J-S43014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CLINTON W. SPENCER                      :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellee             :
                                         :
              v.                         :
                                         :
 LYNNETTE D. SPENCER                     :
                                         :
                    Appellant            :        No. 2025 MDA 2018

              Appeal from the Order Entered November 21, 2018
               In the Court of Common Pleas of Centre County
                       Civil Division at No(s): 11-1931


BEFORE:    GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                 FILED NOVEMBER 08, 2019

      Appellant, Lynnette D. Spencer (“Wife”), appeals from the order entered

in the Centre County Court of Common Pleas, which found her in contempt of

court and imposed sanctions in the form of counsel fees in favor of Appellee,

Clinton W. Spencer (“Husband”). We affirm.

      The relevant facts and procedural history of this case are as follows.

Husband and Wife married on October 31, 1998, and separated in August

2010. Husband filed a complaint for divorce and equitable distribution on April

27, 2011. On August 9, 2012, the court entered a divorce decree, reserving

jurisdiction over the issue of equitable distribution.    The court held an

equitable distribution hearing on January 27, 2016, which neither Wife nor her

counsel attended.   On February 29, 2016, the court entered an equitable

distribution order requiring Wife to pay Husband $89,830.65.


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S43014-19


     Husband filed a petition for contempt on May 2, 2018, based on Wife’s

failure to make any payments to Husband. On July 25, 2018, Wife filed an

answer and new matter, and the court held a hearing on the contempt

petition. The court held an additional hearing on October 17, 2018. By order

filed on November 19, 2018, with service of the order on November 21, 2018,

the court found Wife in contempt and ordered her to serve six (6) months’

incarceration. The order contained a purge condition of $500.00 per month

beginning in January 2019, and continuing until all money owed was paid.

The court also awarded Husband $2,000.00 in counsel fees. Wife timely filed

a notice of appeal on December 14, 2018. On December 31, 2018, the court

ordered Wife to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), which Wife timely filed on January 22, 2019.

     Wife raises three issues for our review:

        WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
        DISCRETION BY THE ORDER, [FILED] ON NOVEMBER 19,
        2018, FINDING [WIFE] IN CONTEMPT FOR FAILING TO
        COMPLY WITH THE EQUITABLE DISTRIBUTION ORDER
        INASMUCH AS [WIFE] DID PROVE BY THE REQUISITE
        STANDARD [WIFE’S] PRESENT INABILITY TO PAY UNDER
        SUCH EQUITABLE DISTRIBUTION ORDER?

        WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
        DISCRETION BY THE ORDER, [FILED] ON NOVEMBER 19,
        2018, FINDING [WIFE] IN CONTEMPT FOR FAILING TO
        COMPLY WITH THE EQUITABLE DISTRIBUTION ORDER
        INASMUCH AS THE TRIAL COURT PREDICATED ITS
        DETERMINATION OF [WIFE’S] PRESENT INABILITY TO PAY
        UNDER SUCH EQUITABLE DISTRIBUTION ORDER ON
        [WIFE’S] POTENTIAL, FUTURE ABILITY TO PAY AND
        ESTIMATES THEREOF?


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J-S43014-19


         WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
         DISCRETION BY THE ORDER, [FILED] ON NOVEMBER 19,
         2018, AWARDING COUNSEL FEES TO [HUSBAND]
         INASMUCH AS, UNDER THE FACTS AND CIRCUMSTANCES
         OF RECORD, [WIFE] DID NOT ENGAGE IN CONDUCT
         WARRANTING THE AWARD OF COUNSEL FEES, NOR DID
         THE EVIDENCE SUFFICE TO PROVE THE AWARD OF
         COUNSEL FEES TO [HUSBAND], AND THE AWARD WAS
         EXCESSIVE AND UNREASONABLE?

(Wife’s Brief at 5).

      On appeal from an order holding a party in contempt of court,

         [O]ur scope of review is very narrow, and we place great
         reliance on the court’s discretion. The court abuses its
         discretion if it misapplies the law or exercises its discretion
         in a manner lacking reason. Each court is the exclusive
         judge of contempts against its process. The contempt
         power is essential to the preservation of the court’s
         authority and prevents the administration of justice from
         falling into disrepute. Absent an error of law or an abuse of
         discretion, we will not disrupt a finding of civil contempt if
         the record supports the court’s findings.

         In proceedings for civil contempt of court, the general rule
         is that the burden of proof rests with the complaining party
         to demonstrate that the defendant is in noncompliance with
         a court order. 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 specific
         order or decree which [she] is alleged to have disobeyed;
         (2) the act constituting the contemnor’s violation was
         volitional; and (3) the contemnor acted with wrongful
         intent. Nevertheless, a mere showing of noncompliance
         with a court order, or even misconduct, is never sufficient
         alone to prove civil contempt.

         If the alleged contemnor is unable to perform and has, in
         good faith, attempted to comply with the court order, then
         contempt is not proven. The contemnor has the burden to
         prove the affirmative defense that [she] lacks the ability to
         comply. The defense of impossibility of performance is
         available to a party in a contempt proceeding if the

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J-S43014-19


         impossibility to perform is not due to the actions of that
         party.

Thomas v. Thomas, 194 A.3d 220, 225-26 (Pa.Super. 2018) (internal

citations and quotation marks omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Brian K.

Marshall, we conclude Wife’s first and second issues on appeal merit no relief.

The trial court opinion comprehensively discusses and properly disposes of

those questions. (See Trial Court Opinion, filed November 19, 2018, at 2-3)

(finding: Wife has failed to comply with equitable distribution order; Wife

works only 7 hours/week for minimum wage, with no indication that Wife has

attempted to secure better employment which would allow her to comply with

equitable distribution order; Wife’s assertion that she is incapable of

complying with equitable distribution order lacks merit; Wife’s current inability

to comply with order is due solely to her inaction in securing more hourly work

for additional income; Wife could reasonably obtain more work than current 7

hours/week and she is, by her own admission, capable of working full-time at

minimum wage job). Therefore, with respect to Wife’s first and second issues

on appeal, we affirm on the basis of the trial court’s opinion.

      In her third issue, Wife argues the only statutory authorization for an

award of counsel fees incident to a contempt order is 42 Pa.C.S.A. § 2503(7),

which provides that counsel fees may be awarded as a sanction for “dilatory,

obdurate or vexatious conduct.”     Wife contends the evidence presented at

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J-S43014-19


both contempt petition hearings demonstrated that Wife only pursued

legitimate defenses and claims. Wife further asserts the trial court made no

specific finding of dilatory, obdurate, or vexatious conduct on her part, as

required for the award of counsel fees under Section 2503(7). Wife maintains

this omission renders the award of counsel fees “unfounded, unreasonable,

and excessive.” As a result, Wife concludes the award of counsel fees must

be vacated. We disagree.

      An award of counsel fees as a sanction in a civil contempt case is distinct

from the statutory provision for counsel fees under 42 Pa.C.S.A. § 2503(7).

Sutch v. Roxborough Memorial Hospital, 142 A.3d 38, 68-70 (Pa.Super.

2016), appeal denied, 640 Pa. 378, 163 A.3d 399 (2016). An award of counsel

fees under Section 2503(7) “must be supported by a trial court’s specific

finding of dilatory, obdurate or vexatious conduct.” Id. at 69. Section 3502

of the Divorce Code, however, empowers the court to award counsel fees and

costs when a party fails to comply with an order of equitable distribution. 23

Pa.C.S.A. § 3502(e)(7). The purpose of awarding counsel fees in this context

is “to reimburse an innocent litigant for the expenses the conduct of an

opponent makes necessary, such as the cost of the contempt hearing, so it

can be coercive and compensatory but it cannot be punitive.” Sutch, supra.

We review an award of contempt sanctions in the form of counsel fees for an

abuse of discretion. Mrozek v. James, 780 A.2d 670, 674 (Pa.Super. 2001).

      Instantly, the court entered an equitable distribution order on February


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J-S43014-19


29, 2016, requiring Wife to pay Husband $89,830.65. Due to Wife’s failure to

make any payments to Husband for over two years, Husband filed a contempt

petition on May 2, 2018. The court held two hearings on the petition. By

order filed on November 19, 2018, the court found Wife in contempt of the

equitable distribution order and awarded Husband $2,000.00 in counsel fees.

Here, the court was not required to make a specific finding of “dilatory,

obdurate or vexatious conduct” before awarding counsel fees. See Sutch,

supra. Rather, the court based its award of counsel fees on Wife’s contempt

of the February 29, 2016 equitable distribution order. See 23 Pa.C.S.A. §

3502(e)(7). Thus, the trial court’s award of counsel fees to Husband under

Section 3502 of the Divorce Code was not flawed on the ground asserted.1

See id.; Mrozek, supra. Accordingly, we affirm.

       Order affirmed.


____________________________________________


1 An appellate court may award counsel fees and costs if it determines that an
appeal is frivolous. Pa.R.A.P. 2744. An appeal is considered frivolous where
it lacks any basis in law or fact. Marino by Marino v. Marino, 601 A.2d
1240, 1250 (Pa.Super. 1992). Nevertheless, “[a]n appeal is not frivolous
simply because it lacks merit.” Winpenny v. Winpenny, 643 A.2d 677, 680
(Pa.Super. 1994), appeal denied, 540 Pa. 603, 655 A.2d 991 (1994), cert.
denied, 516 U.S. 811, 116 S.Ct. 60, 133 L.Ed.2d 23 (1995).

Husband claims Wife’s appeal is frivolous and asks for attorney’s fees and
costs on appeal. Although we do not grant Wife any relief, her appeal was not
wholly frivolous, vexatious, or taken solely for delay. See Pa.R.A.P. 2744;
Marino, supra. Accordingly, Husband’s request for attorney’s fees and costs
on appeal is denied without prejudice to his right as the prevailing party on
appeal to seek taxable costs in the trial court per Rules of Appellate Procedure
2741-2743. See Pa.R.A.P. 2771 (relating to costs on appeal taxable in trial
court in favor of party entitled to costs under this chapter).

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J-S43014-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/08/2019




                          -7-
                                                                                                   ·�       I   "tr'--      QIII\




        IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
                             CIVIL ACTION - LAW


              CLINTON W. SPENCER                            )
                         Plaintiff,                         )                                       c:;;,

                                                            )
                     v.                                     )       No. 2011-1931
                                                            )
              LYNNETTE D. SPENCER
                        Defendant.
                                                            )
                                                            )
                                                                                                    ..
                                                                                                   r ,.)           ....
                                                                                                                   <:.:.J


            Attorney for Plaintiff:                                 H Denning Mason, Esquire
            Attorney for Defendant:                                 Thomas M Dickey, Esquire


                                        OPINION AND ORDER
     Marshall, J.

              Presently before this Court is a Petition for Contempt filed by Clinton W. Spencer

     ("Plaintiff') on May 2, 2018. On July 25, 2018, Lynnette D. Spencer ("Defendant") filed an

     Answer to Plaintiffs Petition for Contempt and New Matter with this Court. On the same day,

     the Court heard argument on the Petition for Contempt. The Court entered an order requiring the

     parties to submit briefs on all relevant legal issues within twenty (20) days of the transcript being

     produced. The transcript was produced and filed for the record on September 26, 2018. A second

     hearing was held by this Court again on October 17, 2018. Defendant filed a Brief on October

     26, 2018. On the same day, Plaintiff filed a Memorandum of Law in response to issues raised by

     Defendant. After hearing testimony on the matter and conducting a thorough review of the

     record, this Court determines the Petition for Contempt is GRANTED.

                                              BACKGROUND

              This matter arises out of a divorce action between Plaintiff and Defendant. On February

     29, 2016, the Honorable Thomas King Kistler entered an equitable distribution Order requiring

     the Defendant to pay Plaintiff to the sum of $89,830.65. On May 2, 2018, Defendant filed a


mo   ORD OS
Petition for Contempt as a result of Defendant's failure to pay the amount due to him in

accordance with Judge Kistler's February 29, 2016 Order. Defendant argues she should not be

held in contempt because she lacks the present ability to pay the amount set forth in Judge

Kistler's February 29, 2016 Order.

                                           DISCUSSION

       In awarding equitable distribution, a court may find a party in contempt for failure to

comply with an order of equitable distribution. 23 Pa.C.S.A. § 3502(e)(9). The purpose of civil

contempt is to "enforce compliance with an order of court for the benefit of the party in whose

favor the order runs." Wetzel v. Suchanek, 541 A.2d 761, 763 (Pa Super. 1988). To be found in

civil contempt, ''the complaining part must show, by a preponderance of the evidence, that a

party violated a court order." Hyle v. Hyle, 868 A.2d 601, 604 (Pa Super. 2005) (citing Sinaiko

v. Sinaiko, 664 A.2d 1005, 1009 (Pa. Super. 1995)). If contempt is proven by preponderance of

the evidence, the contemnor has the burden of proving an inability to comply with the court

order. Sinaiko, 664 A.2d at 1009. This affirmative defense is only available if the impossibility

of performance is not due to the own actions of the contemnor. Cunningham v. Cunningham, 182

A.3d 464, 471 (Pa. Super. 2018). If this affirmative defense is pled, "in imposing coercive

imprisonment for civil contempt, [the court] should set conditions for purging the contempt and

effecting release from imprisonment with which it is convinced beyond a reasonable doubt, from

the totality of the evidence before it, the contemnor has the present ability to comply." Barrett v.

Barrett, 368 A.2d 616, 621 (Pa. 1977). Thus, a coercive sentence cannot be conditioned on a

performance of an act that is incapable of being performed. In re Martorano, 346 A.2d 22, 27-29

(Pa. 1975).

       In the present case, Defendant has failed to comply with this Court's Order dated

February 29, 2016. Although Defendant has made attempts to sell certain assets to obtain

                                                  2
additional monies, Defendant is currently only working seven (7) hours per week for minimum

wage. There is no indication that Defendant has attempted to secure better employment, which

would allow her to comply with this Court's Order. This Court finds that Defendant's assertion

that she is incapable of complying with this Court's February 29, 2016 Order is without merit.

Defendant's current inability to comply with the Order is due to her inactions in securing more

hourly work for additional income. This Court finds that it is not unreasonable for Defendant to

obtain more work than her current seven (7) hours per week, and she is in fact, by her own

admission, capable of working full time at a minimum wage job. Therefore, this Court

determines the Petition for Contempt is GRANTED.



                                             ORDER

       AND NOW, this 19th day of November, 2018, the Court hereby ORDERS:

           1. Defendant is found to be in contempt of court.

           2. Defendant shall pay Plaintiffs counsel fee in the amount of $2,000.00.

           3. Defendant shall serve six ( 6) months incarceration in the Centre County

               Correctional F ac ili ty.

           4. Defendant may purge her contempt and avoid incarceration by paying $500.00

               per month, beginning in January 2019, and continuing until all monies owed,

               inclusive of attorney's fees awarded, are paid in full. Payment shall be made by

               money order, cashier's check, certified check, or other guaranteed forms of funds

               and must be received by Plaintiff by the last calendar day of each month. Plaintiff

               shall keep Defendant apprised of any change to the address to which Defendant

               should send payment. Defendant shall inform Plaintiff of any change to her

               mailing address.

                                                 3
5. Within twenty (20) days of the date of this Order, counsel for the parties shall

   attempt to agree on the total amount due (inclusive of attorney's fees), following

   the application of funds paid by Defendant to Plaintiff between the two hearings

   in this matter. If counsel is unable to agree as to the total amount still owed by

   Defendant to Plaintiff, the Court remains available for further hearing to

   determine this amount.

6. Each party is responsible for keeping detailed records for himself or herself of the

   payments made in the event a future dispute arises.




                                          BY THE COURT:




                                     4
