J-S82026-17


                                2018 PA Super 64

 BEVERLY L. CUNNINGHAM,                  :   IN THE SUPERIOR COURT OF
 INDIVIDUALLY AND AS TRUST               :        PENNSYLVANIA
 BENEFICIARY                             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 ALVIN D. CUNNINGHAM,                    :   No. 604 WDA 2017
 INDIVIDUALLY, ALVIN D.                  :
 CUNNINGHAM AS TRUSTEE, AND              :
 ALVIN D. CUNNINGHAM TRUST               :
                                         :
                    Appellant            :

                   Appeal from the Order March 20, 2017
     In the Court of Common Pleas of Somerset County Civil Division at
                         No(s): No. 68 Civil 2007


BEFORE:    BENDER, P.J.E., STEVENS*, P.J.E., and STRASSBURGER**, J.

OPINION BY STEVENS, P.J.E.:                         FILED MARCH 20, 2018

      Appellant/Defendant Alvin D. Cunningham, in his individual capacity,

appeals from the order entered in the Court of Common Pleas of Somerset

County on March 20, 2017, finding him in civil contempt for violating a prior

court order directing him to make monthly payments to his ex-wife,

Appellee/Plaintiff Beverly L. Cunningham, pursuant to the parties’ Family Trust

Agreement as incorporated in their Post Nuptial Agreement.           Appellant

contends the remedy of contempt was unavailable where the underlying Trust

Agreement was never incorporated into the parties’ decree of divorce but was,

instead, an independent contract such that Appellees’ sole remedy for

Appellant’s nonpayment under the agreement was a breach of contract claim.
____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-S82026-17



In the alternative, Appellant argues that even if the court could properly

enforce its prior order through the sanction of civil contempt, the evidence

established, inter alia, Appellant’s present inability to pay, the depletion of

trust funds through legitimate stock market losses, and his good-faith

willingness to convey his one-half of the marital home to Appellee as payment

of the court’s purging condition. We affirm.

      The trial court’s Pa.R.A.P. 1925(a) opinion aptly sets forth the relevant

factual and procedural history:

      Beverly J. Cunningham [Appellee] filed a Complaint against Alvin
      D. Cunningham [Appellant] on January 25, 2007.          In the
      Complaint, Appellee aver[red] that the parties were formerly
      husband and wife and that the parties were divorced at case
      docketed at 16 Divorce 1997 in the Court of Common Pleas of
      Somerset County. Compl. ¶ 3.

      Appellee further aver[red] that in connection with the divorce
      action, the parties entered into a Post Nuptial Agreement,
      together with a Family Trust Agreement (hereinafter collectively
      referred to as “Agreements”), dated November 1, 1996, which
      were not incorporated into the Divorce Decree. Id. at ¶¶ 4, 5.
      Appellee aver[red] that the Appellant had violated the terms of
      the Agreements, and that the Post Nuptial Agreement was not
      properly entered into as the Appellant failed to make a full
      disclosure of his assets in connection with the same. Id. at ¶ 6.

      [Appellant filed an Answer, New Matter, and Counterclaim raising
      all applicable statutes of limitations, laches, and equitable
      estoppel, among other claims. The basis for his res judicata
      and/or collateral estoppel claim was the Honorable Judge Eugene
      Fike’s September 14, 2004, ruling that the Agreements were not
      incorporated into the Divorce Decree. Appellee filed an Answer to
      Appellant’s New Matter and Counterclaim].

      ***
      Appellee filed an Amended Complaint on March 31, 2010. In that
      Amended Complaint, Appellee aver[red] that pursuant to the

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     terms of the Agreements, Appellee is to receive certain periodic
     payments which amount to $20,000.00 per year with an increase
     in February of each year to be determined by the Consumer Price
     Index. Am. Compl. ¶¶ 5, 9. It is averred that Appellant has failed
     to comply with the provision requiring him to make these
     payments to Appellee. Id. at ¶ 9. Additionally, Appellee aver[red]
     that the Agreements were not properly entered into as the
     Appellant failed to make a full disclosure of his assets in
     connection with the Agreements. Id. at ¶ 8.

     Appellant filed Preliminary Objections to the Amended Complaint
     on September 17, 2010. . . . After oral argument on the
     Preliminary Objections, The Honorable Judge David C. Klementik
     held in his Order dated June 6, 2011, that:

           [T]he Preliminary Objections to the Amended
           Complaint are sustained to the extent that the Plaintiff
           [Appellee] shall file an Amended Complaint within 30
           days specifically detailing the nature of the violation
           of the terms of the Post Nuptial Agreement and the
           precise nature of the lack of disclosure of the
           Defendant’s [Appellant’s] assets which became the
           consideration for the Agreement; and,

           Further, the Plaintiff shall include a separate count
           which details the breach of the trust provisions by the
           trustee and the nature of the remedy being requested.

     Order, June 6, 2011.

     Appellee filed a Second Amended Complaint on June 7, 2011. In
     that Second Amended Complaint, Appellee aver[red] again that
     Appellee and Appellant entered into the Agreements, that the
     Agreements were in lieu of any future support for herself, that
     Appellee is to receive certain periodic payments, and assert[ed]
     three counts[, one for breach of contract and two in equity for
     failure to disclose all assets owned and for mismanagement of the
     Trust, respectively.] Second Am. Compl. ¶¶ 6, 8, 14, 25, 32, 41.

     [Appellant filed Preliminary Objections to the Second Amended
     Complaint on October 13, 2011. The court overruled these
     Preliminary Objections on January 4, 2012. Eventually, Appellee
     filed a motion for contempt on April 11, 2012, for Appellant’s
     failure to comply with the Agreements, and Appellant filed

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     Preliminary Objections and a Motion to Strike in response. On
     April 30, 2012, Appellant filed a Motion for Summary Judgment,
     in which he raised his previous claims of equitable estoppel,
     laches, statute of limitations, and res judicata.]

     Appellee filed an Amended Motion for Contempt/Motion to Enforce
     on November 6, 2012[, in which she argued that Appellant had
     made no payments whatsoever since August of 2011, and thus,
     Appellee had been unduly prejudiced.            Am. Mot. for
     Contempt/Mot. to Enforce ¶ 3. Also on that date, Appellee filed
     an Answer to Appellant’s Preliminary Objections/Motion to Strike.

     Appellee argued that the court had jurisdiction despite the fact
     that there was no court order because the court has jurisdiction
     to order Appellant to be compliant with the terms of the
     Agreements. Answer to Prelim. Obj’ns/Mot. to Strike ¶ 2. . . .

     Appellee also filed an Answer to Appellant’s New Matter and
     Counterclaim on that same date. Appellee claimed that the court
     had jurisdiction to hear all of the issues raised in her Complaint,
     that her acceptance of previous payments made by Appellant did
     not constitute waiver and/or estoppel, that Appellant is not
     entitled to any form of setoff or counterclaim for the fair market
     value of the use of the marital home in accordance with the
     Agreements, that Appellee has done all that she has been required
     to do relative to the maintenance of the property and use of the
     shed in accordance with the Agreements, that the terms of the
     Agreements provide waiver of Appellant’s rights to any and all
     claims of alimony and support, that Appellee maintained the
     property to the best of her ability while not receiving payments
     from Appellant, and that the issue of [her cohabitation with
     another] is wholly irrelevant [to Appellant’s obligation to make
     payments under the Agreements]. Answer to New Matter and
     Countercl. ¶¶ 48, 50, 51, 52, 57, 1, 3.

     In determining Appellant’s Amended Motion for Contempt/Motion
     to Enforce, the Honorable Judge David C. Klementik held that the
     Honorable Judge Eugene Fike’s ruling that the Agreements were
     not incorporated into the Divorce Decree makes no statement
     regarding the cause of action to enforce the provision of the
     Agreements or whether Appellee was precluded from using
     Divorce Code remedies and ordered the judgment be entered in
     favor of Appellee and against Appellant pursuant to the


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     undisputed lapse in payment by Appellant.          Mem. & Order,
     January 19, 2014, 3, 6.

     [Judge    Fike   thereafter  denied Appellant’s Motion for
     Reconsideration on grounds that] Appellant does not contest he
     has failed to make payments to Appellee in the preceding fourteen
     months, that Appellant is bound by the Agreements to make
     payments to Appellee even if the trust fund set forth in the
     Agreements is depleted, and that the January 22, 2014, order was
     an interim order and judgment based on Appellant’s admitted
     default. Mem. & Order, February 20, 2014, 1, 2.

     Appellant filed a Notice of Appeal [to this Court on February 21,
     2014, but the Superior Court] held in a non-precedential decision
     that the order in question was not a final order and . . . it lacked
     jurisdiction to hear the appeal.        [Memorandum Decision,]
     February 27, 2015, 2, 3. [The Pennsylvania Supreme Court]
     denied Appellant’s Petition for Allowance of Appeal on August 10,
     2015.

     Appellee filed another Motion for Contempt/Motion to Enforce on
     January 5, 2017. Appellee again contended that Appellant was
     required by the Agreements to make monthly payments to her,
     that Appellant has failed to make any payments since August of
     2011, that Appellee has been unduly prejudiced by Appellant’s
     refusal to make payments, that the trial court has previously
     ordered Appellant to make payments in accordance with the
     Agreements, that the Appellant continued to refuse to make
     payments to Appellee despite the court order, and she therefore
     requested that the trial court issue an order holding Appellant in
     contempt of court and issue appropriate sanctions. Mot. for
     Contempt/Mot. to Enforce, January 5, 2017, ¶¶ 2, 4, 5, 7.

     Appellant filed an Answer to the Motion for Contempt/Motion to
     Enforce on January 13, 2017. Appellant claims that he has made
     no payments because the Trust is insolvent “due to the market
     collapse in 2007/2008,” and neither Appellant nor the Trust has
     any financial resources to make the payments to Appellee.
     Answer to Mot. for Contempt/Mot. to Enforce ¶¶ 3, 7.
     Additionally, Appellant filed a Motion to Strike arguing that the
     Motion for Contempt/Motion to Enforce is improper because
     Appellee has refused offers by Appellant to convey the marital
     property to allow her to sell the real estate and reiterating that
     Appellant does not have the financial ability to make payments in

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     accordance with the Agreements. Mot. to Strike ¶¶ 1, 2, 5.
     Further, Appellant continued to object to this case proceeding
     within the Divorce Code. Id. at ¶ 6.

     After oral argument on Appellee’s Motions, the court ordered that
     judgment was entered in favor of Appellee and against Appellant
     in the amount of $111,666.66 . . . pursuant to the undisputed
     lapse in installment payments by Appellant. Order, March 1,
     2017, 1. It was additionally ordered that Appellant recommence
     the monthly installment payments in the amount of $1,666.66,
     pending a resolution of all other disputed factual and legal
     matters. Id. at 1-2.

     A hearing on Appellee’s Motion for Contempt/Motion to Enforce
     was also ordered to be scheduled, in which any and all matters
     raised in those motions, including Appellant’s ability or inability to
     pay under the terms of the Agreements, would be addressed. Id.
     at 22. Also at that argument, Appellant’s Motion to Strike
     Appellee’s Motion for Contempt/Motion to Enforce was denied.
     Order, March 1, 2017.

     The hearing on Appellee’s Motion for Contempt/Motion to Enforce
     was held on March 20, 2017. On the record, the trial court found
     that “given the real estate holdings owned by the [Appellant] and
     the amount of funds expended by [Appellant] in relation to the
     rental and maintenance of the Florida property, that the
     [Appellant] does have the current ability to pay the amounts owed
     to [Appellee] under the terms of the [Agreements.]” Hr’g Tr.
     80:18-24.

     Appellant was found to be in contempt of the trial court’s orders
     dated January 19, 2014, and March 1, 2017. Order, March 20,
     2017. The trial court further ordered Appellant to make payment
     to Appellee in the amount of $111,666.66 on or before June 20,
     2017, and if the Appellant failed to make that payment and purge
     himself of his contempt on or before June 20, 2017, that Appellant
     shall be incarcerated for a period of sixty (60) days in the
     Somerset County Jail. Id.

     Appellant objected on the record to the Order arguing that the real
     estate owned by him is jointly owned by himself and his current
     wife and rearguing that these types of actions, which are purely
     contractual, do not allow such contempt orders. Hr’g Tr. 82:10-
     19. The trial court responded to the first objection:

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            Clearly, the evidence today indicates that the two
            parcels of real estate . . . were owned by Appellant in
            his own name in August 2011 [. . . .] [T]o the extent
            that he chose to add someone else’s name to those
            assets which he owned in his own name,
            unencumbered, that were available to meet his
            obligations under the terms of the [A]greements and
            this Court’s orders, then he does so at his own peril.

      Hr’g Tr. 82:23-25, 83:1-14. [The trial court subsequently denied
      Appellant’s Motion for Reconsideration.]

      Appellant filed a Notice of Appeal on April 18, 2017. . . . The trial
      court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
      statement of errors complained of on appeal on April 28, 2017.
      Appellant complied with this order. . . .

Trial Court Opinion, filed June 12, 2017, at 1-12.

      Appellant presents the following issues for our review:

      I.  DID THE LOWER COURT ABUSE ITS DISCRETION
      FINDING HUSBAND, APPELLANT, ALVIN D. CUNNINGHAM,
      IN CIVIL CONTEMPT OF COURT AND INCARCERATING
      HI[M] FOR 60 DAYS, SETTING $111,666.66 AS A PURGE,
      FOR THE NONPAYMENT BY THE ALVIN D. CUNNINGHAM
      TRUST TO THE APPELLEE BEVERLY L. CUNNINGHAM, WHEN
      THE EVIDENCE PRESENTED SHOWED HIS PRESENT
      INABILITY TO PAY BASED ON INCOME OF $662.00 A
      MONTH FROM SOCIAL SECURITY?

      II.  DID THE COURT FAIL TO FOLLOW THE PROPER
      PROCEDURES AS MANDATED BY THE APPELLATE COURTS
      IN FINDING THE APPELLANT IN CONTEMPT?

      III. DID THE IMPOSITION OF THE PAYMENT OF
      $111,666.66 WITHIN 60 DAYS VIOLATE THE APPELLANT’S
      RIGHT OF DUE PROCESS?

      IV. WAS THE COURT ORDER IN ESSENTIAL INDIRECT
      CRIMINAL CONTEMPT [SIC] LIMITED THE REMEDY TO A
      FINE ONLY, 42 Pa.C.S.A. § 4132?



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      V.  CAN THE APPELLANT, ALVIN D. CUNNINGHAM,
      INDIVIDUALLY BE FOUND IN CONTEMPT OF COURT AS HE
      HAS PAID IN EXCESS OF $300,000 IN FUND[S FROM] THE
      TRUST?

      VI. IS SECTION 23 PA.C.S.A. § 3105(C) APPLICABLE TO
      THIS CASE?

      VII. DID THE TRIAL COURT ABUSE ITS DISCRETION IN
      NOT ORDERING PAYMENTS AND NOT ALLOWING THE
      HUSBAND TO CONVEY HIS ONE-HALF INTEREST IN THE
      MARTIAL [SIC] HOME FOR CREDIT AGAINST HIS DEBT?

Appellant’s brief at 6.

      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).

      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.      Harcar v. Harcar, 982 A.2d 1230, 1235

(Pa.Super. 2009).




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       Initially, Appellant contends that the trial court erred in finding him in

contempt for violating the trial court’s orders dated January 19, 2014, and

March 1, 2017, where he established his present inability to pay.

       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.

Sinaiko v. Sinaiko, 664 A.2d 1005, 1010 (Pa.Super. 1995). 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).1

       While the burden is on the complaining party to prove noncompliance

by a preponderance of the evidence, the “present inability to comply is an

affirmative defense which must be proved by the alleged contemnor.” Barrett

v. Barrett, 368 A.2d 616, 621 (Pa. 1977).

       With respect to the imposition of a purge condition, our Supreme Court

has held that:

       where, 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
____________________________________________


1 While not binding upon this Court, the decision of the Commonwealth Court
is instructive for present purposes.

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       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.

Id., 368 A.2d at 621.

       Here, the trial court relied on evidence that Appellant, for the relevant

time up to and including August 2011, owned exclusively two valuable and

unencumbered parcels of real estate—one a residential property in Maryland

and the other a farm consisting of a residential home and approximately 300

acres of land situate in Somerset County, Pennsylvania.         At the hearing,

Appellant estimated the fair market value of each property to be $200,000.00.

N.T. 3/20/17 at 39-40.2 Appellant could have leveraged or liquidated these

properties, the court concluded, in order to meet his obligations to fund the

trust as necessary to cover arrearages and continue payments thereunder.3
____________________________________________


2 Specifically, Appellant testified that he believed his farm’s worth was
equivalent to that of a neighboring farm that recently sold for $200,000.00.
N.T. at 40.

3 By way of background, we note the trial court acknowledged that at the time
of the contempt proceedings in question Appellant and his current wife owned
the real estate parcels as a tenancy by the entireties. However, the court
inquired into whether Appellant performed the transfers with the intent to
avoid his duty under the parties’ Trust Agreement “to make any additional
contributions as required to fulfill the terms of his obligation.” Trial Court
Opinion, at 22.

In this vein, the trial court took judicial notice of the Pennsylvania Uniform
Fraudulent Transfer Act (“PUFTA”), 12 Pa.C.S.A. §§ 5105-5110, and
interpretive decisional law holding “that in Pennsylvania, ‘entireties property
is unavailable to satisfy the claims of the creditor of only one of the tenants,’
but that ‘when a spouse conveys individual property to a tenancy by the
entireties in fraud of creditors, the creditor may nevertheless execute against



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       Moreover, to the extent the Maryland property serves as the primary

residence for Appellant and his wife, evidence adduced at the hearing

established that the couple nevertheless rented, year-round, a Sarasota,

Florida vacation home at $634 per month plus an additional monthly payment

of $30 in utilities.     Hence, the trial court, as finder of fact, determined

Appellant was not credible when he testified that he lacked the ability to

comply with the court’s order requiring him to maintain payments to Appellee.

Because the record supports the trial court’s factual determination, we find no

error in the conclusion that Appellant failed to prove his affirmative defense

that he was unable to comply notwithstanding his good faith attempts to do

so.
____________________________________________


the property so conveyed.’” Trial Court Opinion, at 21 (citing Knoll v. Uku,
154 A.3d 329, 335 (Pa.Super. 2017) (quoting Garden State Standardbred
Sales Co. v. Seese, 611 A.2d 1239, 1243 (Pa.Super. 1992)). See 12
Pa.C.S.A. § 5109

It was only after the Trust became insolvent and Appellant ceased making
payments in August 2011 that Appellant remarried in September 2011 and
added his new wife’s name to the real estate parcels. Based on this evidence,
the court deemed the transfer fraudulent as that word is defined under PUFTA
because the creditor’s (Appellee’s) claim arose before the transfer, the debtor
(Appellant) made the transfer without receiving a reasonably equivalent value
in exchange for the transfer, and the debtor became insolvent as a result of
the transfer. Trial Court Opinion, at 21 (citing Knoll, 154 A.3d at 333).

The court determined, therefore, that Appellant had knowingly violated the
Trust Agreement’s provision requiring him to fund the Trust as needed to fulfill
his payment obligations to Appellee, as he knew his real estate assets were
available for liquidation to meet such obligations once the Trust assets had
dissipated. See Hearing Transcript, at 83. Nowhere in Appellant’s statement
of questions presented does he challenge the court’s findings in this regard.


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      Furthermore, we reject Appellant’s contention that evidence failed to

establish beyond a reasonable doubt his present ability to pay the purging

condition. Appellant admitted that when the trust was depleted and he ceased

making payments to Appellee, he, alone, owned unencumbered real estate

with a present-day value of approximately $400,000.00. Rather than fulfill

his obligations under the parties’ agreement to support Appellee by resorting

to these assets, he transferred his ownership rights to a tenancy by the

entireties when he married his current wife.      The court concluded that

Appellant entered this transaction with the specific purpose of depriving

Appellee of her rights under the parties’ agreement, and we discern no error

with this finding. We, therefore, reject Appellant’s contention that evidence

failed to establish beyond a reasonable doubt his present ability to pay the

purging condition set by the court.

      In Appellant’s second and sixth issues, he argues that the court lacked

authority to use its equitable powers to enforce a private support agreement

that was never merged in the parties’ divorce decree. Appellant’s brief at 7

(citing Sonder v. Sonder, 549 A.2d 155 (Pa.Super. 1988) (en banc),

superceded by statute as stated in Sinaiko, supra. Instead, only the law of

contracts governed the parties’ agreement, Appellant maintains. “To jail a

person for failing to pay on his private agreement,” Appellant posits, “is

prohibited by our constitutions, state and federal, as imprisonment for debt.”

Appellant’s brief at 9. We disagree.




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     In Sonder, this Court sitting en banc addressed, inter alia, whether the

trial court had erred when it held husband in contempt and ordered him to

pay a $10,000.00 purging condition to avoid commitment to jail for ninety

days. The husband argued that incarceration was an inappropriate sanction

for violating a support agreement not merged with a divorce decree. This

Court agreed, as the parties had rejected the benefit of Divorce Code

provisions calling for enforcement through court orders and enabling

procedures for contempt. Id., 398 A.2d at 165.

     Sonder, however, “did not apply the 1988 amendments to the Divorce

Code which specifically authorize the incarceration of a party for failure to

comply with the terms of a separation agreement[,]” as the parties in Sonder

executed their agreement prior to 1988 and were thus not bound by the terms

of the amendments. Sinaiko, 664 A.2d at 1012. In Sinaiko, we explained

how the amendments specifically authorize a court to enforce a subsequent

agreement as if it had been an order of the court:

     Sections 3105(a) and 3502(e) of the Divorce Code[] specifically
     authorize the trial court to order commitment of the person for a
     period of less than six months. Section 3105 provides in pertinent
     part:
           § 3105 Effect of agreement between parties

           (a) Enforcement.—A party to an agreement
           regarding matters within the jurisdiction of the court
           under [the Divorce Code], whether or not the
           agreement has been merged or incorporated into the
           decree, may utilize a remedy or sanction set forth in
           [the Divorce Code] to enforce the agreement to the
           same extent as though the agreement had been an



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            order of the court except as provided to the contrary
            in the agreement.

     23 Pa.C.S.A. § 3105(a).

     Section 3502 of the Divorce Code delineates the powers of the
     court when a party fails to comply with the terms of an order of
     equitable distribution or with the terms of a private agreement
     between the parties. That section specifically provides:

            (e) Powers of the court.—If, at any time, a party
            has failed to comply with an order of equitable
            distribution, as provided for in this chapter or with the
            terms of an agreement as entered into between the
            parties, after hearing, the court may, in addition to
            any other remedy available under this part, in order
            to effect compliance with its order:

            ******

            (6) issue attachment proceedings, directed to the
            sheriff or other proper officer of the county, directing
            that the person named as having failed to comply with
            the court order be brought before the court, at such
            time as the court may direct. If the court finds, after
            hearing, that the person willfully failed to comply with
            the court order, it may deem the person in civil
            contempt of court and, in its discretion, make an
            appropriate order, including, but not limited to,
            commitment of the person to the county jail for a
            period not to exceed six months[.]

     23 Pa.C.S.A. § 3502(e)(6).

Sinaiko, 664 A.2d at 1012–13.

     As in Sinaiko, Appellant and Appellee entered into their Trust

Agreement     after   the   1988   amendments      and   subsequent     verbatim

amendments took effect. Therefore, the trial court appropriately followed the

decision in Sinaiko by applying the enforcement provisions of Section 3105



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and imposing a lawful term of incarceration pursuant to Section 3502(e)(6)

should Appellant fail to pay the purging condition.

      Sinaiko is likewise dispositive of both the latter part to Appellant’s third

issue and his fourth issue. In the latter part to Appellant’s third question, he

argues that the court’s order of incarceration violates Article 1, Section 16 of

the Pennsylvania Constitution, which provides:

      § 16 Insolvent Debtors

      The person of a debtor, where there is not strong presumption of
      fraud, shall not be continued in prison after delivering up his
      estate for the benefit of his creditors in such manner as shall be
      prescribed by law.

PA. CONST. art. 1, § 16. Appellant’s argument fails for the reasons expressed

in Sinaiko:

      We reject Husband’s argument. Husband was found in civil
      contempt, not criminal contempt, after the court gave him notice
      and an opportunity to be heard.           The court conducted an
      evidentiary hearing where Husband was given the opportunity to
      present his defense to Wife’s contempt petition.           Likewise,
      Husband was not jailed for failing to pay a debt contrary to the
      provisions of the Pennsylvania Constitution.         Husband was
      sentenced to a conditional term of imprisonment as a coercive
      sentence for civil contempt based on his failure to abide by a court
      order. The court order was entered after the court found that
      Husband was obligated to comply with the terms of the separation
      Agreement he voluntarily entered into with Wife. As stated
      earlier, the trial court acted within its statutory authority under
      the terms of the Divorce Code when it sentenced him to fourteen
      days in prison. Wife is more than just a creditor as that term is
      used in the Constitutions. Husband’s debt to her arose as a result
      of a court order—not just a private agreement between the
      parties. The court had the power to enforce its order by means of
      contempt and incarceration.

Id., 664 A.2d at 1015.

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      In Appellant’s fourth issue, he baldly asserts that the court’s order

violated Sections 4132, Attachment and summary punishment for contempts,

and 4133, Commitment or fine for contempt, of the Judicial Code. As observed

in Sinaiko, “these statutes apply when a party is in direct criminal contempt

of court; that is when a party engages in misconduct in the presence of the

court with the intent to obstruct the judicial proceeding which actually

obstructs the administration of justice.” Here, as in Sinaiko, the trial court

imposed punishment as a sanction for his civil contempt based upon his failure

to comply with a previous order of the court. Accordingly, Sections 4132 and

4133 do not apply.

      In the initial part to Appellant’s third issue, he argues the court violated

his procedural due process rights by ordering him to satisfy the purging

condition within 60 days of the order finding him in contempt. Trial courts

generally follow a five-step process in determining whether a trial court

complied with the procedural requirements for a finding of contempt: “(1) a

rule to show cause why an attachment should not issue, (2) an answer and

hearing, (3) a rule absolute, (4) a hearing on the contempt citation, and (5)

an adjudication.” Wood v. Geisenhemer–Shaulis, 827 A.2d 1204, 1208

(Pa.Super. 2003) (quotation omitted).

      However, we have held that “[f]ulfillment of all five factors is not

mandated.” Id. “[W]hen the contempt proceedings are predicated on a

violation of a court order that followed a full hearing, due process requires no

more than notice of the violations alleged and an opportunity for explanation

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and defense.” Id. (quoting Diamond, 792 A.2d at 601). The record clearly

demonstrates that Appellant had notice of the contempt allegations and an

opportunity to respond. We, therefore, find no merit to this claim.

      In support of his fifth issue, Appellant asserts that he may not be found

in contempt where he had already paid in excess of $300,000.00 to Appellee

from the Trust and had established that stock market losses endemic in the

late 2000s had depleted the Trust fund through no fault of his own.

Notwithstanding the credibility of Appellant’s testimony in this regard, the trial

court ruled that Appellant remained responsible to continue payments in

conformity with the parties’ agreement so long as he was able to do so. As

discussed above, the trial court deemed Appellant capable of funding the Trust

sufficiently to both erase arrearages and make future payments.          Given a

record supportive of the trial court’s determination, we agree that Appellant’s

history of payments and lack of misfeasance with respect to the Trust did not

insulate him from the terms of his agreement with Appellee when he retained

the ability to comply with its payment terms.

      Finally, in Appellant’s seventh issue, he charges error with the trial

court’s refusal to accept his offer to convey his one-half interest in the marital

residence, where Appellee continues to reside, as satisfaction of his purging

condition. This argument centers on Appellant’s position that Appellee may

then sell her residence and acquire the proceeds, which Appellant estimated

at $100,000.00. Her refusal to accept this offer, Appellant maintains, leaves

her with “unclean hands” so as to undermine her complaint against him.

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      The court rejected Appellant’s proposal as having no foundation in either

law or reason, as no authority mandates acceptance of such a conveyance in

lieu of a conforming payment, and the benefit is specious, as it would leave

Appellee without a home. Under the parties’ agreement, Appellee may enjoy

sole use and possession of the home while also receiving payments due under

the agreement.     The court determined Appellant has the ability to make

continued payments in accordance with this agreement.            We, therefore,

discern no error of law or abuse of discretion in the trial court’s resolution of

this issue.

      For the foregoing reasons, Appellant’s appeal fails.

      Order is AFFIRMED.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2018




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