# Sonder v. Sonder

> Supreme Court of Pennsylvania · September 29, 1988 · 378 Pa. Super. 474

URL: https://www.frixlaw.com/law-library/cases/9746740

## Case

- **Full name:** Suzanne C. Shulman SONDER v. Carl R. SONDER, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** September 29, 1988
- **Citations:** 378 Pa. Super. 474; 549 A.2d 155; 1988 Pa. Super. LEXIS 2898
- **Precedential status:** Published
- **Opinion:** Concurring in part by Cavanaugh
- **Judges:** Cirillo, Cavanaugh, Rowley, Wieand, McEwen, Olszewski, Beck, Tamilia, Popovich
- **Cited by:** 95 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in Sinaiko v. Sinaiko.
- Negative treatments: 3
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9746740

## How later opinions describe it (automated extraction)

- stating that case is moot when determination sought could not have any practical effect on existing controversy

## Opinion text

CAVANAUGH, Judge,
concurring and dissenting:
I dissent from that part of the majority opinion entitled “Section E. Contempt Parameters on Agreement ” which reversed the order of contempt entered against the appel *514 lant and vacated the order of attachment at Appeal No. 01343 Philadelphia, 1986. I would affirm the order of contempt based on the appellant’s willful failure to comply with the Court’s order directing that he carry out the terms of the support agreement he voluntarily entered.
Three judges of the Court of Common Pleas of Montgomery County gave separate consideration to the appellant’s conduct in refusing to comply with the terms of the property settlement entered between Dr. Carl R. Sonder, the appellant, and his wife, Suzanne C. Sonder, on November 29,1983. The agreement was in simple and understandable language and Dr. Sonder actively participated in analyzing, correcting and rewriting the agreement under which he was to pay his wife $800.00 per week. Subers, J. determined the agreement to be valid and binding and that the contract spoke for itself. Dr. Sonder initially complied with the terms of the contract. As pointed out by Subers, J. slip opinion, page 6, opinion of January 22, 1986:
“It stretches the imagination of this Court to believe that Dr. Sonder was not aware of the contents of this P.S.A. that he signed or that the P.S.A. would not constitute a binding agreement.”
An order was entered by the court below directing Dr. Sonder to pay to Suzanne Sonder the sum of $28,000.00 pursuant to paragraph 6 (A) of the settlment agreement and counsel fee after a hearing. Stefan, J. of the court below, in an opinion dated February 4, 1986, held that the issue was one of credibility concerning the appellant’s ability to comply with the agreement. The court heard testimony concerning the appellant’s income from his medical practice. It found his wife’s testimony concerning his income was credible and that the appellant’s was not. The court concluded the appellant simply did not choose to meet his obligations under the property settlement agreement and that he was properly found in contempt of the order of March March 27, 1985 directing compliance with the settlement agreement.
*515 A civil contempt proceeding was held before Salus, J. on May 12, 1986 and again extensive testimony was taken concerning the appellant’s ability to comply with the support agreement. The court found that Dr. Sonder had the present ability to pay the full amount of the support agreement. 1 By an adjudication of Salus, J. dated July 8, 1986, the court affirmed its order directing the appellant to make payment on arrearages or be committed to the county prison on weekends until purging himself of contempt.
The court below, in my opinion, properly relied on Hopkinson v. Hopkinson, 323 Pa.Super. 404 , 470 A.2d 981 (1984). In that case the husband and wife entered into a written agreement providing that the husband was to pay the wife $23,500.00 per year in weekly installments and to pay support for his children. Subsequently, the parties were divorced. The wife filed a complaint in equity alleging that the husband had breached his obligations under the property settlement agreement. A consent decree was entered directing the husband to pay certain sums and to comply with all aspects of the property settlement agreement. Judgment was entered against the husband for arrearages. It was determined that the husband wilfully failed to comply with this consent decree and notwithstanding his claim that he was not financially able to comply, he was held in contempt and sentenced to weekends in prison until he purged himself of contempt. On appeal, we affirmed, Opinion by Cirillo, P.J., on the basis that the court below properly exercised its civil contempt powers to enforce compliance with the orders of the court where the purpose is to compel performance and not impose a penalty.
The majority opinion at page 503 specifically overrules Hopkinson v. Hopkinson. 2 I find no basis for overruling *516 Hopkinson , and note that in Schoffstall v. Schoffstall, 364 Pa.Super. 141 , 527 A.2d 567 (1987) appeal denied Schoffstall v. Schoffstall, 517 Pa. 608 , 536 A.2d 1333 (1987) Tamilia, J., the author of the present majority, quoted extensively from Hopkinson v. Hopkinson, supra, with approval. 3 As recently as November 12, 1987, in Colbert v. Gunning, 368 Pa.Super. 28 , 533 A.2d 471 (1987) we cited Hopkinson with approval in support of the rule that a court may exercise its civil contempt powers to enforce compliance with its orders.
The majority states that even if the trial court’s ruling was correct concerning the appellant’s ability to pay the amount of support ordered, it would be powerless to enforce its order by holding appellant in contempt of court. It relies on Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1 , 253 A.2d 263 (1977) to support this conclusion. In my opinion Magaziner is so distinguishable on the facts and procedure to be of little precedential value. In Magaziner , *517 an order for support was entered and the parties were divorced. A dispute arose, not about the support order, but about various personal items belonging to the wife and children and located in the husband’s house. Judge Bonnelly informed the husband’s counsel by letter that the husband had breached his agreement to permit wife to take the children’s and her belongings from the house and told the husband’s counsel that the wife would appear at the house at a certain time and if the husband refused to comply with the order of the court, the husband would be considered in contempt. The husband was not at the house at the appointed hour. At a hearing before the court, the husband did not appear. Subsequently, the husband would not let the wife into the house to get her belongings and the court signed an order stating “let attachment issue, Returnable Forthwith” for the arrest of husband and he was arrested. The Supreme Court issued a writ of special certiorari so that it could exercise its King’s Bench Powers to correct an allegedly flagrant violation of petitioner’s rights. The court stated at 434 Pa. 5 -6, 253 A.2d 266 :
Our review of the record convinces us that petitioner’s characterization of the proceedings below has much merit in it. Assuming arguendo that petitioner could be shown to be in contempt of a valid order of the County Court, surely that court did not follow the proper procedure for putting the question in issue.
In other words, it is a several step process that must take place to hold one in civil contempt — rule to show cause why an attachment should not issue, answer and hearing, rule absolute (arrest), hearing on the contempt citation, adjudication of contempt.
The court pointed out at 434 Pa. 6 -8, 253 A.2d 267 : For it should be beyond question that one can be held in civil contempt only for failure to obey some process or order of court.
*518 In the instant case also, there is no order of court upon which the contempt order is predicated. (Emphasis added)
What the Supreme Court stated about the agreement of the parties, and which is quoted at length by the majority at page 495 as simply dictum, as the case had nothing to do with visitation of a support order. The only issue was the improper procedure followed in an endeavor to imprison the husband for failure to allow his wife to take her belongings out of his house.
I do not agree that a reading of Commonwealth ex rel. Magaziner v. Magaziner, supra, should lead us to conclude that even if the appellant wilfully failed to carry out the order of the court requiring him to pay support, that it was powerless to hold him in civil contempt. Further, Hopkinson v. Hopkinson, supra, does not appear to me to be in conflict with Commonwealth ex rel. Magaziner v. Magaziner, so that we must expressly overrule Hopkinson v. Hopkinson, as the majority would do.
Finally, I believe that the majority has misconstrued the nature of an agreement to support a spouse or child. The majority states at page 509:
Thus the enforcement provisions for failure to comply with an agreement, not merged into a support order or divorce decree, are those available in any other civil action, at law or in equity for payment of money — judgments and execution or attachment of property.
An agreement to support a spouse or child should not be equated with a commercial agreement with respect to the remedies for breach of such a contract. Breach of a commercial contract or ordinary agreement does not subject the defaulting obligor to confinement. Breach of a contract to purchase an automobile or failure to repay a bank loan, barring fraud or some other factor not here relevant, will not result in the imposition of the serious sanctions that should result in failure to support one upon whom the law imposes a duty to support where the court has entered an order requiring support. I agree with the court below that *519 the appellant has wilfully failed to comply with an appropriate order and was properly held in contempt. As we stated in Schoffstall v. Schoffstall, 364 Pa.Super. 141, 147 , 527 A.2d 567 570 , relying on Hopkinson v. Hopkinson, supra: “A court may exercise its civil contempt power to enforce compliance with its orders or decrees if its purpose is to compel performance and not to inflict punishment.”
Accordingly, I dissent from Part E of the majority opinion and the vacating of the order of attachment at Appeal No. 01343 Philadelphia, 1986. I concur in the result only as to the remainder of the opinion.
. It is interesting to note that while Dr. Sonder now contends he is completely unable to pay $800.00 per week for support of his wife and two children, he wrote to Mrs. Sonder on April 28, 1986 and offered to pay a total of $600.00 per week for support of his wife and two children.
. The majority opinion at page 502, stated: *516 The trial court relied on Hopkinson v. Hopkinson, 323 Pa.Super. 404 , 470 A.2d 981 (1984) as authority to impose a jail sentence for contempt for non-payment under the agreement. We hold Hopkinson not to be applicable. (Emphasis added.)
I disagree that we have the authority to overrule a case that does not apply to the matter before us. I find a basic inconsistency in determining that a case is not applicable to the matter sub judice and at the same time specifically overruling it.
. In Schoffstall v. Schoffstall, 364 Pa.Super. 147 , 527 A.2d at 570 , this court quoted from Hopkinson v. Hopkinson as follows:
The power to punish for contempt, including the power to inflict summary punishment, is a right inherent in the courts and is incidental to the grant of judicial power under the Constitution. Commonwealth v. Marcone, 487 Pa. 572 , 410 A.2d 759 (1980); Commonwealth v. Haefner, 470 Pa. 392 , 368 A.2d 686 (1977). A court may exercise its civil contempt power to enforce compliance with its orders or decrees if its purpose is to compel performance and not to inflict punishment. Barrett v. Barrett, 470 Pa. 253 , 368 A.2d 616 (1977); Petition of Specter, 439 Pa. 404 , 268 A.2d 104 (1970); Commonwealth v. Feick, 294 Pa.Super. 110 , 439 A.2d 774 (1982). The characteristic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of civil contempt by complying with the court’s directive. In re Martorano, supra [ 464 Pa. 66 , 346 A.2d 22 (1977) ]; Janet D. v. Carros, 240 Pa.Super. 291 , 362 A.2d 1060 (1976). Hopkinson v. Hopkinson, 323 Pa.Super. 404, 411 , 470 A.2d 981, 985 (1984).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9746740. Public record. Not legal advice.