE EVIDENCE SUFFICE TO PROVE THE AWARD OF
COUNSEL FEES TO [HUSBAND], AND THE AWARD WAS
EXCESSIVE AND UNREASONABLE?
(Wife’s Brief at 5).
On appeal from an order holding a party in contempt of court,
[O]ur scope of review is very narrow, and we place great
reliance on the court’s discretion. The court abuses its
discretion if it misapplies the law or exercises its discretion
in a manner lacking reason. Each court is the exclusive
judge of contempts against its process. The contempt
power is essential to the preservation of the court’s
authority and prevents the administration of justice from
falling into disrepute. Absent an error of law or an abuse of
discretion, we will not disrupt a finding of civil contempt if
the record supports the court’s findings.
In proceedings for civil contempt of court, the general rule
is that the burden of proof rests with the complaining party
to demonstrate that the defendant is in noncompliance with
a court order. To sustain a finding of civil contempt, the
complainant must prove, by a preponderance of the
evidence, that: (1) the contemnor had notice of the specific
order or decree which [she] is alleged to have disobeyed;
(2) the act constituting the contemnor’s violation was
volitional; and (3) the contemnor acted with wrongful
intent. Nevertheless, a mere showing of noncompliance
with a court order, or even misconduct, is never sufficient
alone to prove civil contempt.
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. The contemnor has the burden to
prove the affirmative defense that [she] lacks the ability to
comply. The defense of impossibility of performance is
available to a party in a contempt proceeding if the
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impossibility to perform is not due to the actions of that
party.
Thomas v. Thomas, 194 A.3d 220, 225-26 (Pa.Super. 2018) (internal
citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Brian K.
Marshall, we conclude Wife’s first and second issues on appeal merit no relief.
The trial court opinion comprehensively discusses and properly disposes of
those questions. (See Trial Court Opinion, filed November 19, 2018, at 2-3)
(finding: Wife has failed to comply with equitable distribution order; Wife
works only 7 hours/week for minimum wage, with no indication that Wife has
attempted to secure better employment which would allow her to comply with
equitable distribution order; Wife’s assertion that she is incapable of
complying with equitable distribution order lacks merit; Wife’s current inability
to comply with order is due solely to her inaction in securing more hourly work
for additional income; Wife could reasonably obtain more work than current 7
hours/week and she is, by her own admission, capable of working full-time at
minimum wage job). Therefore, with respect to Wife’s first and second issues
on appeal, we affirm on the basis of the trial court’s opinion.
In her third issue, Wife argues the only statutory authorization for an
award of counsel fees incident to a contempt order is 42 Pa.C.S.A. § 2503(7),
which provides that counsel fees may be awarded as a sanction for “dilatory,
obdurate or vexatious conduct.” Wife contends the evidence presented at
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both contempt petition hearings demonstrated that Wife only pursued
legitimate defenses and claims. Wife further asserts the trial court made no
specific finding of dilatory, obdurate, or vexatious conduct on her part, as
required for the award of counsel fees under Section 2503(7). Wife maintains
this omission renders the award of counsel fees “unfounded, unreasonable,
and excessive.” As a result, Wife concludes the award of counsel fees must
be vacated. We disagree.
An award of counsel fees as a sanction in a civil contempt case is distinct
from the statutory provision for counsel fees under 42 Pa.C.S.A. § 2503(7).
Sutch v. Roxborough Memorial Hospital, 142 A.3d 38, 68-70 (Pa.Super.
2016), appeal denied, 640 Pa. 378, 163 A.3d 399 (2016). An award of counsel
fees under Section 2503(7) “must be supported by a trial court’s specific
finding of dilatory, obdurate or vexatious conduct.” Id. at 69. Section 3502
of the Divorce Code, however, empowers the court to award counsel fees and
costs when a party fails to comply with an order of equitable distribution. 23
Pa.C.S.A. § 3502(e)(7). The purpose of awarding counsel fees in this context
is “to reimburse an innocent litigant for the expenses the conduct of an
opponent makes necessary, such as the cost of the contempt hearing, so it
can be coercive and compensatory but it cannot be punitive.” Sutch, supra.
We review an award of contempt sanctions in the form of counsel fees for an
abuse of discretion. Mrozek v. James, 780 A.2d 670, 674 (Pa.Super. 2001).
Instantly, the court entered an equitable distribution order on February
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29, 2016, requiring Wife to pay Husband $89,830.65. Due to Wife’s failure to
make any payments to Husband for over two years, Husband filed a contempt
petition on May 2, 2018. The court held two hearings on the petition. By
order filed on November 19, 2018, the court found Wife in contempt of the
equitable distribution order and awarded Husband $2,000.00 in counsel fees.
Here, the court was not required to make a specific finding of “dilatory,
obdurate or vexatious conduct” before awarding counsel fees. See Sutch,
supra. Rather, the court based its award of counsel fees on Wife’s contempt
of the February 29, 2016 equitable distribution order. See 23 Pa.C.S.A. §
3502(e)(7). Thus, the trial court’s award of counsel fees to Husband under
Section 3502 of the Divorce Code was not flawed on the ground asserted.1
See id.; Mrozek, supra. Accordingly, we affirm.
Order affirmed.
____________________________________________
1 An appellate court may award counsel fees and costs if it determines that an
appeal is frivolous. Pa.R.A.P. 2744. An appeal is considered frivolous where
it lacks any basis in law or fact. Marino by Marino v. Marino, 601 A.2d
1240, 1250 (Pa.Super. 1992). Nevertheless, “[a]n appeal is not frivolous
simply because it lacks merit.” Winpenny v. Winpenny, 643 A.2d 677, 680
(Pa.Super. 1994), appeal denied, 540 Pa. 603, 655 A.2d 991 (1994), cert.
denied, 516 U.S. 811, 116 S.Ct. 60, 133 L.Ed.2d 23 (1995).
Husband claims Wife’s appeal is frivolous and asks for attorney’s fees and
costs on appeal. Although we do not grant Wife any relief, her appeal was not
wholly frivolous, vexatious, or taken solely for delay. See Pa.R.A.P. 2744;
Marino, supra. Accordingly, Husband’s request for attorney’s fees and costs
on appeal is denied without prejudice to his right as the prevailing party on
appeal to seek taxable costs in the trial court per Rules of Appellate Procedure
2741-2743. See Pa.R.A.P. 2771 (relating to costs on appeal taxable in trial
court in favor of party entitled to costs under this chapter).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/08/2019
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·� I "tr'-- QIII\
IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
CLINTON W. SPENCER )
Plaintiff, ) c:;;,
)
v. ) No. 2011-1931
)
LYNNETTE D. SPENCER
Defendant.
)
)
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Attorney for Plaintiff: H Denning Mason, Esquire
Attorney for Defendant: Thomas M Dickey, Esquire
OPINION AND ORDER
Marshall, J.
Presently before this Court is a Petition for Contempt filed by Clinton W. Spencer
("Plaintiff') on May 2, 2018. On July 25, 2018, Lynnette D. Spencer ("Defendant") filed an
Answer to Plaintiffs Petition for Contempt and New Matter with this Court. On the same day,
the Court heard argument on the Petition for Contempt. The Court entered an order requiring the
parties to submit briefs on all relevant legal issues within twenty (20) days of the transcript being
produced. The transcript was produced and filed for the record on September 26, 2018. A second
hearing was held by this Court again on October 17, 2018. Defendant filed a Brief on October
26, 2018. On the same day, Plaintiff filed a Memorandum of Law in response to issues raised by
Defendant. After hearing testimony on the matter and conducting a thorough review of the
record, this Court determines the Petition for Contempt is GRANTED.
BACKGROUND
This matter arises out of a divorce action between Plaintiff and Defendant. On February
29, 2016, the Honorable Thomas King Kistler entered an equitable distribution Order requiring
the Defendant to pay Plaintiff to the sum of $89,830.65. On May 2, 2018, Defendant filed a
mo ORD OS
Petition for Contempt as a result of Defendant's failure to pay the amount due to him in
accordance with Judge Kistler's February 29, 2016 Order. Defendant argues she should not be
held in contempt because she lacks the present ability to pay the amount set forth in Judge
Kistler's February 29, 2016 Order.
DISCUSSION
In awarding equitable distribution, a court may find a party in contempt for failure to
comply with an order of equitable distribution. 23 Pa.C.S.A. § 3502(e)(9). The purpose of civil
contempt is to "enforce compliance with an order of court for the benefit of the party in whose
favor the order runs." Wetzel v. Suchanek, 541 A.2d 761, 763 (Pa Super. 1988). To be found in
civil contempt, ''the complaining part must show, by a preponderance of the evidence, that a
party violated a court order." Hyle v. Hyle, 868 A.2d 601, 604 (Pa Super. 2005) (citing Sinaiko
v. Sinaiko, 664 A.2d 1005, 1009 (Pa. Super. 1995)). If contempt is proven by preponderance of
the evidence, the contemnor has the burden of proving an inability to comply with the court
order. Sinaiko, 664 A.2d at 1009. This affirmative defense is only available if the impossibility
of performance is not due to the own actions of the contemnor. Cunningham v. Cunningham, 182
A.3d 464, 471 (Pa. Super. 2018). If this affirmative defense is pled, "in imposing coercive
imprisonment for civil contempt, [the court] 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). Thus, a coercive sentence cannot be conditioned on a
performance of an act that is incapable of being performed. In re Martorano, 346 A.2d 22, 27-29
(Pa. 1975).
In the present case, Defendant has failed to comply with this Court's Order dated
February 29, 2016. Although Defendant has made attempts to sell certain assets to obtain
2
additional monies, Defendant is currently only working seven (7) hours per week for minimum
wage. There is no indication that Defendant has attempted to secure better employment, which
would allow her to comply with this Court's Order. This Court finds that Defendant's assertion
that she is incapable of complying with this Court's February 29, 2016 Order is without merit.
Defendant's current inability to comply with the Order is due to her inactions in securing more
hourly work for additional income. This Court finds that it is not unreasonable for Defendant to
obtain more work than her current seven (7) hours per week, and she is in fact, by her own
admission, capable of working full time at a minimum wage job. Therefore, this Court
determines the Petition for Contempt is GRANTED.
ORDER
AND NOW, this 19th day of November, 2018, the Court hereby ORDERS:
1. Defendant is found to be in contempt of court.
2. Defendant shall pay Plaintiffs counsel fee in the amount of $2,000.00.
3. Defendant shall serve six ( 6) months incarceration in the Centre County
Correctional F ac ili ty.
4. Defendant may purge her contempt and avoid incarceration by paying $500.00
per month, beginning in January 2019, and continuing until all monies owed,
inclusive of attorney's fees awarded, are paid in full. Payment shall be made by
money order, cashier's check, certified check, or other guaranteed forms of funds
and must be received by Plaintiff by the last calendar day of each month. Plaintiff
shall keep Defendant apprised of any change to the address to which Defendant
should send payment. Defendant shall inform Plaintiff of any change to her
mailing address.
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5. Within twenty (20) days of the date of this Order, counsel for the parties shall
attempt to agree on the total amount due (inclusive of attorney's fees), following
the application of funds paid by Defendant to Plaintiff between the two hearings
in this matter. If counsel is unable to agree as to the total amount still owed by
Defendant to Plaintiff, the Court remains available for further hearing to
determine this amount.
6. Each party is responsible for keeping detailed records for himself or herself of the
payments made in the event a future dispute arises.
BY THE COURT:
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