J-S15027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TRACEY ANN STERLING,                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

KAI WARD LYMAN,

                         Appellant                   No. 1231 EDA 2015


               Appeal from the Order Entered April 21, 2015
          In the Court of Common Pleas of Philadelphia County
       Family Court at No(s): November Term, 2013, No. 12-14703,
                          PACSES No. 664113647


BEFORE: BENDER, P.J.E., OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 19, 2016

      Appellant, Kai Ward Lyman, appeals from the order entered on April

21, 2015, which held him in civil contempt for willful failure to comply with a

support order. We affirm.

      The trial court ably explained the underlying facts and procedural

posture of this case:

        This matter arose on the petition for contempt of support
        initiated by the court enforcement unit on behalf of Tracey
        Ann Sterling [(hereinafter “Mother”)] on March 21, 2015.
        The final order of support for enforcement by [the trial
        court], entered on June 24, [2014], by [the Honorable Holly
        J. Ford,] affirmed the Support Master’s interim order of
        support of January 28, 2014.

                                     ...

        At the [contempt] hearing on April 21, 2015, [Mother]
        appeared with counsel and [Appellant] appeared with court-
        appointed counsel. . . . [At the conclusion of the April 21,

*Retired Judge assigned to the Superior Court.
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       2015 contempt hearing, the trial court made the following
       findings of fact.]

       . . . [Appellant] is 43 years old and a licensed attorney in
       good standing in Pennsylvania and Massachusetts having
       earned his law degree in 1998 from Northeastern
       University.       [Appellant’s] legal experience includes
       employment as a litigation associate with a large Boston law
       firm. [Appellant’s] last full time employment as an attorney
       was with Teva Pharmaceuticals, where he held the position
       of Senior Legal Director earning in excess of $220,000.00
       annually, in addition to a bonus, stock units[,] and stock
       options. In September 2013, [Appellant] was involuntarily
       terminated from this position. At the time of [Appellant’s]
       termination, Teva Pharmaceuticals offered him a settlement
       agreement with a severance package which [Appellant]
       refused to sign.       [Appellant] is currently involved in
       litigation, which he initiated, with Teva Pharmaceuticals.

       Since his separation from Teva Pharmaceuticals, [Appellant]
       has held a series of seasonal or part-time positions.
       [Appellant] testified to holding a temporary seasonal job
       with Bloomingdales, which ended in mid-January 2015. At
       the time of the [April 2015 contempt] hearing, [Appellant] .
       . . [was] working two part-time jobs. [Appellant’s] first job
       [was] as an independent contractor for Astoria Marketing
       providing lifeline phones to low income families, where he
       [was] paid on a commission basis. In addition, [Appellant]
       work[ed] as a salesman for Summit Retail Solutions, Inc.,
       selling pillows to department stores or warehouses earning
       approximately [$12.00] per hour as an advance against
       commissions. Despite [Appellant’s] assertion[s] that he
       [had] conducted a diligent job search to secure employment
       as an attorney, he was unable to produce any supporting
       documentation of his job search [at the April 21, 2015
       contempt hearing].

       At the time of the contempt hearing, [Appellant’s] monthly
       support obligation[s were fixed by the above-mentioned
       court order that was entered on June 24, 2014. This order
       obligated Appellant to pay the following amounts in support:
       $2,260.14 per month for the support of the parties’ two
       children; $1,874.45 per month for alimony pendente lite;
       and, $10.00 per month for arrears.          Appellant] has

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       consistently failed to comply with the support order.
       [Appellant’s] payments as shown on the [Pennsylvania Child
       Support Enforcement System (hereinafter “PACSES”)] . . .
       screen reflect that his most recent payments preceding the
       contempt hearing were significantly below his monthly
       obligations[,] as he made payments of $216.38, $194.30,
       $246.55, $200.00, and $75[.00] for the month of April[]
       2015. The total arrears balance due at the time of the
       contempt hearing was $35,273.56.

       [Moreover, during the April 21, 2015 contempt hearing,
       Appellant testified that: he lives with a relative and does
       not pay any rent; he does not own a car and has no car
       payment obligations; he pays $75.00 per month for his own
       health insurance; and, “given the pendency of this action,”
       he has chosen to not “hang out a shingle . . . [and] start a
       new [legal services] business.” N.T. Contempt Hearing,
       4/21/15, at 27-29, 46, and 49-50. Appellant also testified
       that he is representing himself in a variety of pending
       actions. According to Appellant:

          my spouse[] commenced this action in divorce support
          and custody. We have resolved much of the case. I
          commenced a civil action against my former employer
          pursuant to the May 15th, 2014 order of [the trial court],
          and I was required to bring the administrative claims
          regarding my ulcerative colitis before the [Pennsylvania
          Human Relations Commission], which I’m sure Your
          Honor    knows    is   an   administrative    exhaustion
          requirement. And the time for that has come and so I
          have two actions or three; the action you brought and –
          well, one or two actions that arise from the termination
          of my employment.

       Id. at 53.]

                                    ...

       After hearing the testimony and reviewing the exhibits of
       both parties as well as reviewing [Appellant’s] payment
       history on [the] PACSES system, [the trial court found
       Appellant in civil contempt of the support order. As the trial
       court explained at the contempt hearing:


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          Your children deserve to have this money; your former
          wife deserves it; it’s an order. It hasn’t been modified
          yet. None of that is relevant as to the fact [] that you
          have the ability to earn this amount of money and you
          are not. And I am not finding that your representations
          that you work seven days a week making – you can
          make more money going to McDonald’s than what you
          are making for $10 an hour or whatever the amount is
          per hour and then $10 for each cell phone application.

          Your skills are far in excess of what that warrants so I
          am making a finding that you are willfully, willfully not
          earning the amount of money that you could earn.

       Id. at 69-70.

       The trial court then entered the following order:]

          After a hearing, [Appellant] is found in civil contempt for
          willful failure to comply with the court order. [Appellant]
          is sentenced to [30] days incarceration. [Appellant]
          may purge himself upon payment of [$5,000.00]
          payable by cash, money order or bank cashier’s check.
          The sentence is suspended.           [Appellant] shall pay
          [$5,000.00] on or before April 28, 2015, or surrender
          himself to the court. A bench warrant shall be issued on
          April 28, 2015, if [Appellant] fails to appear. . . .

       [Trial Court Order, 4/21/15,        at   1   (some    internal
       capitalization omitted).]

                                    ...

       On April 23, 2015, [Appellant] filed a notice of appeal [from
       the trial court’s April 21, 2015 order. Appellant] paid the
       purge amount of [$5,000.00] on April 24, 2015. . . .

       [Moreover, it must be noted that Appellant] filed two prior
       appeals [to the Superior Court in this support matter. First,
       Appellant] appealed the order entered on June 24, 2014, by
       the Honorable Holly Ford, which denied [Appellant’s]
       exceptions to the proposed order of the Master in Support
       [and ordered that Appellant pay the following amounts in
       support:   $2,260.14 per month for the support of the

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          parties’ two children, $1,874.45 per month for alimony
          pendente lite, and $10.00 per month for arrears]. . . .
          [Appellant also] appealed the order entered by the
          Honorable Anne Marie Coyle on October 29, 2014, which
          found [Appellant] in contempt of [the June 24, 2014]
          support order. The Superior Court consolidated those [two,
          earlier] appeals [and, on December 29, 2015, this Court
          affirmed both trial court orders. Sterling v. Lyman, ___
          A.3d ___, 2015 WL 9593972 (Pa. Super. 2015)
          (unpublished memorandum).]

Trial   Court   Opinion,   8/17/15,   at   1-5   (some   internal   citations   and

capitalization omitted).

        Appellant’s current appeal concerns the trial court’s April 21, 2015

order, which found him in civil contempt of the June 24, 2014 support order.

Appellant raises the following claims in the current appeal:

          [1.] Did the family court err, in finding contempt, by failing
          to determine support, or by enforcing support obligations,
          based upon [Appellant’s] actual income, assets, and/or
          earning capacity after the termination of employment
          and/or failing to consider the existence of pending
          administrative and civil claims arising from the termination
          of [Appellant’s] employment?

          [2.] Did the family court, in finding contempt, err in
          apparently imputing the consideration contained in a
          confidential,   withdrawn  settlement  offer  regarding
          [Appellant’s] former employment as income despite the
          unambiguous evidence that the settlement offer was
          withdrawn and by failing to consider the family court’s
          orders of November 5 and 25, 2013?

          [3.] Did the family court err by finding, or by failing to find,
          [Appellant’s] willful noncompliance with any support order
          and/or willful effort to reduce employment income?

          [4.] Did the family court err by failing to determine beyond
          a reasonable doubt that [Appellant], and/or by determining
          that [Appellant], had the ability to comply with the order


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J-S15027-16


          and/or the “present ability” to pay the purge factor on the
          day of the order?

          [5.] Did the family court err in failing to make findings or
          conclusions that the evidence supported a present ability to
          pay the court ordered support and otherwise comply with
          the Pennsylvania and United States Constitutions?

Appellant’s Brief at 5-6 (some internal capitalization omitted).1,   2, 3

____________________________________________


1
    For ease of discussion, we have re-numbered Appellant’s claims on appeal.
2
  Even though Appellant paid the $5,000.00 purge condition, the current
appeal is not moot because Appellant “remains subject to the orders of
support and a failure to comply with them might again subject him to
contempt proceedings.” Barrett v. Barrett, 368 A.2d 616, 619 n.1 (Pa.
1977).
3
  We note that most of Appellant’s claims on appeal are rehashed from his
earlier appeal to this Court. In the earlier appeal, Appellant raised the
following claims for relief:

              [1.] Did the [trial court] incorrectly calculate
              [Appellant’s] income and earning capacity for purposes
              of determining support and finding no errors of fact or
              law with the [Support Master’s] Report?

              [2.] [Did the trial court err i]n finding or concluding,
              over objection, that the consideration offered and
              withdrawn by [Appellant’s] former employer, Teva, in its
              settlement offer, which was never received by
              [Appellant], could be imputed as income for support
              purposes after the termination of [Appellant’s]
              employment was not for cause and [Appellant’s] diligent
              employment search?

              [3.] In not recommending findings of fact and
              conclusions of law regarding actual earning capacity
              after the termination of employment, lack of willful
              efforts    to    avoid    finding employment, and/or
              [Appellant’s] diligent employment search, which the
              [trial] court found sufficient?
(Footnote Continued Next Page)


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J-S15027-16



      As this Court has explained, “[w]hen considering an appeal from an

[o]rder holding a party in contempt for failure to comply with a court

[o]rder, our [standard] of review is narrow:        we will reverse only upon a

showing the court abused its discretion.” Hopkins v. Byes, 954 A.2d 654,

655 (Pa. Super. 2008). “An abuse of discretion occurs when a trial court, in

reaching its conclusions, overrides or misapplies the law, or exercises

judgment which is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill will.”       Kelly v. Siuma, 34 A.3d 86, 91 (Pa. Super.

2011) (internal quotations and citations omitted).        Thus, “even where the

facts could support an opposite result, . . . we must defer to the trial [court]

so long as the factual findings are supported by the record and the court’s


                       _______________________
(Footnote Continued)


             [4.] [Did the trial court err in] failing to determine
             beyond a reasonable doubt that [Appellant], and/or
             determining that [Appellant], had the ability to comply
             with the [support] order and/or the “present ability” to
             pay the purge factor on the day of the [contempt]
             order?

             [5.] [Did the trial court err b]y finding, or failing to find,
             willful noncompliance with any support order and/or
             willful effort to reduce employment income before
             imputing the confidential, withdrawn settlement offer
             [Appellant’s] former employer, Teva Pharmaceuticals
             USA, Inc.?

Appellant’s Brief at 6-7 in Sterling v. Lyman, ___ A.3d ___, 2015 WL
9593972 (Pa. Super. 2015) (unpublished memorandum).




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J-S15027-16



legal conclusions are not the result of an error of law or an abuse of

discretion.” In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

       “The purpose of a civil contempt proceeding is remedial, and judicial

sanctions are employed [] to coerce the defendant into compliance with the

court’s order, and [] in some instances[,] to compensate the complainant for

losses   sustained.”4        Philadelphia        Marine   Trade   Ass’n   v.   Int’l

Longshoremen’s Ass’n, 140 A.2d 814, 818 (Pa. 1958). “For a person to

be found in civil contempt, the moving party must prove that:              (1) the

contemnor had notice of the specific order or decree that he disobeyed; (2)

the act constituting the violation was volitional; and[,] (3) the contemnor

acted with wrongful intent.” Gunther v. Bolus, 853 A.2d 1014, 1017 (Pa.

Super. 2004).      “The order alleged to have been violated must be definite,

clear, and specific – leaving no doubt or uncertainty in the mind of the

contemnor of the prohibited conduct and is to be strictly construed.”           Id.

(internal quotations, citations, and emphasis omitted).

       Appellant’s first two issues on appeal contend that the trial court erred

when it established his support obligations. These claims immediately fail,

____________________________________________


4
  There is no question that the trial court found Appellant in civil (and not
criminal) contempt of court. Gunther v. Bolus, 853 A.2d 1014, 1016 (Pa.
Super. 2004) (“[i]n the most basic terms, if the dominant purpose [of the
sanction] is to coerce the contemnor to comply with a court order, it is civil
[contempt]; if the dominant purpose is to punish the contemnor for a past
violation, it is criminal”).




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as they constitute mere attempts to re-litigate the merits of the underlying,

June 24, 2014 support order.         See Schoffstall v. Schoffstall, 527 A.2d

567, 571 (Pa. Super. 1987) (holding that, in a contempt proceeding, a party

may not re-litigate the merits of the underlying support order).

         Next, Appellant claims that the trial court erred when it found him in

willful violation of the support order. According to Appellant, the trial court

“appears to have rested its finding [of contempt] on the notion that

[Appellant] must have been able to find more lucrative employment despite

the complete paucity of any evidence.” Appellant’s Brief at 27. This claim

fails.    The record supports the trial court’s determination that Appellant

willfully chose to remain underemployed – and thereby impede his ability to

pay the required amounts of support.          Therefore, the record supports the

trial court’s determination that Appellant willfully chose to violate the

support order.

         As noted above, the evidence at the April 21, 2015 contempt hearing

demonstrated that:

        Appellant was 43 years old and a licensed attorney in good standing in

         both   Pennsylvania   and   Massachusetts;   N.T.   Contempt    Hearing,

         4/21/15, at 33 and 37;

        Appellant’s “legal experience include[d] employment as a litigation

         associate with a large Boston law firm [and] . . . as an attorney [] with

         Teva Pharmaceuticals, where he held the position of Senior Legal




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      Director earning in excess of $220,000.00 annually;”         Trial Court

      Opinion, 8/17/15, at 3-4;

     in September 2013, Appellant was involuntarily terminated from Teva

      Pharmaceuticals; id. at 4;

     since September 2013, Appellant held a series of seasonal or part-time

      positions – none of which were in the legal industry; id.;

     “[a]t the time of the [April 2015 contempt] hearing, [Appellant was]

      working two part-time jobs.       [Appellant’s] first job [was] as an

      independent contractor for Astoria Marketing providing lifeline phones

      to low income families, where he [was] paid on a commission basis.

      In addition, [Appellant] work[ed] as a salesman for Summit Retail

      Solutions, Inc., selling pillows to department stores or warehouses

      earning approximately [$12.00] per hour as an advance against

      commissions;” id.;

     at the time of the April 2015 contempt hearing, Appellant had no rent

      or car payment obligations; N.T. Contempt Hearing, 4/21/15, at 28-

      29;

     during the contempt hearing, Appellant provided no documentary

      evidence that he attempted to obtain employment as an attorney and

      he further testified that he chose not to attempt to become a solo

      practitioner; Trial Court Opinion, 8/17/15, at 4;

     during the contempt hearing, Appellant testified that he represented

      himself in a variety of pending legal actions – and that, as a result of

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J-S15027-16



       this time commitment, it was (in Appellant’s words) “difficult for me to

       hang out a shingle;” N.T. Contempt Hearing, 4/21/15, at 46 and 53;

      at the time of the contempt hearing, Appellant had a support arrears

       balance of $35,273.56; id. at 24.

      at the time of the April 21, 2015 contempt hearing, Appellant paid a

       total of $1,757.23 in support payments during the 2015 calendar year;

       id. at 24-25.

       This   evidence   thoroughly     supports   the   trial   court’s   factual

determination that Appellant willfully chose to remain underemployed and

that he willfully chose to avoid his court-ordered support obligations. As the

trial court correctly notes, given Appellant’s age, education, experience, and

bar admissions, there is simply no reason “why he cannot pursue a legal

career.” Trial Court Opinion, 8/17/15, at 9. Therefore, we conclude that the

evidence supports the trial court’s determination that Appellant willfully

violated the support order. Appellant’s claim to the contrary fails.

       Next, Appellant claims that the trial court erred when it set the

$5,000.00 purge condition.       Appellant argues that the trial court failed to

“determine beyond a reasonable doubt that [Appellant] . . . [had the]

‘present ability’ to pay the purge factor on the day of the order.” Appellant’s

Brief at 29. This claim fails.

       As our Supreme Court has explained:

         “The use of the [civil contempt] power to enforce
         compliance is exercised with the objective of compelling
         performance     and     not    inflicting   punishment.”

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        Commonwealth ex rel. Beghian v. Beghian, [184 A.2d
        270, 272 (Pa. 1962)]. In accordance with this principle,
        [the Supreme Court has] indicated that a court may not
        convert a coercive sentence into a punitive one by imposing
        conditions that the contemnor cannot perform and thereby
        purge himself of the contempt. . . .

        [W]here, as here, the court in civil proceedings finds there
        has been willful noncompliance with its earlier support
        orders constituting contempt but the contemnor presents
        evidence of his present inability to comply and make up the
        arrears, the court, in imposing coercive imprisonment for
        civil contempt, should set conditions for purging the
        contempt and effecting release from imprisonment with
        which it is convinced [b]eyond a reasonable doubt, from the
        totality of the evidence before it, the contemnor has the
        present ability to comply. Since to condition a person’s
        avoidance of or release from imprisonment on his
        performing acts beyond his power to perform is in effect to
        convert a coercive sentence into a penal one without the
        safeguards of criminal procedure, we are of the opinion that
        the stricter evidentiary standard of the criminal law should
        apply with regard to the issue of present ability.

Barrett, 368 A.2d at 620-621.

      Appellant claims that the trial court committed reversible error in

establishing the $5,000.00 purge amount, as there was insufficient evidence

to demonstrate that Appellant had “the ‘present ability’ to pay the purge

factor on the day of the order.” Appellant’s Brief at 29. As the trial court

correctly notes, this argument is specious in light of the fact that Appellant

“made payment of the purge [amount] on April 24, 2015, three days

after the entry of [the trial court’s] contempt order.” Trial Court Opinion,

8/17/15, at 10 (emphasis added).      Appellant’s argument is also meritless

because the record at the April 21, 2015 contempt hearing revealed that:

the trial court provided Appellant with seven days to secure the $5,000.00

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J-S15027-16



purge amount; Appellant had no rent or car payment obligations; Appellant

worked two jobs (only one of which was subject to a wage garnishment

order); Appellant had the capacity to pursue solo practitioner legal work;

notwithstanding the fact that Appellant had no rent or car payment

obligations and worked two jobs, Appellant had only paid $1,757.23 in

support payments during the 2015 calendar year; and, Appellant had

recently been able to secure a $12,000.00 loan from a family member to pay

a purge amount in another contempt proceeding.                Thus, the record

demonstrates that, when the contempt order was issued, Appellant

possessed liquid funds, untapped avenues for achieving additional funds,

and the present ability to secure a loan. The record is therefore sufficient to

establish that Appellant had “the present ability to comply” with the

$5,000.00 purge amount when the trial court issued its April 21, 2015

contempt order. Appellant’s fourth numbered claim on appeal fails.

      Appellant’s final claim on appeal contends that the trial court erred “in

failing to make findings or conclusions that the evidence supported a present

ability to pay the court ordered support and otherwise comply with the

Pennsylvania and United States Constitutions.”          Appellant’s Brief at 6.

Appellant failed to provide this Court with any argument on this issue.

Therefore, Appellant’s fifth numbered claim on appeal is waived.           See

Commonwealth v. Delvalle, 74 A.3d 1081, 1086-1087 (Pa. Super. 2013)

(holding that the failure of an appellant to develop a claim in the argument

section of his brief will result in the waiver of the claim on appeal).

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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