# Nonemacher, K. v. Nonemacher, S. > Superior Court of Pennsylvania · March 3, 2025 URL: https://www.frixlaw.com/law-library/cases/10815309 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** March 3, 2025 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** King - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10815309 ## Opinion text J-S41018-24 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 KELLI NONEMACHER : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SEAN NONEMACHER : : Appellant : No. 861 EDA 2024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 -2- 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. -3- 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. -4- 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. -5- 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 PLAINTIFF PACSES PACSES NO. NO. 892301655 V. 861 EDA EDA 2024 SEAN NONEMACHER NONEMACHER DEFENDANT OPINION J. 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). ("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 I4 7 September 26, 2023 Notes of Testimony, pg. pg. 10; see also December 20, 2023 Notes of Testimony, pg. pg. 14 I4 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 A 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." " ll 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 11 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. I See August 'See 18 August 23, 2023 Order of Court -— Contempt(Agreement) Contempt (Agreement). re1Id d -6- in 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 23 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) pd 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 25 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. pd 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 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 t0 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, td 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. " 34 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 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 34 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. Id I 36 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. Concise Statement. ISSUES 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. 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. 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 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- -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 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 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 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 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 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 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 26 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 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 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. so seeSee September September 26, 26, 2023 Notes Testimony, "D- Notes of Testimony, I", pg. 24; D-1, 24; see see also December December 20, 2023 2023 Notes Notes of Testimony, Testimony, "Exhibit D-1", pg. Exhibit pg. 38 and February 20, 2024 Notes Testimony ""Exhibit Notes of Testimony Exhibit D- I,"pg. D-1," pg. 29-37. 29.37 -18- In each instance, Father was clearly capable of making the child support payments under the May 25, 2024 2024 "Final Order" as well as the purge amounts being directed at each jun cture. 'E juncture. 51 Accordingly, the undersigned was convinced beyond a areasonable doubt that Father should be held in contempt. contempt. He had the ability to to pay his monthly child support and the purge amount of of $2,500. In addition, Father was provided with aathirty thirty (30) day time period to pay counsel fees and aaminiscule direct payment to Mother Mother (to (to compensate her for her lost wages to to at the contempt proceedings). be present at proceedings)."52 Therefore, it is respectfully suggested that the undersigned's Order should be affirmed. IL IL. Each of the three contempt Orders were entered after record hearings, at the very very conclusion of the hearing, and on the record. The Court was clear in the rationale for the holding and each Order specifically included the amount required by Father to purge the contempt. Upon remand to Montgomery County Correctional Facility, County Facility, Father was provided provided with resources necessary to facilitate payment and did so within 24 hours. Father first states that "An order committing a arespondent to jail for civil contempt of a a support order shall specify support specify the conditions the fulfillment of which will effect in the release of the respondent." respondent 53 The February Te February 20, 2024 Order specifically requires the payment of $2,500 and remands Father to the Montgomery Montgomery County Correctional Facility until he pays said amount. " Sa There is no clearer way way to disprove Father's statement. The The Order in and of itself specifically states how Father would be from Montgomery County Correctional Facility. Father be released from See February 'See 51 20, 2024 February 20, 2024 Notes Notes of of Testimony Testimony pg. pg. 12 12 tFather (Father indicates indicates that that he he makes makes $70,000.00 $70,000.00 a a year, year, showing showing that that he clearly he is clearly able to make the payments required payments required under the the June 9, 2023 Order). 202 Order) szsee See February February 20, 20, 2024 2024 Notes of Testimony pg. pg_ 23-24. 23-24 Id 9p 53 See See February 56 February 20, 2024 Order of Court — Contempt Contempt (Non (Non Agree)- Agree) -19. -19- received a acopy of the Order at the conclusion of the hearing. And, Father facilitated the required required payment payment within 24 hours. This statement by Father is blatantly false. Father states that the undersigned undersigned did not issue an order in a atimely fashion and allow for Father to fulfill its conditions. He also states that the undersigned undersigned did not devote adequate time to the the matter. matter. ' 55 Father Father had had been in front front of the undersigned undersigned three three previous times contempt over times for contempt a a four month time period. period. 56 Father was always provided purge provided with an Order as to how he could purge his contempt at the conclusion of each hearing. hearing Ultimately, Father chose to disregard the December 20, 2023 Order up to the date of the rescheduled February 20, 2024 hearing. A hearing was conducted and, ultimately, after four A contempt contempt hearings hearings and seven DRO enforcement proceedings, Father was remanded to Montgomery County Correctional Facility. Montgomery County Facility. The Order was issued at the conclusion of the hearing hearing and Father was provided with a acopy on his way to the holding area. Lastly, Lastly, Father alleges alleges that the undersigned's undersigned's delay delay caused Father "unnecessary costs as well as no use of the phone and no outside contact for twenty-four twenty-four (24) (24) hours." There is no evidence how any action by the undersigned resulted in Father having to bear any kind of costs other than payment payment of the purge purge amount, attorney's fees, and lost wages. Additionally, once taken into custody custody by by Sheriff Deputies, Defendants are provided with access to a a telephone both at the detention center detention center in in the Courthouse and the Courthouse then again and then again upon upon arrival at Montgomery arrival at Montgomery County County Correctional Facility. At no time did Father allege any difficulty in making telephone calls either to DRO or to the undersigned's Chambers. In actuality, Father facilitated the required payment within 24 hours, via his girlfriend, girlfriend, and was released the following day. gee April 24,2023 Superior Court Documents 55 See April 24, 2023 Superior Court Documents. 56 See February 20, 2024 Notes of Testimony pg. 5. See February 20, 2024 Notes of Testimony pg.S -20- -- Therefore, it is Therefore, it is respectfully respectfully suggested that the suggested that the undersigned's Order should undersigned's Order should be be affirmed. affirmed. III. II. The Court may award counsel fees in aachild support enforcement matter. Mother was awarded an appropriate amount towards her counsel fees (based (based upon the representation of her Counsel on the fees that were expended to enforce the Court's Orders). The counsel fees awarded were cumulative to the three court proceedings proceedings that were conducted. Father's fourth matter complained complained of revolves around Father's requirement to pay pay counsel fees. fees. argues that "counsel Father argues "counsel fees financial needs, relative financial fees should be based on finaneial financial of the parties. The trial court failed to consider the totality of positions, and needs of the parties. circumstances andfailed to fashion an appropriate award award."ST 57 The standard standard Father Father asserts is not accurate accurate in in aachild support contempt proceeding. child support proceeding This This was not an an equitable equitable distribution or alimony alimony hearing hearing where where that that standard is, in fact, aa consideration. consideration. A similar A similar legal theory was legal theory advanced by Father was advanced Father during during the the February February 20" 20th proceedings as proceedings as follows: DEFENDANT: DEFENDANT: "I In those nine weeks, I I have been charged for $1,496.31 $ 1,196.31 in APL, which would go towards counsel fees fees. THE COURT: What does that mean? DEFENDANT: "... DEFENDANT: fees. I'm ". it means I'm getting double charged for counsel fees. paying $576 paying$$76 a a month in counsel fees." THE COURT COURT: What do you mean you're paying paying $560 aamnonth month for counsel fees. DEFENDANT: For APL DEFENDANT APL. COURT: Well, this is separate and apart from that. THE COURT that. You're paying support. counsel fees for these proceedings because you're not paying the child support Because you're not paying the child support, you're taking up my time, the Court's time, and you're taking up her attorney's attomey's time to make sure you pay the support. ppont. It has nothing to do with APL. APL. That APL is is for the divorce case ... 58 case,, See April 24, 2023 Superior Count See 57 Court Documents. See See February 26, 2024 Notes of Testimony pg. 58 pg. 9-10 9- 10. -21- Father's misguided legal argument misguided legal argument in this instance reflects an objective to "run up" Mother's counsel fees in the child support support case to justify his payment payment of APL in the divorce case which will will be addressed, V., "Counsel addressed, infra, in the Section V., "Counsel Fees." " 59 This was aasupport support contempt contempt proceeding proceeding for which Pennsylvania Courts have been clear about the standard in awarding counsel fees. A A judge judge in Pennsylvania may award counsel fees to a a party party is arbitrary, party if the conduct of the other party arbitrary, vexatious, or in bad bad faith, or if the party's conduct conduct during during the the pendency pendeney of the the matter is is dilatory, obdurate, or vexatious. vexatious. 60 In this case it was clear that Father was alleging alleging a areduction in his income based on aa reduction reduction of his work work hours and/or and/or aanew custody schedule. A custody schedule. A change in in aaparent's custody schedule is not sufficient basis to reduce income. income. Father made this same argument during the proceedings for the establishment of the child support Order. The Support Hearing Officer proceedings dismissed that argument argument and Father filed Exceptions. The Judge dismissed that same argument and Father did not appeal. appeal. At At the same argued for a same time that he argued areduction in in income, income, his his father (previously President of the same company where he worked) provided Father with an amount (previously that was strikingly strikingly equivalent to the amount of the income reduction reduction (and (and thereafter just paid mortgage payment instead), Father's mortgage instead). Father's car payments were paid and he managed to travel trips. 61 on vacation trips." The payment The S9 payment of APL in a a divorce proceeding proceeding is intended to place the parties on "equal footing"with footing" with regard to their respective respective incomes. It is not intended to to cover" "cover" a aDefendant's objective to generate unnecessary counsel fees for the other party just to ensure the payment of child support. See 42 «gee 60 Pa.C.S. $2503; 42 PA.C.$. § 2503; see also Maurice A. A. Nerberg Nernberg && Assocs. • v. Coyne, 920 920 A.2d A.24 967 967 (Pa. Commw. 2007)y (PA. Commw. 2007); see generally Dong Yuan generally wan Chen v.v. Saidi, 587 (Pa. Saidi, 100 A.3d $87 (Pa. Super. 2014). 2014) See Notes of Testimony pg. «gee 61 12-14. pg. 12.14. -22- Father's non-payment non-payment of support, support, and his income reduction, were clearly clearly not coincidental. It is best described by the acronym acronym "SIDS", SIDS", standing standing for "sudden income "sudden deficiency", that frequently seems that frequently seems to to inflict inflict a apayor payor just just after after aadivorce divorce is is filed. Family Court filed. Family Court judges are all judges all too familiar familiar with with this syndrome that occurs this syndrome occurs in child support actions. child support actions. Father's conduct was clearly clearly obdurate and vexatious. Additionally, Additionally, the fact that the parties parties have have been before the been before undersigned three the undersigned three (3) times before (3) times clearly shows before clearly shows negligent negligent behavior behavior on Father's on Father's part and mere part and apathy when mere apathy it comes when it comes to his duty to his duty to to pay child support. pay child support. The award The award of of counsel well within counsel fees is well within the standard provided the standard provided by by Pennsylvania law. Pennsylvania law. Father also Father also erroneously erroneously states states that that the counsel fees the counsel fees were nearly doubled were nearly doubled "without without cause." 62 cause. 8? The reason reason the fees were increased is is because Father originally did Father originally did not pay pay when when originally the September originally ordered in the September 26 26` x'Order. Order. This is clear from the the testimony at at the hearing the hearing and has and has no no merit. merit. 63 Therefore, it Therefore, it is is respectfully suggested that respectfully suggested that the undersigned's undersigned's Order Order should should be be affirmed. affirmed. IV. IV, Father knowingly, knowingly, willingly willingly and voluntarily voluntarily waived his right right to counsel as demonstrated demonstrated byby his signed " of Right to Counsel and Hearing" Form Notice of "Notice Form waiver. waiver Father's Father's fifth error error complained complained of involves the of involves the right right to counsel. 64 to counsel."" The The record record reflects reflects that Father Father previously previously had had legal legal counsel and that he he informed informed his his lawyer that lawyer that he would would handle handle the contempt proceedings the contempt proceedings himself. himself. Upon Upon learning learning that Father Father would would be representing be himself, the representing himself, the Court Court took immediate steps took immediate to ensure steps to ensure that that Father was provided Father was provided with with 61 See April See April 24, 24, 2023 Superior Count 2023 Superior Court Documents. Documents 63 See February "See February 20, 20, 2024 2024 Notes of Testimony Notes of Testimony pg. pg. 23. 23 [d -23- -23- the "Notice the "Notice of of Right Counsel and Hearing" Right to Counsel Hearing" Form Form and, further, specifically and, further, specifically confirmed confirmed that that Father Father had the right had signed the right to counsel counsel wavier: wavier: COURT. Mas THE COURT Has the right right to counsel been provided? provided? MS. COLANTUNO: Yes, Your MS. COLANTUNO Honor. It Your Honor. was provided prior It was prior to to the hearing the hearing today. today COURT.-Today THE COURT Today? MS. COLANTUNO: Yes, Your Honor MS COL4NTUNO Honor. He's been acopy of the right to been provided a counsel as counsel as wet well. 6s 6s As indicated, supra, As indicated, supra, the standard in the standard in aacivil contempt matter, civil contempt matter, where the possibility where the possibility of imprisonment is of imprisonment is present present is is as follows: follows [UJpon court's fUlpon the trial court contempt hearing that 's determination at the civil contempt that there is alikelihood a imprisonment for contempt likelihood of imprisonment contempt and that the defendant is indigent, indigent, the the court court must appoint counsel must appoint cowsel andand permit counsel to permit counsel to confer confer with with and advocate on and advocate on behalf behalf of of the defendant defendant at a a subsequent subsequent hearing. hearing. An indigent defendant has the option option ofknowingly, intelligently, and of knowingly, intelligently, and voluntarily voluntarily waiving waiving that right appointed right to appointed counsel. cowne t.66 On this On appeal, after this appeal, after he executed aawaiver he executed of counsel waiver of counsel and he was was remanded remanded to the to the Montgomery County Correctional Montgomery County Correctional Facility, Father now Facility, Father now makes the claim makes the on this claim on appeal that this appeal that he he appointed counsel." should have been appointed counsel. 67 The Court The Court in in Montgomery Montgomery County County makes it aastandard standard practice practice to to provide Defendants provide Defendants with the notice to their "right to counsel" at all child support proceedings where the prospect of incarceration is incarceration is aapossible sanction. In possible sanction. confirmation that In confirmation that the the notice is provided, notice is provided, a a Defendant is Defendant is required to sign required sign the the waiver waiver Form. Form 6s See September "See September 26, 2023 Notes Notes of of Testimony pg. 12-13. Testimony pg. 12-13. ì6 Commonwealth v. commonwealth v. Diaz, Diaz, 191 A.3d 850 (Pa. A.34 850 2018). (Pa. Super 2018 67 Id. •Id -24- -24- This case was handled no differently. differently. Father was provided with the notice to his right right to counsel. 68 Father counsel. elected to Father elected to proceed se. " proceed pro ±e, In point point of fact, the undersigned actually deferred the the sanction of incarceration incarceration at the at the September 26, 2023 hearing, given Father had just just been provided provided with the notice and waiver at at that proceeding, specifically stating stating as follows: COURT: Unfortunately, since he's not here [Father's THE COURT [Father's prior counsel] counsel] and the right g to counsel was just provided this morning, riht we'll have to do this in another morning well step. 76 step." The Court further confirmed that Father had received the right right to counsel, and reinforced proceeding in the following the possibility of incarceration, at the December 20, 2023 proceeding exchange: following exchange: THE COURT COURT: Has Has he he been been provided provided with a ofcounsel? anotice of counsel? HEARING OFFICER OFFICER: Yes. Yes. He was was provided with the right right to counsel at the last hearing. hearing THE COURT COURT: Just Just so so we're we're clear, sir, if clear, sir, if the payment payment is is not not made made by date, by that date, on the January S' arrangements made prior Sh date, or arrangements prior to Court commencing commencing on January 9, the nett January 9 next step ofthis would be incarceration All right? step of right? DEFENDANT: All right." DEFENDANT. All right. 71 At no point, during any of the proceedings, proceedings, did Father indicate that he wished to rescind his waiver and retain legal legal counsel such that this issue should be deemed waived. Accordingly, it is respectfully suggested that the undersigned's undersigned's Order should be affirmed affirmed. "See See September 26, 2023 Notes Notes of Testimony Testimony pg. pg. 12-13. 12-13 69 See September 26, 2023 Right to Counsel see September 26, 2023 Right to Counsel (provided (provided to Father Father by Montgomery Country by Montgomery County Domestic Relations). Relations) see September 26, 2024 Notes 70 See September 26, 2024 Notes of of Testimony pg. Testimony pg. 14 4 71 See December 20, 2023 Notes of Testimony "See Testimony pg. 35 -25- V. V. Counsel Fees Counsel Fees In In this child support this child support contempt contempt appeal, appeal, Father Father is essentially attempting is essentially attempting to re-litigate his to re-litigate his income determination from the May 25, the May 25, 2023 2023 "Final "Final Order" which he, he, and his legal legal counsel counsel at the time, time, failed failed to appeal. appeal. Throughout numerous contempt proceedings, Throughout proceedings, all-the-while not complying with the payment payment of child support, support, Father raised the same issues over and over again with regard to his income that had just been litigated litigated to finality finality aamere few months previously. previously Instead of appealing appealing the May May 25, 2023 2023 "Final Final Order", Father used the contempt proceedings as his proceedings his "soap box" to challenge his income finding. the midst of the protracted finding. Then, in the contempt proceedings, contempt proceedings, Father Father files files a a Petition to to Modify Modify to both bring aahalt halt to to the the contempt proceedings and proceedings and to restart the support establishment the support establishment process process yet yet again again (having (having just reached finality reached finality aafew months prior) prior). Notably, throughout the Notably, throughout the protracted protracted contempt contempt proceedings proceedings before before the the undersigned undersigned since September 2023, Father has been self-represented September self-represented while Mother has been compelled to engage legal legal representation representation and to pay pay attorney fees. fees A significant dynamic A significant dynamic in in Family Court, occurring Family Court, occurring in in ever more frequency, ever more presents itself frequency, presents itself where self-represented self-represented litigants litigants file and refile pleadings pleadings and appeals appeals in an attempt to re-litigate the same issues. In many many cases, as with this one, the same issues are being re-litigated re-litigated within mere months of the last set of proceedings proceedings. The result is to drain an already heavily heavily burdened family docket which, in turn, impacts judicial time to devote to other family judicial family cases facing significant issues. It also represents an underlying strategy underlying strategy whereby whereby a a self-represented litigant forces the other parent to expend funds on legal legal fees to "wear them down" financially. -26- By the time the Plaintiff in aachild support support case pays an attorney for representation, the support that ultimately child support ultimately reaches reaches their kitchen table is is whittled whittled down down to possibly possibly nothing. nothing. Without any consequences Without any consequences for for this this obdurate conduct, conduct, both the the Court Court and the other parent other parent are at the mercy mercy of self-represented litigants litigants for "groundhog "groundhog day" litigation litigation. In In order to prevent order to prevent Father Father from from this this constant constant frivolous litigation, there frivolous litigation, is the necessity there is necessity for for the imposition specifically that of counsel fees. imposition of sanctions; specifically In In Suzanne D. v. v. Stephen W., the Superior W,the Superior Court upheld upheld an award attorney's fees award of attorney's by the fees by the trial court; there, the obligor, having not incurred any legal fees in the support support action, was found by by the trial court to have extended the litigation to the detriment of mother's financial ability ability to support the support the children. children. 72 Factors to to be considered when awarding legal fees awarding legal fees include include whether the conduct of the the obligor impeded impeded entry entry of a a final support order and whether the obligor obligor presented aa reasonable defense. 73 defense, In the In case at the case at hand, just as hand, just in Suzanne D, as in D., the the same same circumstances circumstances are are present present that would that would make make an an award award for attorney's attorney's fees fees to Mother Mother reasonable. reasonable. Mother, already at a a significantly significantly lower income level than Father, is forced to retain counsel and defend against against this appeal. appeal. The law regarding regarding attorney's attorney's fees in Pennsylvania "if an obligee pre Pennsylvania states that "if prevails vails in a a proceeding proceeding... to asupport order, the court may assess against the obligor to obtain a obligor ... reasonable fees ... attorney fees obligee." 7a . incurred by the obligee. M Suzanne D. Suanne I D. v.v. Stephen WW.,65 , 65 A.3d 96$, 965, 975 975 (Pa. (Pa. Super 2013). 2013) "see See ld. 73 Id. at 975 975. 71 23 Pa.C.S.A. § 23Pa.CS.A. 4351(a). $4351(a) -27- Note ' (elven when the obligee prevails counsel fees are not automatic, but instead Note that "[elven of the count" are contingent upon discretion of court. " " 1% In using using said discretion, 75 discretion, the Court must must consider ofrelevant circumstances that informs the determination of "the totality of ofwhether to award counsel fees. "M fees." 76 The award of The award of additional additional counsel counsel fees in in this matter would this matter would be predicated less on predicated less on Father's Father's non-retainer of non-retainer of counsel, counsel, but but rather on the rather on the needlessly repetitious nature needlessly repetitious of Father's nature of arguments. Father's arguments. Accordingly, Accordingly, provided provided that this Court agrees agrees with this analysis, analysis, the undersigned undersigned takes the unusual step of unusual step of requesting requesting that that the the matter matter be remanded remanded for the sole for the sole purpose purpose of of assessing assessing Father's Father's reimbursement of the reimbursement of reasonable counsel the reasonable counsel fees that Mother fees that Mother has has been been forced to unnecessarily forced to incur unnecessarily incur to defend on this this matter in in this appeal (with this appeal (with Father's repeated re-litigation of unmerited repeated re-litigation unmerited and irrelevant irrelevant arguments). arguments) may serve as an effective deterrent for prospective This may prospective vexatious conduct both by by Father in this case in this case and and for other self-represented for other self-represented litigants litigants who engage in who engage in the the same behavior in other same behavior other family court cases. cases. 73 Bowser v. v. Blom, 569 $69 Pa. 609, 807 A.24 A.2d 830, 835 835 (Pa. (Pa. 2002). 2002) '6 Id. at % 1 at 836. -28- CONCLUSION For all of the reasons set forth above, this Court respectfully requests the undersigned's Order of February February 20, 2024 be affirmed. BY THE COURT: • Copies Copies sent via Domestic to: Domestie Relations Office to; Kelley Kelley Menzano Fazzini, Esquire Sean Nonemacher, Pro Se Copies sent via Chambers to; to: Court Administration -— Family (Interoffice) (Interoffice) Montgomery County Domestic Relations Unit Montgomery County N. Ceten NGefe Judicial Assistant -29- -29.- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10815309. Public record. Not legal advice.