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2018 PA Super 122

TRICIA A. THOMPSON

v.

ASHLEY N. THOMPSON

Appellant :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 647 WDA 2017 Appeal from the Order Entered February 15, 2017 In the Court of Common Pleas of Clarion County Domestic Relations at No(s): 2015

- D00104

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

OPINION BY SHOGAN, J.: FILED MAY 08, 2018

A ppellant, Ashley N. Thompson, appeals from the February 15, 2017

order entered in the Clarion County Court of Common Pleas

. After careful

review, w e reverse the order, vacate the trial court’s denial of in forma

pauperis status, and remand with instructio ns.

The trial court set forth the relevant facts of this case as follows:

[Appellant] is the mother of two young children. In 2015, she placed the children in the custody of her mother, [ Tricia A. Thompson , ( “ Appellee ” )] , who then sought child support. [Appellant] was employed and the Clarion County Domestic Relations Office applied the support guidelines and calculated [Appellant ’ s ] monthly support obligation at $108. This court issued an Order for support. Soon [, Appellant] fell behind. The Domesti c Relations Office took enforcement action and eventually filed petitions for civil and indirect criminal contempt in November 2015.
Following resolution of those petitions in 2016, this court ordered [Appellant] to remain current with her monthly support obligation of $108 and to pay an additional amount of $30 perJ

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month toward arrears, for a total monthly payment of $138. [Appellee] requested to terminate the support case, but [Appellant] still owed arrears. This court then issued an Order on October 1 1, 2016 directing [Appellant] to continue to pay $138 per month; all toward the arrears. [Appellant] failed to remain current and so the Domestic Relations Office filed another contempt petition, stating the amount of the arrearages was $1,978.18. This c ourt scheduled a hearing for February 14, 2017 and appointed attorney Gina Bianco to represent [Appellant]

. On November 10, 2016, attorney John Troese entered his appearance for [Appellant] . There were no further filings until February 1, 2017, when attor ney Troese filed a Motion to Withdraw Contempt and for Continuance of Hearing. This court issued an Order on February 2, 2017 [,] denying the Motion to Withdraw Contempt [because] the court could not order the Domestic Relations Office to withdraw its peti tion. The court also denied the Motion for Continuance because the hearing had been scheduled, and Mr. Troese had known it was scheduled, for almost two months. Attorney Bianco, who had previously represented [Appellant] , was available to represent her a t the next hearing if attorney Troese was unable to attend.

On February 14, 2017, prior to the hearing, a conference officer from the Domestic Relations Office conducted a conference with [Appellant] and her attorney Gina Bianco and they reached an agreement. [Appellant] agreed she would remain current with her monthly payments of $138. She also agreed she was in [civil] contempt because she had failed to make the payments as previously ordered. She also agreed if sh e failed to remain current

s he would serve a sentence of incarceration of six months. The parties stated the terms of their agreement in a written Explanation of Rights and Procedures form dated February 14, 2017, which is part of the record in this case.

The court commenced the hearing on February 14, 2017 [,] that had been scheduled on the [civil] contempt petition and counsel for the Domestic Relations Office and [Appellant] stated they had reached an agreement. They explained the terms of their agreem ent and presented the Explanation of Rights and Procedures form signed by [Appellant]

. [Appellant] confirmed on the record that she had read and signed the form and she understood and agreed with its contents. She informed the court she was working and s he had the ability to make the payments ofJ

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$138 per month [,] and she would continue to work and be able to pay in the future. She stated she knew if she failed to make the payments she would serve a sentence of six months [of] incarceration. A transcript has been prepared and is part of the record. This court issued an Order dated February 15, 2017 [(“the February 15, 2017 o rder”)] , which incorporates the terms of the parties ’ agreement, including a suspended sentence of six months incarceration. [Appel lant] has not been incarcerated for failure to comply with [ the February 15, 2017 o rder ]

. On February 28, 2017, attorney Troese filed a Praecipe to Proceed In Forma Pauperis for [Appellant] , stating she was unable to pay the costs. The court issued an Order on March 8, 2017 denying the application because two weeks earlier, on February 14, 2017, [Appellant] stated she was employed and was able to make payments of $138 per month. Attorney Troese filed another Praecipe to Proceed In Forma Pauperis on Marc h 16, 2017. He also filed a Notice of Appeal on that date. The court issued an Order on March 21, 2017 directing [Appellant] to submit the required form Affidavit to support her request to proceed in forma pauperis

. She submitted an Affidavit and anothe r Order was issued on April 26, 2017 granting in forma pauperis status for the purpose of obtaining copies of the record.

Trial Court Opinion, 6/8/17, at 2

- 5. Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

On appeal, Appellant rai ses the following issues for this Court ’ s

consideration:

[1.] Was [Appellant] guilty of willful contempt?

[2.] Did the [domestic relations] court fail to follow rules set forth by the Supreme Court in addressing the type of contempt in this case?

[3.] Is a suspended sentence a proper sanction for contempt of a support order[?]

[4.] Is the court ’ s failure to set a purge amount an error of law[?]J

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[5.] Did the court fail to follow the Rules of court when it failed to allow [Appellant] to proceed In Forma P auperis[?] Appellant ’ s Brief at 2. 1

Our standard of review is well settled:

This court ’ s review of a civil contempt order is limited to a determination of whether the trial court abused its discretion. If a trial court, in reaching its conclusion, overrides or misapplies the law or exercises judgment which is manifestly unreasonable, or
rea ches a conclusion that is the result of partiality, prejudice, bias or ill will as shown by the evidence of record, then discretion is abused.

In order to establish that a party is in civil contempt, there must be proof by a preponderance of the evidenc e that the contemnor had notice of the specific order that he or she is alleged to have disobeyed, that the act that constituted the contemnor ’ s violation was volitional, and that the contemnor acted with wrongful intent.

Cunningham v. Cunningham , ___ A .3d ___, ___, 2018 PA Super 64 , at

*4

- *5 (Pa. Super. March 20, 2018) (internal citations and quotation marks

omitted).

After endeavoring to discern which of Appellant ’ s five issues are argued

in the three argument sections of her brief, we conclude that th ere are two
overarching c laims : 1) whether the trial court erred in its acceptance of the

_________________ __________ ______ ____ _______

1 For purposes of our disposition, we have renumbered Appellant ’ s iss ues. Additionally, we note with displeasure Appellant’s violation of Pennsylvania Rule of Appellate Procedure 2119. The Rule provides, in pertinent part, “[t]he argument shall be divided into as many parts as there are questions to be argued[.]” Pa.R.A .P. 2119(a). However, because Appellant’s violation does not substantially impede appellate review, we decline to quash the appeal. See In re Ullman , 995 A.2d 1207, 1211 (Pa. Super. 2010) (“ This Court may quash or dismiss an appeal if the appellant fails to conform to the requirements set forth in the Pennsylvania Rules of Appellate Procedure .”).J

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stipulation subjecting Appellant to incarceration without due process under

Pa.R.C.P. 1910.25

- 1 through 1910.25

- 5 ; and 2) whether Appellant should

have been afforded in forma pauperis statu s

. We will address these issues in

turn.

First, we determine if the trial court erred when it incorporated

stipulations (“the agreement”) , which included incarceration, into the

February 15, 2017 o rder. Appellant argues that the s tipulated order , which

incorporated the agreement, is unenforceable because suspended sentence s

are illegal , and the order subjected her to incarceration without due process

and a hearing to determine both her ability to pay and a purge c ondition.

Appellant ’ s Brief at 6

- 12.

Pennsylvania Rule of C ivil Procedure 1910.25

- 5 provides as follows:

(a) No respondent may be incarcerated as a sanction for contempt without an evidentiary hearing before a judge.

(b) The court shall make a finding, on the r ecord, as to whether the respondent, based upon the evidence presented at the hearing, does or does not have the present ability to pay the court

- ordered amount of support.

(c) An order committing a respondent to jail for civil contempt of a support order shall specify the conditions the fulfillment of which will result in the release of the respondent.

Pa.R.C.P. 1910.25

- 5 (a)

- (c)

.
C ontempt for noncompliance with a support order is punishable by any

one or more of the following:

(1) Imprisonment for a period not to exceed six months.J

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- (2) A fine not to exceed $1,000. (3) Probation for a period not to exceed one year.

(b) Condition for release.

-- An order committing a defendant to jail under this section shall specify the condition the fulfillment of whi ch will result in the release of the obligor.

23 Pa.C.S. § 4345(a) and (b). Thus, Appellant is correct in her assertion s that

a suspended sentence is not one of the enumerated punishments, and that 23

Pa.C.S. § 4345(b) requires a purge condition. Moreov er, the statute requires

the trial court to determine if the alleged contemnor has the present ability

to pay; it does not contemplate future ability to pay or provide for

incarceration if there is an inability to pay in the future. In other words, t he

ag reement removes from consideration a subsequent chan ge in

circumstances. Although the trial court stated in its Pa.R.A.P. 1925 opinion

that a change in Appellant ’ s circumstances would trigger the trial court ’ s
determination of what amount Appellant could pay, 2 this codicil was offered

after the agreement was executed , and this modification language is not

contained in the agreement.

The law is clear that an indefinitely suspended sentence is not a
sentencing alternative and is illegal. Commonwealth v. Joseph , 848 A.2d

934, 941 (Pa. Super. 2004) (citations omitted). “ It is the uncertainty

surrounding such sentences, and the disorder they can engender, that

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2 Trial Court Opinion, 6/8/17, at 9

- 10.J

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prompts their prohibition. ” Id. at 941

- 942. “ An indefinitely suspended

sentence is not a sanctio ned sentencing alternative. ” Id. at 942. Although

Joseph dealt with sentencing in a criminal matter, we conclude that its

rationale is instructive in our review of a sentence imposed for civil contempt. 3

After review, we conclude that the February 15, 2017 order incorporating the

agreement for a suspended sentence is illegal as it is not an option provided

in 23 Pa.C.S. § 4345.

In addition to our conclusion that the indefinite ly suspended sentence is

ill egal, we further find the February 15, 2017 order incorporating the

agreement provided no purge amount and contained no mechanism through

which the trial court could consider Appellant ’ s present ability to pay. Thus,

in addition to imposing an illegal se ntence, the February 15, 2017 order

incorporating the agreement violated Appellant ’ s right to due process

. See

Pa.R.C.P. 1910.25

- 5 (enumerating the rights and procedure to be followed

when imposing incarceration for civil contempt). Accordingly, we rever se the

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3 We note that the Clarion County Domestic Relations Section, a participant in this matter, cite s to the fact that Appellant had counsel and consented to the agreement. Appellee ’ s Brief at 9

- 15. We conclude that this consent is of no moment because Appellant could not consent to an illegal sentence. See Commonwealth v. Gentry , 101 A.3d 813, 819 (Pa

. Super. 2014) (stating that despite entering a plea bargain, a defendant cannot consent to an illegal sentence).J

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February 15, 2017 order incorporating the agreement and imposing an

indefinitely suspended sentence

. 4

Next, Appellant claims that the trial court erred when it denied her

petition to proceed in forma pauperis . Appellant ’ s Brief at 12. When a

couns eled praecipe to proceed in forma pauperis is filed, the granting of such

status is administrative

. “ If the party is represented by an attorney, the

prothonotary shall allow the party to proceed in forma pauperis upon the filing

of a praecipe which contains a certification by the attorney that he or she is

providing free legal service to the party and believes the party is unable to

pay the costs. ” Pa.R.C.P. 240 (d)(1)

. I f the trial court d oes not b elieve the

averments in a praecipe to procee d in forma pauperis , the court is required to

hold a hearing to determine the veracity of the allegations contained in the

praecipe

. Crosby Square Apartments v. Henson , 666 A.2d 737, 738 (Pa.

Super. 1995) (citation omitted). A trial court ’ s resolution of a praecipe to
proceed in forma pauperis will be reversed only if the court abused its

discretion or committed an error of law. Id. (citation omitted).

On February 28, 2017, Appellant filed a counseled praecipe to proceed

in forma pauperis pursuant to Pa. R.C.P. 240(d) , and counsel certified that he

was providing free legal services as Appellant was unable to pay

. The

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4 Appellant, however, remains liable for amounts due and owing on her child support obligations, and nothing in this opinion precludes the t rial court from utilizing legal enforcement measures to insure payments are made on those obligations.J

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Prothonotary did not confer in forma pauperis status; rather, o n March 8 ,
2017 , the trial court denied Appellant ’ s praecip e because “ [Appellant] would

not have incurred certain costs i f she had made regular support payments as

ordered. ” Order, 3/8/17.

Appellant filed a second praecipe to proceed in forma pauperis on

March 16, 2017. On March 21, 2017 , the trial court denied the p raec ipe and

directed Appellant to complete and submit another praecipe to proceed in

forma pauperis

. Order, 3/21/17.

On March 28, 2017, Appellant fil e d an affidavit in conformance with

Pa.R.C.P. 240 claiming that she was unable to pay the fees and costs

nec essary to obtain counsel. This affidavit contained a statement of assets

and liabilities, and it included a paystub from her employer revealing a weekly

income of $21.37, and a year

- to

- date income as of March 23, 2017 , of

$938.59. On April 11, 2017, Appe llant filed a motion for an extension of time

in which to file her Pa.R.A.P. 1925(b) statement. In this motion, Appellant

also averred the trial court denied her praecipe to proceed in forma pauperis

despite her lack of income and resources. Motion, 4/11 /17, at ¶¶ 4

- 15.

On April 26, 2017, the trial court filed an order which stated as follows:

AND NOW, April 26, 2017, [Appellant] has filed a Praecipe to Proceed In Forma Pauperis and an application and affidavit. She has also filed a Motion to Extend Time [to file a concise statement of] Errors Complained of on Appeal, which the court has granted. In the Motion to Extend Time, [Appellant] states she is seeking in forma pauperis s tatus in order to obtain copies of the record.J

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- Therefore, it is ORDERED that [Appellant] shall proceed in forma pauperis for the sole purpose of obtaining copies of the record in this case.

The Statement of Matters Complained of shall now be filed by [Appellant] within fourteen (14) days of the entry of this order.

Order, 4/26/17.

Our Rules of Civil Procedure provide, in relevant part, as follows:

(d)(1) If the party is represented by an attorney, the prothonotary shall allow the party to proceed in forma pauperis upon the filing of a praecipe which contains a certification by the attorney that he or she is providing free legal service to the party and believes the party is unable to pay the costs.

Pa.R.C.P. 240(d)(1).

As noted above, counsel for Appellant certified that he was providing

free legal services because Appellant was unable to pay , and Appellant filed

an affidavit providing her income and lack of financial wherewithal. T he trial

court granted Appellant ’ s praecipe only to the extent tha t it provided her with

copies of the record. However, Appellant ’ s requ ests for in forma pauperis

status were never limited to the provision of copies. Praecipe , 2/28/17;

Praecipe , 3/16/17. T he trial court ’ s conclusion in its March 8, 2017 order,

wherein it stated that because the costs incurred were due solely to
Appellant ’ s failure to make payments , was an abuse of discretion because the

trial court did not hold a hearing or mak e any findings . Moreover, the trial

court ’ s subsequent orders denying in forma pauperis status failed to provide

any rationale, and these denials were ordered without a hearing to determine

the veracity of Appellant ’ s assertion concerning her inability to pay orJ

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counsel ’ s statement that he was providing representation wi thou t

compensation. Accordingly, we vacate the trial court ’ s order denying in forma

pauperis status , and remand for the Prothonotary of Clarion County to grant

Appellant in forma pauperis status based on counsel ’ s averments and

Appellant ’ s affidavit.

For t he reasons set forth above, we reverse the February 15, 2017 order

incorporating the agreement and imposing an indefinitely suspended

sentence, and we vacate the orders denying Appellant in forma pauperis

status

. February 15, 2017 o rder reversed. March 8 , 2017, March 21, 2017, and

April 26, 2017 orders denying Appellant in forma pauperis status vacated.

Case remanded with instruction s. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/8/2018