Opinion

Nonemacher, K. v. Nonemacher, S.

Court: Superior Court of Pennsylvania
Filed: Mar 3, 2025
Status: Unpublished
On the bench: King
Cited by: 0 cases
Authority: More cited than 34.3%

The opinion

J-S41018-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

KELLI NONEMACHER : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

SEAN NONEMACHER :

Appellant : No. 861 EDA 2024

Appeal from the Order Entered February 20, 2024

In the Court of Common Pleas of Montgomery County Domestic Relations

at No(s): 2022-DR-01065,

PACSES: 892301655

BEFORE: MURRAY, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY KING, J.: FILED MARCH 3, 2025

Appellant, Sean Nonemacher (“Father”), appeals pro se from the order

entered in the Montgomery County Court of Common Pleas, which found him

in contempt for failing to make support payments to Appellee, Kelli

Nonemacher (“Mother”). We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. (See Trial Court Opinion, filed

7/8/24, at 1-11). Therefore, we have no reason to restate them.

Father raises the following issues for our review:

Did the trial court err and abuse its discretion by finding

[Father] to be in contempt of court?

Did the trial court err and abuse its discretion by imprisoning

[Father] without rendering findings of fact into the financial

ability to pay the fines/purge amount and costs related?

J-S41018-24

Did the trial court err and exercise bias and ill will in denying

[Father] access to resources to convey/pay the purge

amount?

Did the trial court abuse its discretion and misapply the law

in the calculation and award of counsel fees?

Did the trial court err and abuse its discretion in failing to

inform and appoint legal counsel for [Father]?

(Father’s Brief at 4).

“In reviewing a trial court’s finding on a contempt petition, we are

limited to determining whether the trial court committed a clear abuse of

discretion.” Rogowski v. Kirven, 291 A.3d 50, 57 (Pa.Super. 2023) (quoting

P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa.Super. 2012)). “This Court must

place great reliance on the sound discretion of the trial [court] when reviewing

an order of contempt.” Id.

A person who willfully fails to comply with a support order may be

adjudicated in contempt, which may be punishable by imprisonment for a

period not to exceed six months. 23 Pa.C.S.A. § 4345(a). If the court

commits a defendant to jail for contempt, the court shall specify in its order

“the condition the fulfillment of which will result in the release of the

[defendant].” 23 Pa.C.S.A. § 4345(b). Additionally, “[i]f the court determines

that the person subject to a child support order did not have good cause for

failing to make child support payments on time, it may further assess costs

and reasonable attorney fees incurred by the party seeking to enforce the

order.” 23 Pa.C.S.A. § 4351.

A contempt order used to coerce a parent into paying a support

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J-S41018-24

obligation and arrearages is properly characterized as civil. See Barrett v.

Barrett, 470 Pa. 253, 260, 368 A.2d 616, 619 (1977). This Court has declined

to impose an automatic right to court-appointed counsel for all civil contempt

proceedings involving an indigent defendant’s failure to pay court-imposed

fines and costs. Commonwealth v. Diaz, 191 A.3d 850, 862 (Pa.Super.

2018).1 Rather, “an indigent defendant’s right to court-appointed counsel is

triggered in any proceeding in which the court finds there is a likelihood of

imprisonment.” Id. at 862 (footnote omitted).

[U]pon the trial court’s determination at the civil contempt

hearing that there is a likelihood of imprisonment for

contempt and that the defendant is indigent, the court must

appoint counsel and permit counsel to confer with and

advocate on behalf of the defendant at a subsequent

hearing. An indigent defendant has the option of knowingly,

intelligently, and voluntarily waiving that right to appointed

counsel.

Id. at 862-63.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable, Daniel J.

Clifford, we conclude Father’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

In his first and second issues combined, Father argues that the court

____________________________________________

1 Although Diaz began as a criminal matter with the entry of a guilty plea for

retail theft charges, the parties agreed that the appellant subsequently

proceeded to a civil contempt hearing due to his failure to pay certain fines

and costs. See Diaz, supra at 861.

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J-S41018-24

erred in finding him in contempt because the court failed to consider the

evidence Father put forth demonstrating that he did not have the present

ability to pay the amount ordered by the court. The court explained that prior

to the court’s order of incarceration, Father had participated in seven

enforcement proceedings and been found in contempt on three occasions.

(See Trial Court Opinion at 17-19). At each hearing, the court reviewed the

pay stubs Father submitted and determined that Father had the ability to pay

but chose to prioritize the payment of other expenses in his life over the

payment of child support.2 (Id.) Accordingly, the court did not err in finding

Father in contempt of court and imposing imprisonment for willful non-

compliance with the support order. See Rogowski, supra.

In his third issue, Father claims that the court exhibited prejudice and

bias against Father when it failed to promptly provide Father with an order

setting forth the purge amount and denied Father the use of a phone at the

____________________________________________

2 Father cites to Commonwealth v. Smetana, 191 A.3d 867, 873 (Pa.Super.

2018) to support his claim that the court erred in finding him in contempt. In

Smetana, this Court concluded that the trial court erred by failing to make a

determination that the appellant, in his own capacity, had the ability to pay

the outstanding fines prior to imprisoning the appellant for contempt of court.

Notably, the trial court in Smetana had relied on the appellant’s

acknowledgement that he could have potentially borrowed money from a

sibling to pay the fine. Here, the court reviewed Father’s pay stubs and

expenses and determined that Father had the financial ability to pay the court

ordered support amount. The court merely noted as additional support of its

decision that Father’s mortgage and various lifestyle expenses were being paid

by Father’s father and girlfriend. Therefore, Smetana is distinguishable and

does not entitle Father to relief.

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J-S41018-24

Montgomery County Correctional Facility. The court found that there was no

merit to Father’s claim because Father was provided with a copy of the

contempt order at the conclusion of the February 20, 2024 hearing, which

clearly set forth the amount Father was required to pay to purge his contempt.

(See Trial Court Opinion at 19-20). Additionally, the court noted that all

defendants are provided access to a telephone at the detention center in the

courthouse and the Montgomery County Correctional Facility. 3 (See id.)

In his fourth issue, Father asserts that the court erred in ordering him

to pay Mother’s counsel fees because “the extensive contempt proceedings

and litigation was at no fault of [Father].” (Father’s Brief at 10). The court

determined that Father willfully reduced his work hours in an attempt to

reduce his future support obligations and justify his failure to pay his past

support obligations. (See Trial Court Opinion at 21-23). The court concluded

that Father’s conduct, which resulted in many enforcement and contempt

proceedings, was obdurate and vexatious and warranted the award of

attorney fees to Mother. (See id.) Additionally, we note that the court found

Father in contempt of court three times for failing to pay his support

____________________________________________

3 Father’s brief fails to meaningfully develop his argument that the court

exhibited prejudice or bias towards Father and fails to support this claim with

relevant authority. See In re Estate of Whitley, 50 A.3d 203, 209

(Pa.Super. 2012), appeal denied, 620 Pa. 724, 69 A.3d 603 (2013)

(reiterating that “[t]his Court will not consider the merits of an argument

which fails to cite relevant case or statutory authority”). As such, Father has

waived this claim.

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J-S41018-24

obligations as ordered without just cause. As such, the court had discretion

to order Father to pay reasonable attorney fees incurred by Mother in seeking

to enforce the order, and we cannot say the court abused its discretion in this

case. See 23 Pa.C.S.A. § 4351.

In his fifth issue, Father argues that the court erred in failing to appoint

counsel to represent Father in a proceeding where there was a likelihood that

Father could be imprisoned. The court explained that Father was provided

with a notice of his right to counsel, but Father signed a waiver and elected to

proceed pro se. (See Trial Court Opinion at 23-25). Further, the court

informed Father that the proceedings could result in incarceration, but Father

did not rescind his waiver or request for counsel to be appointed. See Diaz,

supra.

Based on the reasoning set forth above and described in greater detail

in the court’s opinion, we affirm on the basis of the trial court’s opinion. 4

Order affirmed.

____________________________________________

4 The trial court has suggested that this Court remand this matter to award

Mother counsel fees incurred during this appeal. We decline the trial court’s

invitation to do so because (1) Mother has not requested this relief; and (2)

after the contempt hearing where Father was imprisoned, Mother elected to

proceed pro se. As Mother is pro se on appeal, there is no basis to award her

counsel fees incurred with this appeal.

-6-

J-S41018-24

Date: 3/3/2025

-7-

03:06 PM

Circulated 02/06/2025 03.06

IN THE COURT

IN THE COURT OF

OF COMMON

COMMON PLEAS OF MONTGOMERY

PLEAS OF MONTGOMERY COUNTY,

COUNTY, PENNSYLVANIA

PENNSYLVANIA

CIVIL ACTION

ACTION --LAW

LAW

KELLI NONEMACHER NO.

N0. 2022-DR-01065

2022-DR-01065

PLAINTIFF

PACSES

PACSES NO.

NO. 892301655

861 EDA

EDA 2024

SEAN NONEMACHER

NONEMACHER

DEFENDANT

OPINION

Clifford, Daniel J July 8,

July 8, 2024

2024

Appellant,

Appellant, Sean Nonemacher, files this appeal from the Order entered by

by the undersigned

undersigned

on February 20, 2024 in this child support enforcement matter.

FACTUAL AND PROCEDURAL HISTORY

PROCEDURAL HISTORY

Appellant is Sean Nonemacher

Nonemacher (hereinafter "Father"). Appellee is Kelli Nonemacher

(hereinafter Father").

("Mother).

The parties hereto were married on June 9, 2012 and have two minor children.

On August

August 10,

10, 2021, Mother

Mother filed

filed aaComplaint

Complaint for

for Divorce

Divorce with

with the Prothonotary

the Prothonotary

requesting equitable distribution, child

requesting child support, spousal support

support, spousal support and/or alimony

alimony pendent

pendent lite,

lite,

children. t A

payment of counsel fees and primary custody of the parties' children.' Complaint for

A separate Complaint

Alimony Pendente

Alimony Pendente Lite

Lite (APL), and aaComplaint

(APL), and Complaint for

for Child

Child Support,

Support, was filed

filed about

about aayear

year later

later

on August 11, 2022 with the Domestic Relations Office. Z

See Agust

'See August 10, 2021 Complaint in Divorce — Docket No.

No, 2021-16792.

2021-16792

See

2.See August

Agust 11,H, 2022 Complaint for Support.

On September

On September 21,

21, 2022,

2022, a Conference was

a Conference was conducted

conducted before

before aaDRO

DRO Conference

Conference Officer

Officer

on Mother's

on request for

Mother's request for child

child support

support and

and APL.

APL. An

An Interim Order was

Interim Order was entered

entered on

on that

that same date

same date

directing Father

directing pay a

Father to pay of $3,079.97

a total of $ 3,079.97 a

a month allocated as follows:

follows:

$1,341.50 Basic child support

support

$538.56 Child care

$220.12 Medical Insurance paid by

Insurance paid by Mother

Mother

$728.28 APL

$251.51 Mortgage deviation

Mortgage deviation paid

paid by

by Mother

Mother

$3,079.97 Total

The Order

Order also

also provided

provided for

for the payment of

the payment of arrears

arrears at $615 per month,

at $615 for aatotal

month, for of

total of

$3,694.97 aamonth,

$3,694.97 month, "with all arguments reserved

"with hearing."

reservedfor the record hearing." 3

February 27, 2023, aarecord hearing

On February hearing was conducted before the Support

Support Hearing

Hearing

Officer.

Officer. 4 Both

Both parties

parties were

were represented

represented by legal counsel

by legal counsel at

at the Hearing. The

the Hearing. The Officer

Officer issued

issued aa

See September 21,2022

See

J September 21, 2022 Order of

of Count

Court — Support

Support Order

Order (Una] located/Alternative).

(Unallocated/Alternative)

°The child support

Te child support proceedings were

were subject to Pennsylvania Rule of

of Civil Procedure 1910.12. Office Conference

Procedure 1910.12. Conference.

Hearing. Record.

Hearing. Exceptions. Order., as

Record Exceptions. as observed by the

the Montgomery County Court

Montgomery County Court of Common Pleas,

Pleas, which

which

provides the

the following:

following

"(d) The

"(ad The hearing

hearing officer

officer shall receive evidence,

shall receive hear argument,

evidence, hear argument, and

and not

not later

later than

than 20

20 days

days

after

after the close of

the close of the record, file

the record file with court a

with the court report containing

a report containing a

arecommendation

recommendation with

with

respect entry ofan order of

respect to the entry ofsupport...

support

(e) The court, without hearing

(e) hearing the parties,

parties, shall enter an interim order consistent with

proposed order of the hearing

the proposed hearing officer.

officer. Each party

parry shall be provided,

provided, either in person

person at

the time

time of the hearing

hearing or by marl, with

by mail, with aacopy

copy of the interim

interim order and written notice that

any party

any party may,

may, within twenty days

days after

after the

the date of receipt or the date of mailing

of receipt mailing of the

order, whichever occurs first,

firs, file

file with the domestic relations section written exceptions

exceptions to

the report

report of the hearing officer

officer and interim order.

order

(h) If

(h) If exceptions filed, the interim order shall continue in effect

exceptions are filed, effect The court shall hear

argument exceptions and enter an appropriate

argument on the exceptions appropriate final

final order substantially in the form

set forth

forth in Rule 1910.27(e)

191027(e) within

wthin sixty

sixty days

days from

from the date of filing of exceptions to the

ofthe filing the

interim

interim order...

order.. "

-2-

of S2,8

Recommendation on March 2, 2023 directing Father to pay Mother the amount of $2,8 17 per

per

follows:

month as follows

$1,283 Base child

child support

support

$576

$576 APL

$234 Medical insurance paid by

insurance paid by Mother

Mother

$453 Child care

$271 Mortgage deviation paid

Mortgage by Mother

paid by

$2,817 Total

The aforementioned Order also provided payment of

provided for the payment of $300 aamonth on arrears for

aatotal of $3,117.'

total of $3,117. 5

The amount

The amount of

of support

support was

was based

based upon

upon the Officer's specific

the Officer's specific income

income determinations

determinations for

for

parties as set forth

both parties forth in

in the

the" of Fact" section of the

Findings of

Findings Order. 6

the recommended Order."

Mother had been employed

employed as

as an

an administrative

administrative assistant at Souderton Area School

District for the past six years

the past years and had aa2022 gross of $30,743 0r

gross income of or $2,289

$2,289 net monthly.

monthly.

Father had

Father had worked

worked at United Drilling

at United Drilling for

for the

the past

past 18 years. His

I8 years. His gross

gross income

income was

$93,511 in

$93,511 2020, $92,220

in 2020, $92,220 in 2021 and

in 2021 and $92,486

$92,486 in 2022. x Te

in 2022.' The Officer's

Officer's Report

Report contained

contained

extensive additional

additional findings

findings as to Father's income

income as follows:

follows:

"Until last year, paternal grandfather was

tti! president and aalarge shareholder of

was president

United Drilling.

United Drilling

for part

Per Mother and confirmed by Father, Father had no bank accountfar pant of

the marriage.

the marriage

2, 2023 Recommendation

'See March 2,2023 Recommendation (Generic).

(Generic)

' Id

6 Id.

Id.; see September

7 September 26, 2023 Notes of Testimony, pg.

pg. 10; see also December 20, 2023 Notes of Testimony, pg.

pg. 14

and February

FebrAry 20, 2024 Notes of Testimony pg. 13.

pg. 13

-3-

Father has

Father has a child support

a child support obligation

obligation from Tennessee [for

from Tennessee [for another

another child from aa

prior relationship)and his bank account was frozen

prior relationship] frozen to collect past due support.

support

Therefore, he closed his bank account and received cash in lieu of aapaycheck

from his

from his employer.

employer

periodically took his pay

Father also periodically in cash to avoid child support

pay in support

garnishment.

garnishment

Mother believes

Mother Father is able

believes Father able to

to manipulate his income as result

manipdate his result ofpaternal

ofpaternal

grandfather's

grandfather 's close ties with United Drilling.

Drilling

Father's past desire to avoid his child support obligation for his other child lend

Father's past

credibility Mother's

credibility to Mother argument.

's argument

Father has bought

Father ahome and a

bought a anew

new vehicle

vehicle.

Father has vacationed

Father vacationed in

in Hawaii and Lake

Hawaii and Lake Tahoe courtesy

courtesy of

ofhis

his girlfriend

girlfriend.

Father has mew

father new tattoos also courtesy

tattoos also courtesy of his

his girlfrie

girlfriend. " 8

The Officer found Father's net monthly income to be $5,706. 9

Thereafter, Father filed timely Exceptions to the Officer's Recommendation.

The Exceptions were argued before the Honorable Wendy Demchick-Alloy on May 25,

2023 with an Order entered on that same date. The Order granted Father's first exception, with

regard

regard to aaminor correction to the Officer's medical insurance calculation, which was remanded

to the Officer. In all other aspects, the Recommended Order by the Officer was affirmed.

affirmed." 10

A Supplemental Order was then entered by the Officer on June 9, 2023 adjusting the

medical insurance provided by Mother to the amount of

of $207 per month

month (instead of 234

(instead of $234 from

the first Order). • • Tis

Order).'' This changed Father's support obligation to $2,790 per month, plus $305 on

account of arrearages,

arrearages, for

for aatotal of

of $3,095 a

amonth.'

month. 12

'gee March 2, 2023 Recommendation (Generic)

8See March 2, 2023 Recommendation (

Generic).

4 1d.

gee

See May 25,

11 2023 Bench Order

25,2023 Order — Establishment.

Establishment

'gee June 9, 2023 Recommendation (Generic)

11 See June 9,2023 Recommendation (

Generic).

12gee

See June

June 9, 2023 Supplemental

Supplemental Order

Order Pursuant to Remand

Pursuant to Remand.

-4-

The terms of the aforementioned Supplemental

Supplemental Order provided for the filing of

Exceptions within 20 days

days on page

page 3. There were no Exceptions filed.

There was no appeal of the Officer's Supplemental Order or Judge Demchick-Alloy's

May 25, 2023 Order

Order.

Simultaneous to all of the proceedings for the establishment of the support Order, as

outlined above, enforcement proceedings

proceedings also commenced due to Father's failure to comply

comply with

the payment of support

support (pursuant

(pursuant to the Order's then in place).

place)

On January 5, 2023, a

a proceeding before aaDRO Hearing Officer was conducted. An

directing Father to pay

Order was entered directing pay $3,699.97

$3,699,97 by January 24, 2023 or directing Father to

appear at another DRO enforcement proceeding

proceeding on January 25`

25".h.The Order contained the

letters: "FAILURE TO PAY OR APPEAR MAY RESULT IN

following language in bold letters:

BEING SCHEDULED FOR A

A CONTEMPT COURT HEARING"

HEARING." "

On March 8, 2023, another proceeding before a

a DRO Hearing Officer was conducted.

An Order was entered holding

holding aafinding "in abeyance" pending

finding of contempt "in payment of

pending Father's payment

$3,122

$3,122 on March

March 24, 2023. The Order

Order further provided that,

that, if

if Father

Father did not comply,

comply, he

he was

directed to appear in Courtroom 13 on March 28, 2023. The Order contained the following

following

language letters: "FAILURE TO PAY OR APPEAR MAY RESULT IN A

language in bold letters: A BENCH

WARRANT."

WARRANT' 14

On March 28, 2023, Father appeared before the Honorable Kelly C. Wall, with his legal

counsel. To avoid aafinding of contempt

contempt of Court, Father agreed to pay $961.58 by April 4,

'#See

See January $,

5, 2023 Order

Order.

See March 8, 2023 Order

See

14 Order.

.5.

2023.

2023. The Order further

The Order further provided

provided that,

that, if

if Father

Father did

did not

not comply,

comply, he

he was directed

directed to

to re- appear

re-appear

before Judge

Judge Wall on April

April 4, 2023.

2023,I9 11

On July

July 20, 2023, another proceeding

proceeding before aaDRO Hearing

Hearing Officer was conducted. An

Order was entered holding

holding a

a finding

finding of contempt

contempt "in abeyance" pending Father's payment

"in payment of

$4,200 by

by August 2023. 16 The

August 22, 2023.I° Te Order further provided that, if Father did not comply,

comply, he was

directed to appear

appear at

at another

another DRO enforcement proceeding August 23,

proceeding on August 23, 2023.

2023. The

The Order

contained the following

following language

language in bold letters:

letters: "FAILURE TO PAY OR APPEAR MAY

RESULT IN BEING SCHEDULED FOR A

A CONTEMPT COURT HEARING." 17

On August 23, 2023, another proceeding

proceeding before aaDRO Hearing

Hearing Officer was conducted.

An Order was entered holding

holding aafinding

finding of contempt "in abeyance" pending

contempt "in payment of

pending Father's payment

by September

$6,300 by September 19, directing Father

19, 2023 or directing Father to appear for

to appear for another DRO

DRO enforcement

enforcement

proceeding on September 20, 2023. The Order contained tthe

2023,I Te 18 he following

following language

language in bold

letters: "FAILURE TO PAY OR APPEAR MAY RESULT IN BEING SCHEDULED FOR A

letters. A

CONTEMPT COURT HEARING."

HEARING." "

September 20, 2023, another proceeding

On September proceeding before a

a DRO Hearing Officer was

conducted. An Order was entered holding

holding aafinding contempt "in

finding of contempt "in abeyance" pending

pending Father's

payment

payment of by September

of $6,190 by September 22, 2023 or directing

directing Father to appear

appear before the undersigned

undersigned

See March 28, 2023 Order of Civil Contempt

'See

1s Contempt.

See

See July 20, 2023 Order of Court -

16 — Contempt

Contempt (Agreement).

(Agreement).

R id.

See August

'See

18 August 23, 2023 Order of Court -— Contempt(Agreement)

Contempt (Agreement).

re1Id

-6-

in Courtroom 10

I0 on September

September 26, 2023. Te

26, 2023. 20 The Order contained following langua

contained the following language

ge in

in bold

bold

letters: "FAILURE TO PAY OR APPEAR MAY RESULT IN A

letters: WARRANT."

A BENCH WARRAN T 21

On September 26, 2023, Father appeared before the undersigned monthly DRO

undersigned on the monthly

Enforcement list.

list. By the time of that proceeding, there had been aatotal of seven

seven (7)

(7) enforcement

proceedings before DRO Hearing Officers in 2023; plus the contempt

contempt Hearing

Hearing before Judge

Judge

Wall.

At the outset of the Hearing, the undersigned addressed the status of Father's legal

le gal

counsel, Alan D. Williams, Esquire, as his appearance was still listed on the support

support docket. The

The

Court entered aaRule of Show Cause directing Attorney Williams to explain

explain his absence. 22 Out

of an

of an abundance

abundance of

of caution,

caution, Father

Father was

was also

also provided

provided with the "

with the ofRight

Notice of

"Notice to Counsel

Right to Counsel and

and

Hearing" Form.

Form. On the Form, Defendant specifically checked the

Defendant specifically the following

following option:

option:

"1 choose to proceed

"] proceed in this matter without representation.

representation.'"

Form in several places and signed the Form at the bottom. In

Father initialed the For

addition, the undersigned confirmed, on the record, that the Form had been provided

provided and signed.

signed

Following testimony, the undersigned issued an Order finding

finding Father in contempt

contempt of

Court and directing him to pay $4,500 by October 13, 2023 or to re-appear

re-appear in Court on October

see September

2° See September 20, 2023 Order of Court -

2023 Order of — Contempt

Contempt (Agreement).

(Agreement)

2'Id.

22 In his Answer to the Rule, Attorney Williams indicated that he was not present "due to prior instructions from

n his Answer to the Rule, Attorney Williams indicated that he was not present due to prior instruction from

Defendant he wold

Defendant that he would handle

handle support contempts on his own " and that

hi sown" that he had not attended many of the

the last

several contempt

several contempt proceedings with Father,

proceedings with Father; See Answer

Answer to

to Rule.

Rule.

23 See Notice of Right to Counsel; see also September 26, 2023 Notes of Testimony pg.

See Notice of Right to Counsel; see also September 26, 2023 Notes of Testimony pg. 12-13.

12-13

-7-

17,2023.

17, 14 The

2023.' The Order clarified that

that the undersigned provided

the undersigned provided Father

Father with

with credit

credit for all of the

support 2023 "Final

support payments he had made since the entry of the May 25, 2023 although,

Final Order" although,

technically, at

at that juncture, the full arrearages in the amount of $ 14,076.93 were eligible

of $14,076.93 eligible for

collection. is

collection. "

On October 11, just two days

1H, 2023, just prior to the October 13`

days prior 13"h payment

payment deadline in the

26 th Order, Father filed a

September 26 a Petition

Petition to

to Modify with DRO.

DR9. 26 Notably,

Notably, this

this Petition

Petition was

filed by

filed by Father

Father barely

barely four

four months

months after

after the "Final Order"

the "Final Order" for

for support

support was

was entered

entered on

on May

May 25th

by Judge Demchick-Alloy (which

Judge Demchick-Alloy (which Father did not appeal).

appeal). Father's Petition to Modify

Modify sent the

parties back, yet

parties again, on the

yet again, the "merry-go-round" support litigation.

"menry-go-round" of support litigation.

On October

October 16, 2023, on

16, 2023, on the day prior

the day prior to

to the relist Court

the relist Court date

date before

before the undersigned set

the undersigned set

forth

forth in

in the September 26

the September 26 th Order,

Order, Father

Father appealed the September

appealed the September 26,

26, 2023

2023 Order

Order to

to the

the Superior

Superior

Court of Pennsylvania.

Pennsylvania.27 At

At that

that point, although

although not

not required

required to postpone enforcement

to postpone enforcement

proceedings

proceedings on an interlocutory

interlocutory Order, the undersigned

undersigned proceeded

proceeded to enter an Order on

November 14, 2023

2023 to continue the proceedings pending

the proceedings appeal. 28

pending determination of the appeal.

On November

On November 17,

17, 2023,

2023, the Superior Court entered

the Superior entered an

an Order

Order deeming

deeming the

the September

September 26,

26,

2023 Order as

as "interlocutory"

"interlocutory" and proceeded

proceeded to appeal. "

to "quash" Father's appeal. 29

see

ISee September

September 26, 2023 Order of Court -

— Contempt

Contempt (Non Agree).

(Non Agree)

2s Id.

2 See October

26 gee October 11,2023

11, 2023 Petition

Petition — Modification/Termination/Reinstatement of an

Modification/Termination/Reinstatement of an Existing

Existing Support Order.

Suppont Order

see October 16, 2023 Notice of Appeal

21 See October 16, 2023 Notice of Appeal.

gee

See November 14, 2023 Bench Order

28 Order— Enforcement

Enforcement.

gee

See November 17, 2023 Superior Count

29 Court Documents

Documents.

-8-

Father then

Father then reappeared before the

reappeared before the undersigned

undersigned on

on the monthly DRO

the monthly DRO Enforcement

Enforcement list on

list on

December 20,

December 20, 2023.

2023. Following

Following testimony, the undersigned

testimony, the found Father

undersigned found Father to

to be

be in

in contempt

contempt of

Court,

Court, yet

yet a

a second time, and

second time, he was directed

and he directed to

to pay

pay $$5,600

5,600 before

before January

January 5, 2024 or

5, 2024 or to

to re-

re-

appear back

appear in Court

back in Court on

on January 9, 2024.

January 9, 2024. 30 Father

Father was

was also directed to

also directed to pay

pay $$1,580

1,580 in

in counsel

counsel

fees directly to Mother's Counsel and

and $108

$ 108 directly

directly to Mother

Mother (for

(for her lost wages

wages in attending

attending

proceedings). " Once again,

the enforcement proceedings)." again, the undersigned provided Father

undersigned provided Father with

with credit for

for the

the

support payments

support payments he had made since the May 25 1h Final

May 25 "Final Order" although,

although, technically,

technically, at that

juncture, the

juncture, the full

full arrearages

arrearages in

in the

the amount

amount of $ 17,085.72 were

of $17,085.72 were eligible

eligible for collection.

for collection.

January 9, 2024

The January 2024 proceeding

proceeding was continued at

at the

the request

request of Mother's

Mother's Counsel and

and

February 20,

rescheduled to the DRO Enforcement List on February 20, 2024.

2024.

On February

February 20,

20, 2024, following

following testimony, undersigned found Father in contempt

testimony, the undersigned contempt of

Court, yet aathird time, and he was directed to pay

pay $2,500 forthwith. 32 Unlike the prior

prior two

contempt Orders, this Order provided

contempt provided for Father to be remanded to Montgomery County

County

Correctional Facility

Facility "for aaperiod

period of six months or until payment

payment thereof." Father was also

directed to pay,

pay, within 30 days, $2,780 in counsel fees directly

30 days, directly to Mother's Counsel and

and $$162

162 to

Mother directly

directly (again

(again for lost wages

wages in attending

attending the enforcement proceedings)."

proceedings). 33 In this Order,

as with the prior undersigned gave

prior two, the undersigned gave Father credit

credit for support payments

for the support payments he

he had paid

paid

see

See December 20, 2023 Order of Court

30 Court — Contempt

Contempt (Non Agree).

(Non Agree)

31 Id,

see

32See February

February 20, 2024 Order of Court -— Contempt

Contempt (Non Agree).

(Non Agree)

33 The lost wages to

re amount of counsel fees, and lost to Mother, represented the cumulative amounts owed through the

three contempt hearings.

-9-

since the entry

entry of the May 25`h Final

May 25 "Final Order" although, technically, at that juncture, the full

arrearages in

arrearages in the amount of

the amount $ 18,603.30 were

of $18,603.30 were eligible for collection.

eligible for collection. "

As may

may be obvious to the reader via the extensive history as set

set forth above, but merits

emphasis

emphasis in

in this

this Opinion at this

Opinion at point nevertheless,

this point is the

nevertheless, is the very

very detailed,

detailed, multi-step,

multi-step, process that

process that

the Montgomery

the County Family

Montgomery County Family Count

Court observes

observes in

in the

the approach

approach to

to child

child support

support enforcement

enforcement.

Although

Although there Judges assigned

there are seven Judges assigned to

to the Family

Family Court Division,

Division, the

the process

process is

is managed

managed

by the same two Judges

Judges each month

month (Judge

(Judge Wall and the undersigned) to ensure both consistency

of practice further, that

practice and, further, that Defendants reappear

reappear before the

the same

same Judge

Judge in subsequent

proceedings (to

proceedings guarantee that the Judge

(to guarantee Judge is familiar with the history of the case).

case), 35 The

The process

is also designed

designed to ensure that every

every effort has been made to address aaparent's payment of child

support prior

support prior to resorting

resorting to the ultimate sanction of incarceration.

incarceration. In every support case, as

demonstrated in this case, there are numerous enforcement proceedings before DRO Hearing

Officers before the matter is even listed before a

Officers Judge for

a Judge for aacontempt hearing. Once listed

listed

before

before aaJudge,

Judge, there

there are often multiple

are often contempt proceedings

multiple contempt before the

proceedings before same Judge,

the same Judge, over

over

months, to work with Defendants to ensure they can make child support payments.

several months, payments. For

unemployed parents,

unemployed parents, our Family Court has implemented two employment programs.

programs. The first

one involves an out-source employment

employment agency

agency that will work with Defendant's to identify their

educational background

background and employment

employment history and arrange for actual job placements.

placements. The

second program

program involves aalocal refuse company that will provide employment at an hourly

wage,

wage, well above the minimum

minimum ($ 18.00 an hour), plus

($18.00 plus medical insurance and benefits. This

Opinion to emphasize the significant, and often painstaking,

information is included in this Opinion

See September

See

September 26,

26, 2023 Notes

Notes of Testimony,

Testimony, "D- I", pg.

"D-I", pg. 24; see also December 20, 2023 Notes of Testimony,

"Exhibit D-

Exhibit l", pg.

D-I", pg. 38 and February

February 20, 2024 Notes of Testimony

Testimony "Exhibit

Exhibit D-1,"

D- 1," pg. 29-37.

By the time of this Opinion,

'By

33 Opinion, aathird Judge

Judge has been added to the Division's enforcement program,

program.

-10-

efforts

efforts that are undertaken

that are towards tthe

undertaken towards he Court's

Court's primary

primary objective

objective to

to ensure

ensure the payment of child

payment of child

support; rather than merely

support; merely exercising

exercising aarush to judgement

judgement to incarcerate.

In this particular

particular child support

support enforcement matter, by the time of the entry

entry of the

February 20

February 20` h Order, Father had appeared

appeared for a

a contempt

contempt hearing

hearing before aaJudge

Judge aatotal of four

times

times within aaone year

year time period.

period. There had

had also been at least seven

seven (7) enforcement

(7) enforcement

proceedings

proceedings before DRO Hearing

Hearing Officers. Father had been held in contempt by aaJudge

Judge three

(3) times.

(3) times. 36

Opinion, infra, Father

As will be addressed in this Opinion, Father was fully

fully employed during this same

year time period

one year period and had an income finding of $5,706

finding of $ 5,706 net aamonth as recent as the May 2023

"Final Order"

Order" (that appealed). Father's mortgage

(that was not appealed). payment, in the amount of

mortgage payment, of SI,900,

$ 1,900, was

was

being

being paid by his father every month and his girlfriend was subsidizing the payment of

paid for by

"extras" in

extras" furtherance of

in furtherance of his

his lifestyle.

lifestyle. In addition, Father

In addition, actually provided

Father actually copies of

provided copies of his

his

paystubs, which were entered into the record of to the proceedings, verifying income between

paystubs,

$1,100.00 and

and $$1,600.00

1,600.00 per week. 37

Lastly, of particular

Lastly, particular note for aaJudge

Judge to consider in child support enforcement

proceedings, the

proceedings, the record reflected

reflected that Father had

had previously

previously engaged in

in methods

methods to avoid the

the

payment support for his child from another relationship."

payment of child support relationship. 38

February 21,

On February 2024, on the very

21, 2024, day after the February 20

very next day 20th contempt proceeding,

proceeding,

required payment

Father facilitated the required girlfriend and was released from custody.

payment via his girlfriend

Father then filed a timely appeal

a timely appeal to the February 20, 2024 Order on March 19, 2024.

3' See February 20, 2024 Order of Court -- Contempt

see February 20, 2024 Order of Count - Contempt (Non Agree).

(Non Agree)

gee

See March 2,2023

38 2, 2023 Recommendation

Recommendation (Generic).

(Generic)

-1I-

-11-

April 1,

On April 1, 2024, the

the undersigned directing Father

undersigned issued an Order directing Father to

to file

file aaConcise

Statement of

Statement of Matters of Errors

Matters of Complained of

Errors Complained on Appeal,

of on Appeal, as

as he

he had failed to

had failed do so

to do so promptly.

promptly

Father filed his

Father filed Concise Statement

his Concise Statement on

on April

April 23,

23, 2024.

2024.

Despite the fact

fact that this child

child support

support appeal qualify for "children's fast

appeal does not qualify fast track"

treatment, this Opinion is filed approximately sixty (60) days following receipt

approximately sixty receipt of Father's

Concise Statement.

ISSUES

Pursuant to Pennsylvania

Pennsylvania Rule of Appellate

Appellate Procedure 1925(a)(2)(i),

1925(a)2(i), Father raised the

following

following issues in his Concise

Concise Statement of

of Errors Complained of on Appeal:

Errors Complained Appeal:

1. Finding

I. Finding of of Contempt:

Contempt: In In order

order to to be

be found

found in in contempt

contempt of court, there

of court, there needs to to be proof of

proof of

willful

willful disregard

disregard of aacourtcourt order.

order. Willful contemptcontempt meansmeans thatthat the contemnor was aware

of the court order, had the ability to follow the specifics specifics of the order, and chose not to

without

without any mitigating

mitigating circumstances.

circumstances. Defendant/Appellant

Defendant/Appellant argues argues that the trial trial court

court

failed

failed to inquire

inquire into

into his

his present ability to

present ability to pay

pay and

and the

the trial court

court abused

abused its its discretion

discretion by by

imposing

imposing an an onerous purge purge condition

condition for for the

the contempt.

contempt. The The trial

trial court was was aware

aware of of the

the

pending

pending petition

petition to modify

modify the the support

support order due due toto substantial and and material

material changechange in in

circumstances. A A court cannot impose impose a a coercive sentence conditioned on the contemnor's

performance of

performance of an

an act

act which

which is is incapable

incapable of of performance.

performance. To To impose

impose civilcivil contempt

contempt the the

trial court

trial court must

must be convinced

convinced beyondbeyond a a reasonable

reasonable doubt

doubt fromfrom thethe totality

totality of of the

the evidence

presented

presented that the contemnor has

that the has the

the present ability to

present ability to comply

comply withwith the the order.

2. Ability

Ability toto pay:

pay: Defendant/Appellant

Defendant/Appellant argues argues thatthat the

the trial

trial court errederred by by imprisoning

imprisoning him him

without rendering

rendering findings

findings of fact that he had the financial ability

ability payto pay the fine and costs

and that he willfully

willfully refused to pay. pay. The order did not set forth any any legal

legal reasoning,

reasoning,

findings of

findings of fact,

fact, or conclusions

conclusions of of law.

law. Although

Although the the Defendant/Appellant

Defendant/Appellant indicated indicated that

that

he could

could and

and has

has borrowed

borrowed moneymoney from family, family, the court

court failed

failed toto find

find— as our our lawlaw requires

requires

—

- that

that he

he alone

alone had the financial

had the ability to

financial ability to pay

pay the

the outstanding

outstanding fines fines and costs.

and costs

3. Allowing

Allowing Defendant

Defendant access

access to resources

resources to pay pay purge

purge account:

account: An order committing committing a a

respondent

respondent to to jail

jail for

for civil

civil contempt

contempt of of aasupport

support order

order shall

shall specify

specify the the conditions

conditions the the

fulfillment of which

fulfillment which willwill effect

effeet inin the

the release

release of of the

the respondent.

respondent. In In disposing

disposing of matters matters

promptly,

promptly, efficiently

efficiently and fairly, a a judge

judge must demonstrate due regard regard for the rights rights of the

parties

parties to be heard and have issues resolved without unnecessary unnecessary cost or delay. delay.

Defendant/Appellant

Defendant/Appellant argues argues that the trial court abused its discretion in failing failing to issue to

order in

order in a

a timely

timely fashion

fashion and and failing

failing to allow the Defendant

to allow Defendant accessaccess to to fulfil

fulfil the

the conditions.

conditions.

The

The Judge

Judge [sic]

[sic] failed

failed toto devote

devote adequate

adequate time time toto judicial

judicial duties for for prompt

prompt disposition

disposition of of

the court's business.

the court's business. This This delay

delay led led to

to unnecessary

unnecessary costs costs for the the Defendant,

Defendant, as well as

denial of phone

phone use or any any outside contact for 24 hours.

-12-

4. Calculation of counsel fees: The Defendant/Appellant

Defendant/Appellant arguesargues that the trial court erred in

its

its calculation and award

calculation and award ofof counsel

counsel fees

fees without

without any

any reason

reason or explanation. Fees

or explanation. Fees incurred

incurred

during the

during the previous

previous contempt

contempt hearings

hearings were shown

shown with

with reason

reason andand calculation.

calculation. Fees

Fees

ordered to be paid during said hearing were nearly

ordered to be paid during said hearing were nearly doubled without cause. Additionally,

doubled without cause. Additionally,

counsel fees

counsel should be based

fees should based on on financial

financial needs,

needs, relative

relative financial

financial positions,

positions, and

and needs

needs ofof

the

the parties.

parties. The

The trial

trial court

court failed

failed to

to consider

consider the

the totality of the

totality of the circumstances

circumstances and and failed to

failed to

fashion an

fashion an appropriate

appropriate award.

award.

5. Failure

Failure toto appoint

appoint counsel:

counsel: Upon

Upon thethe trial court's

court's determination

determination at at the

the civil

civil contempt

contempt

hearing

hearing that

that there

there is

is a

a likelihood

likelihood of of imprisonment

imprisonment forfor contempt,

contempt, the the court

court must

must appoint

appoint

counsel and

counsel and permit

permit counsel

counsel toto confer

confer with

with and

and advocate on behalfbehalf of the

the Defendant

Defendant at at a

subsequent

subsequent hearing.

hearing. The The trial court abused

trial court abused its

its discretion

discretion inin failing

failing to

to ascertain

ascertain whether

whether

Defendant was

Defendant entitled to

was entitled to court

court appointed

appointed counsel.

counsel.

STANDARD OF

STANDARD OF REVIEW

REVIEW

The standard of review for

for an

an Order entered in

in aachild

child support contempt matter, after the

support contempt

trial court

trial court has carefully analyzed

has carefully analyzed all of the

all of the facts

facts in

in the

the matter at hand,

matter at hand, is

is similar to that

similar to standard of

that standard of

review of aacivil contempt

contempt order. The applicable standard is

The applicable is as

as follows:

follows:

[The Superior

[The Superior Count's]

Court's) review

review ofof a civil contempt

a civil contempt order is is limited

limited toto aa

determination

determination ofof whether

whether the trial court abused

trial court abused its

its discretion.

discretion 39 fatrial

pf a trial court,

court,

in reaching judgment

reaching its conclusion, overrides or misapplies the law or exercises judgment

which isis manifestly

manifestly unreasonable, or reaches a aconclusion that is the result of of

partiality, prejudice, bias or ill will as shown by of record, then

by the evidence of

discretion

discretion is

is abused.

abused""" ao

As demonstrated

As demonstrated by the Notes

by the of Testimony,

Notes of Testimony, for all

all three

three of

of Father's Court appearances

Father's Court appearances

before the

before the undersigned,

undersigned, the

the undersigned

undersigned carefully

carefully applied

applied the

the necessary

necessary law

law and

and implemented an

implemented an

extensive line of

extensive line of questioning and inquiry

questioning and as to

inquiry as to arrive at the

arrive at the proper disposition. Additionally,

proper disposition. the

Additionally, the

Notes of

Notes of Testimony

Testimony for all of

for all of the

the three

three proceedings will demonstrate

proceedings will demonstrate that the undersigned

that the undersigned exercised

exercised

no partiality,

no prejudice, bias

partiality, prejudice, bias or

or ill

ill will. On the

will. On contrary, the

the contrary, record will

the record show that

will show that the undersigned

the undersigned

significant leniency,

exercised significant leniency, providing

providing Father with numerous opportunities

opportunities over a

a five month

Bold •v. Bold,

gold

39 Bold, 207 Pa. Super. 365

Pa. Super 365 (2007).

(2007

ao Gates v.v. Gates, 967

Gates 967 A.2d

A.24 1024, 1028

1028 (Pa. Super. 2009)

(Pa. Super. 2009).

-13-

time period to achieve compliance with the child support Order's and declining to direct the

payment of any additional arrearages except for the cumulative of monthly payments

payments that were

May 25, 2023

due from the May 2023 "Final Order."

It is necessary to distinguish a

acriminal contempt

contempt from a contempt in this child support

a civil contempt support

matter.

matter

determination of whether

The determination whether aaparticular order contemplates civil

particular order civil or

or criminal

criminal

contempt is

contempt as each classification

is crucial, as classification confers

confers different

different and distinct

procedural rights

procedural on the

rights on the defendant

defendant. There isis nothing

nothing inherent to aacontemptuous

contemptuous

act or

act or refusal to

to act

act which

which classified act itself

classified the act as 'criminal'

itself as 'criminal' or

or 'civil.'

'cit The

distinction between criminal and civil contempt is rather a adistinction between

two permissible judicial

judicial responses to contumacious behavior. These judicial judicial

responses are classified

responses are classified according toto the dominant purpose of the

the dominant the court.

court If If the

the

dominant purposes is

dominant is to

to vindicate the and authority of the court an

dignity and

the dignity and to

protect

protect the interest ofthe general public, if is a

public, it proceedingfor

a proceeding for criminal

criminal contempt.

contempt

But where

where the act of contempt

contempt complained

complained of is is the

the refusal to

to do or refrain from

doing some act ordered or prohibited

prohibited primarily benefit of a

primarilyfor the benefit aprivate

private party,

party,

proceedings

proceedings toto enforce

enforce compliance

compliance with

with the decree of the

the decree the court

court are civil in

are civil in nature

nature.

The purpose of a

The contempt proceeding is

a civil contempt is remedial. Judicial sanctions

remedial Judicial sanctions are

employed to coerce the defendant into compliance

compliance with the court's order, and in in

some instances, to compensate

tome compensate the complainant

complainant for for losses sustained.

sustained

The factors generally

generally said to point

point toto acivil contempt

contempt are these

these: ()

(1) Where the

the

complainant

complainant is is a

aprivate

pr ovate person as opposed to

as opposed to the

the government

government or or a

agovernmental

governmental

agency; (2) where

agency; 2) where the

the proceeding

proceeding is entitled

entitled in the original ...action

the original. action and

andfiled

filed

as 4acontinuation

continuation thereof

thereof asas opposed

opposed to aaseparate

separate and independent

independent action; (3)

action, ()

where holding the defendant

defendant in contempt affordaffords relief

relief to aa private party; (4)

private party,

where

where the relief

reliefrequested is benefit ofthe complainant;

is primarilyfor the benefit complainant; and and (5)

where

where the contempt complained ofare primarily

the acts of contempt civil in

primarily civil in character

character and do

not themselves constitute

not constitute crimes or or conduct

conduct by

by the

the defendant

defendant so

so contumelious

contumelious that

that

the court

the court is impelled

impelled to act its own

act on its own motional

motion.

In aa child support

support matter, the Court looks to 23 Pa.C.S.

Pa.C.S. §$ 4345, "Contempt

"Contempt for

for

noncompliance with aasupport order", for the authority

authority to impose

impose sanctions as follows:

(a) General

(a) Genera rule: A A person willfullyfails

person who willfullyfails to comply

comply with any

any order

under this chapter

under this chapter .. . may, as prescribed

may, as prescribed byby general

general rule,

rule, be

adjudged contempt. Contempt

adjudged in contempt. Contempt shall be punishable

punishable by any one or

more of the following:

following.

(1)

(l) Imprisonment

Imprisonment for aperiod not

for a not to exceed six months

months.

Afe

(2) A fine not to exceed

exceed $500.

$500

Lachat »v. Hinchcl

"Lachat f"e, 4769 A.24

Hinchcliffe,4769 A.2d 481,487-88

481,487-88 (Pa. Super. 2001)

(Pa. Super 2001) ((intemal

internal citations omitted)

omitted).

-14-

- 14.

(3) Probation

(3) Probation for a

aperiod

period not

not to

to exceed

exceed one

one year.

year

A contempt

A contempt order used to coerce a

aparent

parent into paying a

into paying a child

child support obligation and

and

arrearages properly characterized as civil. 42 As the contempt in this appeal involves Father's

arrearages is properly

non-payment of child suppont,

non-payment support, the matter

matter is

is clearly

clearly that of civil contempt.

contempt.

Pennsylvania Appellate Courts have held that: "[tJo

Pennsylvania Appellate "[t]o be found in civil contempt, a

aparty

must have violated aa court order'

order. 43 a turn, "the

In "the complaining party must show, by a

preponderance of the evidence, that aaparty

preponderance of party violated a order.s

acourt order " "The alleged contemnor

The 44

may then present evidence that he has the present inability to comply and make up the arrears. "

4' When the alleged

a5 presents evidence that he is unable to comply with the order "the

alleged contemnor presents "the

court, in imposing

imposing coercive imprisonmentfor civil contempt, should set conditions for purging the

contempt and effecting releasefrom imprisonment with which it

contempt it is convinced beyond a

a reasonable

doubt, from

from aatotality of the evidence before

totality of before it,

it, the contemnor has the present ability to

to comply."

comply. 46

In the present

present action, there were numerous enforcement proceedings and Father was

was found

to be in contempt

contempt of court no less than three

three (3) times prior to the imposition of imprisonment.

Throughout all of the proceedings,

Throughout proceedings, Father had an opportunity to demonstrate his inability to pay.

contrary, however,

On the contrary, however, Father's testimony

testimony and the complete record of the matter demonstrated,

that Father was willfully

willfully non-compliant and that he chose to prioritize the payment of other

42 See Barrett •

See v. Barrett, 470 Pa. 253, 260 ((1977)

Pa. 253,260 1977).

43 Hyle

le».v. Hyle,

Hyle, 868 A.2d 601, 604

604 ((Pa.

Pa. Super

Super 2005)

2005) (citing

(citing Garr v_

». Peters, 773 A.2d 183, 189

189 (Pa.

(P%. Super. 2001)).

Super. 2001))

44 Id. (citing

Id (citing Sinaiko v.

v. Sinaiko, 664 A.2d 1005, 1009

1009 (Pa. Super. 1995))

(a. Super, 1995)).

45 Id

"I (citing

(citing Barre v. Barrett,

Barrettv. Barrett, 470 Pa. 253

470 Pa. 253 a1

at 264

264 ((1977)).

1977)).

(quoting Barrett v.v. Barrett,470

46 Id. at 604-605

14 at 604.605 (quoting 470 Pa.

P%. at 264 ((1977))

at 264 1977)).

-15-

expenses over the payment

expenses payment of child support.

support. Accordingly,

Accordingly, the undersigned

undersigned was

was convinced beyond

convinc ed beyond

aareasonable doubt

doubt of Father's ability to comply

Father's ability comply with

with the Order.

Further, since the proceeding

proceeding had aalikelihood of imprisonment,

imprisonment, the Court was mindful of

the Pennsylvania

the appellate courts

Pennsylvania appellate standard for

courts standard for the

the appointment

appointment of

of counsel

counsel which is as

which is as follows:

follows:

[UJpon contempt hearing

[Upon the trial court's determination at the civil contempt hearing that there is

of imprisonment

aalikelihood of imprisonment for

for contempt

contempt and that the defendant is indigent, the

is indigent,

appoint counsel and permit

court must appoint permit counsel to confer

confer with and advocate on

defendant at a

behalf of the defendant asubsequent hearing. An indigent defendant has the

subsequent hearing.

option ofknowingly,

option intelligently, and voluntarily

knowingly, intelligently, voluntarily waiving appointed

waiving that right to appointed

counsel.

counsel.47

As such, the undersigned verified

the undersigned verified that Father had

had informed his prior

prior counsel that he

he would

would

handle the

handle the contempt

contempt matter

matter on

on his own (both

his own (both from

from Father,

Father, via testimony, and

via testimony, and his Counsel via

his Counsel via the

the

entry of aaRule

entry Cause). Father was

Rule to Show Cause). was informed right to counsel.

informed of his right counsel. He proceeded to

He proceeded

waive

waive his right signed the Notice indicating

right to counsel and signed indicating his

his desire to

to proceed

proceed without a lawyer.

a lawyer.

In addition,

In addition, with

with an

an assigned earning capacity

assigned earning capacity of

of $90,000

$90,000 per

per year

year (or even $70,000

(or even $70,000 as alleged by

as alleged

Father) he

Father) would not

he would not have

have met

met the income threshold required

income threshold required for

for representation of an

representation of an indigent by

indigent by

the

the Public Defender's Office.

With legal standards

With all of the aforementioned legal standards and history of this matter taken

and the history taken into

account, it is

account, is respectfully suggested tthat

respectfully suggested the undersigned's

hat the contempt Order

undersigned's contempt Order should

should be

be affirmed.

affirmed.

Commonwealth v.

Commonwealth

47 v. Dia,

Diaz, 191 A.3d 850, 862-63 (Pa.

850, 862-63 Super. 2018)

(Pa. Super. 2018).

-16-

ANALYSIS

I. The Court was convinced beyond a

Te iri willful

a reasonable doubt that Father was in

contempt of the child support Order. Throughout three separate hearings

before the undersigned,

undersigned, over a

a span of five months, Father was provided with

considerable leniency and the opportunity to be compliant with the Order.

As stated in this

As stated this Opinion,

Opinion, supra,

supra, there been four

there had been four (4) contempt hearings

(4) contempt hearings before

before

Judges, and seven

Judges, seven (7)

(7) enforcement proceedings

proceedings before DRO

DRO Hearing Officer's' over the past one

the past

year time

year time period to

to address the issue

address the issue of

of Father's

Father's lack

lack of

of compliance

compliance with the support

with the support Order'g.""

Order's. 48

By the time the Order of February

February 20, 2024 was entered, finding

finding Father in contempt

contempt for

yet a

yet a third time, and ultimately directing

directing incarceration, there had been substantial testimony

testimony and

evidence that Father was capable paying the Order.

capable of paying

extremely familiar with this particular

The Court was extremely support matter having

particular support having reviewed the

DRO

DRO record having personally

record and having personally conducted numerous contempt proceedings

numerous contempt proceedings (the "Factual and

(the "Faetual

Procedural History" section, supra, thoroughly sets

sets forth this record).

Father

Father was repeatedly questioned about

repeatedly questioned about his employment status

his employment status and income

income during

during the

the

proceedings. There had been no change

proceedings. change in Father's unchallenged income determination from the

25th "Final

May 25" Final Order". In addition, the record reflected that Father's father was paying

paying his

$1,900 mortgage payment each month and his girlfriend

mortgage payment girlfriend was supplementing

supplementing his lifestyle with her

payment of

payment of "extras"

"extras".

Father

Father was provided

provided with numerous opportunities

opportunities to pay

pay the required

required monthly support

monthly support

and, at

and, at each

each turn,

turn, forced

forced the Court to

the Court conduct numerous

to conduct numerous and repetitive

repetitive enforcement

enforcement proceedings.

proceedings.

See

See February 20, 2024 Notes of Testimony pg.

48 pg.S5.

-17.

.17-

During each of the three Court proceedings,

proceedings, the Court demonstrated considerable leniency

leniency in not

ordering that

ordering that Father pay one

Father pay one cent

cent over and above

over and above the

the monthly

monthly payment

payment that was cumulatively

that was cumulatively

due from the

due from the May

May 25

25" "Final Order"

th Final Order" (with

(with credit

credit being

being provided

provided for

for each

each of the support

of the support

payments

payments Father

Father had

had paid

paid since that date). Although clearly eligible

Although clearly eligible for collection,

collection, there

there was

was no

imposition

imposition of any additional amounts to be paid arrearages (totaling

paid towards the substantial arrearages (totaling over

$18,600

$18,600 at

at the time of

the time of the Order subject

the Order subject to

to this

this appeal).

appeal),"49

While the undersigned

undersigned was aware that Father filed a

a Petition to Modify, Father filed it a

mere four

four months

months after the

the "Final by Judge

"Final Order" by Judge Demchick-Alloy

Demchick-Alloy and on the eve of the

the

October enforcement

enforcement proceedings

proceedings (which

(which had

had been scheduled as aafollow

follow up

up to September

to the September

26th Order). The mere filing

filing of aaPetition to Modify does not justify

justify Father not making the

monthly payments

monthly pursuant to

payments pursuant to the

the existing

existing Order; particularly here

Order; particularly where Father's

here where Father's Petition

Petition to

Modify appeared

Modify appeared to be merely

merely a

adefensive move to

to the enforcement proceedings

proceedings and aa "redo"

and "

"second of the apple" from a

second bite of complete round of support

a complete support proceedings

proceedings (that had just

(that had just

recently been completed

completed a

a mere four months previously). On the contrary,

contrary, through the testimony

testimony

before the undersigned,

undersigned, Father demonstrated no change in

no change in his

his income

income situation that

that would justify

would justify

a deferral of the enforcement proceedings.

proceedings

At each of the three contempt

contempt hearings,

hearings, aareview of Father's paystubs

paystubs demonstrated

support of the undersigned's

further support undersigned's decision that Father had an ability to pay the Order. The

paystubs

pay stubs were placed into

were placed into the

the record of each

each proceeding

proceeding as

as "Exhibit

"Exhibit D- L" 50

D.1."

"see

See February

44 February 20, 2024 Notes of Testimony pg. 9-15

9-15.

seeSee September

September 26,

26, 2023 Notes Testimony, "D-

Notes of Testimony, I", pg. 24;

D-1, 24; see