J-A30022-19

                                   2020 PA Super 46

    B.A.W. N/K/A B.A.C.                        :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    T.L.W., III                                :
                                               :
                       Appellant               :   No. 912 MDA 2019

                 Appeal from the Order Entered May 22, 2019
       In the Court of Common Pleas of Schuylkill County Civil Division at
                            No(s): S-3416-2009

BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*

OPINION BY NICHOLS, J.:                        FILED: MARCH 3, 2020

        Appellant T.L.W., III (Father) appeals the trial court’s contempt order

that imposed the sanction of incarceration pending his payment of $1,166.66,

which is one-third of the cost of a court-ordered custody evaluation. Father

argues that the trial court violated his right to due process and failed to

appoint counsel. Father also claims that the trial court failed to inquire into

his present ability to pay and that the trial court abused its discretion by

imposing an onerous purge condition for the contempt.           Following careful

review, we are constrained to vacate the order, and remand for further

proceedings consistent with this opinion.

        The parties are familiar with the extensive factual and procedural history

of this matter. Concerning the instant appeal, Father filed a pro se petition to


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*   Retired Senior Judge assigned to the Superior Court.
J-A30022-19


modify custody, and a hearing officer held a custody conciliation conference

on October 9, 2018. On October 10, 2018, the hearing officer recommended

a custody evaluation by Dr. Joseph Sheris, with Father paying one-third of the

evaluation’s cost and Appellee B.A.W., now known as B.A.C. (Mother), paying

the other two-thirds. On October 11, 2018, the trial court agreed and ordered

as follows:

        1. . . . The costs of the home and custody evaluations shall be
        $3,500.00 pus [sic] mileage; but it may increase if the issues are
        especially complex or numerous individuals must be interviewed.

        2. The cost of the evaluations shall be borne as follows and paid
        to the evaluator subject to the [c]ourt’s right to allocate later:
        Mother is to pay two-thirds and Father is to pay one-third of the
        evaluation costs.

Order, 10/11/18. The trial court did not state the basis for the $3,500 cost of

the evaluations.1

        In relevant part, because Father failed to pay, the trial court granted

several extensions of time. Consequently, because the custody conciliation

officer notified the trial court that Father failed to comply, the trial court

scheduled a rule to show cause hearing for May 9, 2019. Order, 3/27/19. The

trial court’s order advised Father “to show cause why [he] should not be held

in contempt for failure to comply with [the prior payment orders], which, after




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1   There is no apparent statutory authority for the fees.


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hearing, may result in sanctions, including possible incarceration and fines.”

Id.

       On May 9, 2019, a custody hearing officer held the rule to show cause

hearing in which Father was pro se, and Mother was represented by counsel.

No trial judge was present.

       At the proceeding, the hearing officer asked Father when he last worked.

N.T. Hr’g, 5/9/19, at 3. Father responded that he had worked last week as a

handyman on an as-needed basis, but that it was not a steady job. Id. at 4.

The hearing officer asked Mother’s counsel for Mother’s position, noting that

even if Father was jailed, the custody evaluation fee would not get paid. Id.

Mother’s counsel agreed but noted that Father took a vacation in Florida. Id.2

The hearing officer asked Father how he could afford it. Id. Father noted that

Father’s sister paid for the flight and that he was visiting his own father for

the first time in ten years. Id. at 4-5. Father, however, said he did not have

any documentation that his sister paid for the flight but that he could get it.

Id. at 5.

       The hearing officer responded as follows:

       Well, today is the day you were supposed to have it. So I guess
       my recommendation’s going to be that you be held in contempt
       and that you be given a date to pay it by, which will be really
       quick, like a week or something. And if you don’t do it in that


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2Although the record did not establish when Father took his vacation, the trial
court’s order found that Father took his vacation “recently.” Order, 5/22/19.


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      time, you’ll be directed to go to Schuylkill County jail and serve
      some time in jail.

      [Father]. And that’s going to—

      [Hearing Officer]. Well, make you be in and out of jail until you
      pay it.

      [Father]. That’s what it is? I don’t make the income in order to
      save the money to pay for it.

Id. at 5-6. The hearing officer observed that Father had seven months within

which to save $1,100, and Father countered that he had his income tax return

and he makes $900 per month. Id. at 6. Father claimed that his accountant

needed to file an extension before he could receive his tax refund. Id.

      The hearing officer concluded:

      Well, you might be able to borrow against it or whatever. Until
      then, my recommendation is what I said. And you can take
      whatever action you think is appropriate for the refund, if you can
      expedite it or whatever. Okay. I have to run it by [the trial
      judge]. Thank you.

Id. at 6-7.     On May 16, 2019, the hearing officer, in an interoffice

memorandum addressed to the trial judge, attached the proposed contempt

order stating his belief that Father “is willfully refusing to pay for” the custody

evaluation. Interoffice Mem., 5/16/19.

      On May 22, 2019, the trial court signed the hearing officer’s proposed

order, which briefly discussed the several extensions of time Father received

to pay his share. The order stated that Father was working part time, paying

for his living expenses, and recently flew to Florida. Order, 5/22/19. The

order ended with, “[u]nder these circumstances, and considering that [Father]

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J-A30022-19


has had over seven months to comply, the hearing officer finds that

[Father’s] failure to pay for his evaluations has been willful.” Id. (emphasis

added). The trial court’s order held Father in contempt, informed Father that

he could purge the contempt by paying $1,166.66,3 to the custody evaluator

by May 30, 2019. Id. The trial court ordered that if Father failed to pay by

the deadline, then

        he shall report to [county prison] on May 31, 2019 at 4:00 p.m.
        to serve 48 hours in prison and shall report each subsequent
        Friday at 4:00 p.m. to serve 48 hours until after the end of the
        weekend of August 2, 2019, or until he pays the amount due,
        whichever shall first occur.

Id.

        Father retained counsel, who timely filed a notice of appeal on June 5,

2019.     Counsel also filed a Pa.R.A.P. 1925 concise statement of errors

complained of on appeal that same day. See Pa.R.A.P. 1925(a)(2), (b). On

June 6, 2019, Father filed an application for an emergency stay of the trial

court’s May 22, 2019 order in this Court, which this Court granted on June 19,

2019.

        On appeal, Father raises the following issues, which we reordered for

review:

        1. Did the trial court commit an error of law and violate Father’s
        right to due process when it found him in contempt without
        holding a hearing and delegated its authority to a hearing officer?

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3 The order actually stated $1,666.66, which is a typo, as the amount at issue
is $1,166.66 (one-third of the $3,500 custody evaluation fee).


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J-A30022-19



      2. Did the trial court commit an error of law when it failed to
      appoint counsel for Father once it determined Father faced
      incarceration for contempt?

      3. Did the trial court abuse its discretion when it found Father in
      contempt without adequately inquiring into Father’s present
      ability to comply with the order to pay costs?

      4. Did the trial court abuse its discretion when it imposed a purge
      condition that Father could not meet?

Father’s Brief at 5.

      Initially, Father argues that the trial court cannot delegate its authority

to hold people in contempt to a hearing officer. Id. at 17. Father cites Sirio

v. Sirio, 951 A.2d 1188 (Pa. Super. 2008), for two supporting propositions:

(1) a trial court cannot designate a hearing officer to make findings of fact;

and (2) a trial court is required to “conduct a complete and independent review

of the evidence when ruling on exceptions.” Id. at 18 (quoting Sirio, 951

A.2d at 1196).    In Father’s view, the trial court improperly transferred its

contempt power to the hearing officer, pointing out that the court’s order

stated that “the hearing officer finds that [Father’s] failure to pay for his

evaluations has been willful.” Id. at 18-19 (emphasis in original). Father

contends the order establishes that the trial court failed to render its own

findings of fact and conclusions of law. Id. at 19. Father also claims that the

trial court improperly expanded the authority of a hearing officer to determine

contempt. Id. at 20.

      The standard of review is well-settled:


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       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.

Thompson v. Thompson, 187 A.3d 259, 263 (Pa. Super. 2018) (citation

omitted), aff’d, ___ A.3d ___, No. 36 WAP 2018, 2020 WL 355372 (Pa. filed

Jan. 22, 2020).4

       In In re Estate of DiSabato, 165 A.3d 987 (Pa. Super. 2017), this

Court stated:

       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 of judicial power under the Constitution.
       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.

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4 The parties agree that the order at issue addresses civil contempt. See
Father’s Brief at 16; Mother’s Brief at 12. Cf. Commonwealth v. Moody,
125 A.3d 1, 8-9 (Pa. 2015) (resolving challenge to finding of summary direct
criminal contempt). See generally Rouse Phila. Inc. v. Ad Hoc ’78, 417
A.2d 1248 (Pa. Super. 1979) (distinguishing criminal and indirect civil
contempt).


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       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. A party must
       have violated a court Order to be found in civil contempt. The
       complaining party has the burden of proving by a preponderance
       of evidence that a party violated a court Order.

       However, a showing of non-compliance is not sufficient in itself to
       prove contempt. If the alleged contemnor is unable to perform
       and has in good faith attempted to comply with the court Order,
       contempt is not proven. The alleged contemnor has the burden
       of proving the affirmative defense that he has the present inability
       to comply with the court Order. A court cannot impose a coercive
       sentence conditioned on the contemnor’s performance of an act
       which is incapable of performance. To impose civil contempt the
       trial court must be convinced beyond a reasonable doubt from the
       totality of evidence presented that the contemnor has the present
       ability to comply with the Order.

In re Estate of DiSabato, 165 A.3d at 992-93 (citations omitted).

       In custody and visitation actions, the Pennsylvania Rules of Civil

Procedure distinguish the duties of a hearing officer from those of the trial

court. See Pa.R.C.P. 1915.4-1, -2 (discussing custody proceedings before a

hearing officer and the court); see also, e.g., Pa.R.C.P. 1910.25-1, -4, -5

(distinguishing the roles of hearing officer and the trial court in support

actions); Sirio, 951 A.2d 1196 (noting, in support action, that a trial court

“cannot delegate its duty as finder of fact”).5 Rule 1915.12 provides that only



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5 Specifically, Rule 1910.25-1 explicitly states that upon a determination of
willful noncompliance and a present ability to comply, the trial court must hear
the petition for contempt “for consideration of incarceration and other
appropriate sanctions.” Pa.R.C.P. 1910.25-1; see also id. 1910.25-4, -5.


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J-A30022-19


the trial court may find a respondent in contempt, and therefore, the trial

court must conduct the contempt hearing and not the hearing officer. See

Pa.R.C.P. 1915.12(d); Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001).

Accordingly, in the instant custody action, we are constrained to conclude that

the trial court erred by failing to convene the contempt hearing and by failing

to make its own findings of fact before determining Father in contempt. See

Garr, 773 A.2d at 189. The same is true in support actions. See Pa.R.C.P.

1910.25-4.

       The instant trial court erred because it did not conduct its own

evidentiary hearing, and instead adopted the hearing officer’s factual

determination that Father’s failure to pay was willful. See Order, 5/22/19.

For the reasons stated herein, the relevant procedural rules clearly distinguish

the duties of the hearing officer from those of the trial court. Further, well-

settled caselaw has emphasized that only the trial court has the authority to

impose the sanction of imprisonment for contempt. See, e.g., In re Estate

of DiSabato, 165 A.3d at 992-93. Accordingly, we conclude that the trial

court misapplied the law and abused its discretion. See Thompson, 187 A.3d

at 263; In re Estate of DiSabato, 165 A.3d at 992. Cf. Sirio, 951 A.2d at

1196.6


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6 We acknowledge Father cites Sirio in support, but we note that case arose
in the context of a support proceeding, unlike the custody proceeding in this
case.


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      Next, we address Father’s arguments in support of his second issue.

Father argues that when the trial court ordered incarceration, he was entitled

to appointed counsel. Father’s Brief at 34. In support, Father refers this Court

to Commonwealth ex rel. Brown v. Hendrick, 283 A.2d 722 (Pa. Super.

1971), and Commonwealth v. Diaz, 191 A.3d 850 (Pa. Super. 2018), among

other cases. Id.

      In Brown, the defendant was ordered to pay $500 in support or serve

three months in prison.    Brown, 283 A.2d at 723.        The defendant filed a

petition for a writ of habeas corpus, which was denied. Id. On appeal, the

Brown Court reversed, holding that “due process of law . . . in the prosecution

of contempt . . . includes the assistance of counsel . . . .” Id. at 724 (citation

omitted).

      Diaz involved a defendant’s failure to pay court-ordered fines and costs.

Diaz, 191 A.3d at 862. Of note is that the Diaz Court declined to “impose an

automatic right to court-appointed counsel for all civil contempt proceedings

involving an indigent defendant’s failure to pay court-imposed fines and

costs.” Id. Rather, in that case, sufficient procedural safeguards existed that

would prevent erroneous imprisonment. Id. However, the trial court failed

to apply any of the relevant procedures. For example, Section 9730 requires

a determination of a defendant’s financial ability to pay before ordering, inter

alia, imprisonment.    See 42 Pa.C.S. § 9730.       When such safeguards are

complied with, “upon the trial court’s determination at the civil contempt


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hearing that there is a likelihood of imprisonment for contempt and that the

defendant is indigent, the court must appoint counsel and permit counsel to

confer with and advocate on behalf of the defendant at a subsequent hearing.”

Diaz, 191 A.3d at 862.

      Here, the trial court set the cost of the custody evaluation at $3,500,

with Father to pay a one-third share. Order, 10/11/18. The record does not

establish how the trial court arrived at that figure. As in Diaz, the trial court

imposed the cost, but unlike Diaz, the money is payable to a third party and

not the Commonwealth. See Diaz, 191 A.3d at 861. Nonetheless, the trial

court, much like the trial court in Diaz, held that Father would be imprisoned

if he failed to pay. See id. at 862. The trial court imposed incarceration as a

sanction, creating a clear likelihood of imprisonment.      See id.; see also

Brown, 283 A.2d at 723-24. The trial court should have then ascertained

“whether [Father was] entitled to court-appointed counsel.” See Diaz, 191

A.3d at 866. Because the trial court failed to do so, it abused its discretion.

See Diaz, 191 A.3d at 865-66; Thompson, 187 A.3d at 263.

      For the reasons stated herein, we vacate the trial court’s May 22, 2019

order, and remand this matter to the trial court in order to conduct a de novo

hearing to resolve the court’s rule to show cause as to why Father should not

be held in contempt. See Order, 3/27/19. If the trial court determines that

there is a likelihood that Father could be imprisoned for contempt and that

Father is indigent, the trial court must appoint counsel for Father. See Diaz,


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191 A.3d at 866. Because we vacate the order below and remand for further

proceedings, we need not address Appellant’s remaining two issues. 7 See

Commonwealth v. Merchant, 595 A.2d 1135, 1139 (Pa. 1991) (holding that

when reversing on one issue, there is no reason to address the remaining

issues); In re D.A., 801 A.2d 614, 618 (Pa. Super. 2002) (same).

       Order vacated. Case remanded for further proceedings.        Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/03/2020




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7 With respect to those remaining two issues, we note, however, that in
resolving whether Father should be held in contempt, the trial court (and not
the hearing officer) must address Father’s present ability to pay, i.e., ability
to comply with the trial court’s order, and Father’s good faith efforts, if any,
to comply. See generally In re Estate of DiSabato, 165 A.3d at 992.
Because the trial court erred in holding Father in contempt, we need not
address whether the trial court abused its discretion in imposing the purge
condition, i.e., paying the disputed amount by May 30, 2019.


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