Crislip v. Harshman

365 A.2d 1260, 243 Pa. Super. 349, 1976 Pa. Super. LEXIS 2988
CourtSuperior Court of Pennsylvania
DecidedNovember 22, 1976
Docket792
StatusPublished
Cited by39 cases

This text of 365 A.2d 1260 (Crislip v. Harshman) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crislip v. Harshman, 365 A.2d 1260, 243 Pa. Super. 349, 1976 Pa. Super. LEXIS 2988 (Pa. Ct. App. 1976).

Opinions

PRICE, Judge.

This is an appeal from a lower court order holding appellant in contempt for failing to make court-ordered support payments. On appeal, appellant raises three issues. We find that the matter must be remanded for a further finding as to the wilfulness of the contempt.

A detailed review of all the background facts is not necessary to our immediate disposition of the case. It will suffice to note, appellant and appellee separated after nine years of marriage which produced four children. Appellee attempted, by recourse to The Pennsylvania Civil Procedural Support Law,1 to secure the payment of support money from appellant, but was largely unsuccessful, notwithstanding various court proceedings and wage attachment orders. The first of several support orders was entered on December 1, 1969. The most recent modification was made on January 16, 1973, directing appellant to pay $50.00 per week.

On March 31, 1975, an order of the lower court informed appellant that he was apparently $8,508.25 in arrears on support orders. Appellant was directed to appear for a hearing on April 24,1975.

[352]*352Appellant appeared with counsel at the hearing. After taking testimony, the judge found that appellant was in contempt of court for failing to make the payments as provided by the various orders. At this time, appellant was informed that if he did not pay $2,000.00 on the arrearages within sixty days he would be imprisoned.

A second hearing was scheduled for July 15, 1975, to determine if appellant had paid the $2,000.00. The $2,000.00 had not been paid and appellant was imprisoned. Appellant appealed to our court and filed a motion in the lower court for an order of supersedeas. This motion was denied and appellant filed a similar motion with our court. We granted supersedeas.

Appellant first argues that the procedure followed by the lower court did not comply with the requirements for a civil contempt proceeding. Five elements are essential to a civil contempt adjudication: (1) a rule to show cause why an attachment should not issue, (2) an answer and hearing, (3) a rule absolute (arrest), (4) a hearing on the contempt citation, and (5) an adjudication of contempt. Simmons v. Simmons, 232 Pa.Super. 365, 335 A.2d 764 (1975). A review of the proceedings here employed indicates that appellant was procedurally afforded the requisite protection.

There is no doubt that the lower court order of March 31, 1975, informing appellant that he was in arrears on payments due on the various support orders and that he was to appear on April 24, 1975, for a hearing, constitutes a rule to show cause. Appellant did appear and at that time he orally answered the charge against him.

By informing appellant of the nature of the meeting scheduled for April 24, 1975, the court was in effect setting a date certain for appellant to answer the charges, i. e., the date of this first hearing. At this first hearing, appellant gave testimony concerning his income, expenses, and the amount of support he had paid. He also at[353]*353tempted to explain why he had failed to comply with the orders and why he had not petitioned for a modification of the order.

Following the taking of testimony, the judge found that appellant was in contempt of court. This finding was, admittedly, premature. The judge should have made the rule absolute and scheduled another hearing to determine the merits of the contempt charge. Instead, the judge gave appellant an opportunity to purge himself of the contempt by fulfilling a condition imposed by the court. The court set a date for a second hearing at which the issue of contempt would be finally adjudicated. If, at the second hearing, appellant had successfully complied with the condition promulgated by the court, the contempt finding would have been reversed. July 15, 1975, was set as the date for this second hearing.

At this second hearing, it became apparent that appellant had not successfully purged himself of the contempt citation. After once more hearing testimony as to appellant’s financial history, the trial judge again found appellant in contempt and sentenced him to 30 days in the county jail in lieu of a $2,000.00 payment on the arrearages.

We are, therefore, faced with a situation wherein appellant was given two hearings before any official sanctions were leveled against him. Although the nomenclature ascribed to the various hearings by the lower court conveys, on the surface, a message inconsistent with the rules, when we bore through the terminology and extract the core of the hearings, we find that, in substance, the procedures employed comply with the requirements.

Although the hearing of April 24, 1975, resulted in a finding of contempt rather than a determination that the rule was not discharged, the result of the court’s determination was the same as simply making the rule absolute. A second hearing was scheduled, thus affording appellant all of the necessary procedural requirements. [354]*354Appellant suffered no punishment until after the determination of contempt in the second hearing. He was informed of the charge against him and apprised of the means of purging himself of contempt and of avoiding punishment. That is all that is required by the rules.

Appellant next contends that the evidence elicited at the contempt hearing was insufficient to prove that he wilfully failed to comply with the court support orders. Our review of the evidence convinces us that, on the record presently before us, it is impossible to make an objective determination of the propriety of the contempt citation.

The Pennsylvania Civil Procedural Support Law provides as follows:

“(b) Any wilful failure to comply with any order of the court may be deemed a contempt of court and except in counties of the first class may be punishable by the court by commitment to the county jail or house of correction. In counties of the first class, any person who is found, after hearing, to have wilfully failed to comply with any order of the court may be adjudged in contempt of court and may be punished by the court by commitment to the county jail or house of correction until compliance with said order, but in no case for a period exceeding six (6) months, and the court in its order shall state the condition which upon fulfillment will result in the release of such person.” Act of July 13, 1953, P.L. 431, § 9 (62 P.S. § 2043.39(b)), as amended.

“Wilful” has been defined as “an intentional, designed act and one without justifiable excuse.” Commonwealth ex rel. Wright v. Hendrick, 455 Pa. 36, 40, 312 A.2d 402, 404 (1973).

In the case at bar, appellant testified that he had failed to pay the support orders because he was unemployed and had no funds. He also testified that his ex-[355]*355wife was aware of his unemployed status and that he had notified a counselor in the Family Division of his employment problems. He stated that he assumed that the arrearages would not accumulate while he was unemployed, but he did admit that he did not apply for a cancellation of arrearages.

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Bluebook (online)
365 A.2d 1260, 243 Pa. Super. 349, 1976 Pa. Super. LEXIS 2988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crislip-v-harshman-pasuperct-1976.