Child Support; Civil Contempt; Sentencing
Thompson v. Thompson, 187 A.3d 259 (Pa. Super. 2018), allocatur granted Oct. 3, 2018, appeal docket 36 WAP 2018
This case arises from a civil contempt order for noncompliance with a support order entered by the Clarion County Court of Common Pleas against Ashley Thompson (Appellant). The Superior Court summarized the relevant facts 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 Domestic Relations Office took enforcement action and eventually filed petitions for civil and indirect criminal contempt in November 2015.
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 she failed to remain current she 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 agreement 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 she had the ability to make the payments of $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 order”) ], which incorporates the terms of the parties’ agreement, including a suspended sentence of six months incarceration. [Appellant] has not been incarcerated for failure to comply with [the February 15, 2017 order].
Additionally, in its Pa. R.A.P. 1925 opinion, the trial court offered that a change in Appellant’s circumstances would trigger the trial court’s determination of what amount Appellant could pay.
On appeal to Superior Court, Appellant challenged the trial court’s imposition of the suspended sentence as a sanction for contempt of her support order through its incorporation of stipulations of the support agreement, which included incarceration, into the February 15, 2017 order. Appellant argued that the stipulated order, which incorporated the agreement, is unenforceable because suspended sentences 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 condition.
In deciding the issue, Superior Court noted that Pennsylvania Rule of Civil 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 record, 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.
Additionally, the court noted that pursuant to 23 Pa.C.S. § 4345(a) and (b), contempt 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.
(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 which will result in the release of the obligor.
Based on the plain language of these sections, Superior Court agreed with Appellant that a suspended sentence is not one of the enumerated punishments, and that 23 Pa.C.S. § 4345(b) requires a purge condition. Moreover, Superior Court reasoned that 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. While the trial court offered 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, this codicil was offered after the agreement was executed and this modification language was not contained in the agreement.
Therefore, Superior Court found that the sentence imposed was an indefinitely suspended sentence, which was “not a sanctioned sentencing alternative” as the court previously decided in in Commonwealth v. Joseph, 848 A.2d 934 (Pa. Super. 2004). Although Joseph dealt with sentencing in a criminal matter, Superior Court concluded that its rationale was instructive in its review of a sentence imposed for civil contempt. Applying the rationale of Joseph and the plain language of § 4345, Superior Court concluded 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.
The Pennsylvania Supreme Court granted allocatur on the following issue:
Did the Superior Court of Pennsylvania err in determining that the suspended sentence imposed by the trial court’s February 15, 2017 order was an illegal, indefinitely suspended sentence, rather than a sentence to probation, which is a sanctioned punishment under 23 Pa.C.S. § 4345(a)?