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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MARTA M. LLAURADO                      :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                   v.                  :
                                       :
JAVIER GARCIA-ZAPATA,                  :         No. 1637 EDA 2015
                                       :
                        Appellant      :


                   Appeal from the Order Dated May 4, 2015,
               in the Court of Common Pleas of Delaware County
                        Civil Division at No. 2013-00556
                              PACSES: 256113852


BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  Filed March 21, 2016

     Javier Garcia-Zapata appeals from the order entered May 4, 2015, by

the Court of Common Pleas of Delaware County, finding him in civil

contempt for failing to pay court-ordered support while having the financial

ability to pay and sentencing him to six months’ incarceration with release

conditioned on payment of $47,919.19 in arrearages. We affirm.

     The record reflects that appellant and appellee Marta M. Llaurado

(“Wife”) married on October 10, 1989, and separated on March 21, 2012.

Wife filed a complaint for support on March 15, 2013, seeking support for

herself and the couple’s three minor children.    By order dated June 27,

2013, the court ordered appellant to pay $7,814.92 per month in total

support and $780.00 per month in arrears, effective March 15, 2013.      On
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August 26, 2013, Wife filed her first petition for contempt claiming

arrearages of $34,516.84 under the June 27, 2013 order.

      The trial court summarized the remaining relevant factual and

procedural history as follows:

            . . . . The record indicates that [a]ppellant agreed to
            the entry of a support order in the amount of $6,496
            per month in December of 2013. By March of 2014,
            [appellant] had separated from his job where he
            received a severance package which was attached
            for purposes of support. On or about June 16, 2014,
            [a]ppellant’s support was placed into Non-Financial
            Obligation Status (NFOB) due to the fact that he had
            no job. On that date, the first of many contempt
            petitions was heard and held in abeyance. From
            there, contempt petitions were filed and heard on
            the following dates and all were held in abeyance
            while [a]ppellant sought employment:           July 14,
            2014, September 11, 2014, December 15, 2014, and
            February 2, 2015.       On February 2, 2015, after
            hearing that [a]ppellant obtained a job earning
            $30,000 per year, the Honorable Judge Cartisano
            imputed an earning capacity to [a]ppellant based on
            an average of the income of the past couple years
            and issued a support order totaling $4,943 per
            month plus $494.00 towards arrearages.

                   Appellant had approximately fourteen months
            to find a job commensurate with his ability and past
            earnings of about $150,000 to $200,000 a year and
            failed to do so. Instead, [a]ppellant took a job
            offered by a former colleague that pays a meager
            $30,000 per year. Throughout the period of time
            that the case was in NFOB, the only significant
            payments on the support order were not voluntary,
            but were court ordered payments made from
            liquidating assets.    Since the issuance of the
            February 2, 2015 Order [requiring monthly
            payments] of $5,437.00, [a]ppellant has made
            measly payments of $1,000 per month. . . .



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Trial court opinion, 7/24/15 at 5-6.

      Appellant raises the following issues for our review:

            1.     Whether the Trial Court erred and/or abused
                   its discretion by finding the Appellant in
                   Contempt as the record in the case indicates
                   substantial compliance as well as a good faith
                   effort on his part to comply with the underlying
                   Support Order/Obligation?

            2.     Whether the Trial Court erred and/or abused
                   its discretion in setting the release amount at
                   $47,919.[19], as this is clearly both an
                   excessive amount as well as punitive in
                   nature?

            3.     Whether the Trial Court erred and/or abused
                   its discretion by failing to inquire into, or
                   otherwise establish a sufficient record as
                   required as a matter of law, concerning the
                   present and actual ability of [appellant] to pay
                   the underlying monthly support obligation
                   and/or    the  stated release      amount of
                   $47,919.[19]?

Appellant’s brief at 4.

      In considering an appeal from a contempt order, we place great

reliance upon the trial court’s discretion. Bold v. Bold, 939 A.2d 892, 894-

895 (Pa.Super. 2007) (citation omitted).      As such, appellate review of a

contempt finding is limited to determining whether the trial court abused its

discretion. Id. (citation omitted).

            Judicial discretion requires action in conformity with
            law on facts and circumstances before the trial court
            after hearing and consideration. Consequently, the
            court abuses its discretion if, in resolving the issue
            for decision, it misapplies the law or exercises its
            discretion in a manner lacking reason. Similarly, the


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            trial court abuses its discretion if it does not follow
            legal procedure.

Id. (citations omitted).   Therefore, we will reverse an order granting or

denying a civil contempt petition only upon a showing that the trial court

misapplied the law or exercised its discretion in a manner that lacked

reason. MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012)

(citation omitted).    Moreover, we defer to the trial court’s credibility

determinations with respect to witnesses who have appeared before it

because that court has had the opportunity to observe their demeanor.

Habjan v. Habjan, 73 A.3d 630, 644 (Pa.Super. 2013).

      Generally, in civil contempt proceedings, the complainant bears the

burden of proving that the defendant failed to comply with a court order.

MacDougall, 49 A.3d at 892 (citation omitted). To sustain a finding of civil

contempt, the complainant must prove by a preponderance of the evidence

that (1) the contemnor had notice of the order that she alleges the

contemnor disobeyed; (2) the act constituting the alleged violation was

volitional; and (3) the contemnor acted with wrongful intent.      Id. (citation

omitted).

      Here, appellant’s first and third issues dispute the trial court’s factual

findings that appellant’s failure to comply with the order was volitional and

that appellant acted with wrongful intent. Specifically, appellant complains

that the trial court abused its discretion by finding him in contempt because,

in appellant’s view, the record demonstrates that appellant substantially


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complied and made a good-faith effort to comply with the support order, and

to the extent that the record fails to demonstrate substantial compliance and

good faith, appellant contends that the trial court abused its discretion by

failing to develop a sufficient record to demonstrate appellant’s inability to

pay his monthly support obligation and arrearages. We disagree.

      Appellant advances no argument that the trial court misapplied the law

or exercised its discretion in a manner that lacked reason.1             Rather,

appellant simply disagrees with the trial court’s factual findings.           In its

opinion, the trial court summarized its reason as to why it found appellant in

contempt. After carefully reviewing the record, we conclude that the record

supports the trial court’s factual findings; specifically, with respect to

appellant’s extended period of unemployment and his acceptance of a

position paying a mere fraction of what he had previously earned.

Therefore, because the record supports the trial court’s factual findings, we

decline appellant’s invitation to revisit those factual findings on appeal.

      Appellant next complains that the trial court abused its discretion in

setting appellant’s release amount at $47,919.19 because the amount was

excessive and punitive.

            The power to punish for contempt, including the
            power to inflict summary punishment, is a right
            inherent in the courts and is incidental to the grant

1
  We note that in his brief, appellant complains that his arrearages were
miscalculated.   At the contempt hearing, however, appellant admitted
several times that the calculation was correct. (Notes of testimony, 5/4/15
at 26-27, 29, 31-32.)


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          of judicial power under the Constitution. Colbert v.
          Gunning, 533 A.2d 471, 472 (Pa.Super. 1987). The
          court may order civil or criminal contempt.

               The characteristic that distinguishes civil
               from criminal contempt is the ability of
               the contemnor to purge himself of
               contempt by complying with the court's
               directive. If he is given an opportunity
               to purge himself before imposition of
               punishment, the contempt order is civil
               in nature. If the purpose of the order is
               to punish despite an opportunity to
               purge, the order is criminal in nature.
               Id.

          A court may exercise its civil contempt power to
          enforce compliance with its orders for the benefit of
          the party in whose favor the order runs but not to
          inflict punishment. Id. A party must have violated a
          court order to be found in civil contempt.
          [Goodman v. Goodman, 556 A.2d 1379, 1391
          (Pa.Super. 1989)]. The complaining party has the
          burden of proving by a preponderance of evidence
          that a party violated a court order. C.R. by the
          Guardian of her Estate, Dunn v. The Travelers,
          626 A.2d 588, 592 (Pa.Super. 1993). However, a
          showing of non-compliance is not sufficient in itself
          to prove contempt. Wetzel v. Suchanek, 541 A.2d
          761, 762 (Pa.Super. 1988).          If the alleged
          contemnor is unable to perform and has in good faith
          attempted to comply with the court order, contempt
          is not proven. Id. (emphasis in original). The
          alleged contemnor has the burden of proving the
          affirmative defense that he has the present inability
          to comply with the court order. Commonwealth ex
          rel. Ermel v. Ermel, 469 A.2d 682, 683 (Pa.Super.
          1983). A court cannot impose a coercive sentence
          conditioned on the contemnor's performance of an
          act which is incapable of performance.      Crozer-
          Chester Medical Center v. Moran, 560 A.2d 133,
          137 (Pa. 1989). To impose civil contempt the trial
          court must be convinced beyond a reasonable doubt
          from the totality of evidence presented that the


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            contemnor has the present ability to comply with the
            order. Wetzel, 541 A.2d at 764.

Sinaiko v. Sinaiko, 664 A.2d 1005, 1009 (Pa.Super. 1995) (internal

quotation marks and parallel citations removed).

      Appellant alleges that the trial court abused its discretion when it held

him in contempt because he did not have the present ability to comply with

the support order and pay arrearages of $47,919.19. As a result, appellant

alleges that the purpose of the contempt order was to punish him for

noncompliance. We disagree.

      The record reflects that the trial court found that appellant failed to

meet his burden of proving that he had the present inability to comply with

the court order. At the contempt hearing, appellant admitted to liquidating

approximately $125,000.00 in assets that included a retirement account and

a boat. (Notes of testimony, 5/4/15 at 14-22.) Although appellant claimed

that he used all of the money to meet his own expenses, he did not produce

any evidence to substantiate his claim.      (Id.)   After hearing appellant’s

testimony, the trial court rejected it and found that appellant had the

present ability to comply with the order and set the release amount to

coerce him to comply. (Id. at 39-42; trial court opinion, 7/27/15 at 7). We

find no abuse of discretion.

      Order affirmed.




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Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 3/21/2016




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