These facts come before courts throughout the Commonwealth every day. Father has a $340 a month support order. He is not paying. He quit his job and professed he could not find substitute employment. He said he had no money to pay and told the court he was living with his brother who was supporting him. The Lebanon County judge was not impressed with these facts and following a hearing, the Court found the defendant in contempt and ordered him incarcerated until he paid $2,000 into the Court. Defendant went to jail and appealed. He served 100 days and was released before the appeal was decided but the Superior Court held the matter was not moot.

The trial judge did make a common mistake. His statement on the record in setting the purge amount contained the “Let’s see” comment as in “Let’s see if he doesn’t raise the $2,000.” The problem is that “Let’s see” is not the standard. Where incarceration is the remedy, the Court must explicitly find beyond a reasonable doubt that the defendant has the present ability to meet the conditions specified for release from incarceration. And, as the Superior Court noted in Bredbenner v. Hall, there needs to be a record to support that finding.

The facts are even a bit harsher than that. Defendant had not paid support in a year. The trial judge found that the Defendant was avoiding employment.*  The court also noted that it had been engaged in trying to secure payment of support by the defendant for more than eight years. Yet since 1962 the Supreme Court has held that incarceration for contempt must be a coercive remedy and not a punitive one. Com. ex. rel. Beghian v. Beghian, 184 A.2d 270 (Pa. 1962). The Superior Court has interpreted that as requiring a find of capacity to pay beyond a reasonable doubt before the handcuffs can be ordered. Wetzel v. Suchanick, 541 A.2d 761 (Pa. Super. 1988);  Hyle v. Hyle, 861 A.2d 601, 606 (Pa. Super, 2005).

The order was reversed with instructions to make a record from which it could be determined what amount the defendant could pay. The reasoning of the appellate court cannot be faulted. They have followed precedent.  But imagine the frustration of the court (not to mention the Plaintiff and her three children) when forced to hold another hearing to assess what the defendant can pay in a world where non payment seems to have been par for an eight year long course.

What makes this all the more remarkable is that $340 a month is only 26% of defendant’s net income based on the prevailing federal minimum wage. It would seem that even fast food employes are commanding twice the federal minimum in large portions of the Commonwealth. Defendant walked off the job he had when he was informed he could not smoke on the premises. The average price of a pack of cigarettes in Pennsylvania is $9.54. Defendant’s daily child support obligation for three children at $10.96 per day is only 13% higher than the price of a pack of cigarettes.

So, this matter will go back to court where the taxpayers can underwrite the cost of a prosecutor, and a judge who will have the burden of finding beyond a reasonable doubt that the defendant has the present ability to pay something toward support. The writer is reminded of a contempt hearing many years ago when now Senior federal judge Anita Brody was sitting in Montgomery County hearing support contempts.  She vented her frustration with this kind of case by asking her own questions of the non-paying “impecunious” defendant: “Sir, would you mind reversing your necktie and informing the court of the maker of that cravat.” Then she asked about the blazer. Each was the product of New York’s Brooks Brothers. Perhaps, judges in contempt court in lesser matters should inquire what brand of tobacco defendants use and whether their children merit support equal to their smoking expenses.

When economic times are hard, contempt court can be a challenging job. In a full employment economy, it should not be.

*Not an unrealistic finding. The Federal Reserve data showed unemployment in Lebanon County to be 3.1% at the time of the hearing.