HomeMy WebLinkAbout480 S 1996CYNTHIA L. GONZALEZ, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : OF CUMBERLAND COUNTY, PENNSYLVANIA
DOMESTIC RELATIONS SECTION
V. : CIVIL ACTIONSUPPORT
DAVID M. HARTMAN, : PASCES NO. 762000067
Defendant : No. 480 SUPPORT 1996
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., April 10, 2008.
In this child support case which was transferred from Perry County to
Cumberland County, Defendant has been the subject of (a) thirteen petitions for
contempt,' (b) nine bench warrants arising out of his failure to appear in court,2
and (c) seven formal adjudications of contempt.3 At this docket alone,4 the docket
entries comprise over thirty pages; Defendant, as of the most recent hearing, was
in arrears on his support obligation for two children in the amount of $22,538.95;5
and his last payment on the order occurred about three years ago.6
From a sentence of six months' imprisonment following an adjudication of
contempt pursuant to 23 Pa. C.S. §4344 for failure to appear in court, Defendant
' The docket indicates that these petitions were issued or filed on April 22, 1997, March 24, 1998,
September 10, 1998, October 21, 1998, January 11, 1999, May 15, 2000, June 8, 2000, January 9,
2001, July 8, 2003, December 3, 2003, January 11, 2005, August 7, 2007, and December 7, 2007.
2 The docket indicates that these bench warrants were issued or filed on June 12, 1997, September
15, 1997, March 1, 1999, March 7, 2001, July 13, 2001, June 24, 2002, October 1, 2003,
September 7, 2007, and October 25, 2007.
s The docket indicates that these adjudications were issued or filed on April 8, 1998, April 26,
2001, December 16, 2002, November 5, 2003, June 8, 2004, January 15, 2008, and January 16,
2008.
4 Defendant has other support cases as well. See Order of Court, January 11, 2008.
s Plaintiff's Ex. 2, Hearing, January 11, 2008 (hereinafter Plaintiff's Ex. �.
6 N.T. 11, Hearing, January 11, 2008 (hereinafter N.T. �.
See Order of Court, January 11, 2008.
has filed an appeal to the Pennsylvania Superior Court.' The basis for the appeal
has been expressed in a statement of matters complained of on appeal as follows:
1. Commonwealth [sic] failed to prove that David M. Hartman, the
Defendant, received notice of a hearing for contempt in his domestic
relations case. The Commonwealth failed to show any proof of service.9
This opinion in support of the adjudication of contempt is written pursuant
to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
In the present case, Defendant David M. Hartman is the father of two
children, David M. Stepp (d.o.b. February 19, 1996), and Kayla M. Hartman
(d.o.b. December 5, 1997), and Plaintiff Cynthia L. Gonzalez (formerly Stepp) is
their mother.10 Child support orders in favor of Plaintiff and against Defendant
were initially issued in the case on June 3, 1996, with respect to David and on
April 30, 1998, with respect to Kayla. Among other support order requirements,
Defendant was directed to maintain a current address with the Cumberland County
Domestic Relations Office."
Defendant's last payment on his support obligation in this case was on
January 24, 2005.12 On August 7, 2007, a petition for contempt was filed because
of Defendant's failure to pay. 13 A copy of the petition was mailed to Defendant at
his address on file with the Cumberland County Domestic Relations Office:
Apartment 5, 322 N Front St, Wormleysburg PA 17042-1113.14 In conjunction
with this mailing, the Domestic Relations Office submitted a formal Address
Information Request to the postmaster at the Wormleysburg, Pennsylvania, post
s Defendant's Notice of Appeal, filed February 6, 2008.
9 Defendant's Concise Statement of Matters Complained of on Appeal, filed February 28, 2008.
10 Acknowledgment of Paternity, filed June 4, 1996 (David M. Stepp); Acknowledgment of
Paternity, filed May 5, 1998 (Kayla M. Hartman).
" N.T. 17.
12 N.T. 11.
13 Plaintiff's Ex. 1; N.T. 7.
14 N.T. 8.
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office, to verify that mail to the addressee was being delivered to the address
stated; 15 by a response dated August 11, 2007, the post office provided verification
of this fact. 16
By order dated September 12, 2007, Defendant was directed by this court to
appear for a hearing on the petition for contempt on October 19, 2007, at 9:00
a.m.17 On or about September 13, 2007, a copy of the order was mailed by the
Domestic Relations Office to Defendant.18 Not surprisingly, given Defendant's
history and the amount of the arrearages, he failed to appear at the hearing. 19
A Request for Bench Warrant, supported by a verification pursuant to 18
Pa. C.S. §4904, was submitted to the court by Defendant's conference and
enforcement officer '20 noting the mailing of notice of the hearing to Defendant at
the address confirmed by the post office, the absence of a return of the mail to the
Domestic Relations Office, and Defendant's failure to appear as directed. 21 The
bench warrant was issued on October 23, 2007.22
Thereafter, David Rudy, chief of the enforcement division of the Domestic
Relations Office ,23 received information that Defendant might be in East
Pennsboro Township, Cumberland County, at Apartment 10, 5 Adams Street,
Enola.24 On November 14, 2007, Chief Rudy and Enforcement Officer Dennis
" N.T. 8; Plaintiff's Ex. 1. The submission of such a request is a routine practice by the
Domestic Relations Office where a petition for contempt is involved. N.T. 9.
16 N.T. 8; Plaintiff's Ex. 1.
17 N.T. 8; Plaintiff's Ex. 1.
" Plaintiff's Ex. 1; N.T. 16.
19 N.T. 12.
20 Plaintiff's Ex. 1; N.T. 9.
21 Plaintiff's Ex. 1.
22 Plaintiff's Ex. 1.
2s N.T. 19-20.
24 N.T. 19.
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Fry to attempt to execute the warrant .25 According to the testimony of Officer Fry,
which the court found entirely credible:
A We arrived at the address. We knocked on the door several
times. We heard movement inside, but nobody would answer the door.
After several minutes and several attempts, a neighbor advised us that he
was home. Then we continued to knock and call his name. We noticed a
vehicle that he was driving was parked in the parking lot. So we had
contacted East Pennsboro Police Department. They came. They couldn't
get compliance of anybody inside of the residence to answer the door.
Q Did you request assistance from any other individuals?
A Absolutely. We contacted the landlord and advised him of
the situation. They said they were willing to come and provide us with a
key ....z6
Q And did the landlord provide you with a key?
A Yes.27
After unlocking the door, the enforcement officers found themselves still
unable to gain entrance because "[i]t was barricaded with a piece of 2 by 4 that
was placed against the door and then against the back of the wall. So the door
couldn't be opened. ,28 Attempts to kick the door open were unsuccessful, and
"more commands were given. ,29 About ten minutes after their arrival, a second
occupant of the apartment finally removed the wood and they were able to enter
the apartment .30
This second occupant advised the enforcement officers that Defendant was
in the apartment ,31 but Defendant did not present himself and the officers were
2s N.T. 18-19.
26 N.T. 20.
27 N.T. 21.
2s N.T. 21.
29 N.T. 21-22.
so N.T. 22. As it happened, East Pennsboro Township Police had warrants for this person as well.
N.T. 22, 26.
31 N.T. 23.
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forced to conduct a search of the apartment to try to locate him.32 About a half
hour after first arriving at the apartment ,33 Chief Rudy and an East Pennsboro
Township police sergeant discovered that Defendant was in a bedroom under
some sheets .34 Defendant "eventually" responded to their commands to reveal
himself 35 He advised the officers that the October 19, 2007, court hearing was "a
bunch of bull crap .„36
Based upon Defendant's failure to appear at the October 19, 2007, hearing,
an additional petition for contempt was filed, under 23 Pa. C.S. §4344 (civil
contempt for failure to appear at support hearing), on December 7, 2007.
Following a hearing, he was found to be in contempt and sentenced to six months'
imprisonment in the Cumberland County Prison, with work release and credit for
about two months previously served .37
DISCUSSION
Section 4344 of the Domestic Relations Code provides as follows:
A person who willfully fails or refuses to appear in response to a duly
served order or other process under this chapter [support matters generally]
may, as prescribed by general rule, be adjudged in contempt. Contempt
shall be punishable by any one or more of the following:
(1) Imprisonment for a period not to exceed six months.
(2) A fine not to exceed $500.
(3) Probation for a period not to exceed six months.
Act of October 30, 1985, P.L. 264, §1, 23 Pa. C.S. §4344.
In contrast to the statutory provision authorizing a finding of contempt for
failure to pay a support order ,38 this provision does not require that a condition of
sz N.T. 23.
” N.T. 24-25. The search of the apartment lasted between five and ten minutes. N.T. 24.
34 N.T. 24.
" N.T. 24.
36 N.T. 25.
37 Order of Court, January 11, 2008.
" Act of October 30, 1985, P.L. 264, §1, as amended, 23 Pa. C.S. §4345.
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purge be applied to the sentence. With respect to service of notice of contempt
petitions and hearings, the Code provides as follows:
In any subsequent child support enforcement action between the
parties, upon sufficient showing that due diligence has been made to
ascertain the location of a party, the court or the department may deem due
process requirements for notice and service of process to be met with
respect to the party, upon delivery of written notice to the most recent
residential address or employer address filed with the domestic relations
section or the department ....
Act of October 30, 1985, P.L. 264, §1, as amended, 23 Pa. C.S. §4353(a.1).
An obligor is, under the Code, required to notify the pertinent domestic
relations office of any change of address within seven days of its occurrence. Act
of October 30, 1985, P.L. 264, §1, as amended, 23 Pa. C.S. §4353(a)(2).
These provisions were applied by the Pennsylvania Superior Court in the
case of Godfrey v. Godfrey, 2006 PA Super 39, 894 A.2d 776, in the context of a
defendant's claim that he had not received sufficient notice of a petition for
contempt and hearing thereon to warrant an adjudication of contempt for his
failure to appear at the hearing. The background of the case, and the Court's
holding on the issue, are expressed in an opinion by Judge Panella as follows:
[Defendant] ... argues that the trial court erred in holding him in
contempt under 23 PA. CONS.STAT.ANN. § 4344, for his failure to
appear at the contempt hearing conducted on September 30, 2004.
Specifically, [defendant] argues that his six month sentence for contempt
should be "set aside" as "there (was) no due diligence shown, nor even
alleged" and that there was no proof of service that he received notice of
the hearing.. s9
[Defendant's] argument essentially centers on his contention that he
never received notice of the September 30, 2004 contempt hearing. 40
In the present case, the last address given by [defendant] to the
Domestic Relations Section was 2500 Federal Avenue, Williamsport,
Pennsylvania.... Counsel for [plaintiff] informed the trial court that he
had sent [defendant] the petition for contempt at the 2500 Federal Avenue
address by certified mail in August 2004 and by regular mail on October 1,
39 Godfrey v. Godfrey, 2006 PA Super 39, ¶8, 894 A.2d 776, 780.
40
Godfrey v. Godfrey, 2006 PA Super 39, ¶10, 894 A.2d 776, 780-81.
0
2004.... Counsel noted that the regular mail was returned with the
notation "[d]oes not live here; do not send his mail" and that the certified
mail went unclaimed.... A review of the certified record discloses that a
copy of the trial court's order scheduling the hearing was also sent to
[defendant] .
At the contempt hearing, [defendant] contended that he did not attend
the hearing on September 30, 2004, as he had not received
notice.... {Defendant] testified that the 2500 Federal Avenue address
was his sister's house and that he lived there "off and on through the fall"
of 2004.... {Defendant] also testified that he still had possessions at
2500 Federal Avenue and that he never informed the Clinton County
Domestic Relations Section that he would not be receiving mail at that
residence....
The trial court found that {defendant's] testimony lacked credibility
and further found that despite appropriate notices sent to his last know
address he willfully failed to appear at the contempt
hearing.... Accordingly, the trial court held [defendant] in contempt.
We find that [defendant's] argument regarding the lack of due
diligence to be without merit. [defendant's] testimony established that he
resided at 2500 Federal Avenue "off and on through the fall" of 2004. A
review of the record reveals that notices were sent to this address during
this relevant time period. Furthermore, [defendant] admits that he never
informed the Clinton County Domestic Relations Section of a change in
his address from 2500 Federal Avenue to another residence. Interestingly,
[defendant] also admitted that he still keeps possessions in that residence.
Given these undisputable facts, we find that the domestic relations division
and the opposing party acted with due diligence to properly serve
[defendant] with notice and, therefore, the trial court's finding of contempt
for willful failure to appear pursuant to Section 4344 is amply supported
by the record .41
In the present case, in which the evidence in support of the petition was not
contradicted, a number of factors led the court to conclude that Defendant, who
had been the subject of numerous bench warrants for failure to appear in the past,
had intentionally, voluntarily and willfully failed to appear for the hearing on
October 19, 2007. These included the mailing of the notice of the petition for
contempt for failure to pay to Defendant at the address on file with the Domestic
Relations Office, the post office verification of this address as a repository for
Defendant's mail, the failure of Defendant to notify the Domestic Relations Office
of a different current address, the mailing of the notice of hearing to Defendant at
41 Godfrey v. Godfrey, 200 PA Super 39, ¶¶I1-14, 894 A.2d 776, 781.
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the verified address, the absence of a return of the mail to the Domestic Relations
Office by the post office, the barricade and concealment encountered by
enforcement officers when they attempted to apprehend Defendant, and his
characterization of the hearing in question as "bull crap." While some of these
factors are circumstantial, as Thoreau observed: "Some circumstantial evidence is
very strong, as when you find a trout in the milk. ,42
Derek Clepper, Esq.
Attorney for Domestic
Relations Office
Ellen K. Barry, Esq.
First Assistant Public Defender
BY THE COURT,
J. Wesley Oler, Jr., J.
42 Henry David Thoreau, Journal, November 11, 1854.
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