Sterling, T. v. Lyman, K. ( 2015 )

J-A28029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TRACY ANN STERLING IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAI WARD LYMAN
Appellant No. 2189 EDA 2014
Appeal from the Order Entered June 24, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): 12-14703
PACSES NO. 664113647
TRACY ANN STERLING IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAI WARD LYMAN
Appellant No. 3276 EDA 2014
Appeal from the Order Entered October 29, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): Nov. Term, 2013; 12-14703
PACSES NO. 664113647
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
JUDGMENT ORDER BY PANELLA, J. FILED DECEMBER 29, 2015
J-A28029-15
Appellant, Kai W. Lyman, appeals pro se1 from two separate orders,
entered on June 24, 2014, and October 29, 2014, in the above-captioned
matter. We affirm both orders.2
For discussion of the material facts and relevant procedural history, we
direct the reader’s attention to the opinions of the trial courts. See Trial
Court Opinion, 1/22/15, at 1-4; Trial Court Opinion, 4/2/15, at 1-8. We
have reviewed the briefs of the parties, the certified record, and both trial
court opinions. Regarding the June 24, 2014 order, the trial court, the
Honorable Holly J. Ford, has authored an opinion that ably disposes of the
issues presented on appeal. We affirm based on that opinion. See Trial
Court Opinion, 1/22/15. Regarding the October 29, 2014 order, the trial
court, the Honorable Anne Marie B. Coyle, has authored an opinion that ably
disposes of the issue presented on appeal. We affirm based on that opinion.
See Trial Court Opinion, 4/2/15.
Orders affirmed. Motions denied.
____________________________________________
1
Lyman is a licensed attorney in the Commonwealth of Pennsylvania.
2
Lyman’s “Petition to Proceed in Forma Pauperis,” filed on September 23,
2015, is denied. Similarly, Lyman’s “Motion to Seal” is denied.
-2-
J-A28029-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2015
-3-
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IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
D01\1ESTIC RELATIONS DIVISION
KAI LYMAN, COURT OF COMMON PLEAS,
Appellant PIDLADELPHIA COUNTY, PA
v. IN SUPPORT NO. 664113647
TRACEY STERLING, APPEAL NO. 2189 EDA 2014
Appellee
OPINION
The parties, Appellant/Obligor, Kai Lyman (hereinafter "Father"), and Appellee/Obligee,
Tracey Sterling (hereinafter "Mother"), are the parents of two unemancipated children, Blake
Sterling Lyman, age eight (born March 25, 2006) and Vivien Sterling Lyman, age seven (born
October 5, 2007). Father appeals from a support order dated June 24, 2014 entered by the
Honorable Holly J. Ford which denied Father's support exceptions and made the proposed order
entered by Master in Support, William Ketterlinus, Esquire, on April 28, 2014 a final order of
court. The June 24, 2014 Order gave rise to the instant appeal.
ProceduralHistory(see docket)
The present action commenced on November 16, 2012 when Mother filed a divorce
complaint that included requests for spousal and child support. The Honorable Kevin Dougherty
entered an interim order on April 10, 2013 directing Father to pay $2,609 in support monthly
plus $260 monthly toward arrears.
A support master's hearing was held on May 16, 2013 at which the parties reached an
agreement, and an order was entered on May 17, 2013 directing Father to pay $2,724 per month
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in child support, $3,976 monthly in alimony pendente lite (hereinafter "APL"), and $35 monthly
toward arrears.
On August 29, 2013, Father filed an emergency petition for an injunction restraining
tactical enforcement from support collection actions. The Honorable Doris Pechkurow entered
an order by agreement on September 9, 2013 changing the effective date of the support order
from November 13, 2012 to April 10, 2013.
On September 27, 2013, Father filed a petition to modify the child support order. On
November 5, 2013, Mother filed a contempt petition and Father filed a petition for modification
of the APL order. The Honorable Barbara Joseph dismissed Mother's contempt petition on
November 25, 2013. On December 9, 2013 after a pretrial conference, an interim order was
entered pursuant to the Pennsylvania support guidelines which recommended that Father pay
$1,354.05 monthly as $782 for the support of two children, $448.96 for APL, and $123.09
toward arrears, effective November 5, 2013. Father was also directed to continue providing
medical coverage "when and if available at reasonable or no cost.'' Interim Order, PACSES
(Dec. 9, 2013).
Both parties appeared before Master in Support, William Ketterlinus, Esquire, on
Father's petition to modify his child support and APL obligations on January 28, 2014.
On February 5, 2014, Father filed a petition for special relief requesting that the reporting
of arrears to credit bureaus be prevented. Judge Pechkurow denied Father's petition for special
relief on February 24, 2014. On April 10, 2014, Father filed a petition for special relief with
respect to Financial Institution Data Match (FIDM).
On April 28, 2014, Master Ketterlinus entered a proposed order of support vacating the
interim order entered on December 9, 2013; Father was ordered to pay $2,260.13 monthly for the
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support of the parties' two children, $1,874.45 monthly for APL and $10 monthly toward arrears.
Father filed exceptions to the master's report and recommendation (hereinafter "Report",
collectively) on May 15, 2014. Also on May 15, 2014 Father filed a petition to vacate and/or
stay enforcement of the support order until a final determination on his exceptions was made.
On June 10, 2014, Father filed a memorandum in support of his exceptions.
After a hearing on June 11, 2014, the Honorable Joel Johnson granted Father's petition
for special reliefregarding FIDM and ordered Father's frozen assets to be released. Judge
Johnson denied Father's motion to stay enforcement. See Order, J. Johnson (June 11, 2014).
On June 24, 2014, Judge Ford entered an order denying Father's exceptions filed May 15,
2014 and making the master's proposed order of April 28, 2014 a final order of court.
Father filed a notice of appeal of this Court's June 24, 2014 Order on July 25, 2014, one
day after the 30~day filing period had elapsed, in contravention of Pa. R. A. P. 903(a). The
Pennsylvania Superior Court entered an order on August 5, 2014 noting that the appeal appeared
untimely and directing Father to show cause within ten days why the appeal should not be
quashed.1 See Order, Pa. Super., per curium (Aug. 5, 2014). On September 3, 2014, the
Superior Court entered an order stating that "only issues regarding the child support portion of
the order will be referred to the panel assigned to decide the merits of this appeal." Order, Pa.
Super., per curium (Sept. 3, 2014).2
I As per the Superior Court docket, on August 15, 2014, Father filed a memorandum in response to the order to
show cause. On August 19, 2014, the Superior Court entered an order directing Father to show cause as to the
appealability of the spousal support portion of the June 24, 2014 Order. Father filed a memorandum in response to
the order to show cause regarding APL on August 29, 2014. See Appeal Docket Sheet, Pa. Super., 2189 EDA 2014.
2 Unfortunately, the trial court did not receive any appeal-related filings subsequent to the August 5, 2014 Order,
including the Superior Court's September 3, 2014 Order. An "overdue records" notice was received on or about
November 17, 2014 at Philadelphia Family Court's new address, which alerted the trial court to the ongoing appeal.
Following a phone call to the Superior Court Prothonotary's Office, the trial court received copies of the missing
pleadings and orders on or about November 24, 2014.
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On November 25, 2014, this Court entered an order directing Father to file a statement of
errors complained of on appeal (hereinafter "Statement") pursuant to Pa. R. A. P. 1925(b).
Father filed his Statement with regard to the June 24, 2014 Order on December 16, 2014.
Standardof Review
When reviewing a support order, the Superior Court "may only reverse the trial court's
determination where the order cannot be sustained on any valid ground." Sirio v. Sirio, 951 A.2d
1188, 1192 (Pa. Super. 2008). The trial court is afforded broad discretion in support matters, and
its findings will not be disturbed absent an abuse of discretion or insufficient evidence. Id
An abuse of discretion is not merely an error of judgment; if, in reaching a
conclusion, the court overrides or misapplies the law, or the judgment exercised is
shown by the record to be either manifestly unreasonable or the product of
partiality, prejudice, bias or ill will, discretion has been abused.
Id. at 1193.
Statementof Law
As the Pennsylvania Superior Court has repeatedly noted, "[t]he duty to support one's
child is absolute, and the purpose of child support is to promote the child's best interests." Sirio,
951 A.2d at 1192. Pursuant to 23 Pa. C.S. §4321(2), parents are liable for the support of their
unemancipated children under the age of eighteen (or unemancipated children who have not yet
graduated from high school). The support guidelines, outlined in the Pennsylvania Rules of Civil
Procedure, set forth the amount of support for which each parent is responsible based on the net
income of both parties. Pa. R. C. P. 1910.16-2. Monthly gross income includes, but is not
limited to:
1) wages, salaries, bonuses, fees and commissions;
2) net income from business or dealings in property;
3) interest, rents, royalties, and dividends;
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4) pensions and all forms of retirement;
5) income from an interest in an estate or trust;
6) social security disability benefits, social security retirement benefits, temporary and
permanent disability benefits, workers' compensation and unemployment
compensation;
7) alimony, if in the discretion of the trier offaqt; incJµsion ofpatt or all of ids.
appropriate, and
8) other entitlim~tfts to money·or.fump sum awards, ·without Jegard·tlJSOUrcet.i11dudir£{
lottery winningsI .imzome,tax refunds.insurance c0mpensatfoi1 or settlements; awards
and verdicts; and atiY form of"paynie:.ntdueto and collectible by an.individua! ·
regardless of source.
23 Pa. C. S. § 4302; Pa. R. C. P. 1910.16-2(a). In order to determine each party's net income,
the guidelines require that only the following items be deducted from the gross income:
1) federal, state, and local income truces;
2) F.I.C.A. payments and non-voluntary retirement payments;
3) · union dues; and
4) alimony paid to the other party.
Pa. R. C. P. 1910.16-2(c).
The support of a child is a priority obligation, and a party is expected to meet this
obligation by adjusting his or her other expenditures. Pa. R. C. P. 1910.16-l(a). There is a
rebuttable presumption that the amount of the award determined from the guidelines is the
correct amount of support to be awarded. Pa. R. C. P. 1910.16-1(d). As the Superior Court has
articulated, "a master's report and recommendation, although only advisory, is to be given the
fullest consideration, particularly on the question of credibility of witnesses, because the master
has the opportunity to observe and assess the behavior and demeanor of the parties." Moran v.
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Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003) (citing Simeone v. Simeone, 551 A.2d 219, 225
(Pa. Super. 1988)).
ErrorsComplained of on Appeal
Father contends that this Court erred in its entry of the June 24, 2014 Order for the
following reasons:
1. The court incorrectlycalculated Father'sincome and earningcapacity for purposes
of determiningsupportand found no errorsof fact or law with the Report.
As previously discussed, the amount of a support award is generally based upon the
parties' monthly net income. Pa. R. C. P. 1910.16-2. However, "[i]fthe trier of fact determines
that a party to a support action has willfully failed to obtain or maintain appropriate employment,
the trier of fact may impute to that party an income equal to the party's earning capacity." Pa. R.
C. P. 1910.16-2(d)(4).
Age~. education, training, h~alth, wotk eX,pede11ce1 ~atnings history and
child care ·. resp9p1,ibilities ·. ate factor$ which . shalL be consiclei:ed hl
determil1ing ear11hrg capacity, In .order for. an earning capacity to . be
assessed, the trier of fact mushtat.e tb.eteascms for. the .as·sesstneli:t in wl'itihg
or.on the record. Gerte1·ally1 the>trier of fact should nptjmput~ eaming
capacity tbat is. greater than ·the am6unt the partywcmld ~ar11from one
an full·
time position. Detsrmination ofwhatcon::;dtutes a reMonablework regimen
depends upon all i'elevant oirctunstances . including the choice. of· jobs
available within a partlcular. occupation, ·Wo.rkinghouts, working cendltions
and whether a patty has exerted substanU~l good faith efforts to find
employment.
Id
Father is and has been an attorney since 1998. Master's Report, W. Ketterlinus, p.5 (Apr.
28, 2014). Following his full-time employment at a law firm for approximately eight years,
Father was employed as Senior Director and Senior Counsel of Legal Affairs at Teva
Pharmaceuticals USA, Inc. (hereinafter "Teva") until September 23, 2013, when he was
involuntarily terminated from this position. Id. During his tenure at Teva, Father received a
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salary of approximately $220,000 plus a bonus based on the performance of the business as a
whole and his individual performance as an employee. (N. T. p.15, 1.23-24; Master's Report,
p.5.) Father provided a 2013 W-2 from Teva and a pay stub dated April 19, 2013, which
indicated Father earned gross annual wages for 2013 in the amount of $236,745.58 including a
$59,807.25 bonus, Master's Report, p.5.
On September 23, 2013, Teva informed Father that his position with the company had
been eliminated and his termination was effective immediately. Id. On that date, Teva presented
Father with a separation agreement and general release (hereinafter "Settlement Offer''). Under
the terms of the Settlement Offer,
in consideration for [Father's] execution and nonrevocation ... and with it
[Father's] agreement to release all claims that can be released ... and in
exchange for [Father's] agreemenr to abide. bythe: restrictions set forth in
the [a]greement, following receipt of [Fath¢fsl signed copy ... and the
expiration of the seven ·day revocation peri6d, Teva will provide [Father]
with the following separatlorrpayment and benefits:
• a lump sum separa.tionJ?aymepfin the.smnunt of $221,987.30 (less
applicable withhc>ldingss.sttcha.stax withholdings) which is equal to
12 months of [Father=s] gress sal~l'Y.;
• a prorated 2013 bonus.dess.appllcable'deductions) at the time when
a
active Teva e111ploy~esare paid 2013 bonus, and subject to the
same terms, conditions, and litnifationa applicable to active Teva
employees;
• continued participation in Teva's health insurance plans (covering
eligible dependents who were enrolled in the applicable plan as of
the Separation Date), subject to the terms, conditions, and
limitations of Cobra, at Teva's sole expense for a period of up to 12
months; and
• out placement services at Teva's expense.
Id. at 5-6. Father refused to sign and effectuate the Settlement Offer and has accordingly not
received the aforementioned severance payments. Id at 6. Father was still unemployed at the
time of the master's hearing and, in addition to the foregoing, testified that he was receiving
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unemployment compensation benefits in the amount of $571 weekly. Id. at 10. He further
testified that he has no other income producing assets and no other sources of income. Id.
Prior to Father's termination from Teva, Mother was receiving APL and the parties'
children were receiving support totaling $6,700 monthly. Id. at 7. Following Father's petition to
modify based on his employment termination, an interim order was entered in accordance with
the guidelines which reduced the combined support obligation to $1,230.96 monthly, which, as
the support master noted, "is a mere 18% of the former amount of support received." Id.
Master Ketterlinus imputed the income available to Father through the Settlement Offer
and, "in consideration of [Father's] age, health, education, employment history and child care
responsibilities," found that Father had a gross annual earning capacity of $221,987.30. Id. The
master declined to include any potential bonus in the gross earning capacity. Id Accordingly,
the master found Father's earning capacity constituted a gross annual income of $221,987.30.
Id.
At the exceptions hearing, Father argued that the Settlement Offer "should not be
imputed as income because it was not received." (N.T. p.5, 1.23 -p.6, 1.3.) The court disagreed,
finding no error of fact or law and relying on the reasoning of the master. (See, generally, N.T.
p.12, 1.17 -p.15, 1.12.) Contrary to Father's assertion, the court calculated Father's income and
earning capacity properly for purposes of determining his child support obligation. For specific
discussion as to the imputation of income derived from the Settlement Offer, refer to Father's
second argument, infra.
2. The court concluded that the consideration offered and withdrawn by Father's
former employer in its Settlement Offer could be imputed as income for support
purposes.
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As previously discussed, under the terms of the Settlement Offer, Father would receive a
lump sum payment of $221,987.30 (less applicable withholdings, such as tax withholdings) in
exchange for his signature and execution of the agreement.
Support obligations are roughly based on the income of each party and are determined by
applying the support guidelines. Pa. R. C. P. 1910.16-2. Pursuant to the Pennsylvania Rules of
Civil Procedure governing actions in support, "[m]onthly gross income is ordinarily based upon
at least a six-month average of all of a party's income." Pa. R. C. P. 1910.16-2(a). "Income," as
defined by the support law, 23 Pa. C. S. A. § 4302, includes (but is not limited to) "other
entitlements to money or lump sum awards, without regard to source, including lottery winnings,
income tax refunds, insurance compensation or settlements; awards and verdicts; and any form
of payment due to and collectible by an individual regardless of source." Pa. R. C. P. 1910.16-
2(a)(l)-(8); 23 Pa. C. S. A. § 4302. The rule includes a note specifically stating that "[t]he trial
court has discretion to determine the most appropriate method for imputing lump sum awards as
income for purposes of establishing or modifying the party's support obligation." Pa. R. C. P.
1910.16-2(a)(8),
It is well settled in Pennsylvania that severance payments constitute "income" for
purposes of support calculations. See Berry v. Berry, 898 A.2d 1100 (Pa. Super. 2006).
However, in the case at bar, Father refused to sign and execute the Settlement Offer and
therefore did not receive the $221,987.30 payment. While Father testified at the master's
hearing and in court that he did not effectuate the Settlement Offer because he did not want to
waive his right to bring civil action against Teva regarding his termination, Mother pointed out
that Father had not yet instituted any claims or lawsuits against his former employer as of the
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date of the master's hearing. Master's Report, W. Ketterlinus, pp.6-7 (Apr. 28, 2014); (N.T. p.8,
1.24 - p.9, 1.6.)
In finding that the Settlement Offer should be imputed as income to Father, the support
master relied on MacKinley v. Messerschmidt, 814 A.2d 680 (Pa. Super. 2002), a case in which
the Pennsylvania Superior Court held that "once vested, stock options constituted available
income that had to be imputed to the parent holding them, for purposes of calculating [that]
parent's child support obligation, regardless of whether the parent chose to exercise [said stock
options]." Master's Report, p.8. Master Ketterlinus specifically pointed to the following
passage from MacKinley:
Child support is a paranwunt duty efa p~·ent, The principle is so firmly
established in .our Jaw. that-a parent's pbligatfon is based on her "earning
ci~pacity"' rather than her a.ctiial income. ·Jn·an effort to insure that parents
attend to the immediate financial needs of their children, courts :frequently
look beyond the income actually received. Neil v. Neil, 731 A.2d 156 (Pa.
Super. 1999). In recognition of this overriding concern in the context of
child support, a parent who chooses not to take advantage of income
available to her is nevertheless deemed to have the capacity for such
earnings, which are then included in her income available for support. Laws
v. Laws, 758 A.2d 1226 (Pa. Super, 2000).
Master's Report, p.8 (quoting MacKinley v. Messerschmidt, 814 A.2d 680, PIO (Pa. Super.
2002)). The Superior Court analogized the availability of stock options to employer
contributions made to a pension plan and cited Portugal v. Portugal, 798 A.2d 246 (Pa. Super.
2002), in which an employer's contributions to a pension plan were held to constitute income for
purposes of support "if the employee could access his employer's contributions (regardless of
penalties) at the time of the support calculation." MacKinley, 814 A.2d at Pl 1 (quoting
Portugal, 798 A.2d at 253 ). The MacKinley Court further articulated that its holding in Portugal
was "based on the dominant interest of the children's immediate need, as well as the recognition
that children should not be made to wait for support and parents should not be permitted to defer
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income to which they are entitled until they choose to avail themselves of it." 814 A.2d at P 11.
The court took care to note that while stock options should be included in the support
calculation, no party should be forced to exercise said options at any specific time. Id. at Pl3.
The Superior Court's holding in MacKinley that stock options represent income available for
child support was "[b[ased on the statutory definition of income, the holding in Portugal and,
most importantly, the primary interest of providing for the immediate needs of the children." Id.
at P14.
In the instant case, the support master accordingly found that Father should not be
ordered to sign or effectuate the Settlement Offer. The master found that, "based on the
[aforementioned case law] and the totality of the circumstances," the value of the Settlement
Offer in the amount of $221,987.30, which represents twelve months of Father's salary (without
any applicable bonus) was available to Father and should be included as income for support
purposes. Master's Report, W. Ketterlinus, p.9 (Apr. 28, 2014). Master Ketterlinus also found
that the prorated bonus portion of the Settlement Offer was too speculative to include in Father's
income-a decision which inured to Father's benefit. Id at 9-10.
Father took exception to the master's finding and argued in court that the Settlement
Offer should not be imputed as income because, as he refused to sign it, the payment was never
received. (N.T. p.5, 1.23 -p.6, 1.3.) The court considered the "tremendous reduction" in Father's
support obligation with the entry of the interim order prior to the master's hearing, agreed with
the master's comparison of the Settlement Offer to the stock options in MacKinley and did not
find the master's "reasoning off base as far as a matter of fact or a matter of law." (N.T. p.13,
1.2-11.) In denying Father's exception, the court explained its view of the situation to Father as
follows:
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the. master, at lease train everything\ l .can tell, has not in any way
d.i$re,spected your right to exercise. ari)' of those options [with respect to
choosing whether ot not' to sign and effectuate the Settlement Offer]. He
hasn't said you can't de that. . A.11cLl haven't said you can't do that. And I
don't think [Mother's ct;m11sel]is·sayihg you can't do that. But you can't
do it to the detrfrrtentof your children particularly when you have either the
ability to accept something else or other' assets that at least contemporary
(sic),cover ituntil you figure ou, what you're doing. And ... it's no different
than somebody who [is] terminated or wrongfully terminated from a
$20,000.ayearjob or a$30,000a year job.
[IJf[tbe JtlMterJ used )'QUf last ihcome he'd come out to 280 [$280,000].
So insteadhe.~s saying)''WeU· loqkl can't really·look attheboimses1.because
they are .obviously speculatlve for somebody who has been tcmninateq~ but
I've gota severance package available," not saying you havetotake it, but
the children have. thatntoney potentially ~:vail~ble to them ... And.I thiri.kthe
master is exactly 011 point with this and shows what the master should do
under the circumstances.
(N.T. p.17, 1.8-21; p.18, 1.5-12; p.19, 1.2-4.) The court found that the monetary value of the
Settlement Offer was "available, although not taken," and adopted Master Ketterlinus's
reasoning and comparison to the precedent set in Macsinley. This Court made no error of fact
or law in denying Father's exception as to the imputation of income.
3. The court allowed evidence that the Settlement Offer was available despite evidence
showing it was withdrawn on November 22, 2013, prior to the support master's
bearing.
Under the Pennsylvania Rules of Civil Procedure, "matters not covered by exceptions are
deemed waived unless, prior to entry of the final order, leave is granted to file exceptions raising
those matters." Pa. R. C. P. 1910.12(f). Father filed exceptions to Master Ketterlinus's Report
on May 15, 2014. While he noted that ''the consideration [was] offered and withdrawn by Teva
in its settlement agreement and general release", neither the availability nor the withdrawal of the
Settlement Offer was a point of contention encompassed by Father's exceptions. See Defendant
Kai W. Lyman's Exceptions to Support Master's Recommendation (May 15, 2014).
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Further, at the exceptions hearing, Father testified that the first deadline for accepting
Teva's Settlement Offer was November 7, 2014, which was then extended to November 22,
2014; as the court noted, there was a "natural expiration and not a withdraw [sic]." (N.T. p.27,
1.9-15; p.29, 1.4-15.) Father also testified he had a letter from his employer regarding the issue
but acknowledged to the court it was not introduced into evidence at the master's hearing. (N.T.
p.28, 1.1-8.) This Court accordingly declined to accept evidence that Father failed to present at
the master's hearing and made no error of fact or law in doing so.
4. The courtdid not recommend findings offttct or eonclnslens of l~hv regarding
Father's actual earning capacity after. bis terminarion of-empfoywentt bis ·fack of
wilJful efforts to ay()id finding eJ,nployment, and bis diligent en_1ploynientsea:rc.h,
which the court found sufficient.
This Court fails to understand what Father means by asserting that the court did not
"recommend" findings of fact or conclusions of law. Nonetheless, the court admittedly found
that Father made "substantial efforts to mitigate in the fact that he's trying to get employment.
And he's making a pretty decent search for the employment." (N.T. p.20, 1.22-25.) However,
Father's job search in no way negates the availability of the Settlement Offer nor does it thwart
the master's and the court's finding that the Settlement Offer should be imputed as income to
Father. With respect to Father's duplicate contention regarding his earning capacity after his
termination of employment, see the discussions under Father's first and second arguments,
supra.
5. The court refused to admit testimony and/or take judicial notice of the existence of
pending administrative claims against Father's former employer after this Court's
May 15, 2014 Order.
Pursuant to the Pennsylvania Rules of Civil Procedure specifically governing support
actions, issues not covered by exception to the master's report and recommendation are deemed
waived for trial. Pa. R. C. P. 1910.12(t). Similarly, matters not raised in the lower court are
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waived and "cannot be raised for the first time on appeal." Pa. R. App. P. 302. It follows that
issues not covered by a party's exceptions may not be argued on appeal.
Father made no mention of pending administrative claims against his former employer in
his exceptions filed on May 15, 2014.3 Accordingly, the issue is effectively waived for purposes
of appeal.
6. The court failed to determine supportbased upon Father's actual income, assets
and/orearning capacity after the termination of his employment, instead relying
upon an expired confidential Settlement Offer.
Father's argument here is redundant. For discussions regarding the court's finding as to
Father's income and earning capacity and imputation of the Settlement Offer as income, see
Father's first and second arguments, supra.
7. The court failed to consider its prior orders of November 5, 2013 and November 25,
2013 refusing to compel Father'ssignature of the Settlement Offer before or after
its expiration.
At the exceptions hearing on June 24, 2014, Father testified that the parties appeared
before the court on two prior occasions as Mother sought to compel his signature of the
Settlement Offer. (N.T. p.5, 1.19-23.) As the docket reflects, this Court did not enter a support
order on November 5, 2013. On November 25, 2013, the Honorable Barbara Joseph entered an
order dismissing Mother's contempt petition as the issue raised was not ripe at that time. See
Order, J. Joseph (Nov. 25, 2013). Neither the docket nor the November 25, 2013 Order indicates
that this Court specifically refused to compel Father's signature of the Settlement Offer as Father
asserts.
3 Father mentions for the first time at the end of the June 24, 2014 hearing (and notes in his Statement) that he
"commenced administrative claims against Teva." (N. T. p.30, l.9-11.) However, as the court informed Father, such
information was "after evidence and cannot be introduced here. It can be Introduced in a petition to modify." (N.T.
p. 30, l.12-14.)
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In addition to the factual and temporal inaccuracies, Father's contention is irrelevant as
his signature of the Settlement Offer was not at issue. The hearing on June 24, 2014 was on
Father's exceptions to the master's report and recommendation that stemmed from Father's
petitions to reduce child support and APL. As counsel for Mother explained at the exceptions
hearing, while the court declined to compel Father's signature to the Settlement Offer at a prior
hearing, it also explained that failure to do so would likely result in child and spousal support
repercussions. (N.T. p.19, 1.13 - p.20, 1.5.) Furthermore, the record illustrates the court's view
that it was Father's prerogative to refrain from signing the Settlement Offer and he should not be
judicially forced to do so; however, the value of the Settlement Offer would still be imputed as
income. (See N.T. p.13, 1.12-17; p.21, 1.5-10; p.17, 1.8-17.) Father's contention is irrelevant to
any exceptions that were before this Court on June 24, 2014.
8. The court did not consider Father's payment of health insurance premiums in
calculating arrears.
At the master's hearing, Father testified that he maintains health insurance that covers
himself, Mother and their two children at a cost to him of $1,900 monthly. Master's Report, W.
Ketterlinus, p.12 (Apr. 28, 2014). Master Ketterlinus found that because this benefit was
included in the Settlement Offer for both parties and the children at no cost, the cost to Father for
health insurance should not be included in the support calculations. Id.
At the exceptions hearing, Father provided no testimony or evidence to dispute the
master's calculation of arrears or to support his claim that the master failed to take into
consideration his payment of health insurance premiums. The court therefore relied on Master
Ketterlinus's Report and found no error of fact or law.
9. The court did not make conclusions of law or findings of fact regarding deviations
from the support guidelines.
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Under the Pennsylvania Rules of Civil Procedure, "[i]n deciding whether to deviate from
the amount of support determined by the guidelines, the trier of fact shall consider:
I) unusual needs and unusual fixed obligations;
2) other support obligations of the parties;
3) other income in the household;
4) ages of the children;
5) the relative assets and liabilities of the parties;
6) medical expenses not covered by insurance;
7) standard of living of the parties and their children;
8) in a spousal support or alimony pendente lite case, the duration of the marriage from
the date of marriage to the date of final separation; and
9) other relevant and appropriate factors, including the best interests of the child or
children."
Pa. R. C. P. 1910. I 6-5(b). In addition, the rules specifically allow for an "appropriate"
downward adjustment" in the obliger's support obligation "[i]f the obliger is occupying the
marital residence and the mortgage payment exceeds 25% of the obliger's monthly net income
(less any amount of spousal support, APL or child support the obligor is paying)." Pa. R. C. P.
l 910.16-6(e).
The parties have two children together, ages eight and seven. At the master's hearing,
Father testified that he is currently unemployed and is receiving unemployment compensation
benefits in the amount of $571 weekly. Master's Report, W. Ketterlinus, p.10 (Apr. 28, 2014).
Father further testified that he has no income producing assets and no additional sources of
income. Id. The master found that Father's assets include a 1993 Nissan Altima, a checking
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account with a balance of $2,900, a savings account with a balance of $140, and a 401(k) (or
similar) plan with a value of $265,000. Id.
Father's expenses include a credit card with a balance of $3 8,000 toward which he pays
$600 to $650 monthly, car insurance in the amount of $100 monthly, and cell phone bills in the
amount of $100 monthly. Id. at 12. Father testified at the master's hearing that he owes family
members $8,500 but he is currently not making payments. Id.
Master Ketterlinus found that the amounts and types of assets and expenses were not
sufficient to deviate from the support guidelines. Id. at 11-12. The master also found that, based
on the testimony and evidence provided by both parties, the children have 118 overnight visits
(less than 40%) with Father annually and an adjustment for substantial or shared physical
custody was not warranted. Id. at 12.
Father also testified at the master's hearing that he pays a mortgage on the home that was
previously occupied by the parties and their children prior to separation in the amount of
$3,980.38 monthly (which includes homeowners insurance and real estate taxes.) Id. at 11.
Master Ketterlinus found that Pa. R. C. P. 1910.16-6(e) was applicable as the monthly mortgage
payment made by Father exceeds 25% of Father's monthly net income (less APL and child
support) by $2,085.42. Id. The master further found that Father's payment of the mortgage "is
preserving a marital asset to the benefit of both parties" and that, accordingly, a downward
adjustment of $1,042.71 to Father's APL obligation was appropriate and warranted.4 Id.
4Although Father's APL obligation is not at issue in this appeal by Order of the Superior Court dated September 3,
2014, the court found the downward deviation important to note for purposes of the instant appeal regarding child
support.
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At trial, Father provided no testimony that supported a deviation from the child support
guidelines nor did he give argument as to why any deviation was warranted. The court properly
relied on the findings of the master and declined to deviate from the child support guidelines.
Conclusion
Ultimately, after hearing testimony from both parties and reviewing the master's report
and recommendation, this Court found Master Ketterlinus did not err as a matter of fact or law in
entering the proposed order of June 24, 2014 and properly denied Father's exceptions
accordingly. The errors of which Father complains on appeal lack any basis in the evidentiary
record, applicable statutes or case law. It is respectfully requested that the findings of the trial
court be affirmed.
BY THE COURT:
Dated: January 22, 2015
no J,
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IN THE.COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
FAMILY COURT DOMESTIC RELATIONS DIVISION
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OPINIO:ti
PROCEDURAL HISTORY
The parties, Appellant/Obliger, Kai Ward Lyman, and Appellee/Obligee, Tracey
Sterling, are the biological parents of two unemancipated children who had been born of
the parties' marriage; Blake Sterling Lyman is nine years old having been born on March
25, 2006 and Vivien Sterling Lyman is seven years old having been born on October 5,
2007. Appellant Kai Ward Lyman has filed the instant appeal seeking arrest of judgment
following the imposition of sentence upon him by this Court on October 29, 2014 as a
result of the finding of his civil contempt for refusal to pay his child support obligation
pursuant to Orders of Court.
Procedurally, Appellant had been initially notified of the potential penalties for
his willful noncompliance of the Orders of Support by the Tactical Enforcement Unit of
the Court of Common Pleas of Philadelphia County Domestic Relations Division.
Consistent with the applicable Pennsylvania and local Rules of Civil Procedure, the
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resulting enforcement conference had been duly scheduled and held with both parties
being present or represented on September 29, 2014. Appellant continued to defy the
Orders of Support and refused to remedy his flagrant disobedience. Thus, the Conference
Officer provided Appellant with due notice and copy of the filed Petition For Contempt,
Order of Court and Notice of Hearing scheduled before this Court on October 29, 2014.
On October 29, 201.4 Appellant appeared pro se and Ann Funge, Esquire appeared as
counsel on behalf of Obligee Tracey Sperling to address the underlying merits of the
Petition alleging Appellant's Contempt filed by the Tactical Enforcement Unit of the
Court of Common Pleas of Philadelphia County Domestic Relations Division.
This Court, after full and fair hearing on October 29, 2014, found Appellant's
noncompliance to be deliberate and contemptuous of the existing Temporary Order of
Support proposed by Master in Support William Ketterlinus, Esquire which had been
entered administratively by the Honorable Kevin Dougherty, then Administrative Judge
of the Court of Common Pleas First Judicial District Family Court Domestic Relations
Division on April 28, 2014 and the Final Order of Support formally entered on June 24,
2014 by the Honorable Holly S. Ford, Judge of the Court of Common Pleas First Judicial
District Family Court Domestic Relations Division.
On October 29, 2014 this Court entered an Order finding Appellant in indirect
civil contempt of the Orders of Support and sentencing Appellant to an immediate flat
term of incarceration of 120 days and providing the Appellant with notice of the purge
factor of $12,000.00. The Appellant met the purge factor by paying the total sum of
$12,000.00 in less than eighteen hours of entry of the Contempt Order and Sentence.
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Appellant untimely filed a Motion For Reconsideration of the Order of Contempt
on November 14, 2014. Despite the late filing, this Court scheduled an evidentiary
hearing on November 26, 2014 and offered the Appellant the opportunity to litigate the
Motion For Reconsideration of the subject Order of Contempt entered October 29, 2014.
Appellant withdrew the Motion For Reconsideration after this Court duly advised him
that successful reconsideration involves opening the entire record concerning the
contempt finding. At all hearings, Appellant consistently and voluntarily asserted his
right to proceed pro se having identified himself as a licensed practicing attorney in the
Commonwealth of Pennsylvania.
On December 1, 2014 a Notice of Appeal was filed by Appellant prose. Initially
this Appeal was incorrectly coded and consolidated with a related appeal of the
underlying Orders of Support under Superior Court Appeal No. 2189 EDA 2014. This
consolidation has since been rescinded. Thus, on March 4, 2015 this Court directed
Appellant to file a l 925(b) Statement of Matters complained Of On Appeal. This
Statement was filed on March 24, 2015 containing six enumerated claims of error. A
copy was forwarded by mail to this Court on March 31, 2015.
In the instant appellate matter, Appellant repeatedly refers to irrelevant claims and
evidence from hearings that were not at issue before this Court, To avoid confusion that
is apparently interwoven within Appellant's current Statement of Appeal of this Court's
Contempt finding, this Court incorporates, as if set forth in full text, the procedural
history of frivolous litigation as outlined succinctly by the Honorable Holly Ford Judge
of the Court of Common Pleas in her Opinion filed in the related and initially incorrectly
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consolidated and now separated Superior Court Appeal No. 2189 EDA 2014 as a result of
the related claims concerning the underlying Order of Support as follows:
"Procedural History (see docket)
The present action commenced on November 16, 2012 when Tracey Ann
Sterling, hereinafter referred to as "Mother" filed a divorce complaint that included
requests for spousal and child support. The Honorable Kevin Dougherty entered an
interim order on April I 0, 2013 directing Kai Ward Lyman, hereinafter referred to as
"Father" to pay $2,609 in support monthly plus $260 monthly toward arrears.
A support master's hearing was held on May 16, 2013 at which the parties
reached an agreement, and an order was entered on May 17, 2013 directing Father to pay
$2,724 per month for child support, $3,976 monthly in alimony pendente lite (hereinafter
"APL"), and $35 monthly toward arrears.
On August 29, 20 I 3, Father tiled an emergency petition for an injunction
restraining tactical enforcement from support collection actions. The Honorable Doris
Pechkurow entered an order by agreement on September 9, 2013 changing the effective
date of the support order from November 13, 2012 to April 10, 2013.
On September 27, 2013, Father filed a petition to modify the child support order.
On November 5, 2013, Mother filed a contempt petition and Father ti led a petition for
modification of the APL order. The Honorable Barbara Joseph dismissed Mother's
contempt petition on November 25, 2013. On December 9, 2013 after a pretrial
conference, an interim order was entered pursuant to the Pennsylvania support guidelines
which recommended that Father pay $1,354.05 monthly as $782 for the support of two
children, $448.96 for APL, and $123.09 toward arrears, effective November 5, 2013.
Father was also directed to continue providing medical coverage "when and if available
at reasonable or no cost." Interim Order, PACSES (Dec. 9, 2013).
Both parties appeared before Master in Support, William Ketterlinus, Esquire, on
Father's petition to modify his child support and APL obligations on January 28, 2014.
On February 5, 2014, Father filed a petition for special relief requesting that the
reporting of arrears to credit bureaus be prevented. Judge Pechkurow denied Father's
petition for special relief on February 24, 2014. On April I 0, 2014, Father filed a petition
for special relief with respect to Financial Institution Data Match (FIDM).
On April 28, 2014, Master Ketterlinus entered a proposed order of support vacating the
interim order entered on December 9, 2013; Father was ordered to pay $2,260.13
monthly for the support of the parties' two children, $1 ,874.45 monthly for APL and $10
monthly toward arrears. Father filed exceptions to the master's report and
recommendation (hereinafter "Report", collectively) on May 15, 2014. Also on May 15,
2014 Father filed a petition to vacate and/or stay enforcement of the support order until a
final determination on his exceptions was made. On June I 0, 2014, Father filed a
memorandum in support of his exceptions.
After a hearing on June 11, 2014, the Honorable Joel Johnson granted Father's
petition for special relief regarding FIDM and ordered Father's frozen assets to be
released. Judge Johnson denied Father's motion to stay enforcement. See Order, J.
Johnson (June 1 I, 2014).
On June 24, 20 l 4, Judge Ford entered an order denying Father's exceptions filed
May 15, 2014 and making the master's proposed order of April 28, 2014 a final order of
court.
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Father filed a notice of appeal of this Court's June 24, 20 I 4 Order on July 25,
2014, one day after the 30-day filing period had elapsed, in contravention of Pa. R. A. P.
903(a). The Pennsylvania Superior Court entered an order on August 5, 2014 noting that
the appeal appeared untimely and directing Father to show cause within ten days why the
appeal should not be quashed. I See Order, Pa. Super., per curium (Aug. 5, 20 I 4). On
September 3, 2014, the Superior Court entered an order stating that "only issues
regarding the child support portion of the order will be referred to the panel assigned to
decide the merits of this appeal." Order, Pa. Super., per curium (Sept. 3, 2014).2
As per the Superior Court docket, on August 15, 2014, Father tiled a
memorandum in response to the order to show cause. On August 19, 20 I 4, the Superior
Court entered an order directing Father to show cause as to the appeal ability of the
spousal support portion of the June 24, 2014 Order. Father filed a memorandum in
response to the order to show cause regarding APL on August 29, 2014. See Appeal
Docket Sheet, Pa. Super., 2189 EDA 2014 ....
** Unfortunately, the trial court did not receive any appeal-related filings subsequent to
the August 5, 2014 Order, including the Superior Court's September 3, 2014 Order. An
"overdue records" notice was received on or about November 17, 2014 at Philadelphia
Family Court's new address, which alerted the trial court to the ongoing appeal.
Following a phone call to the Superior Court Prothonotary's Office, the trial court
received copies of the missing pleadings and orders on or about November 24, 2014.
On November 25, 2014, this Court entered an order directing Father to file a
statement of errors complained of on appeal (hereinafter "Statement") pursuant to Pa. R.
A. P. 1925(b). Father filed his Statement with regard to the June 24, 2014 Order on
December 16, 2014."
The sole issue presented for review in the instant Appeal is the validity of the
Order of this Court entered on October 29, 2014 by this Court finding Appellant in Civil
Contempt for his willful non-compliance and imposing Sentence due to Appellant's
violations of the Interim Order of Support previously administratively entered April 28,
2014 by the Honorable Kevin Dougherty and the Final Order entered on June 24, 2014 by
the Honorable Holly S. Ford.
All other issues irrelevantly referenced within Appellant's Statement of Matters
Complained Of On Appeal shall not be addressed by this Court as they are properly
considered by the Honorable Holly S. Ford in her learned opinion and subject to review
in the separated pending Appeal before the Superior Court docketed under Appeal No.
2189 EDA 2014. This Court also must dismiss Appellant's reference to the Motion For
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Reconsideration because it was withdrawn before the Court on November 26, 2014 and
has not been attached as an incorporated document in the Statement of Matters on
Appeal.
As best as this Court can discern from the befuddled Statement of Matters of
Appeal, Appellant alleges there was insufficient evidence introduced at the October 29,
2014 hearing to support this Court's finding that he was in contempt of the existing
Orders of Support. Intertwined with this argument is his claim that he had been unable to
pay the existing Orders of Support. Finally, Appellant asserted that the underlying
Interim Order and Final Order of Support did not require compliance because he had filed
successive Motions To Modify the existing Orders and an Appeal of the Final Order as
well as an Appeal of the denial of his Motions To Modify Orders of Support. Apparently,
he had considered his historically relentless filing of motions and appeals as a shield from
his obligation to provide any financial support on behalf of his two minor children.
FACTUAL Iil..ST.QBY
The admitted evidence during the contempt hearing before this trial court on
October 29, 2014 revealed that Appellant defiantly ceased paying the monthly existing
obligation in direct violation of the Interim and Final Orders of Support which had
specifically directed him to pay respective set monthly amounts to Pennsylvania State
Collection and Disbursement Unit ("Pa.S.C.D.U.") as assigned to PASCES Account
Number 664113647 on behalf of the Appellant's minor children and spouse.
Appellant had been notified that as of September 29, 2014 the accrued arrears
resulting from his ongoing non-payment of his support obligations was $21,960.83. On
October 29, 2014 when Appellant appeared before this trial court, the delinquency due to
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his non-payment had accrued to $26,295.41. It was undisputed that for approximately
eight months, Appellant had paid absolutely nothing toward his ongoing financial
obligation on behalf of his two minor children. Instead, he has economically harmed his
separated spouse and created undue attorney fees and costs with vexatious litigation
aimed at avoiding his parental responsibility.
Evidence established that Appellant had been previously employed as an attorney
for Teva Pharmaceutical Company. When his employment ended he had rejected the
generous severance package. Instead he chose to engage in litigation concerning his
termination with his former employer. In addition, Appellant had been singularly living
in the former marital residence which is a five bedroom home in Blue Bell, PA. He had
stopped paying the mortgage obligation secured against this home thus forcing it to
proceed t? a "Short Sale" which had been due to occur sometime after the Contempt
hearing on October 29, 2014. Just before he ceased paying his support obligations,
Appellant withdrew approximately $70,000.00 from his retirement benefits to pay for
unknown expenses. To date, he has never provided a legitimate response to the Court's
inquiry as to the use or location of the withdrawn funds.
Appellant reluctantly admitted to possessing two working automobiles that could
have been sold to pay his debts. One vehicle he solely owned the title and the other had
been "gifted" to him from an aunt. He had inexplicably refused to transfer title to his
name from the aunt who, according to this testimony, had "gifted" him this automobile.
Appellant rejected all attempts to reasonably satisfy any portion of the delinquent child
support obligation.
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Appellant failed to reasonably attempt to obtain employment commensurate with
his training and experience. He had remained unemployed until approximately two weeks
before the Contempt hearing when he alleged he had obtained a minimum wage job as a
retail clerk. This Court specifically found his testimony to be materially incredible
particularly as it applied to his claim of inability to pay his child support obligation.
Appellant's full payment of the purge factor of $12,000.00 within less than eighteen
hours of his imposed sentence of 120 days belied his spurious claim of poverty.
DISCUSSU)N
Mechanisms for enforcement and contempt of support orders are outlined in 23
Pa.C.S.A. §§§4345, 4348, 4352(d) and Pa. Civil Procedure Rules 1910.20-25. Civil
contempt is distinguishable from criminal contempt because the primary purpose of civil
contempt is to coerce the contemnor's compliance with a court order, not to punish the
offender. Orfield v. Weindel, 52 A.3d 275 (Pa. Super. 2012) (see concurring opinion by
Judge Strassburger); Hyle v. Hyle, 868 A.2d 601 (Pa. Super. 2005). The dominant
purpose of coercion is expressly identified by the Court in the adjudication or order
entered by the Court. A civil adjudication of contempt coerces with a conditional or
indeterminate sentence of which the wrongdoer may relieve himself by obeying the
Court's order, while a criminal adjudication of contempt punishes with a certain time of
imprisonment or a fine which the contemnor is powerless to escape by compliance. Garr
v. Peters, 773 A.2d 183 (Pa. Super 2001).
Pennsylvania and local procedural rules specifically permit enforcement of
support orders via the Tactical Enforcement Unit and with the use of expedited civil
contempt hearings. Pa. Civil Procedure Rule No. 1910.25-5 provides incarceration as a
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remedy for obligors who fail to comply with Orders of Support, Incarceration has been
determined to be a reasonably effective means to enforce the support provisions of
existing Orders of Support where there has been a finding that the obligor had the present
ability to pay the Order. Glynn v. Glynn, 789 A.2d 242 (Pa. Super. 2001) (En Banc);
Sinaiko v. Sinaiko, 664 A.2d 1005 (Pa. Super 1995). The confinement is based on a
condition that the individual is capable of performing. 23 Pa.C.S.A. §§4344, 4345. As
the violator complies, he purges himself of the contempt. Thus, when the contemnor
purges the finding of contempt by complying with the purge factor, the appeal is
dismissed as moot. Fake v. Fake, (Unpublished Order and Opinion filed October 30,
2007 under Superior Court No. 1069 EDA 2007.)
The contempt· power is "essential to the preservation of the court's authority and
prevents the administration of justice from falling into disrepute." Garr v. Peters, 773
A.2d 183 (Pa. Super. 2001); Marian Shop, Inc. v. Baird, 448 Pa. Super. 52, 670 A.2d
1005, 1009 (1995). An Appellate court may only disturb the findings of a trial court if
the conclusions are unreasonable in light of the trial court's factual findings.
Commonwealth v. Baker, 564 Pa. 465, 721 A.2d 328 (2001), Mrozek v. James, 780 A.2d
670 (Pa. Super 2001), Sargent v. Sargent, 733 A.2d 640 (Pa. Super. 1999); Karis v. Karis,
518 Pa. 601, 544 A.2d 1328, 1332 (1988), Fenstamaker v. Fenstamaker, 337 Pa. Super.
410, 487 A.2d 11 (1985). The reviewing court shall not reverse or modify a final decree
unless there has been an error of law or an abuse of discretion, or if the findings are not
supported by the record, or there has been capricious disbelief of credible evidence. C. R.
by Dunn v. The Travelers, 426 Pa. Super. 92, 626 A.2d 588, 592 (1993).
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In a civil contempt proceeding, the complaining party has the burden to prove by
a preponderance of evidence that the opposing party has violated the court order.
Childress v. Biogosian, 12 A.3d 448 (Pa. Super. 2011); Hyle v. Hyle, 868 A.2d 601 (Pa.
Super. 2005); Chrysczanavicz v. Chrysczanavicz, 796 A.2d 366 (Pa. Super. 2001 );
Sinaiko v. Sinaiko, 445 Pa. Super 56, 664 A.2d 1005 (1995); Barrett v. Barrett, 470 Pa.
253, 264, 368 A.2d 616, 621(1977). In the instant matter, the procedural rules were
followed to the letter. The burden of proof by a preponderance of the evidence had been
abundantly met by the Appellee. The record reflects that Appellant readily acknowledged
he had not paid any amount toward his delinquent child support obligation in about eight
months.
Appellant's ability to pay the obligation pursuant to the terms of the existing
Orders of Support was readily apparent. Appellant disclosed that he had unilateral
withdrew $70,000.00 from his retirement funds immediately preceding the eight months
of zero contribution toward his children's financial support. During this period, he
testified that he had stopped paying the secured mortgage obligation of the home that he
had owned with his separated wife and in which he had remained living. Appellant's
nonpayment of the mortgage triggered the pending "Short Sale" of the five bedroom
residence. Appellant failed to identify any significant expenses on the record that could
have justified his non-payment. He rejected the notion that he should at least transfer title
to at least one of his two possessed automobiles to satisfy the delinquency. Appellant
rebuffed all available remedies to his non-compliance.
Appellant unabashedly and repeatedly argued that he need not comply with the
Orders of Support because he disagreed with their underlying validity. This systematic
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form of intentional defiance of Court Orders is particularly egregious given Appellant's
level of education and licensing as an attorney within the Commonwealth of
Pennsylvania. Evidence from the October 29, 2014 hearing was more than amply
supportive of this Court's finding that Appellant's contemptuously violated the Orders of
Suuport.
This Court's sentencing of Appellant effectively coerced his immediate
compliance consistent with the primary purpose of the Civil Contempt Order. Within
eighteen hours of entry of the Order Appellant met the identified "purge factor" by
paying the entire amount of $12,000.00 in one lump sum. This total was approximately
equivalent to one-half of the delinquent arrears owed due to Appellant's eight months of
zero payments. Thus, Appellant soundly confirmed that he had indeed possessed the
immediate financial capability to pay his obligation the day before his payment. After
demonstrating Appellant's willful non-compliance despite having financial ability to
comply by paying the "purge factor" the instant Appeal should be dismissed.
CONCLUSION
In summary, review of the entire record reveals no harmful, prejudicial, or
reversible error. Since there is nothing to justify the granting of Appellant's request for
relief, the judgment of the trial court should be affirmed.
DATE: April 2, 2015
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