An interesting issue was raised recently in a Pennsylvania Superior Court case pertaining to civil contempt in a child support case. In Warmkessel v. Heffner , Eric Heffner appealed a trial court's order refusing to give him credit for time that he served incarcerated as a result of an outstanding bench warrant against his incarceration sanction regarding his civil contempt for lack of child support payments. The Pennsylvania Superior Court held that Heffner was not entitled to credit against his incarceration sanction and affirmed the trial court's decision.
This case pertains to Heffner's failure to make support payments over a long period of time. In 2002, the opinion said, a child support order was entered against Heffner. Over the years following the entry of the order, Heffner repeatedly failed to pay support as ordered. On several occasions, Heffner tried to modify the support order "but then failed to appear/prosecute his petitions," according to the opinion.
After Heffner signed an authorization to attach any retroactive lump sum that he would receive in workers' compensation benefits in 2009, a number of contempt petitions were filed, conferences were scheduled and continuances were entered. A support enforcement hearing was finally listed in late 2009. "Although properly served, appellant failed to appear" at the support enforcement hearing, the opinion said. As a result, the court issued a bench warrant for Heffner's arrest.
According to the opinion, months later, Heffner was taken into custody for his outstanding bench warrant. "The court set unsecured bail at $5,000 ROR and immediate release if appellant [Heffner] paid court costs of $525.08," the opinion said. The court then rescheduled a support conference hearing for 21 days thereafter. "Notwithstanding the nominal release conditions, appellant stayed in jail until the hearing," the Superior Court said.
At the time of the support enforcement hearing, Heffner owed $6,037 in arrears, according to the opinion. At the conclusion of the enforcement hearing, the court held Heffner in civil contempt and sanctioned him with a maximum term of imprisonment of three months with a minimal purge amount of $100. Heffner's counsel requested that he be given 21 days of credit for the time that he spent in prison before the rescheduled support enforcement hearing for the bench warrant. "The court declined but invited counsel to submit legal authority on the issue for the court's review," the Superior Court said.
The trial court granted Heffner's motion for reconsideration but denied his requested relief of credit for time served.
Heffner filed a timely notice of appeal. Heffner raised a number of issues on appeal, which all pertained to the trial court's refusal to give him credit against his incarceration sanction for time served imprisoned on his bench warrant. He claimed that the trial court abused its discretion, violated his equal protection rights, and violated his right to due process.
The Superior Court analyzed the doctrine of mootness since Heffner was no longer incarcerated. Heffner claimed that he met an exception to the mootness doctrine "because he is subject to a continuing support order and might be subject to contempt proceedings in the future where the issue of credit for time served in that context could arise again," the opinion said. Another exception to the mootness doctrine is whether the issue is capable of repetition by other similarly situated people. Heffner made this claim as well.
The Superior Court agreed with Heffner and found that the fact that he was released from prison "does not render the issue moot because [Heffner] is subject to a continuing support order where [Heffner] might once again face civil contempt proceedings raising the issue of credit for time served, and other similarly situated defendants might raise the same claim."
As practitioners are aware, there are two forms of contempt: civil contempt and criminal contempt. "If the dominant purpose is to vindicate the dignity and authority of the court and protect the interest of the general public, it is a proceeding for criminal contempt," the court said. It added: "The refusal to do or refrain from doing some act ordered or prohibited primarily for the benefit of some private party, the proceedings to enforce compliance with the decree of the court are civil in nature."
Generally, criminal contempt is a punishment without a coercive purpose and civil contempt is remedial with sanctions being employed by the court to coerce the contemnor into compliance with the court's order. Further, civil contempt sanctions may include compensation to the petitioner for losses sustained.
In support proceedings, a person who willfully fails to comply with an order may be "adjudged in contempt," the opinion noted. The punishment for contempt may be one of the following: (1) imprisonment for a period not to exceed 6 months; (2) a fine not to exceed $1,000; and (3) probation for period not to exceed one year. However if the contempt order commits a defendant to jail under 23 Pa. C.S.A. §4345 (contempt for noncompliance with support order), the court shall specify the condition "the fulfillment of which will result in the release of the obligor," the panel said. The petitioning party in the contempt proceeding must prove by preponderance of the evidence that the party violated the order. Interestingly, "the court, in imposing coercive imprisonment for civil contempt, should set conditions for purging the contempt and effecting release from imprisonment with which it is convinced beyond a reasonable doubt from the totality of the evidence before it, the contemnor has the present ability to comply."
In support of his argument that he was entitled to credit against his civil contempt sanction, Heffner directed the court to the Pennsylvania law pertaining to credit for time served in the criminal context found in 42 Pa. C.S.A. §9760. Most of the requirements under that section pertain to credit being applied from pre-sentenced confinement when the confinement is related to charges arising out of similar acts and/or offenses.
According to the opinion, there are many flaws in Heffner's argument. The Superior Court highlighted that Heffner provided no relevant statute or case law that requires a court to give credit toward a civil contempt commitment for pre-hearing time served. Further, the trial court was convinced beyond a reasonable doubt under the circumstances that Heffner had the present ability to pay the purge amount. Further, Heffner never challenged the purge amount on appeal.
Therefore, it is presumed that the purge amount was reasonable. The opinion reflects that the coercive prison sanction to entice Heffner to pay the "de minimis" purge amount was reasonable. Because Heffner failed to raise his due process argument in his Rule 1925(b) statement, he was deemed to have waived that claim on appeal.
The Superior Court found that Heffner's claims on appeal merited no relief as the court did not abuse its discretion by failing to give Heffner credit for time served against his imprisonment sanction for its civil contempt order.
This case is interesting for family law practitioners in that it provides background on the difference between civil and criminal contempt. Further, the issues of "time served" in support matters related to contempt with the coercive measure of imprisonment is not a situation that many family law practitioners will come across regularly. Therefore, this case is important to remember in case such an issue arises.
MICHAEL E. BERTIN is a partner in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-chairman of the custody committee and secretary of the family law section of the Philadelphia Bar Association, and a member of council and past member of the executive committee of the family law section of the Pennsylvania Bar Association.
This article is reprinted with permission from the .June14, 2011, issue of The Legal Intelligencer. © 2011 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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