It happens every day throughout the Commonwealth. It is support contempt court and the crowd is large and anxious.
On Valentine’s Day, 2017 a contempt hearing was scheduled with the petitioner being the grandmother of two young children, and the respondent, her daughter. The daughter was supposed to pay $108 in support and $30 on arrears.
As often occurs at these contempt hearings, a deal was struck and placed in writing. The agreement was admitted contempt but no incarceration provided that all payments were made on a timely basis. If that condition was breached, the contemnor would be incarcerated for six months.
Appellant then appealed from her own agreed order contending that the remedy she agreed to was not one that conformed to Pa.R.C.P. 1910.25-5(a)-(c). Many lawyers would agree with this author that you can’t appeal an agreed order. But, we would be wrong. In an opinion published May 8, 2018 a panel of the Superior Court vacated the order because it did not conform to 23 Pa. C.S. 4345 and sent the case back for a new hearing. Parties cannot agree to an illegal sentence. Com. v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014)
Writing for the Court, Judge Shogan borrows from criminal law in stating that a suspended sentence is “illegal” Com. v. Joseph, 848 A. 2d 934, 941 (Pa. Super, 2004). Contempt is not about future payments. It is focused on the present ability to pay. If the Respondent has it, incarceration is a remedy but it must be administered with a purge condition that the Court finds can be met. The agreed order did not specify a purge amount and failed to outline a mechanism by which a determination could be made about the future ability to pay. In other words, each time the keys to jail are brandished in contempt court, the court needs to assess what the Respondent can pay then; not at some unspecified later time.
The burdens in contempt shift more often than the tides. The Petitioner has the burden to prove notice and noncompliance with the order. Present inability to comply is a defense where the burden falls on the Respondent. Barrett v. Barrett, 368 A>2d 616 (Pa. 1977). But, if incarceration is the remedy, the Court must find beyond a reasonable doubt that the contemnor has the present ability to comply. Id., Muraco v. Pitulski, 368 A.2d 624 (Pa.S. 1977); Kramer v. Kelly, 401 A.2d 799 (Pa.S. 1979)