J. S53035/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MARILYN PAIK                            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
SUENG PAIK,                             :         No. 912 EDA 2017
                                        :
                       Appellant        :


                 Appeal from the Order, February 17, 2017,
           in the Court of Common Pleas of Montgomery County
                     Civil Division at No. 2015-14333


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED SEPTEMBER 11, 2017

      Sueng Paik (“Husband”) appeals the order of the Court of Common

Pleas of Montgomery County that found Husband in contempt of court and

directed him to pay $480,018 into escrow and remanded him to the

Montgomery County Prison for a term of six months or until the payment

was made. After careful review, we affirm.

      The trial court set forth the following relevant procedural and factual

history:

                 Plaintiff-Wife, Marilyn     Paik   [(“Wife”)],
           commenced this action by filing a Divorce Complaint
           on June 24, 2015. The parties are the parents of
           two (2) children.

                The parties executed a Stipulation on
           November 2, 2016, in which they agreed, inter alia,
           to deposit $1.1 million into an interest bearing
           escrow account for the benefit of the parties from
J. S53035/17


          the sale of assets, real estate, goodwill, and a liquor
          license by business entities controlled by [Husband].
          This Stipulation was entered as a Court Order on
          November 3, 2016.

                 On January 6, 2017, [Wife] filed an Emergency
          Petition for Special Relief in which she alleged that
          [Husband] had violated the Order by, inter alia,
          failing to deposit the entire $1.1 million into an
          interest-bearing escrow account.

                By Order dated January 9, 2017, the
          undersigned determined that [Wife’s] January 6,
          2017 filing was not an emergency and scheduled a
          conference on January 25, 2017.        Following a
          short-list conference on January 25, 2017, we
          scheduled a hearing on February 2, 2017.

                During the February 2, 2017 hearing, the Court
          determined that [Husband] was in contempt of the
          November 3, 2016 Order: “Well, I don’t think there
          is any question of doubt that [Husband] is in
          contempt.” “It’s clear he’s in contempt.” The Court
          directed [Husband] to comply with the November 3,
          2016 Order in all respects by February 17, 2017.

                On February 17, 2017, the Court conducted a
          hearing to determine whether [Husband] had made
          all the required payments mandated by the
          November 3, 2016 Order.            When the Court
          determined that [Husband] had not paid the
          $480,018 into the interest-bearing escrow account,
          the    undersigned       sentenced  [Husband]     to
          imprisonment for a term of six (6) months. A purge
          payment was set at $480,018 (to be deposited into
          the escrow account pursuant to the November 3,
          2016 Order). Furthermore, the Court stated that
          [Wife] was entitled to attorney’s fees incurred in
          connection with litigation of her contempt petition.
          The Court stated that these fees were to be awarded
          in equitable distribution.

                On March 10, 2017, [Husband] filed a Motion
          for Reconsideration of the Contempt Order entered


                                   -2-
J. S53035/17


          on February 17, 2017. On March 15, 2017, [Wife]
          filed a Response to [Husband’s] Motion for
          Reconsideration.

               On March 16, 2017, [Husband] filed the instant
          appeal. By Order[Footnote 2] dated March 21, 2017,
          we denied [Husband’s] Motion for Reconsideration.

                [Footnote 2]:        The Order dated
                March 21, 2017 need not have been
                issued as [Husband’s] Motion for
                Reconsideration was deemed denied by
                operation of law on March 20, 2017.

                [Husband] filed an application for stay of the
          Contempt Order in both the Superior Court and
          Supreme Court. Those requests were denied by the
          appellate courts.

                           FINDINGS OF FACT

                At the time the parties entered into the
          Stipulation on November 2, 2016 and the Court
          entered its Order on November 3, 2016, the balance
          of [Husband’s] Vanguard money market account was
          $1,104,478.42

                On or about January 4, 2017, [Husband]
          withdrew $619,982.00 from his Wells Fargo checking
          account and deposited it into the parties’ interest
          bearing escrow account pursuant to the Stipulation
          of November 2, 2016 and Court Order of
          November 3, 2016.

                Around the end of December 2016, [Husband]
          made a balloon payment in the amount of
          $425,000.00 to Gary Santabarbara relating to
          [Husband’s]    purchase    of   a   club    from
          Mr. Santabarbara.

               Furthermore, [Husband] spent about $55,000
          on payroll for his Las Vegas business as well as living
          expenses for himself and the parties’ children.



                                   -3-
J. S53035/17


Trial court opinion, 5/10/17 at 1-3 (citations and footnote omitted).

      On appeal, Husband raises the following issue for this court’s review:

            Whether the [trial] court abused its discretion in
            imprisoning [Husband] for a period of six (6)
            months, with the only purge condition being a
            payment of $480,018, when [Husband] testified of
            his present inability to make the purge payment and
            when, as evidenced by the [trial] court’s own
            statements on the record, there was insufficient
            evidence presented to permit the [trial] court to
            make a determination that [Husband] did have a
            present ability to make the purge payment?

Husband’s brief at 4.

      This court’s review of a civil contempt order is limited to a

determination of whether the trial court abused its discretion. Bold v. Bold,

939 A.2d 892, 894-895 (Pa.Super. 2007). “If a trial court, in reaching its

conclusion, overrides or misapplies the law or exercises judgment which is

manifestly unreasonable, or reaches a conclusion that is the result of

partiality, prejudice, bias or ill will as shown by the evidence of record, then

discretion is abused.”   Gates v. Gates, 967 A.2d 1024, 1028 (Pa.Super.

2009).

      Here, Husband does not deny that he is in contempt of the order to

place approximately $1.1 million in escrow as he admits he did not place the

full amount in escrow. However, he argues that the trial court abused its

discretion when it imposed the purge condition when sufficient evidence

indicated that he lacked the ability to pay.




                                     -4-
J. S53035/17


        It is true that the trial court must give the party in contempt the

opportunity to purge the contempt by fulfilling a condition.   McMahon v.

McMahon, 706 A.2d 350, 358 (Pa.Super. 1998).        The contemnor has the

burden to prove the affirmative defense that he lacks the ability to comply.

Commonwealth ex rel. Ermel v. Ermel, 469 A.2d 682, 683 (Pa.Super.

1983). The defense of impossibility of performance is available to a party in

a contempt proceeding if the impossibility to perform is not due to the

actions of that party.    Commonwealth Dept. of Envtl. Resources v.

Pennsylvania Power Co., 316 A.2d 96, 103 (Pa.Cmwlth. 1974).

        Here, Husband argues that he presented evidence of his inability to

pay $480,018 into the escrow account because the vast majority of the

$480,018 that he did not previously deposit into the escrow account was

used to make the balloon payment to Mr. Santabarbara for the purchase of a

club.     Husband argues that the $425,000 paid to Mr. Santabarbara

represented a legitimate business debt and that the trial court did not have

the slightest idea whether or not Husband had any means of obtaining the

funds necessary to make the purge payment. As a result, Husband asserts

that the trial court clearly committed an abuse of discretion when it imposed

the purge condition without knowing whether Husband had the ability to

meet the purge condition of payment of $480,018.

        Husband misunderstands a key point. It was his burden to establish

that he lacked the ability to pay the purge amount.     It was not the trial



                                    -5-
J. S53035/17


court’s duty to divine his financial status. Based on the testimony presented

by both Husband and Wife, it was clear that Husband, in the past and

possibly to this day, had great financial resources.   Husband testified on

cross-examination regarding his mortgage expense, automobile expenses,

and real estate taxes. (Notes of testimony, 2/2/17 at 31-32, 39-40.) He

also testified that he and his brother just purchased a building and signed a

note for $800,000. (Id. at 21.) Wife testified that Husband never had any

trouble getting money, that he took luxurious vacations, and purchased

businesses when he desired.    (Id. at 45a.)   Wife recounted that Husband

once drove to Las Vegas with $2,000,000 in cash to purchase a strip club

there. (Id.)

     Given the testimony of such large expenditures and Husband’s lack of

evidence that he could not make the payment, only that he used the money

he originally planned to place in escrow to make a balloon payment to

Mr. Santabarbara, the trial court did not abuse its discretion when it found

Husband guilty of contempt and that he failed to meet the purge condition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/11/2017



                                    -6-
