Roy, S. v. Roy, J.

• Court: Superior Court of Pennsylvania
• Decided: March 13, 2024
• Docket: 1869 EDA 2023
• Status: Unpublished

Opinion

J-S02036-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

SIMONE T. ROY : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN C. ROY : : Appellant : No. 1869 EDA 2023

Appeal from the Order Entered July 6, 2023 In the Court of Common Pleas of Northampton County Domestic Relations at No(s): Docket No: 37520

BEFORE: LAZARUS, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 13, 2024

Appellant John C. Roy files this pro se appeal from the order entered by

the Court of Common Pleas of Northampton County finding Appellant in civil

contempt for failing to pay court-ordered support. Appellant claims the trial

court erred in imposing coercive imprisonment with a purge condition that

Appellant did not have the present ability to meet. We are constrained to

vacate the trial court’s order in part and remand for further proceedings.

In June 2020, the trial court ordered Appellant to pay $1,841 per month

in support and arrearages for his wife, Simone T. Roy, and the parties’ three

children. Notes of Testimony (N.T.), 6/13/23, at 2, 4. Thereafter, Appellant

did not pay his court-ordered support and his whereabouts were unknown for

a substantial amount of time.

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* Former Justice specially assigned to the Superior Court. J-S02036-24

Nearly three years later, after Appellant had been located, a contempt

petition was filed against Appellant on February 10, 2023. At a March 14, 2023

hearing, the trial court held Appellant in contempt for his failure to pay court-

ordered support. N.T. at 2. The trial court sentenced Appellant to six months’

imprisonment with work-release eligibility and set the purge amount at

$2,500. Appellant paid the purge amount immediately and was released.

On April 11, 2023, Appellant filed a petition to modify his support

obligations. After a hearing, the trial court entered an order on June 12, 2023,

reducing Appellant’s support obligations to $1,488.00 per month ($1,240.00

for basic support and $248.00 for arrears) for two children as one of the

parties’ children had reached the age of majority and spousal support was

eliminated as a result of the parties’ divorce. N.T. at 2-3. The trial court

calculated the support obligation using the assessed earning capacity for both

parties. In particular, Appellant’s earning capacity was assessed as the income

of a construction manager, a position he had held for ten years before he

voluntarily left this line of work to move to the Philippines, where Appellant

claimed to earn significantly less income.

In the meantime, as Appellant had not paid any support since the

$2,500 purge condition in March 2023, another contempt petition was filed

against Appellant in May 2023. At a hearing held on June 13, 2023, the

conference officer reported that Appellant’s total costs and arrears had

amounted to $31,196.53. N.T. at 3.

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Appellant testified that at the time the original support order was

entered, he worked as a handyman 80 hours/week and lived out of his truck.

N.T. at 6-7. Appellant indicated that during the COVID-19 pandemic, he met

a woman online, got married, moved to the Philippines, and had a baby with

his new wife. N.T. at 6-7.

While Appellant averred that he and his new wife started a call center

business in the Philippines, it required significant expenses, which resulted in

less income. N.T. at 6-8. Appellant admitted that he received $40,000 in

Paycheck Protection Program (PPP)1 loans during the COVID-19 pandemic,

which he invested into an unsuccessful gym venture. N.T. at 8. The conference

officer interjected that Appellant had previously told her that he invested

$75,000 into the gym venture, which Appellant admitted was correct. N.T at

9. Appellant informed the trial court that his wife and new child were still in

the Philippines and alleged that his passport had been revoked due to his

extensive arrearages in support obligations at issue in this case.2

Simone Roy, Appellant’s ex-wife, testified that while Appellant had

claimed that he had lived in his truck when the initial support order was

entered, Appellant had two rental apartments which provided him income

1 PPP loans were backed by the U.S. Small Business Administration to help

“businesses keep their workforce employed during the COVID-19 crisis.” https://www.sba.gov/funding-programs/loans/covid-19-relief-options/ paycheck-protection-program. 2 Federal law authorizes the U.S. State Department to revoke, restrict, or limit

a previously-issued U.S. passport of a parent who has child support arrearages of at least $2,500. See 42 U.S.C. § 652(k).

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from Airbnb of over $90,000 when the couple had filed a joint tax return during

their marriage. N.T. at 15-16.

Appellant did not provide the trial court with an income and expense

statement. While the trial court pointed out that Appellant paid $2,500

immediately when the trial court had previously found him in contempt in

March 2023, Appellant indicated he borrowed that sum from another individual

and it took Appellant two months to pay the loan back. N.T. at 4-5.

Appellant admitted he had the ability to work and had been going to job

interviews to find employment. N.T. at 8. Appellant asked if he could get the

trial court $2,000 by the end of that week, but the trial court found that offer

to be insufficient given Appellant’s extensive arrearages. N.T. at 12. When the

trial court asked Appellant how much money he thought he could make on

work release, Appellant indicated he could make $1,500/month. N.T. at 18.

Appellant also shared that he had a court hearing the following day to seek

$11,000 from an unknown individual. N.T. at 21.

At the conclusion of the hearing, the trial court found Appellant in

contempt and sentenced him to six months’ imprisonment with immediate

work release eligibility. The trial court indicated that it set a purge condition

of $9,000, as it found that there was “no indication that [Appellant] for

whatever reason is unable to work.” N.T. at 21. Further, the trial court

reasoned that as Appellant had testified that he could possibly earn

$1,500/month on work release, Appellant had admitted that he had the ability

to pay $9,000 through six months of work release. N.T. at 21.

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Immediately thereafter, Appellant fell to the floor and asked to be shot

so that his children would get survivor benefits. N.T. at 19. When the sheriff

declined to shoot Appellant and indicated he would carry Appellant out of the

courtroom, the trial court directed that Appellant be put on suicide watch. N.T.

at 22-23. Appellant promised to get up if he was not put on suicide watch.

N.T. at 23. Appellant was escorted out of the courtroom.

While the trial court announced its finding of contempt in court at the

June 13, 2023 hearing, a final order was not filed until July 5, 2023 and was

sent to the parties on July 6, 2023.3 This timely appeal followed.4

On appeal, Appellant claims the trial court erred in imposing a purge

amount that he was unable to pay.5 As noted above, the trial court sentenced

3 Our courts have held that “an order is not appealable until it is entered on

the docket with the required notation that appropriate notice has been given.” Carr v. Michuck, 234 A.3d 797, 805 (Pa.Super. 2020) (quoting Frazier v. City of Philadelphia, 735 A.2d 113 (Pa. 1999)). 4 After the appeal was filed, Appellant filed an application for writ of habeas

corpus. On October 13, 2023, this Court entered a per curiam order denying the application without prejudice for the trial court to review the application for writ of habeas corpus filed in the trial court. This Court directed the trial court to make a determination as to the application and transmit a decision including an explanation for its reasons to this Court. In an order and opinion dated October 23, 2023, the trial court denied Appellant’s petition for writ of habeas corpus. Appellant has not appealed or challenged this decision. 5 Appellant’s brief does not comply with our rules of appellate procedure which

require that the argument section of the brief “be divided into as many parts as there are questions to be argued,” and shall include “such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). While Appellant included nine issues in his “Errors in Court’s memorandum opinion” section of his brief, his argument section of the brief only addresses one claim. Thus, we limit our analysis to Appellant’s developed claim that the trial court erred in imposing a purge amount beyond his present ability to pay.

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Appellant to six months’ imprisonment and set a $9,000 purge amount after

finding Appellant in contempt for failing to pay court-ordered support.

Our standard of review is as follows:

This court's review of a civil contempt order is limited to a determination of whether the trial court abused its discretion. Bold v. Bold, 207 Pa.Super. 365, 939 A.2d 892, 894–895 (2007). “If a trial court, in reaching its conclusion, overrides or misapplies the law or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias or ill will as shown by the evidence of record, then discretion is abused.” Gates v. Gates, 967 A.2d 1024, 1028 (Pa.Super. 2009).

Cunningham v. Cunningham, 182 A.3d 464, 471–72 (Pa.Super. 2018).

To properly analyze Appellant’s argument, it is essential to understand

the difference between civil and criminal contempt:

[c]ivil contempt has as its dominant purpose to enforce compliance with an order of court for the benefit of the party in whose favor the order runs, while criminal contempt has as its dominant purpose, the vindication of the dignity and authority of the court and the protection of the interest of the general public. This distinction between civil and criminal contempt is important because the type of contempt being punished will determine the manner in which the contempt is to be adjudicated as well as the punishment which may be imposed. It must be noted that the characteristic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of civil contempt by complying with the court's directive.

Godfrey v. Godfrey, 894 A.2d 776, 782 (Pa.Super. 2006).

Appellant was found in civil contempt for noncompliance with a support

order pursuant to 23 Pa.C.S.A. § 4345 which provides:

(a) General rule.--A person who willfully fails to comply with any order under this chapter, except an order subject to section 4344 (relating to contempt for failure of obligor to appear), may, as

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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 $1,000.

(3) Probation for a period not to exceed one year.

(b) Condition for release.--An order committing a defendant to jail under this section shall specify the condition the fulfillment of which will result in the release of the obligor.

23 Pa.C.S.A. § 4345.

Our courts have held that:

“[t]o be found in civil contempt, a party must have violated a court order.” Hyle v. Hyle, 868 A.2d 601, 604 (Pa.Super. 2005) (citing Garr v. Peters, 773 A.2d 183, 189 (Pa.Super. 2001)). Therefore, “the complaining party must show, by a preponderance of the evidence, that a party violated a court order.” Id. (citing Sinaiko v. Sinaiko, [] 664 A.2d 1005, 1009 ([Pa.Super.] 1995)). “The alleged contemnor may then present evidence that he has the present inability to comply and make up the arrears.” Id. (citing Barrett v. Barrett, 470 Pa. 253, 264, 368 A.2d 616, 621 (1977)).

When the alleged contemnor presents evidence that he is presently unable to comply [with a support order]

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.

Id., at 604–605 (quoting Barrett, 470 Pa. at 264, 368 A.2d at 621) (emphasis in original).

Godfrey, 894 A.2d at 782–83. Our Supreme Court has explained that a trial

court must be convinced beyond a reasonable doubt of an individual’s present

ability to comply with the purge condition for a coercive sentence for civil

contempt as “[a] trial court cannot condition a person’s avoidance of release

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from imprisonment on his performing acts beyond his power to perform[,

which would] in effect[,] convert a coercive sentence into a penal one without

the safeguards of criminal procedure.” Barrett, 368 A.2d at 621.

Appellant does not challenge the trial court’s decision to find him in

contempt. Since Appellant’s support obligation was established in June 2020

requiring Appellant to pay both child and spousal support, Appellant did not

make any payment other than the $2,500 he submitted in March 2023 to

purge himself from the previous contempt finding. As a result, Appellant

concedes that he has accrued substantial arrearages which amounted to

$31,196.53 at the time of the hearing at issue.

However, Appellant claims that the trial court abused its discretion in

imposing the $9,000 purge condition when the trial court had not made a

proper finding that Appellant was capable of paying that amount at the time

he was found in contempt. We are constrained to agree.

“[T]he law in this Commonwealth is [] that the trial court must set the

conditions for a purge in such a way as the contemnor has the present ability

to comply with the order.” Godfrey, 894 A.2d at 782–83 (quoting Hyle, 868

A.2d at 605) (emphasis in original).

Clearly, if the contemnor presently lacks the resources to fulfill his duty of support, he is not likely to obtain them while languishing in prison. Thus the justification for imprisonment in civil contempt cases ceases if such imprisonment can have no coercive effect, and imprisonment under such circumstances is an abuse of the court's discretionary power in civil contempt.

Barrett, 368 A.2d at 621.

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In Barrett, our Supreme Court concluded that the trial court had

improperly committed Barrett to a term of imprisonment for civil contempt

when there was insufficient evidence that Barrett had the present ability to

comply with the purge condition. Barrett had given “essentially uncontradicted

but also uncorroborated” testimony that he voluntarily left his job, was

supported by his girlfriend, and his only assets were vehicles that did not have

any resale value. Id. The Supreme Court found that while the trial court was

not bound by Barrett’s testimony as to his financial resources, the trial court

could not make a finding of Barrett’s present resources, as a basis for coercive

imprisonment, “without support in the record other than the husband’s lack

of credibility.” Id.

Similarly, in Hyle, this Court affirmed the trial court’s order finding Hyle

in contempt for his failure to pay court-ordered support but vacated the purge

condition of $2,500. In that case, the trial court had determined that the

purge amount was “well within [Hyle’s] means to accomplish by working for a

short period of time” and made Hyle eligible for work release so that he could

obtain employment. Hyle, 868 A.2d at 605.

This Court found that Hyle did not have the present ability to comply

with the purge amount, but rather his ability to comply would only occur

sometime in the future as Hyle first had to find employment and then earn

$2,500 while in prison. Thus, this Court vacated the purge condition and

remanded for the “trial court to determine what conditions will be sufficiently

coercive yet enable [Hyle] to comply with the order.” Id. at 606. See also

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Godfrey, 894 A.2d 783 (finding trial court’s order setting purge amount was

improper as it required the appellant to secure employment while in prison,

which was “clearly punitive in nature”).

Likewise, in this case, the trial court did not evaluate Appellant’s present

ability to comply with the $9,000 purge amount that it set. The trial court

emphasized that Appellant was not a credible witness as to his income and

assets, but did not make any finding relevant to Appellant’s present resources.

Further, the trial court specifically stated that its rationale for imposing this

purge amount was the lack of evidence that Appellant could not work and

Appellant’s testimony that he could possibly earn up to $1,500 a month once

he found employment. N.T. at 21. The trial court’s insistence that Appellant

would be able to obtain employment and earn $9,000 while on work release

only points to his future ability to comply with the court’s order, not his present

ability to pay the purge amount.

Thus, although the trial court was warranted in finding Appellant in

contempt, there was insufficient evidence in the record to show Appellant had

the present ability to comply with the $9,000 purge amount to avoid

imprisonment. We acknowledge that the trial court was understandably

frustrated with Appellant’s failure to pay court-ordered support for his children

and former spouse. However, “[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.” Barrett, 368 A.2d at 621.

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Accordingly, we must vacate the order setting the purge amount at

$9,000 and remand for the trial court to impose conditions that will be

“sufficiently coercive yet enable Appellant to comply with the order.” Hyle,

868 A.2d at 606. The trial court may choose to receive additional evidence in

making this determination. We also note that “the trial court is also free to

choose to adjudicate [Appellant] for indirect criminal contempt, provided that

[Appellant] is afforded all of the procedural rights and safeguards afforded to

criminal defendants.” Id.

Order affirmed in part and vacated in part. Case remanded for further

proceedings consistent with this decision. Jurisdiction relinquished.

Date: 3/13/2024

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