HomeMy WebLinkAbout1037 S 2002 (2)
SONYA A. : IN THE COURT OF COMMON PLEAS OF
HOCKENSMITH, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff : DOMESTIC RELATIONS SECTION
:
v. : CIVIL ACTION—SUPPORT
:
JAMES A. : PASCES NO. 012102876
HOCKENSMITH, :
Defendant : NO. 1037 SUPPORT 2002
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., July 28, 2010.
In this child support case in which Defendant is obligated to pay less than
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$50 per week for each of two children he has accumulated arrearages of more
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than $11,000.00. He failed to appear for a hearing on a petition against him for
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civil contempt, was detained on a bench warrant resulting from his failure to
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appear, was adjudicated in civil contempt, and was released from prison with an
order that pending sentence he report to the Domestic Relations Office at least
once each week with written verification that he had applied to at least ten places
of full-time, wage-attachable employment until he had obtained such
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employment.
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Defendant did not report a single attempt to obtain employment, and the
Cumberland County Domestic Relations Office filed a second petition—this time
for indirect criminal contempt pursuant to Pennsylvania Rule of Civil Procedure
1910.25-7 (failure to comply with order to obtain employment with verifiable
1
Order of Court, October 14, 2008.
2
N.T. 3, Hearing, May 7, 2010; Plaintiff’s Ex. 1, Hearing, May 7, 2010.
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Bench Warrant, April 9, 2010; N.T. 3, Hearing, May 7, 2010.
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N.T. 3, Hearing, May 7, 2010.
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Order of Court, May 7, 2010.
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Order of Court, May 7, 2010.
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N.T. 2, Hearing, May 21, 2010.
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income subject to income attachment). From an adjudication of contempt and
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disposition with respect to this petition, Defendant has filed an appeal to the
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Pennsylvania Superior Court.
The basis for the appeal has been expressed in a statement of errors
complained of on appeal as follows:
The court erred in finding that the Domestic Relations Section
presented sufficient evidence for the Court to find the Defendant guilty
beyond a reasonable doubt of failing to obtain or maintain employment
pursuant to the Pennsylvania Rules of Civil Procedure, Rule 1910.25-7
during the period of May 7, 2010, to May 21, 2010, where Domestic
Relations presented absolutely no evidence that the Defendant was not
employed and the Defendant testified that he continued to be employed at
the Wertz Coal Yard where he had been employed for approximately 19
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years.
This opinion in support of the court’s finding of contempt is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
Defendant’s support obligation relates to two young children—nine-year-
old Lillian Jeanette Hockensmith and seven-year-old James Allin Hockensmith,
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both of whom live with their mother. When a petition for civil contempt was
filed against Defendant in September of 2009, his arrears were said to have
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reached $8,209.11. As of the hearing on the petition on May 7, 2010, the arrears
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had risen to $11,414.11, Defendant’s driver’s license had been suspended for
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Petition for Contempt, filed May 20, 2010.
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Defendant was sentenced to undergo a period of imprisonment of four months in the
Cumberland County Prison, with a request that the prison secure employment for Defendant
through the work release program. Order of Court, May 21, 2010.
10
Defendant’s Notice of Appeal, filed June 4, 2010.
11
Defendant’s Concise Statements of the Errors Complained of on Appeal, filed June 29, 2010.
12
Plaintiff’s Complaint for Support, filed May 19, 2002.
13
Petition for Contempt, filed September 29, 2009.
14
N.T. 3, Hearing, May 7, 2010; Plaintiff’s Ex. 1, Hearing, May 7, 2010.
2
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driving under the influence until 2011, and criminal charges were pending
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against him in separate incidents for public drunkenness and simple assault.
At the hearing on the petition for civil contempt, which he attended by
virtue of the execution of a bench warrant arising out of his failure to appear for
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the hearing when scheduled earlier, Defendant claimed that he was employed by
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the “Wertz Coal Yard in Mechanicsburg,” Cumberland County, Pennsylvania,
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and had “worked for him off and on for at least 19, 19 1/2 years off and on.”
Between August 26, 2009, and March 24, 2010, Defendant had made no payments
on the order; the payment on August 26, 2009, had been for $20 and the payment
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on March 24, 2010, had been for $50.
As of the hearing date, such employment as he may have had with the
Wertz Coal Yard was not wage-attached and was far from full-time. Defendant’s
testimony on these points was as follows:
Q Well, did you have a wage attachment in March[, 2010]?
A No.
Q Why did the wage attachment end . . . ?
A Because as of now I am only working like part-time. I don’t
get a total of 40 hours because it is summertime. The business closes down
in the summertime. I don’t work as much.
Q But I thought you said that there was work to do because of—
A There is, yes, but not to get into trouble he pays me under the
table as of right now.
Q All right. So you’re not on the books as an employee?
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N.T. 12, Hearing, may 7, 2010.
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N.T. 11, Hearing, May 7, 2010.
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N.T. 6, 12, Hearing, May 7, 2010.
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Defendant had failed to appear for a hearing on the petition scheduled for April 9, 2010. See
Bench Warrant—Defendant, and supporting affidavit, filed April 14, 2010. He was picked up on
the bench warrant on or about April 24, 2010. N.T. 5, Hearing, May 7, 2010.
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N.T. 4, Hearing, May 7, 2010.
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N.T. 4, Hearing, May 7, 2010.
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N.T. 5-6, Hearing, May 7, 2010.
3
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A No, I’m not. I help him out.
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Defendant stated that he was current on his own rental obligation, and had
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“been paying my other bills and fines . . . .” However, he testified that he had no
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money whatsoever to pay on the support order as of the hearing date.
It seemed obvious to the court from the evidence at the hearing that
Defendant’s purported employment with the Wertz Coal Yard had not been in the
past a reliable source of support for Defendant’s children, and that any expectation
that it would prove to be otherwise in the future was totally unrealistic. At the
conclusion of the hearing, the court found Defendant in civil contempt, deferred
disposition until May 21, 2010, released him from prison, and directed that he
“report to the Domestic Relations Office at least once each week with written
verification that he has applied to at least 10 places of potential employment until
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such time as he obtains full-time, wage-attachable employment.”
When Defendant failed to report a single job application to the Domestic
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Relations Office, a petition for indirect criminal contempt pursuant to
Pennsylvania Rule of Civil Procedure 1910.25-7 was filed against him on May 20,
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2010. At the hearing held on that petition, Defendant admitted that he had not
complied with the court’s order of May 7, 2010, that he report to the Domestic
Relations Office with verification that he had applied to at least 10 potential
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employers per week, and that he had in fact not applied for any jobs following
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the court’s order.
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N.T. 10, Hearing, May 7, 2010.
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N.T. 8, Hearing, May 7, 2010.
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N.T. 6, Hearing, may 7, 2010.
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N.T. 12, Hearing, May 7, 2010.
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Order of Court, May 7, 2010.
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N.T. 2, Hearing, May 21, 2010.
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Petition for Contempt, filed May 20, 2010.
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N.T. 2, Hearing, May 21, 2010.
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N.T. 11-12, Hearing, May 21, 2010.
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He reiterated his position that he was employed at the Wertz Coal Yard,
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and asserted that the employment was “pretty much” full-time, although he
conceded that he had worked there only one day in the previous two weeks and
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had not yet been paid for that day. With regard to a wage attachment, Defendant
stated:
Right now I don’t know what he’s doing because I didn’t get paid yet.
So I’m not sure if he’s taking taxes out on me yet or not. But in the process
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in the summertime, work slows down because it’s [the] coal business.
Defendant conceded that he had actually been taken off the books of the Wertz
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Coal Yard in January of 2010, which was supposedly the employer’s busy time
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of year. When asked why, he replied, “I have no idea.”
Defendant’s testimony included the following in response to a question by
the court:
Q . . . It seems to me I heard about Wertz Coal Yard before. Did
you testify previously about that?
A Yeah. I worked there the last time I was here when you asked
about it.
Q I think that notwithstanding that testimony I did order you to
report efforts to secure employment; is that not right?
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A Yeah.
At the conclusion of the hearing, the court adjudicated Defendant in
indirect criminal contempt.
DISCUSSION
Under Pennsylvania Rule of Civil Procedure 1910.25-7 (Indirect Criminal
Contempt. Incarceration), it is provided as follows:
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N.T. 5, Hearing, May 21, 2010.
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N.T. 6, Hearing, May 21, 2010.
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N.T. 5, Hearing, May 21, 2010.
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N.T. 10, Hearing, May 21, 2010.
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N.T. 10-11, Hearing, May 21, 2010.
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N.T. 11, Hearing, May 21, 2010.
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N.T. 6-7, Hearing, May 21, 2010.
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In addition to any other remedy available to the court, the court may
order the respondent to obtain employment with income that can be
verified and is subject to income attachment. If the respondent willfully
fails to comply with an order to obtain such employment, the court may
commit the respondent to jail upon adjudication for indirect criminal
contempt, provided the respondent is afforded all of the procedural
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safeguards available to criminal defendants.
The rationale for this rule is set forth in its accompanying explanatory
comment:
Parental support of children is a fundamental requirement of law and
public policy. Absent an inability to maintain employment or acquire other
income or assets, sanction in the form of incarceration may be imposed by
the court to compel compliance and provide an incentive to obey the law.
The contempt process, which should be used as a last resort, is necessary
to impose coercive sanctions upon those obligors whose circumstances
provide no recourse to the court to compel payment or a good faith effort
to comply. Appellate opinions have made it clear that an obligor who is in
civil contempt cannot be incarcerated without the present ability to fulfill
the conditions the court imposes for release. However, the courts also have
noted that recalcitrant obligors may be imprisoned for indirect criminal
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contempt if afforded the proper procedural safeguards.
In the present case, the court gave Defendant every opportunity to
demonstrate a good faith effort to obtain full-time, wage-attachable employment,
including his release from prison following the execution of a bench warrant and
following an adjudication of civil contempt. Defendant demonstrated the
opposite—that he was content to support himself with non-attachable, infrequent
work while refusing to seek employment that would meet his modest, judicially-
imposed obligation to contribute to the support of his children. He was, in the
court’s view, a classic example of the type of recalcitrant obligor that the “last
resort” provided for in Pennsylvania Rule of Civil Procedure was intended to
apply to.
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Pa. R.C.P. 1910.25-7 (citations omitted).
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Pa. R.C.P. 1910.25-7, Explanatory Comment—2007.
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BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Derek Clepper, Esq.
Counsel for Domestic
Relations Office
Linda S. Hollinger, Esq.
Deputy Public Defender
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