Cumberland County C&Y v. Smith, J.

• Court: Superior Court of Pennsylvania
• Decided: March 16, 2023
• Docket: 531 MDA 2022
• Status: Unpublished

Opinion

J-A27028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CUMBERLAND COUNTY CHILDREN : IN THE SUPERIOR COURT OF AND YOUTH : PENNSYLVANIA : : v. : : : JOSEPH M. SMITH : : No. 531 MDA 2022 Appellant :

Appeal from the Judgment of Sentence Entered March 3, 2022 In the Court of Common Pleas of Cumberland County Domestic Relations at No(s): 00064 S 2020

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 16, 2023

Joseph A. Smith appeals from the judgment of sentence imposed after

the court found him to be guilty of indirect criminal contempt for failing to

appear at a child support hearing. Smith argues the evidence was insufficient

to prove that he had notice of the order to appear or that he willfully failed to

comply, and that the court abused its discretion in sentencing him to a period

of incarceration. We affirm.

In April 2021, the Cumberland County Children and Youth Services

(“CYS”) filed a complaint for child support against Smith.1 The court ordered

Smith to appear, via Zoom, for a support conference on July 8, 2021, at the ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 CYS had previously filed a complaint in January 2020, which was dismissed in April 2020. Both complaints stated Smith resided on High Mountain Road in Shippensburg. J-A27028-22

court’s Domestic Relations Section (“DRS”). The court sent the order to Smith

at an address on Koser Road in Shippensburg, via certified mail. See Order of

Court, 5/27/21. An officer filed an affidavit of personal service stating he

handed a copy of the order to Smith at that address. See Affidavit of Personal

Service, 6/3/21, at 1. It showed Smith’s signature under the Acceptance of

Service. Id. at 2.

The record is silent as to whether Smith attended the support

conference.2 On July 8, 2021, the court ordered him to pay $1,152 per month

in child support, including arrears. See Trial Court Opinion, 5/31/22, at 1.3

The order stated, “Parties must within seven days inform the Domestic

Relations Section . . . in writing, of any material change in circumstances

relevant to . . . the administration of the support order, including, but not

limited to . . . change of personal address[.]” Order of Court – Allocated,

7/8/21, at 4. It also stated, “A party who willfully fails to report a material

change in circumstances may be adjudged in contempt of court, and may be

fined or imprisoned.” Id. The order stated copies were delivered to the parties

that same day, July 8, 2021. Id.

____________________________________________

2 The Rules of Civil Procedure provide that the court may enter a support order if a notified party fails to attend the conference. See Pa.R.C.P. 1210.11(b), 1910.12(b)(2).

3The support order in the record, dated the same day of the hearing, requires Smith to pay $1,268 per month in support, with arrears of $4,137 to be due immediately. The discrepancy between the figures does not affect our analysis.

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CYS filed a petition for contempt in September 2021 (“the civil contempt

petition”), alleging Smith had failed to make any child support payments. The

court scheduled a hearing for September 27, 2021. It issued an order requiring

Smith to appear at the hearing, stating, “If you do not appear in person, the

court may issue a warrant for your arrest and you may be committed to jail.”

Order of Court, 9/13/21, at 1.

Smith failed to appear for the hearing. The court rescheduled it for

October 27, 2021. The court issued another order requiring Smith to attend

the hearing. See Order of Court, 9/29/21, at 1. In included the same language

as the previous order regarding the potential for jail time. See id.

Smith again failed to appear. The court issued a bench warrant for his

arrest. The bench warrant was executed, and Smith was arrested. The court

rescheduled the hearing for 1:30 p.m. on March 3, 2022.4

At 11:12 a.m. that morning, CYS filed a petition for indirect criminal

contempt (“the criminal contempt petition”) under 23 Pa.C.S.A. § 4344 based

on Smith’s failure to appear at the October 27 hearing. The court issued an

order requiring Smith to appear for a hearing on the criminal contempt petition

that afternoon, in conjunction with the previously scheduled hearing on the

civil contempt petition.

4 In the interim, due to the release of the children from CYS custody, Smith’s support order was modified such that no new support was due, and arrears in the amount of $11,201.24 became due at a rate of $1,000 per month. See Order, 2/9/22, at 1.

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At the hearing on the two petitions, CYS presented the testimony of

Scott Houser, a conference officer for the DRS. Regarding the failure to pay

support, Houser presented a print-out from the computer system used to track

the payments made in Smith’s case and testified that Smith had never made

any payments toward his support obligation. N.T., 3/3/22, at 8.

Regarding the failure to attend the civil contempt hearings, Houser

testified that at the time the petition was filed, Smith’s address of record with

the DRS was a P.O. box in Walnut Bottom. Id. at 9. He stated the DRS mailed

the order requiring Smith to attend the October 27 hearing to the Walnut

Bottom address. Id. at 10. He also testified that the DRS submitted a postal

verification to the postmaster of Walnut Bottom, which was returned by the

postmaster with the response, “Mail is delivered at address given.” Id. at 10,

11; Plaintiff’s Ex. 2 at 4. Houser stated that Smith never contacted the DRS

to provide a change of address. N.T. at 17.

Houser testified that he was unaware of whether Smith has ever

physically been to the DRS. Id. at 14. However, Houser said that another

conference officer’s summary stated that Smith had called the DRS on one

occasion to ask for a continuance of an earlier enforcement conference. Id.

Houser testified that despite having a P.O. box as Smith’s address of record,

officers of the court had arrested Smith at a residence when they executed

the bench warrant. Id. at 12. Houser did not know the address of the

residence. Id.

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Smith countered that CYS had failed to prove he had received notice of

the order to appear on October 27. Smith made other arguments regarding

why he did not pay support or receive notice of the October 27 hearing, which

the court noted were premised on extra-record facts. Id. at 23.

The court found Smith in civil contempt for failing to pay support, and

guilty of indirect criminal contempt for willfully failing to appear for the October

27 contempt hearing. Citing Godfrey v. Godfrey, 894 A.2d 776 (Pa.Super.

2006), the court found the uncontested facts were that the order was mailed

to Smith at the address he had provided to the DRS. Trial Ct. Op. at 4. The

court therefore concluded that Smith had had notice of the hearing and that

he willfully and intentionally failed to appear. Id. The court sentenced him to

three to six months’ imprisonment for the finding of indirect criminal contempt

and a consecutive 12 months’ probation for the finding of civil contempt.

Smith appealed. He states his issues as follows:

I. Did the court err when it found Mr. Smith in indirect criminal contempt, where the evidence was insufficient to prove beyond a reasonable doubt that Mr. Smith received notice and willfully and intentionally defied the order to appear for court?

II. Did the court abuse its discretion in sentencing Mr. Smith to a period of incarceration without procedural safeguards in place where Mr. Smith was not given any other opportunity to comply and where incarceration for indirect criminal contempt should be used as a last resort?

Smith’s Br. at 6.

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I. Sufficiency of the Evidence

Smith first argues the evidence was insufficient to prove indirect criminal

contempt because CYS did not present any evidence that he had received

notice of the original support order or knew of the requirement that he update

the DRS with his address, let alone notice of the order requiring him to appear

for a hearing on October 27. He points out that while Houser testified that his

mailing address with the DRS at the time of the order scheduling the hearing

was the P.O. box, Houser did not testify as to how the DRS obtained that

address or that Smith had ever even been to the DRS. Smith argues that while

there was testimony that he had contacted the DRS once to request a

continuance, Houser did not explain how the DRS identified Smith as the

caller. He points out that Houser testified that officers of the court later located

and arrested Smith at a residential address.

Smith therefore argues that the evidence was insufficient to prove he

had actual notice of the October 27 hearing and that he voluntarily or with

wrongful intent failed to appear. Smith contends that 23 Pa.C.S.A. § 4353,

which was at issue in Godfrey, only provides that notice regarding the

enforcement of a support order may be satisfied when the DRS exercised “due

diligence” in locating a party, and when written notice was delivered at the

party’s last residential address — not P.O. box — filed with the DRS.

“Indirect criminal contempt is a violation of a court order that occurred

outside the court's presence.” Commonwealth v. McMullen, 961 A.2d 842,

849 (Pa. 2008). Its purpose is to vindicate the authority of the court and

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punish willful disobedience. Commonwealth v. Bowden, 838 A.2d 740, 760

(Pa. 2003); Fatemi v. Fatemi, 537 A.2d 840, 845 (Pa.Super. 1988). We

review a finding of indirect criminal contempt for an abuse of discretion.

Commonwealth v. Baker, 766 A.2d 328, 331 (Pa. 2001). “An appellate court

cannot find an abuse of discretion merely for an error of judgment unless, in

reaching a conclusion, the trial court overrides or misapplies the law, or its

judgment is manifestly unreasonable, or the evidence of record shows that

the court's judgment exercised is manifestly unreasonable or lacking in

reason.” Id.

Evidence is sufficient to support a conviction for indirect criminal

contempt when, viewed in the light most favorable to the verdict winner, it

could allow the fact-finder to find every element of the crime beyond a

reasonable doubt. Commonwealth v. Brumbaugh, 932 A.2d 108, 109

(Pa.Super. 2007). “Any doubts regarding a defendant’s guilt may be resolved

by the fact-finder unless the evidence is so weak and inconclusive that as a

matter of law no probability of fact may be drawn from the combined

circumstances.” Id. at 109-10.

The elements of indirect criminal contempt are: (1) “the court’s order

was definite, clear, specific, and leaving no doubt in the person to whom it

was addressed of the conduct prohibited,” (2) “the contemnor had notice of

the order,” (3) “the act constituting the violation was volitional,” and (4) “the

contemnor acted with wrongful intent.” McMullen, 961 A.2d at 849; see also

Baker, 766 A.2d at 331. Formal service is not required, so long as the party

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charged with indirect criminal contempt had knowledge of the order. See

Commonwealth v. Stevenson, 283 A.3d 196, 205-06 (Pa. 2022).5 “The

inquiry must be whether the person’s knowledge was such that a contempt

citation for disobedience to the order could not be said to constitute unfair

surprise.” Commonwealth v. Fladger, 378 A.2d 440, 443 (Pa.Super. 1977).

Section 4344 of the Domestic Relations Code specifically provides for a

finding of criminal contempt based on a party’s willful failure to comply with

“a duly served order”:

§ 4344. Contempt for failure of obligor to appear

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.A. § 4344.

In Godfrey, we considered the notice requirement for a finding of

indirect criminal contempt under Section 4344. The defendant in Godfrey

argued he had never received notice of the order requiring him to appear for

a support hearing. 894 A.2d at 779. The DRS presented evidence that notices

of the hearing were sent by regular and certified mail to the defendant’s last ____________________________________________

5 See also In re Messmore’s Estate, 141 A. 724, 726 (Pa. 1928) (explaining liability for contempt arises where a party had actual, personal knowledge of a court order, even where the order has not been served upon them).

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known residential address — these went returned and unclaimed — and the

defendant testified that he lived at the address “off and on” that season and

still had personal effects at that address. Id. at 779, 781. The defendant had

also been found in civil contempt for failure to pay support three times in the

preceding three years. Id. at 779, 779 n.2.

The trial court in Godfrey found the defendant guilty. It relied on

Section 4353(a.1), which provides,

(a.1) Delivery.--In any subsequent child support enforcement action between the parties, upon sufficient showing that due diligence has been made to ascertain the location of a party, the court or the department may deem due process requirements for notice and service of process to be met with respect to the party upon delivery of written notice to the most recent residential address or employer address filed with the domestic relations section or the department pursuant to subsection (a).6

23 Pa.C.S.A. § 4353(a.1). We affirmed, concluding DRS had acted with due

diligence to locate the defendant and had sent the order to the defendant’s

last known residential address, satisfying notice pursuant to Section

4353(a.1). Godfrey, 894 A.2d at 781. We accordingly affirmed the court’s

finding that the defendant had willfully failed to appear. Id.

We do not find Godfrey controlling, as Section 4353(a.1) only applies

when notice was sent to a defendant’s last known residential address.

Evidence of mailing an order to a P.O. box therefore does not invoke the

statute’s exception to the notice requirement. See 23 Pa.C.S.A. § 4353(a.1). ____________________________________________

6 Subsection (a) requires a party to update the DRS of any change in “personal” address. 23 Pa.C.S.A. § 4353(a).

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Nevertheless, we find Godfrey instructive, and the evidence sufficient

to prove Smith had knowledge of the order he violated. CYS presented

testimony that Smith had contacted the DRS regarding the support action on

at least one occasion; he was therefore aware of the action and how to contact

the DRS.7 It also presented evidence that the DRS mailed the order requiring

Smith’s attendance at the October 27 hearing to the address it had on file for

him.8 See Pa.R.C.P. 236, Note (providing prothonotary may send notice of

court order by mail); see also Pa.R.C.P. 1910.25(d)(1) (providing petition for

contempt for failure to pay support may be served by ordinary mail). Finally,

CYS presented evidence that the postmaster verified that this mailing address

was active. See Pa.R.C.P. 1910.13-1(a)(2)(i) (providing court may issue

bench warrant for failure to appear at a contempt hearing for failure to pay

support, so long as there is evidence that DRS sent scheduling order by mail

and verified the address with the postmaster). This evidence was sufficient for

the court to conclude that Smith had knowledge of the order requiring him to

appear on October 27. See Stevenson, 283 A.3d at 206.9 ____________________________________________

7The record also reflects that Smith was served, in person, with notice of the original support hearing.

8 We observe this was not the same as the address used to notify Smith of the initial support conference, indicating that he had subsequently updated DRS with a change of address.

9 Cf. Commonwealth v. Verga, No. 1544 MDA 2020, 2021 WL 5297525, at *2 (Pa.Super. Nov. 15, 2021) (unpublished memorandum) (finding evidence insufficient to support indirect criminal contempt conviction for violation of PFA (Footnote Continued Next Page)

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II. Sentencing

Smith argues the court abused its discretion in imposing a sentence of

incarceration where less severe sanctions were appropriate. He argues that

Section 4344 provides for alternative punishments – fines, probation, or

incarceration – because a court must “fashion an appropriate sentence”

according to the facts of each case. Smith’s Br. at 22. Smith argues that his

sentence of incarceration was unwarranted under the facts of his case since it

was his first proceeding for failure to pay, and “[n]o previous sanctions were

imposed to encourage [him] to comply with the order or to encourage him to

participate in the contempt hearing process;” for instance, he had never had

the opportunity to purge the finding of civil contempt for failure to pay before

being found in criminal contempt for failure to appear. Id. at 22. He contends

that his periods of failure to pay and failure to appear were much shorter than

the four-year period at issue in Godfrey. Id. at 21-22.

An appellant does not have an absolute right to appeal a discretionary

aspect of his sentence. Commonwealth v. Radecki, 180 A.3d 441, 467

(Pa.Super. 2018). Rather, we will consider the issue where the appellant (1)

filed a timely notice of appeal, (2) properly preserved the issue in the court

below, (3) included a Pa.R.A.P. 2119(f) statement in his brief, and (4) raised

order where there was no evidence that anyone had sent a copy of the PFA order to the defendant, personally served the defendant, or otherwise notified the defendant of the existence of the order, and trial court relied only on fact that the record and docket did not indicate an order had ever been returned as undeliverable).

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a substantial question that the sentence is “inconsistent with a specific

provision of the Sentencing Code” or “contrary to the fundamental norms

which underlie the sentencing process.” Id. at 467, 468 (citation omitted).

Smith preserved his discretionary sentencing claim below, filed a timely

notice of appeal, and included a Pa.R.A.P. 2119(f) statement in his brief.

Smith’s argument that his sentence of three months’ incarceration was

excessive based on his failure to appear at a support hearing raises a

substantial question. Id. at 467 (noting an argument that a sentence is

excessive only raises a substantial question where there is a plausible

argument that the sentence is prima facie excessive based on the criminal

conduct involved). However, we conclude Smith is not entitled to relief.

A sentencing court has broad discretion in sentencing, and we will

disturb the exercise of that discretion only upon a manifest abuse of discretion.

Commonwealth v. Rosario, 248 A.3d 599, 613 (Pa.Super. 2021), appeal

denied, 262 A.3d 1258 (Pa. 2021), and cert. denied sub nom. Rosario v.

Pennsylvania, 142 S. Ct. 1143 (2022). “We must accord the sentencing

court’s decision great weight because it was in the best position to review the

defendant’s character, defiance or indifference, and the overall effect and

nature of the crime.” Id. (citation omitted).

A court may impose a penalty of incarceration for the following reasons:

(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;

(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or

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(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

42 Pa.C.S.A. § 9725. “Although Pennsylvania’s system stands for

individualized sentencing, the court is not required to impose the minimum

possible confinement.” Radecki, 180 A.3d at 470 (citation omitted).

The court sentenced Smith to three to six months in jail for his failure

to attend the second contempt hearing the court had scheduled following

Smith’s failure to pay his court-ordered child support. Therefore, Smith’s

argument that he was sanctioned for his “first” failure to comply with the

orders of the court holds no weight, as he not only failed to comply with the

order scheduling the October 27 hearing, but with the original support order

and the order requiring him to appear at the first contempt hearing.

Furthermore, while a finding of civil contempt for failure to pay must afford a

contemnor further opportunity to purge the contempt, a court does not need

to offer any such opportunity to purge upon a finding of criminal contempt, as

the goal of the sanction is not to obtain compliance, but to punish non-

compliance. If the court had merely found Smith in civil contempt for failure

to pay his child support, his two failures to appear would have had zero

repercussions. The court did not abuse its discretion in sentencing Smith to

three months to vindicate its authority and avoid depreciating the seriousness

of Smith’s actions.

In conjunction with his discretionary sentencing claim, Smith also

argues he was deprived of procedural due process. Smith’s Br. at 20. He

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asserts that the last-minute notice of the criminal contempt petition gave him

inadequate time to prepare a defense, particularly where he was not

transported to the courthouse, but was participating from the prison by Zoom.

Id. at 23.

Smith failed to preserve his due process argument in the trial court.

Smith did not ask for a continuance or object to the criminal contempt hearing

on the basis that he had not had sufficient time to prepare a defense or that

he was not physically present for the hearing, or otherwise present the issue

below. He therefore waived it. Pa.R.A.P. 302(a); see Commonwealth v.

Stultz, 114 A.3d 865, 885 (Pa.Super. 2015) (“due process sentencing claims

are waivable”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/16/2023

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