Bredbenner, N. v. Hall, M.

J-S21021-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
NICOLE R. BREDBENNER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL HALL, SR. :
:
Appellant : No. 19 MDA 2023
Appeal from the Order Entered December 2, 2022
In the Court of Common Pleas of Lebanon County Domestic Relations at
No(s): 2015-5-0577,
PACSES 257115382
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 15, 2023
Appellant Michael Hall, Sr., appeals from the order finding him in civil
contempt of court for failing to comply with a child support order. Appellant
argues that the trial court erred in imposing a $2,000 purge condition without
determining whether Appellant had the ability to pay at the time he was found
in contempt of court. After careful review, we vacate the trial court’s order
and remand for further proceedings.
The trial court summarized the relevant facts and procedural history of
this case as follows:
[Appellee] Nicole Bredbenner and [Appellant] are the parents of
three (3) children. [Appellant] is currently court-ordered to pay
$340 per month to support his three minor children. This
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* Retired Senior Judge assigned to the Superior Court.
J-S21021-23
represents an . . . obligation of [approximately] $113 per month
per child.
[Appellant] has been a frequent visitor to Child Support Contempt
Court. Since 2015, [the trial court] has been primarily responsible
for adjudicating contempt petitions involving [Appellant].
* * *
On November 15, 2022, [Appellant] appeared in court without
employment. The Domestic Relations Office reported that
[Appellant] had started a job at Henry Molded Corporation [(Henry
Molded)]. However, he lost the job shortly after it started.
[Appellant] stated that he was hired under false pretenses. He
claimed that he was promised a job as a forklift operator but was
instead afforded a job that he was not capable of performing. . . .
[The trial court] appointed a public defender to represent
[Appellant. The trial court] scheduled a factual hearing to
determine the circumstances under which [Appellant] lost his job
at Henry Molded . . . .
[Appellant] appeared once again on November 29, 2022. At this
hearing, Corey Tracey of Henry Molded [] provided testimony. He
stated that [Appellant] was hired as an inspector and not as a
forklift operator. He further stated that Henry Molded had no
forklift jobs available. Mr. Tracey indicated that [Appellant]
appeared for work on October 1, 2022 at 9:30 [p.m.] At
approximately 11:30 [p.m.], [Appellant] wanted to take a smoke
break. When told that he could not do so, [Appellant] walked off
the job. He never returned.
At the time of the November 29, 2022 hearing, [Appellant]
provided medical documentation that was dated [from] 2016.
Even this documentation did not corroborate a claim of disability.
. . . [The trial court] noted that [Appellant] made no voluntary
[child support] payments within one (1) year. [The trial court]
declared [Appellant] to be in contempt for failing to pay his [child]
support. [The trial court] sentenced him to serve 100 days in the
Lebanon County Prison. [The trial court] also established a purge
amount of $2,000.
Trial Ct. Op., 1/26/23, at 2, 4-6 (formatting altered).
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Appellant subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a)
opinion addressing Appellant’s claim.
On appeal, Appellant raises the following issue for our review:
Did the [trial] court err when it gave [Appellant] a purge condition,
following a finding of civil contempt, where the record did not
prove beyond a reasonable doubt that [Appellant] had the present
ability to comply?
Appellant’s Brief at 4.1
Appellant contends that the trial court erred when it set a $2,000 purge
amount without determining whether Appellant had the present ability “to
comply with the purge conditions set by the [trial] court for purging himself
of his contempt.” Appellant’s Brief at 13. Appellant requests that this Court
vacate the trial court’s order and remand the case with an order that a purge
amount reflects Appellant’s present ability to pay. Id. at 20.
In reviewing Appellant’s claim, we are guided by the following principles:
Our scope of review when considering an appeal from an order
holding a party in contempt of court is narrow: We will reverse
only upon a showing of an abuse of discretion. The court abuses
its discretion if it misapplies the law or exercises its discretion in
a manner lacking reason.
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1 We note that Appellant has already served his 100-day jail sentence.
However, the current appeal is not moot because Appellant “remains subject
to the orders of support and a failure to comply with them might again subject
him to contempt proceedings.” Barrett v. Barrett, 368 A.2d 616, 619 n.1
(Pa. 1977).
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Childress v. Bogosian, 12 A.3d 448, 465 (Pa. Super. 2011) (citations
omitted).
In civil contempt cases, it is common “for a court to impose a conditional
prison sentence, giving the contemnor an opportunity to purge the contempt
and avoid the sentence by compensating the opposing party, paying counsel
fees, or doing some other affirmative act within a certain time period.”
Gunther v. Bolus, 853 A.2d 1014, 1016 (Pa. Super. 2004).
This Court has explained:
“The use of the [civil contempt] power to enforce compliance is
exercised with the objective of compelling performance and not
inflicting punishment.” Commonwealth ex rel. Beghian v.
Beghian, [184 A.2d 270, 272 (Pa. 1962)]. In accordance with
this principle, [the Supreme Court has] indicated that a court may
not convert a coercive sentence into a punitive one by imposing
conditions that the contemnor cannot perform and thereby purge
himself of the contempt. . . .
* * *
[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 [b]eyond a reasonable
doubt, from the totality of the evidence before it, the contemnor
has the present ability to comply. Since to condition a person’s
avoidance of or release from imprisonment on his performing acts
beyond his power to perform is in effect to convert a coercive
sentence into a penal one without the safeguards of criminal
procedure, we are of the opinion that the stricter evidentiary
standard of the criminal law should apply with regard to the issue
of present ability.
Barrett, 368 A.2d at 620-21 (some citations omitted).
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Therefore, before a trial court may impose a purge condition in a civil
contempt case, it must determine, beyond a reasonable doubt, that the
contemnor has the ability to comply. Wetzel v. Suchanek, 541 A.2d 761,
764 (Pa. Super. 1988); see also Hyle v. Hyle, 868 A.2d 601, 606 (Pa. Super.
2005) (noting that in a civil contempt proceeding, a purge must be fashioned
in such a manner “which the alleged contemnor has the present ability to
meet”).
Here, at the contempt hearing, Appellant testified that he had been
unemployed since he walked off the job site at Henry Molded on October 1,
2022, but that he was continuing to search for a job. N.T. Hr’g, 11/29/22, at
16. Appellant also testified that he did not have any monthly expenses and
that he was living with his brother, who was financially supporting Appellant
“entirely” until Appellant could find a job. Id. at 12, 16.
After the trial court found Appellant in civil contempt of the support
order, it sentenced Appellant to a conditional prison sentence of 100 days with
a purge amount of $2,000. Id. at 22. Thereafter, the following exchange
occurred:
[Appellant’s counsel]: I would just preserve for the record that the
purge amount is supposed to be set for what the Commonwealth
has beyond a reasonable doubt proven that he can pay as he
stands here. On behalf of my client, he doesn’t have any money
to pay so I believe the $2,000 would be very out of reach for him.
THE COURT: And then he goes to jail. I have found as a fact that
he could be working and he consciously chose not to. And if he
were working, he would have more than enough money to pay
that $2,000. In fact, I will go so far as to tell you that I believe
he is going to pay that purge. I don’t believe he is going to stay
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in jail for that entire period of time. And if I’m wrong, I’ll buy you
a soda.
[Appellant’s counsel]: Understood.
THE COURT: I think he has the $2,000. And he certainly, at a
minimum, could have worked and he would have that $2,000 if
he would have worked. And he has consciously chosen not to
work. He has consciously chosen to do other things. And so I
have done what I have done and I found what I found. We’ll see
if I’m right about him paying that $2,000.
Id. at 23-24.
In its Rule 1925(a) opinion, the trial court explained:
When [the trial court] imposed a purge of $2,000 upon
[Appellant], we did so because we believed he possessed financial
resources that he was not disclosing. [The trial court] believed
that at the time of [its] sentence . . . that [Appellant] possesses
the ability to earn, obtain, or even borrow enough funds to pay
the $2,000 he owes as a purge. We base this belief upon eight
(8) years of experience dealing with [Appellant]. At this point, if
[Appellant] chooses to remain in prison rather than paying the
$2,000 purge, that is a voluntary decision that he has the freedom
to make. Such a decision should not be transformed into a “get
out of jail free without paying support” card.
In addition to the above, [the trial court] needs to emphasize the
obvious. [Appellant] could have worked at a legitimate job, either
at Henry Molded [] or elsewhere. Had he worked at such a job,
he would have been able to pay his child support obligation via
wage attachment. [Appellant] chose not to work, at least not for
a job for which wage attachment would be viable. As in the
Cochran[2] case . . . [Appellant] made a voluntary financial choice
not to work at a job from which child support would be deducted
from his wages. He should not now be rewarded for that choice.
More to the point, neither [Appellee] nor the parties’ children
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2 Commonwealth ex rel. Cochran v. Cochran, 489 A.2d 804 (Pa. Super.
1985) (per curiam).
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should be victimized because of the voluntary choices made by
[Appellant].
Trial Ct. Op. at 13-14 (some formatting altered).
Following our review of the record, we understand the trial court’s
frustration in dealing with Appellant, however, we are constrained to conclude
that the trial court abused its discretion when it set a purge amount of $2,000.
See Childress, 12 A.3d at 465. We observe that the record does not contain
any information regarding the amount of funds that were available to
Appellant, nor does the record reflect whether Appellant possessed any assets.
Accordingly, we are constrained to conclude that there was insufficient
evidence that Appellant had the present ability to pay the $2,000 purge
amount at the time of the contempt hearing. See Barrett, 368 A.2d at 620-
21.
For these reasons, we must vacate the trial court’s order and remand
for further proceedings. On remand, the trial court may receive additional
evidence to assist it in determining the appropriate coercive conditions.
However, the conditions must be such that the court is “convinced beyond a
reasonable doubt, from the totality of the evidence before it, the contemnor
has the present ability to comply.” Wetzel, 541 A.2d at 764 (citations
omitted).
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Order vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2023
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