J-S13016-18

                               2018 PA Super 122


 TRICIA A. THOMPSON                     :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 ASHLEY N. THOMPSON                     :
                                        :
                   Appellant            :    No. 647 WDA 2017

             Appeal from the Order Entered February 15, 2017
   In the Court of Common Pleas of Clarion County Domestic Relations at
                           No(s): 2015-D00104


BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

OPINION BY SHOGAN, J.:                                  FILED MAY 08, 2018

     Appellant, Ashley N. Thompson, appeals from the February 15, 2017

order entered in the Clarion County Court of Common Pleas. After careful

review, we reverse the order, vacate the trial court’s denial of in forma

pauperis status, and remand with instructions.

     The trial court set forth the relevant facts of this case 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.

           Following resolution of those petitions in 2016, this court
     ordered [Appellant] to remain current with her monthly support
     obligation of $108 and to pay an additional amount of $30 per
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     month toward arrears, for a total monthly payment of $138.
     [Appellee] requested to terminate the support case, but
     [Appellant] still owed arrears. This court then issued an Order on
     October 11, 2016 directing [Appellant] to continue to pay $138
     per month; all toward the arrears. [Appellant] failed to remain
     current and so the Domestic Relations Office filed another
     contempt petition, stating the amount of the arrearages was
     $1,978.18. This court scheduled a hearing for February 14, 2017
     and appointed attorney Gina Bianco to represent [Appellant].

           On November 10, 2016, attorney John Troese entered his
     appearance for [Appellant]. There were no further filings until
     February 1, 2017, when attorney Troese filed a Motion to
     Withdraw Contempt and for Continuance of Hearing. This court
     issued an Order on February 2, 2017[,] denying the Motion to
     Withdraw Contempt [because] the court could not order the
     Domestic Relations Office to withdraw its petition. The court also
     denied the Motion for Continuance because the hearing had been
     scheduled, and Mr. Troese had known it was scheduled, for almost
     two months. Attorney Bianco, who had previously represented
     [Appellant], was available to represent her at the next hearing if
     attorney Troese was unable to attend.

            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

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     $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].

           On February 28, 2017, attorney Troese filed a Praecipe to
     Proceed In Forma Pauperis for [Appellant], stating she was unable
     to pay the costs. The court issued an Order on March 8, 2017
     denying the application because two weeks earlier, on
     February 14, 2017, [Appellant] stated she was employed and was
     able to make payments of $138 per month. Attorney Troese filed
     another Praecipe to Proceed In Forma Pauperis on March 16,
     2017. He also filed a Notice of Appeal on that date. The court
     issued an Order on March 21, 2017 directing [Appellant] to submit
     the required form Affidavit to support her request to proceed in
     forma pauperis. She submitted an Affidavit and another Order
     was issued on April 26, 2017 granting in forma pauperis status for
     the purpose of obtaining copies of the record.

Trial Court Opinion, 6/8/17, at 2-5. Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

     On appeal, Appellant raises the following issues for this Court’s

consideration:

     [1.] Was [Appellant] guilty of willful contempt?

     [2.] Did the [domestic relations] court fail to follow rules set forth
     by the Supreme Court in addressing the type of contempt in this
     case?

     [3.] Is a suspended sentence a proper sanction for contempt of a
     support order[?]

     [4.] Is the court’s failure to set a purge amount an error of law[?]




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      [5.] Did the court fail to follow the Rules of court when it failed to
      allow [Appellant] to proceed In Forma Pauperis[?]
Appellant’s Brief at 2.1

       Our standard of review is well settled:

               This court’s review of a civil contempt order is limited to a
       determination of whether the trial court abused its discretion. 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.

              In order to establish that a party is in civil contempt, there
       must be proof by a preponderance of the evidence that the
       contemnor had notice of the specific order that he or she is alleged
       to have disobeyed, that the act that constituted the contemnor’s
       violation was volitional, and that the contemnor acted with
       wrongful intent.

Cunningham v. Cunningham, ___ A.3d ___, ___, 2018 PA Super 64, at

*4-*5 (Pa. Super. March 20, 2018) (internal citations and quotation marks

omitted).

       After endeavoring to discern which of Appellant’s five issues are argued

in the three argument sections of her brief, we conclude that there are two

overarching claims: 1) whether the trial court erred in its acceptance of the


____________________________________________


1  For purposes of our disposition, we have renumbered Appellant’s issues.
Additionally, we note with displeasure Appellant’s violation of Pennsylvania
Rule of Appellate Procedure 2119. The Rule provides, in pertinent part, “[t]he
argument shall be divided into as many parts as there are questions to be
argued[.]” Pa.R.A.P. 2119(a). However, because Appellant’s violation does
not substantially impede appellate review, we decline to quash the appeal.
See In re Ullman, 995 A.2d 1207, 1211 (Pa. Super. 2010) (“This Court may
quash or dismiss an appeal if the appellant fails to conform to the
requirements set forth in the Pennsylvania Rules of Appellate Procedure.”).

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stipulation subjecting Appellant to incarceration without due process under

Pa.R.C.P. 1910.25-1 through 1910.25-5; and 2) whether Appellant should

have been afforded in forma pauperis status. We will address these issues in

turn.

        First, we determine if the trial court erred when it incorporated

stipulations (“the agreement”), which included incarceration, into the

February 15, 2017 order. Appellant argues 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.

Appellant’s Brief at 6-12.

        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.

Pa.R.C.P. 1910.25-5(a)-(c).

        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.

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J-S13016-18



              (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.

23 Pa.C.S. § 4345(a) and (b). Thus, Appellant is correct in her assertions that

a suspended sentence is not one of the enumerated punishments, and that 23

Pa.C.S. § 4345(b) requires a purge condition. Moreover, 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. In other words, the

agreement      removes       from    consideration   a   subsequent    change   in

circumstances. Although the trial court stated 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,2 this codicil was offered

after the agreement was executed, and this modification language is not

contained in the agreement.

       The law is clear that an indefinitely suspended sentence is not a

sentencing alternative and is illegal. Commonwealth v. Joseph, 848 A.2d

934, 941 (Pa. Super. 2004) (citations omitted).            “It is the uncertainty

surrounding such sentences, and the disorder they can engender, that



____________________________________________


2   Trial Court Opinion, 6/8/17, at 9-10.

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J-S13016-18


prompts their prohibition.”        Id. at 941-942.   “An indefinitely suspended

sentence is not a sanctioned sentencing alternative.” Id. at 942. Although

Joseph dealt with sentencing in a criminal matter, we conclude that its

rationale is instructive in our review of a sentence imposed for civil contempt.3

After review, we conclude 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.

       In addition to our conclusion that the indefinitely suspended sentence is

illegal,   we further find the February 15, 2017 order incorporating the

agreement provided no purge amount and contained no mechanism through

which the trial court could consider Appellant’s present ability to pay. Thus,

in addition to imposing an illegal sentence, the February 15, 2017 order

incorporating the agreement violated Appellant’s right to due process. See

Pa.R.C.P. 1910.25-5 (enumerating the rights and procedure to be followed

when imposing incarceration for civil contempt). Accordingly, we reverse the




____________________________________________


3  We note that the Clarion County Domestic Relations Section, a participant
in this matter, cites to the fact that Appellant had counsel and consented to
the agreement. Appellee’s Brief at 9-15. We conclude that this consent is of
no moment because Appellant could not consent to an illegal sentence. See
Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014) (stating
that despite entering a plea bargain, a defendant cannot consent to an illegal
sentence).




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February 15, 2017 order incorporating the agreement and imposing an

indefinitely suspended sentence.4

       Next, Appellant claims that the trial court erred when it denied her

petition to proceed in forma pauperis.           Appellant’s Brief at 12.   When a

counseled praecipe to proceed in forma pauperis is filed, the granting of such

status is administrative.       “If the party is represented by an attorney, the

prothonotary shall allow the party to proceed in forma pauperis upon the filing

of a praecipe which contains a certification by the attorney that he or she is

providing free legal service to the party and believes the party is unable to

pay the costs.” Pa.R.C.P. 240(d)(1). If the trial court does not believe the

averments in a praecipe to proceed in forma pauperis, the court is required to

hold a hearing to determine the veracity of the allegations contained in the

praecipe. Crosby Square Apartments v. Henson, 666 A.2d 737, 738 (Pa.

Super. 1995) (citation omitted).         A trial court’s resolution of a praecipe to

proceed in forma pauperis will be reversed only if the court abused its

discretion or committed an error of law. Id. (citation omitted).

       On February 28, 2017, Appellant filed a counseled praecipe to proceed

in forma pauperis pursuant to Pa.R.C.P. 240(d), and counsel certified that he

was providing free legal services as Appellant was unable to pay.               The


____________________________________________


4 Appellant, however, remains liable for amounts due and owing on her child
support obligations, and nothing in this opinion precludes the trial court from
utilizing legal enforcement measures to insure payments are made on those
obligations.

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J-S13016-18


Prothonotary did not confer in forma pauperis status; rather, on March 8,

2017, the trial court denied Appellant’s praecipe because “[Appellant] would

not have incurred certain costs if she had made regular support payments as

ordered.” Order, 3/8/17.

      Appellant filed a second praecipe to proceed in forma pauperis on

March 16, 2017. On March 21, 2017, the trial court denied the praecipe and

directed Appellant to complete and submit another praecipe to proceed in

forma pauperis. Order, 3/21/17.

      On March 28, 2017, Appellant filed an affidavit in conformance with

Pa.R.C.P. 240 claiming that she was unable to pay the fees and costs

necessary to obtain counsel. This affidavit contained a statement of assets

and liabilities, and it included a paystub from her employer revealing a weekly

income of $21.37, and a year-to-date income as of March 23, 2017, of

$938.59. On April 11, 2017, Appellant filed a motion for an extension of time

in which to file her Pa.R.A.P. 1925(b) statement. In this motion, Appellant

also averred the trial court denied her praecipe to proceed in forma pauperis

despite her lack of income and resources. Motion, 4/11/17, at ¶¶ 4-15.

      On April 26, 2017, the trial court filed an order which stated as follows:

            AND NOW, April 26, 2017, [Appellant] has filed a Praecipe
      to Proceed In Forma Pauperis and an application and affidavit. She
      has also filed a Motion to Extend Time [to file a concise statement
      of] Errors Complained of on Appeal, which the court has granted.
      In the Motion to Extend Time, [Appellant] states she is seeking in
      forma pauperis status in order to obtain copies of the record.




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J-S13016-18


            Therefore, it is ORDERED that [Appellant] shall proceed in
      forma pauperis for the sole purpose of obtaining copies of the
      record in this case.

            The Statement of Matters Complained of shall now be filed
      by [Appellant] within fourteen (14) days of the entry of this order.

Order, 4/26/17.

      Our Rules of Civil Procedure provide, in relevant part, as follows:

      (d)(1) If the party is represented by an attorney, the prothonotary
      shall allow the party to proceed in forma pauperis upon the filing
      of a praecipe which contains a certification by the attorney that he
      or she is providing free legal service to the party and believes the
      party is unable to pay the costs.

Pa.R.C.P. 240(d)(1).

      As noted above, counsel for Appellant certified that he was providing

free legal services because Appellant was unable to pay, and Appellant filed

an affidavit providing her income and lack of financial wherewithal. The trial

court granted Appellant’s praecipe only to the extent that it provided her with

copies of the record.   However, Appellant’s requests for in forma pauperis

status were never limited to the provision of copies.       Praecipe, 2/28/17;

Praecipe, 3/16/17. The trial court’s conclusion in its March 8, 2017 order,

wherein it stated that because the costs incurred were due solely to

Appellant’s failure to make payments, was an abuse of discretion because the

trial court did not hold a hearing or make any findings. Moreover, the trial

court’s subsequent orders denying in forma pauperis status failed to provide

any rationale, and these denials were ordered without a hearing to determine

the veracity of Appellant’s assertion concerning her inability to pay or

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J-S13016-18


counsel’s   statement     that   he   was   providing   representation   without

compensation. Accordingly, we vacate the trial court’s order denying in forma

pauperis status, and remand for the Prothonotary of Clarion County to grant

Appellant in forma pauperis status based on counsel’s averments and

Appellant’s affidavit.

      For the reasons set forth above, we reverse the February 15, 2017 order

incorporating the agreement and imposing an indefinitely suspended

sentence, and we vacate the orders denying Appellant in forma pauperis

status.

      February 15, 2017 order reversed. March 8, 2017, March 21, 2017, and

April 26, 2017 orders denying Appellant in forma pauperis status vacated.

Case remanded with instructions. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2018




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