J. S53035/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MARILYN PAIK :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

SUENG PAIK, : No. 912 EDA 2017

:

 Appellant :

Appeal from the Order, February 17, 2017,

in the Court of Common Pleas of Montgomery County

Civil Division at No. 2015-14333

BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 11, 2017

Sueng Paik (“Husband”) appeals the order of the Court of Common 

Pleas of Montgomery County that found Husband in contempt of court and 

directed him to pay $480,018 into escrow and remanded him to the 

Montgomery County Prison for a term of six months or until the payment 

was made. After careful review, we affirm.

The trial court set forth the following relevant procedural and factual 

history:

Plaintiff-Wife, Marilyn Paik [(“Wife”)], 

commenced this action by filing a Divorce Complaint 

on June 24, 2015. The parties are the parents of 

two (2) children.

The parties executed a Stipulation on 

November 2, 2016, in which they agreed, inter alia, 

to deposit $1.1 million into an interest bearing 

escrow account for the benefit of the parties from 
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the sale of assets, real estate, goodwill, and a liquor 

license by business entities controlled by [Husband]. 

This Stipulation was entered as a Court Order on 

November 3, 2016.

On January 6, 2017, [Wife] filed an Emergency 

Petition for Special Relief in which she alleged that 

[Husband] had violated the Order by, inter alia, 

failing to deposit the entire $1.1 million into an 

interest-bearing escrow account.

By Order dated January 9, 2017, the 

undersigned determined that [Wife’s] January 6, 

2017 filing was not an emergency and scheduled a 

conference on January 25, 2017. Following a 

short-list conference on January 25, 2017, we 

scheduled a hearing on February 2, 2017.

During the February 2, 2017 hearing, the Court 

determined that [Husband] was in contempt of the 

November 3, 2016 Order: “Well, I don’t think there 

is any question of doubt that [Husband] is in 

contempt.” “It’s clear he’s in contempt.” The Court 

directed [Husband] to comply with the November 3, 

2016 Order in all respects by February 17, 2017.

On February 17, 2017, the Court conducted a 

hearing to determine whether [Husband] had made 

all the required payments mandated by the 

November 3, 2016 Order. When the Court 

determined that [Husband] had not paid the 

$480,018 into the interest-bearing escrow account, 

the undersigned sentenced [Husband] to 

imprisonment for a term of six (6) months. A purge 

payment was set at $480,018 (to be deposited into 

the escrow account pursuant to the November 3, 

2016 Order). Furthermore, the Court stated that 

[Wife] was entitled to attorney’s fees incurred in 

connection with litigation of her contempt petition. 

The Court stated that these fees were to be awarded 

in equitable distribution.

On March 10, 2017, [Husband] filed a Motion 

for Reconsideration of the Contempt Order entered 
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on February 17, 2017. On March 15, 2017, [Wife] 

filed a Response to [Husband’s] Motion for 

Reconsideration.

On March 16, 2017, [Husband] filed the instant 

appeal. By Order[Footnote 2] dated March 21, 2017, 

we denied [Husband’s] Motion for Reconsideration.

[Footnote 2]: The Order dated 

March 21, 2017 need not have been 

issued as [Husband’s] Motion for 

Reconsideration was deemed denied by 

operation of law on March 20, 2017.

[Husband] filed an application for stay of the 

Contempt Order in both the Superior Court and 

Supreme Court. Those requests were denied by the 

appellate courts.

FINDINGS OF FACT

At the time the parties entered into the 

Stipulation on November 2, 2016 and the Court 

entered its Order on November 3, 2016, the balance 

of [Husband’s] Vanguard money market account was 

$1,104,478.42

On or about January 4, 2017, [Husband] 

withdrew $619,982.00 from his Wells Fargo checking 

account and deposited it into the parties’ interest 

bearing escrow account pursuant to the Stipulation 

of November 2, 2016 and Court Order of 

November 3, 2016.

Around the end of December 2016, [Husband] 

made a balloon payment in the amount of 

$425,000.00 to Gary Santabarbara relating to 

[Husband’s] purchase of a club from 

Mr. Santabarbara.

Furthermore, [Husband] spent about $55,000 

on payroll for his Las Vegas business as well as living 

expenses for himself and the parties’ children.
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Trial court opinion, 5/10/17 at 1-3 (citations and footnote omitted).

On appeal, Husband raises the following issue for this court’s review: 

Whether the [trial] court abused its discretion in

imprisoning [Husband] for a period of six (6) 

months, with the only purge condition being a 

payment of $480,018, when [Husband] testified of 

his present inability to make the purge payment and 

when, as evidenced by the [trial] court’s own 

statements on the record, there was insufficient 

evidence presented to permit the [trial] court to 

make a determination that [Husband] did have a 

present ability to make the purge payment?

Husband’s brief at 4.

This court’s review of a civil contempt order is limited to a 

determination of whether the trial court abused its discretion. Bold v. Bold, 

939 A.2d 892, 894-895 (Pa.Super. 2007). “If a trial court, in reaching its 

conclusion, overrides or misapplies the law or exercises judgment which is 

manifestly unreasonable, or reaches a conclusion that is the result of 

partiality, prejudice, bias or ill will as shown by the evidence of record, then 

discretion is abused.” Gates v. Gates, 967 A.2d 1024, 1028 (Pa.Super. 

2009).

Here, Husband does not deny that he is in contempt of the order to 

place approximately $1.1 million in escrow as he admits he did not place the 

full amount in escrow. However, he argues that the trial court abused its 

discretion when it imposed the purge condition when sufficient evidence 

indicated that he lacked the ability to pay.
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It is true that the trial court must give the party in contempt the 

opportunity to purge the contempt by fulfilling a condition. McMahon v. 

McMahon, 706 A.2d 350, 358 (Pa.Super. 1998). The contemnor has the 

burden to prove the affirmative defense that he lacks the ability to comply. 

Commonwealth ex rel. Ermel v. Ermel, 469 A.2d 682, 683 (Pa.Super. 

1983). The defense of impossibility of performance is available to a party in 

a contempt proceeding if the impossibility to perform is not due to the 

actions of that party. Commonwealth Dept. of Envtl. Resources v. 

Pennsylvania Power Co., 316 A.2d 96, 103 (Pa.Cmwlth. 1974).

Here, Husband argues that he presented evidence of his inability to 

pay $480,018 into the escrow account because the vast majority of the 

$480,018 that he did not previously deposit into the escrow account was 

used to make the balloon payment to Mr. Santabarbara for the purchase of a 

club. Husband argues that the $425,000 paid to Mr. Santabarbara 

represented a legitimate business debt and that the trial court did not have 

the slightest idea whether or not Husband had any means of obtaining the 

funds necessary to make the purge payment. As a result, Husband asserts 

that the trial court clearly committed an abuse of discretion when it imposed 

the purge condition without knowing whether Husband had the ability to 

meet the purge condition of payment of $480,018.

Husband misunderstands a key point. It was his burden to establish 

that he lacked the ability to pay the purge amount. It was not the trial 
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court’s duty to divine his financial status. Based on the testimony presented 

by both Husband and Wife, it was clear that Husband, in the past and 

possibly to this day, had great financial resources. Husband testified on 

cross-examination regarding his mortgage expense, automobile expenses, 

and real estate taxes. (Notes of testimony, 2/2/17 at 31-32, 39-40.) He 

also testified that he and his brother just purchased a building and signed a 

note for $800,000. (Id. at 21.) Wife testified that Husband never had any 

trouble getting money, that he took luxurious vacations, and purchased 

businesses when he desired. (Id. at 45a.) Wife recounted that Husband 

once drove to Las Vegas with $2,000,000 in cash to purchase a strip club 

there. (Id.)

Given the testimony of such large expenditures and Husband’s lack of 

evidence that he could not make the payment, only that he used the money 

he originally planned to place in escrow to make a balloon payment to 

Mr. Santabarbara, the trial court did not abuse its discretion when it found 

Husband guilty of contempt and that he failed to meet the purge condition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/11/2017