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HomeMy WebLinkAbout101 S 2003 BRANDI L. KUYKENDALL, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DOMESTIC RELATIONS SECTION PACSES NO. 975105225 RANDALL L. GARNER, Defendant NO. 03-101 SUPPORT IN RE: OPINION PURSUANT TO P A. R.A.P. 1925 OLER, 1., November 16,2004. In this child support case, Defendant has appealed to the Pennsylvania Superior Court from an order finding him in contempt, imposing a sanction of three weeks in prison, and setting a $750.00 lump sum purge condition, inter alia.l Defendant met this purge condition the same day it was imposed, thereby avoiding the three-week period of incarceration. 2 The sole basis for the appeal, as expressed in Defendant's statement of matters complained of on appeal, is as follows: The sole allegation of error on appeal is whether the Court could be convinced beyond a reasonable doubt from the totality of the evidence before it that Mr. Gamer had the present ability to comply with the purge set to gain his release from the Cumberland County Prison after an admission of contempt. 3 This opinion in support of the adjudication is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS Defendant, Randall L. Gamer, 30,4 resides at 36 South West Street, Carlisle, Cumberland County, Pennsylvania,5 and is the father of a three-year-old 1 Order of Court, October 1,2004. 2 See Order of Court, October 1, 2004. 3 See Defendant's Statement of Matters Complained of on Appeal, filed October 18,2004. 4 See Complaint for Support, para. 2, filed January 31, 2003. 5 NT. 6, Hearing, October 1,2004 (hereinafter NT. ~. son named Dakota Ashdon Kuykendall. 6 Plaintiff Brandi L. Kuykendall is the child's mother. 7 A complaint for support of the child was filed by Plaintiff against Defendant on January 31, 2003.8 Since the filing of the complaint last year, Defendant has accumulated arrearages of over $4,500.00.9 A first petition for contempt with respect to Defendant's support obligation was filed on January 16, 2004.10 This petition resulted in an admission of contempt. 11 Sentence was imposed in accordance with an agreement of the parties, as follows: Pursuant to an agreement reached between the Plaintiff, who is present in court, and her counsel, Derek Clepper, Esquire, and Defendant and his counsel, the sentence of the Court is that the Defendant undergo a period of probation of 12 months conditioned upon his payment of the sums required under this order on a timely basis in full, upon his doing nothing to cause himself to lose his present wage-attachable employment with Eagle Car Wash unless he has obtained better-paying, wage-attachable employment prior thereto, and upon his making the payments required under the order directly to the proper authority until such time as he sees the effect of a wage attachment on his pay stubs. 12 Notwithstanding the terms of his probation, Defendant quit his job within a few weeks of imposition of sentence. 13 Although he obtained subsequent employment,14 a wage attachment was not initially in effect,15 and during this 6 See Defendant's Acknowledgment ofPatemity, December 29,2000. 7 See id. 8 Complaint for Support, filed January 31, 2003. 9 Plaintiffs Ex. 1, Hearing, October 1,2004 (hereinafter Plaintiffs Ex. 1); NT. 12. 10 Petition for Contempt-Defendant, filed January 16,2004. 11 See Order of Court, April 2, 2004. 12 Order of Court, April 2, 2004. 13 NT. 9. 14 NT. 9. 15 NT. 9; Plaintiffs Ex. 1. 2 period no payments were received from Defendant on the order.16 Thus, a second petition for contempt was filed against Defendant on June 8, 2004.17 At a hearing on this second petition, Defendant again admitted that he was in contempt.18 On the issue of a condition of purge to be imposed,19 he testified that, although he faithfully made his rent payments to his mother regardless of his nonpayment of support,20 and expected to receive $174.00 from his employer later in the day,21 his bank account contained only $19.00 and he had no money available to pay on the order.22 Defendant conceded that he was employed full- time at an hourly rate of $8.00, and frequently worked overtime.23 His counsel argued, in essence, that the court was powerless to do anything other than place him on probation again?4 At the conclusion of the hearing, the court entered the order referred to above, which included as a condition of purge the payment of $750.00?5 Defendant, as noted, promptly made the payment. 26 Defendant thereafter filed an appeal to the Pennsylvania Superior Court, challenging the condition of purge. 27 16 NT. 9; Plaintiffs Ex. 1. It was not until July 22,2004, that Defendant's payments resumed, by virtue of a wage attachment. Id. 17 Petition for Contempt-Defendant, filed June 8, 2004. 18 NT. 5. 19 NT. 6. 20 NT. 8, 10. 21 NT. 11. 22 NT. 7. 23 NT. 7-8. 24 See NT. 4-6, 13-14. 25 Order of Court, October 1,2004. 26 See Order of Court, October 1, 2004. At the conclusion of the hearing, Defendant's counsel requested that the sanction for contempt be stayed pending an appeal. NT. 15. Although the court would not have been averse to granting a request for Defendant's release upon security, it was not willing to simply "stay" the sanction. Id. 3 DISCUSSION One who is in contempt of a duty of support established by court order may be imprisoned until he or she purges himself or herself of contempt by complying with terms and conditions imposed by the court. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Pa. R.C.P. 1910.25-5. Thus, "[a]n order committing a [person] to jail for contempt of a support order shall specify the conditions the fulfillment of which will result in the release of the respondent. ,,28 In this context, the purge condition must be one which the court is satisfied beyond a reasonable doubt the contemnor can meet. 29 At the same time, several principles militate against a conclusion that a court is entirely at the mercy of the contemnor with respect to the establishment of an appropriate condition of purge. First, a trier-of-fact is not required to believe all, or even part, of a person's testimony as to his financial resources;30 while disbelief in itself does not supply proof beyond a reasonable doubt,31 it does divest the contemnor's factual demurs of any weight. 32 Second, where a condition of purge has in fact been met by a contemnor, his or her challenge to the adjudication is generally considered to be moot. 33 Third, where a contemnor has intentionally disabled himself or herself from meeting a condition of purge, courts have been reluctant to relieve the contemnor 27 Defendant's Notice of Appeal, filed October 6, 2004; Defendant's Statement of Matters Complained of on Appeal, filed October 18,2004. 28 Pa. RC.P. 1910.25-5(b). 29 Barrett, 470 Pa. at 263-64,368 A.2d at 621. 30 See, e.g., Com. v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974). 31 See Barrett, 470 Pa. at 264,368 A.2d at 621. 32 Cf Grand Jury, April Term 1977, 251 Pa. Super. 43, 379 A.2d 323 (1977). 33 See Altemose Construction Co. v. Building and Construction Trades Council, 449 Pa. 194,214, 296 A.2d 504,515-16 (1972); Phoenix Glass Co. v. Local Union No. 8381, 244 Pa. Super. 16, 366 A.2d 293 (1976); Reap's Appeal, 88 Pa. Super. 147 (1926); Cunningham v. Mitchell, 67 Pa. 78 (1870). 4 of the effect of a sanction. Crislip v. Harshman, 243 Pa. Super. 349, 365 A.2d 1260 (1976). In the present case, where Defendant disabled himself by resigning from his employment in violation of an agreed-upon condition of probation arising out of a prior contempt adjudication, withheld support payments from his subsequent employment, had full-time employment as of the second contempt proceeding and was making full rental payments to his mother, anticipated a paycheck from his employer on the day of the hearing, and immediately satisfied the modest lump- sum condition of purge of $750.00 imposed by the court, it is believed that Defendant's challenge to the contempt adjudication as it related to the condition of purge is untenable. BY THE COURT, 1. Wesley Oler, Jr., 1. Derek R. Clepper, Esq. Domestic Relations Section 13 N. Hanover Street Carlisle, P A 17013 Attorney for Plaintiff Linda S. Hollinger, Esq. Assistant Public Defender 5