HomeMy WebLinkAbout2010-3617
TINA M. SWINN : IN THE COURT OF COMMON PLEAS OF
Plaintiff
: CUMBERLAND COUNTY,
: PENNSYLVANIA
v. :
: CIVIL ACTION - LAW
JOHN A. SWINN :
Defendant : NO. 10-3617 CIVIL
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Peck, J., December 14, 2015.
1
Following contempt hearings on June 4, 2015 and July 8, 2015, Defendant John
A. Swinn (hereinafter “Defendant”) was held in contempt of this Court’s Final Order of
Court dated September 30, 2013, which adopted the Divorce Master’s Report and
Recommendation regarding equitable distribution, as well as this Court’s January 23,
2013 Order, June 4, 2015 Order, and all other Orders of Court pertaining to the
enforcement of the divorce proceedings. Defendant was sentenced to pay the costs of
prosecution, a fine of $100, and that he undergo a period of imprisonment of not less than
2
2 months nor more than 6 months. Furthermore, the Court ordered that the Defendant
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Defendant did not appear at the June 4, 2015 contempt hearing due to a reported illness, and failed to provide
the Court with advance notice of the same. Despite Defendant’s absence, this Court took testimony from Plaintiff
Tina Swinn regarding the Defendant’s failure to comply with this Court’s Orders. At the close of Plaintiff’s
testimony, this Court continued the proceedings to July 8, 2015 to allow Defendant the opportunity to comply with
the previously-ordered equitable distribution orders, to appoint counsel on behalf of Defendant in the event that
this Court held Defendant in contempt, and to allow Defendant another opportunity to present evidence in
defense of contempt. Defendant appeared at the July 8, 2015 contempt hearing and was represented by court-
appointed counsel, Jacob M. Jividen, Esquire. It is important to note that this Court granted Defendant Court-
appointed counsel not on the basis of indigence at that time, but rather because the Defendant then had no
counsel, and out of an abundance of caution to ensure that Defendant had proper legal representation at any
contempt proceeding which could result in his imprisonment. Defendant was represented by several previous
privately-retained attorneys during the course of the litigation, though all prior counsel withdrew their
appearances on his behalf. Defendant did not apply for in forma pauperis until this Court issued an Order on June
26, 2015 ordering Defendant, on the related but separate issue of Defendant’s exceptions to the Support Master’s
Report on alimony pendent lite, to either pay for already-filed court transcripts, apply for in forma pauperis status,
or the Court would dismiss the support exceptions. Defendant then applied for in forma pauperis. This Court
denied the in forma pauperis petition on July 8, 2015, following a hearing, finding that the Defendant’s testimony
was not credible, and that he could pay for costs, filing fees and other fees associated with the case. Order of the
Court, July 8, 2015. Defendant’s request for in forma pauperis on appeal, filed by his Court-appointed counsel, did
not contain all of the statutory requirements necessary for a petition for in forma pauperis due to the fact that
Defendant would not supply his attorney with the relevant financial information. Rather than hold a hearing, this
Court, once again in an effort to move this litigation forward, simply granted the petition for in forma pauperis.
2
Order of the Court, July 8, 2015.
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could purge himself of his contempt by paying the sum of $12,400 to the Plaintiff. In the
event that Defendant purged himself of the contempt, the Court ordered the following
conditions of his parole, which all relate to the Defendant complying with the terms of
equitable distribution: 1) that he pay Plaintiff $600, representing the value of the 1997
Dodge Neon, 2) that he transfer possession and title of the 1969 Penyon boat and trailer
to Plaintiff, 3) that he transfer possession and title of the 2002 Dodge utility truck to
Plaintiff, 4) that he pay a sum of $275 to Plaintiff, which represents the cost of the blue
emergency light, 5) that he pay Plaintiff’s counsel, Rex Bixley, Esquire, the sum of $150,
which represents the cost of deed preparation to deed the marital home to the Plaintiff,
and 6) that he pay the sum of $500 to Plaintiff, which represents the value of the 1998
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Ford dump truck.
Defendant has appealed this Court’s finding of contempt, and has compiled the
following list of errors complained of on appeal:
1.The Court abused its discretion when it found Defendant in contempt of Court.
2.The Court erred in finding that Defendant had the present ability to comply with
the Divorce Master’s Report made a Final Order of the Court.
3.The Court did not have authority to place the Defendant on parole following his
purge of the Court’s sentence.
4.Defendant’s purge of the Court’s sentence relieved Defendant from all other
conditions of parole as set forth in the Court’s Order of July 8, 2015.
The following Opinion is written, pursuant to Pa. R.A.P. 1025(a), in support of
this Court’s decision to hold Defendant in contempt.
FACTUAL AND PROCEDURAL HISTORY
This case represents one of the most contentious divorce proceedings this Court
has handled to date. The Complaint in Divorce was filed June 2, 2010 and granted
January 2, 2014. A review of the 26 pages of docket entries alone may reveal to the
3
Order of the Court, July 8, 2015. Such $12,400 represented the portion of the Fidelity 401k that the Divorce
Master found Defendant should pay to Plaintiff in the equitable distribution.
4
Order of the Court, July 8, 2015.
2
reviewing Court the nature and volume of motions and litigation by the parties hereto.
The present dispute arises out of the failure of the Defendant to distribute certain property
pursuant to Court Orders.
In an Order dated September 30, 2013, the Court ordered equitable distribution of
the marital assets pursuant to the terms of the Divorce Master’s March 15, 2013 Report
(hereinafter the “Master’s Report”). Among other things, the Master’s report required the
parties to exchange possession and title to numerous items of personal property,
including boats, trailers, and automobiles. The Master’s Report also found that a portion
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of money held in a Fidelity 401k account in Defendant’s name was marital property. As
a result of this finding, $12,400 from the Fidelity 401k was assigned to Plaintiff in the
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equitable distribution.
Despite the Court’s adoption of the Master’s Report as a Final Order of the Court,
the parties were repeatedly unable, and often unwilling, to cooperate with one another in
a manner that allowed distribution of the marital assets to occur. In an effort to resolve
the matter and move the divorce process forward, this Court issued an Order on
September 17, 2014 requiring the parties to meet on Saturday, September 27, 2014, with
a constable present, to exchange title and/or possession of property in accordance with
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the Master’s Report. Remarkably, that September 27, 2014 date was chosen by the
agreement of both parties during the September 17, 2014 hearing upon this Court’s
insistence that the parties choose a mutually agreeable date, while in the presence of the
Court, to exchange property so as to eliminate any further dispute in the matter.
Nevertheless, the communication between the parties broke down on the date that they
were to meet, and Defendant refused to exchange the property as previously ordered.
At a January 23, 2015 hearing on several of the parties’ motions, including each
party’s motion to have the other party held in contempt for failure to adhere to this
Court’s orders concerning equitable distribution, this Court heard testimony that
5
Master’s Report at 5.
6
Master’s Report at 6.
7
Order of Court, September 17, 2014.
3
Defendant was unwilling to move forward with equitable distribution on September 27,
8
2014, as ordered by the Court. Testimony was given that the Plaintiff showed up that
9
day, along with the constable, but Defendant claimed that the distribution could not take
10
place as ordered because he had filed a motion for continuance two days earlier, and
because the Plaintiff needed to apply for a duplicate title for a trailer before transferring
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title to the Defendant. Defendant insisted he would not turn over the property he was
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ordered to turn over until after Plaintiff obtained the duplicate title. Plaintiff, with her
counsel present, offered on that same day (September 27, 2014) to go with Defendant to
obtain the duplicate title so that she could give Defendant the title that day, but Defendant
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refused to do so. Therefore, the distribution did not take place as scheduled on
September 27, 2014.
At the January 23, 2015 hearing, this Court noted that it previously enjoined the
Defendant from spending the Fidelity 401k money and ordered him to provide proof that
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the money was in the 401k account. Defendant repeatedly testified that he had moved
the money from the Fidelity 401k account referenced in the Master’s Report into another
account, but that the $12,400 was still available to pay the Plaintiff the share she was
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assigned in the Master’s Report. Defendant, however, did not produce documentation
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showing the location of the funds in question. When specifically questioned about the
new account, Defendant first stated that he refused to give this information to the Court,
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but later stated that he did not have the information with him to give to the Court.
8
Notes of Testimony (hereinafter N.T.) January 23, 2015 at 14.
9
N.T. January 23, 2015 at 10-11.
10
It should be noted that Defendant did file a Motion for Continuance of record on September 25, 2014, however
the continuance was not granted by the Court.
11
N.T. January 23, 2015 at 20-21.
12
N.T. January 23, 2015 at 29-30.
13
N.T. January 23, 2015 at 10, 12-13, 29-31.
14
N.T. January 23, 2015 at 66-67. See also Order of the Court, January 14, 2013 (ordering that neither party shall
damage or destroy any property that is the subject of the divorce action).
15
N.T. January 23, 2015 at 70, 72, 75, 85-86, 110.
16
N.T. January 23, 2015 at 67, 86.
17
N.T. January 23, 2015 at 86-87.
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Regardless, Defendant was adamant that the $12,400 from the Fidelity 401k still existed,
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and that he had access to the same.
In light of Defendant’s testimony at the January 23, 2015 hearing that Defendant
said he wanted the equitable distribution process to move forward, this Court decided to
give the Defendant one more opportunity to comply. In an Order dated January 23, 2015,
this Court ordered defendant to provide documentation about the location of the money
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from the Fidelity 401k account within ten days of the date of that Order. Defendant
failed to provide information about the location of the money from the Fidelity 401k
account within ten days, and a hearing regarding Defendant’s contempt, among other
issues, was scheduled for June 4, 2015. Defendant did not appear before the Court on
June 4, 2015 due to an alleged illness (about which the Defendant notified this Court by
calling this Court’s secretary close in time to the hearing). The Court nevertheless heard
testimony from Plaintiff on that date regarding Defendant’s failure to comply with the
Court’s Orders. The Court scheduled another contempt hearing for July 8, 2015 so that
Defendant could defend himself against Plaintiff’s claims that he was in contempt.
On July 8, 2015, Defendant appeared before the Court, represented by Attorney
Jividen, and testified that he did not have access to the $12,400 from the Fidelity 401k
account, and that such money was spent repairing the marital home that had already been
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transferred to Plaintiff many months prior, pursuant to the Master’s Report. While
Defendant did indicate at the January 23, 2015 hearing that he had spent some money
from the Fidelity 401k on the marital home, he clearly indicated on several occasions that
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$12,400 of that money was still available to pay the Plaintiff. Defendant’s testimony at
the July 8, 2015 hearing that all of the money from the Fidelity 401k was spent during the
marriage contradicted his testimony from the January 23, 2015 hearing, where he
repeatedly represented to the Court that the money was being kept in another bank
account. This Court found incredible the Defendant’s testimony at the July 8, 2015 that
18
N.T. January 23, 2015 at 72, 86, 110.
19
Order of Court, January 23, 2015.
20
N.T. July 8, 2015 at 51-52.
21
N.T. January 23, 2015 at 72, 86, 110.
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he was unable to pay the $12,400 to the Plaintiff. As a result, this Court found Defendant
in contempt at the conclusion of the July 8, 2015 hearing and ordered the Defendant to be
incarcerated until he paid the $12,400 to the Plaintiff as ordered in several Court Orders
issued prior thereto. The Defendant requested to be placed on work release during his jail
sentence, which this Court granted, despite the fact that the Defendant’s request for such
conflicted with his filings with the Support Master, which alleged that a modification of
the support order for alimony pendente lite was necessary because the Defendant no
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longer had the ability to work. The Defendant subsequently paid $12,400 to the
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Plaintiff and was released from jail on July 27, 2015. In the Order releasing the
Defendant from jail, the Court ordered that the Defendant was still subject to compliance
with the remaining terms and conditions regarding the distribution of property contained
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in the July 8, 2015 Order of Court. Defendant has appealed this Court’s decision to hold
him in contempt.
DISCUSSION
As a preliminary matter, a court has the power to hold a litigant in civil or criminal
contempt. The Court’s dominant purpose in holding a person in contempt determines
whether the contempt is civil or criminal. Commonwealth v. Charlotte, 391 A.2d 1296,
1298 (Pa. 1978). Where a Court seeks to “coerce the contemnor into compliance with the
order of the court to do or refrain from doing some act primarily for the benefit of a
litigant or a private interest,” then the contempt is civil. Id. (internal citations omitted). In
contrast, when the Court’s purpose is to “vindicate the dignity and authority of the court
and to protect the interest of the general public,” then the contempt is criminal. Id.
In the present case, this Court’s July 8, 2015 Order did not indicate whether the
Court held the Defendant in civil or criminal contempt. While Defendant’s actions justify
holding him in both types of contempt, this Court’s primary purpose in holding the
22
Order of the Court, July 8, 2015.
23
Order of the Court, July 27, 2015.
24
Order of the Court, July 27, 2015.
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Defendant in contempt on July 8, 2015 was to coerce him into distributing marital
property to the Plaintiff in accordance with the terms of the Master’s Report.
Consequently, on appeal, it should be noted that the Defendant was held in civil contempt
for his failure to comply with this Court’s Orders.
The equitable division of marital property statute of the Divorce Code specifically
lays out the powers of the court that it may impose if, at any time, a party has failed to
comply with an order of equitable distribution. 23 Pa.C.S. §3502 (e). The Court may,
after a hearing, and in addition to any other remedy available under this part, in order to
effect compliance with its order:
(1)enter judgment;
(2)authorize the taking and seizure of the goods and chattels and collection of the
rents and profits of the real and personal, tangible and intangible property of
the party;
(3)award interest on unpaid installments;
(4)order and direct the transfer or sale of any property required in order to
comply with the court’s order;
(5)require security to insure future payments in compliance with the court’s
order;
(6)issue attachment proceedings, directed to the sheriff or other proper officer of
the county, directing that the person named as having failed to comply with
the court order be brought before the court, at such time as the court may
direct. If the court finds, after hearing, that the person willfully failed to
comply with the court order, it may deem the person in civil contempt of court
and, in its discretion, make an appropriate order, including, but not limited to,
commitment of the person to the county jail for a period not to exceed six
months;
(7)award counsel fees and costs:
(8)attach wages; or
(9) find the party in contempt.
Id.
The standard of review for a finding of civil contempt is as follows:
When considering an appeal from an order holding a party in contempt for
failure to comply with a court Order, our scope of review is narrow: we will
reverse only upon showing the court abused its discretion. Further, as it
relates to whether a finding of contempt is warranted, this Court explained
in In re Contempt of Cullen, 849 A.2d 1207 (Pa. Super. 2004),‘\[t\]o sustain
a finding of civil contempt, the complainant must prove certain distinct
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elements: (1) that the contemnor had notice of the specific order or decree
which he has alleged to have disobeyed; (2) that the act constituting the
contemnor’s violation was volitional; and (3) the contemnor acted with
wrongful intent.’
Gates v. Gates, 967 A.2d 1024 (Pa. Super. 2009). For the following reasons, this Court’s
decision to hold Defendant in civil contempt was not an abuse of discretion.
Notice
The record shows that Defendant had notice of the Orders entered against him.
Regarding the Fidelity 401k, Defendant acknowledged on the record at the January 23,
2015 hearing that he received this Court’s January 15, 2015 Order requiring him to
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provide proof that the 401k funds remained intact. Defendant even acknowledged the
Master’s recommendation that Defendant pay $12,400 in his January 23, 2015 testimony
that, “\[what we are\] dealing with today is the Court has $12,400 jurisdiction that related
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back to the Master’s Report…” Thus, it is readily apparent from the Defendant’s own
testimony that he had knowledge of the Court’s Order that he pay Plaintiff $12,400 from
the Fidelity 401k prior to the January 23, 2015 hearing.
Any doubt about whether Defendant had notice of the fact that he was required to
produce documentation regarding the location of the funds from the Fidelity 401k
vanished when the Court gave Defendant another opportunity to comply with its Order
following the conclusion of the January 23, 2015 hearing. At that time, on the record and
in the presence of Defendant, the Court gave Defendant ten additional days to provide
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documentation regarding the location of the funds from the Fidelity 401k. The Court
specifically warned Defendant that his continued non-compliance could result in
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contempt. However, Defendant once again failed to provide the documentation required
by the Court, which led to the June 4, 2015 and July 8, 2015 hearings regarding the
Defendant’s contempt. At the July 8, 2015 hearing, the Defendant again acknowledged
25
N.T. January 23, 2015 at 67.
26
N.T. January 23, 2015 at 75.
27
N.T. January 23, 2015 at 107.
28
N.T. January 23, 2015 at 111.
8
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that he was under an Order regarding the Fidelity 401k money. As a result, this Court
found that Defendant had notice of the Orders for which he is alleged to have disobeyed.
See Sinaiko v. Sinaiko, 664 A.2d 1005 (Pa. Super. 1995)(upholding trial Court’s
imposition of 14 day jail sentence for failure to pay wife’s attorney’s fees incurred in
divorce).
Volition
Additionally, this Court found that Defendant’s failure to comply with its Orders
was volitional. Defendant was asked at the January 23, 2015 hearing why he didn’t
provide documentation regarding the Fidelity 401k, as previously ordered by the Court.
In response, Defendant repeatedly began arguing about why he believes the Divorce
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Master wrongfully decided that the money in the 401k was marital property.
Importantly, Defendant never indicated that he misunderstood the fact that the Master’s
Report was adopted as a Final Order of the Court which he was required to obey. Instead,
Defendant merely indicated his disagreement with the decisions of the Divorce Master
that were reflected in the Court’s Final Order.
Defendant’s own testimony from the January 23, 2015 hearing provides the best
proof that the Defendant understood that the Court adopted the Divorce Master’s Report
as a Final Order. When Defendant was cross-examined about transferring the titles to the
Penyon boat and Dodge utility truck, he answered in the following manner: “Yes, as I
stipulated before and according to the Master’s Report adopted by this Court, the Master
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clearly stipulates that the titles are to be signed by the parties and notarized.” Thus,
Defendant clearly understood that the Court had adopted the Master’s Report as its own,
and that the Court Order must be followed. For this reason, the Court found that the
Defendant’s failure to comply with the Court’s Orders was volitional. Defendant
understood he was to turn over the money, but he did not want to do so.
29
N.T. July 8, 2015 at 50-51.
30
N.T. January 23, 2015 at 68, 72-74, 86.
31
N.T. January 23, 2015 at 90.
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Wrongful Intent
Finally, this Court found that Defendant acted with wrongful intent in disobeying
its Orders. As set forth above, the record reflects that Defendant purposefully disregarded
Court Orders based on his personal belief that the Divorce Master reached an erroneous
decision. Specifically, when Defendant was cross-examined about the current location of
the funds from the Fidelity 401k, he indicated that he would not reveal the location of the
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money to anyone, including the Court. In Defendant’s own words, “\[t\]hat account
information will not be given at the Courts because at this point there ain’t no marital
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property in that account.” Based on this statement, the totality of Defendant’s testimony
at the January 23 and July 8 hearings, the Defendant’s actions in the failed exchange of
property on September 27, 2014, the Defendant’s failure to turn over the $12,400 to the
Plaintiff despite several Orders and continuances by this Court to do so, and the failure of
Defendant to comply with the Order to provide information about the location of the
$12,400 from the Fidelity 401k account, this Court found that Defendant acted with
wrongful intent in refusing to comply with this Court’s Orders.
Ability to Comply
In his Statement of Errors Complained of on Appeal, Defendant indicates that he
was unable to comply with the Court Orders for which he is charged with contempt. This
Court does not find Defendant’s claim that he was unable to comply with said Orders to
be credible. At the January 23, 2015 hearing, Defendant clearly and repeatedly said that
he had the $12,400 from the Fidelity 401k in another account, and that he is capable of
34
paying the same to Plaintiff. It was not until the July 8, 2015 hearing, when the
Defendant faced jail time as a possible penalty, that Defendant claimed that the money
32
N.T. January 23, 2015 at 86.
33
N.T. January 23, 2015 at 86. Defendant argued to this Court that he had either moved the money, or spent it on
the marital home which he had not lived in for quite some time. See Order of the Court by the Honorable Thomas
Placey, September 30, 2013 (evicting the Defendant from the marital residence effective October 10, 2013). Of
course, following the Divorce Master’s finding that the 401k account contained marital property owed to the
Plaintiff, which was made an Order of the Court, such monies should have been paid by Defendant to Plaintiff or
preserved pending any appeal on the issue.
34
N.T. January 23, 2015 at 72, 86, 110.
10
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from the Fidelity 401k was all spent years earlier on the marital home. A contemnor
who has the ability to comply with the underlying Court order can be imprisoned
indefinitely until he complies with the underlying Court order, even if it appears the
contemnor is never going to comply. Chadwick v. Janecka, 312 F.3d 597, 613 (Third Cir.
2002). Such was the case here, where the Court found Defendant had the ability to
comply with the Court Orders at the time, that Defendant was not credible in stating at
the final hearing for contempt that he no longer had the money to comply, and that the
real motive for Defendant stating that he could not comply was because he intended
never to comply. The Court notes that such has been the history of the case as far back as
at the Master’s hearing, wherein the Master noted in his report that “neither party was
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particularly credible, husband less credible than wife.”
Assuming, arguendo, that even if Defendant was not financially capable of
complying with this Court’s previous Orders, he was perfectly capable of complying with
the other aspects of those Orders, such as transferring title and possession of certain
automobiles and boats to Plaintiff, and providing, at a minimum, documentation
regarding the Fidelity 401k account or any other account where Defendant had the
Fidelity 401k money. Defendant did not do so, despite being given multiple opportunities
to comply. Instead, Defendant has filed motion after motion in an attempt to re-litigate
the Master’s recommendations, to keep the litigation going, and to ultimately serve his
desire to strip the Plaintiff of her right to her portion of the marital property.
Parole
The final two arguments Defendant makes in his Statement of Errors deal with the
“conditions of parole” that this Court included in its Order regarding contempt.
Defendant argues that conditions of parole cannot accompany a finding of civil contempt
because a person is no longer in civil contempt once they meet the purge conditions. This
Court agrees that the term “parole” was misused in its July 8, 2015 Order. While this
Court used the term “conditions of parole” in error, the Court’s intent was to reaffirm and
35
N.T. July 8, 2015 at 21-22.
36
Master’s Report at 2.
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note to the Defendant that the payment of $12,400 in order to purge himself of the
contempt was not the end of his obligations under the previous Court Orders. The Court
was emphasizing that Defendant could once again be held in contempt if he did not
comply with the other obligations imposed upon him by the Court’s previous Orders.
In fact, another motion for contempt was filed by the Plaintiff, called a “Petition to
Revoke Parole,” subsequent to Defendant’s release from jail, based on Defendant’s
failure to comply with the remaining parts of this Court’s Order finding Defendant in
contempt on July 8, 2015. That is, the Defendant, after he got out of jail, failed to fulfill
the remaining obligations of equitable distribution as ordered many times previously, and
as summarized in this Court’s July 8, 2015 Order as “conditions of parole.” This Court
denied the Petition to Revoke Parole in that the Defendant was not on parole. This Court
would entertain a motion for contempt in the future following the appeal of this matter
and in the event that Defendant further fails to comply.
Defendant finally argues that Defendant’s payment of the $12,400 relieves him
from complying with his remaining responsibilities of equitable distribution as outlined
in the July 8, 2015 Order of Court. Defendant fails to cite to any legal authority to
support such a position. Such a position is contrary to the specific grant of powers to the
Court to use multiple remedies to make the Defendant comply with equitable distribution.
23 Pa.C.S. § 3502(e). Therefore, Defendant’s final issue on appeal lacks merit.
CONCLUSION
In conclusion, this Court found that Defendant had notice of the September 30,
2013 Order of Court which adopted the Divorce Master’s Report as a Final Order of the
Court. Additionally, the Court found that the Defendant had the ability to comply with
the distribution proposed in the Master’s Report, but he acted with volition in failing to
comply with the same. Finally, the Court found that the Defendant acted with wrongful
intent in failing to comply with the aforementioned Court Orders. Based on all of the
foregoing reasons, this Court held Defendant in civil contempt, and its decision to do so
was not an abuse of discretion.
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BY THE COURT,
___________________________
Christylee L. Peck, J.
Rex Bickley, Esq.
41 Central View Road
Dillsburg, PA 17019
Jacob M. Jividen, Esq.
3329 Market Street
Camp Hill, PA 17011
Attorney for Appellant
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