Barrett v. Barrett

• Decision Date: 28 January 1977
• Parties: Lois Harriett BARRETT v. Merle Edmund BARRETT, Appellant. COMMONWEALTH of Pennsylvania v. Merle Edmund BARRETT, Appellant.
• Court: Pennsylvania Supreme Court

368 A.2d 616

470 Pa. 253

Lois Harriett BARRETT v. Merle Edmund BARRETT, Appellant.

COMMONWEALTH of Pennsylvania v. Merle Edmund BARRETT, Appellant.

Supreme Court of Pennsylvania.

January 28, 1977

Argued Sept. 23, 1976.

John B. Leete, Timothy P. O'Brien, Neighborhood Legal Services Assn., Aliquippa, for appellant.

Anthony J. Berosh, Asst. Dist. Atty., Beaver, for appellees.

Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and MANDERINO JJ.

OPINION OF THE COURT

EAGEN Justice.

These cases, consolidated at both the trial and appellate levels, raise important questions concerning the extent of a court's power to imprison for the contemptuous violation of support orders.

On August 5, 1965, one Lois Harriett Barrett filed a complaint seeking support in the Court of Common Pleas of Beaver County against her husband, Merle Edmund Barrett, under the Civil Procedural Support Law, Act of July 13, 1953, P.L. 431, § 1 Et seq., 62 P.S. § 2043.31 Et seq. Subsequently, the parties entered into a written agreement stipulating that the husband would pay his wife the sum of $50 weekly toward her support and the support of their three minor children. This agreement was then incorporated into a court order. The parties were later divorced.

On February 2, 1971, Barrett pleaded guilty to being the father of a child born out of wedlock to one Lois Kookoothakis. On May 12, 1971, he was sentenced by the court to pay the lying-in expenses and $10 weekly toward the support of the child.

Although Barrett had a series of jobs, he seldom if ever voluntarily complied with either order, and, despite the fact that the support ordered in Barrett v. Barrett was eventually reduced to $25 per week, substantial arrearages accumulated in both cases. In two instances, his wages were attached. In March, 1974, he voluntarily quit a 40-hour a week job paying $2.15 an hour at the Marriott Motor Inn in Greentree, Pennsylvania, because of what he termed 'harassment' by the mothers of his children and the Beaver County Domestic Relations office of the Court of Common Pleas in attempting to collect the support that was due. In May, 1974, he moved with a 'girl friend,' one Pat McDanel, to Columbus, Ohio, where the two lived in a house trailer. Barrett did not inform Domestic Relations of his change of address, nor did he pay any support during his stay in Ohio. By June of 1975, the arrearages in Barrett v. Barrett amounted to $16,263.78 and those in Commonwealth v. Barrett were $2,363.83.

In May, 1975, Barrett returned to Pennsylvania for a visit and was taken into custody by the Beaver County authorities. He appeared in court without counsel and, on May 29, 1975, he was adjudged guilty of contempt and committed to jail until such time as he should purge himself by paying $500 on the arrearages in each case. Subsequently, counsel supplied by Neighborhood Legal Services entered an appearance on his behalf and petitioned the court to revoke the contempt orders. On June 6, the court did so, and Barrett was released from prison when Ms. McDanel posted an appearance bond for him in the sum of $1,000. On June 19, a rule to show cause why he should not be held in contempt for willfully violating the support orders was issued on Barrett. After a hearing on July 3, the court determined that probable cause to issue an attachment existed and doubled the bond requirement; when this requirement was not met, Barrett was recommitted to prison. On August 4, an evidentiary hearing was held after which, in an opinion and orders dated August 20, 1975, the court again found Barrett in contempt and ordered him imprisoned until he should pay a total of $500 in arrearanges and post compliance bonds amounting to $500. The court also terminated the order of support with respect to Barrett's former wife as of the date of the divorce and the support orders with respect to two of his children as of the dates of their attaining the age of 18, and set terms for future compliance. Barrett failed to purge himself of contempt and remained in prison.

Barrett petitioned both the trial court and the Superior Court for writs of supersedeas pending the disposition of his appeals, but he failed to meet the financial conditions imposed by these courts for supersedeas. He was, however, granted leave by the Superior Court to appeal in forma pauperis. On December 11, 1975, the Superior Court, with three judges concurring in result only, modified the orders of the trial court by limiting Barrett's imprisonment, should he fail to purge himself of the contempts, to two concurrent terms of six months each; the orders were otherwise affirmed. Barrett v. Barrett, 237 Pa.Super. 590, 352 A.2d 74 (1975). We granted allocatur. ^[1]

Appellant contends that he was financially unable to purge himself and that thus he should not have been imprisoned for civil contempt. He raises two issues for our consideration: (1) whether an indigent person who in the past willfully disobeyed support orders may now be imprisoned for civil contempt when he cannot purge himself of contempt due to his indigency, and (2) whether it is a violation of the Equal Protection Clause of the United States Constitution to imprison an indigent for civil contempt, his release conditional upon financial criteria, when the indigent has no economic means of complying with the court's order. We find, however, that the resolution of the equal protection issue is unnecessary to our disposition of these appeals; accordingly, we refrain from addressing ourselves to it.

Both the trial court and the Superior Court regarded the proceedings in question as proceedings in civil rather than criminal contempt, and in this they were undoubtedly correct. In determining whether a contempt proceeding is criminal or civil, a court must look to whether its dominant purpose is to punish for the violation of a court order or to coerce the contemnor into compliance with the order. It is well-settled that where the dominant purpose of the contempt proceeding is to aid a private litigant or interest rather than to vindicate the authority of the court or to protect the public interest, the contempt is civil. Woods v. Dunlop, 461 Pa. 35, 334 A.2d 619 (1975); East Caln Township v. Carter, 440 Pa. 607, 269 A.2d 703 (1970); Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968), cert. denied 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1969); Commonwealth ex rel. Beghian v. Beghian, 408 Pa. 408, 184 A.2d 270 (1962); Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956). Instantly, the contempt proceedings were held pursuant to section 9 of the Civil Procedural Support Law, 62 P.S. § 2043.39, the purpose of which law clearly is to provide a civil mechanism for effecting compliance with the duty of support. Accordingly, the trial court, after finding Barrett in contempt of its orders of support, imposed conditional sentences of imprisonment in order to coerce him into compensating his children for the arrearages accumulated in the past and providing the support due them in the future. The contempts thus were clearly civil. Cf. Simmons v. Simmons, 232 Pa.Super. 365, 335 A.2d 764 (1975).

Furthermore, it is clear that even where the same facts might give rise to criminal as well as civil contempt, each has its own distinct procedures and confers distinct procedural rights; the two may not be casually commingled. Philadelphia Marine Trade Association v. International Longshoremen's Association, 392 Pa. 500, 140 A.2d 814 (1958). Thus, even if Barrett's noncompliance with support orders was cognizable as criminal contempt, a strictly penal sanction could only have been imposed in a proceeding marked by the essential procedural safeguards of the criminal law and in accordance with statutory provisions. See In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975); Commonwealth v. Abrams, 461 Pa. 327, 336 A.2d 308 (1975); Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974); Act of June 16, 1836, P.L. 784, § 23 Et seq., 17 P.S. § 2041 Et seq.; Act of June 23, 1931, P.L. 925, §§ 1--2, 17 P.S. §§ 2047--48. A fortiori, this would have been so had the instant proceeding been to punish Barrett for the substantive crime of nonsupport. See 18 Pa.C.S.A. §§ 4321--22; Act of May 24, 1917, P.L. 268, § 1, As amended, 19 P.S. § 1151. Such was not the case instantly.

Section 9(b) of the Civil Procedural Support Law, supra, provides in pertinent part that 'any wilful failure to comply with any order of the court may be deemed a contempt of court and . . . may be punishable by the court by commitment to the county jail or house of correction.' On this record, there can be no question there was ample evidence, much of it in Barrett's own testimony, that continually and continuously he had willfully failed to comply with the court's support orders. Cf. Commonwealth ex rel. Wright v. Hendrick, 455 Pa. 36, 312 A.2d 402 (1973). On direct appeal, the Superior Court regarded Barrett's long history of willful nonsupport as decisive and stated:

'He was imprisoned for willfully violating court orders with which he was fully capable of complying when the orders were entered. The fact that appellant may be indigent at present has no bearing on his failure to support his wife and children when he was able. Were we to agree with appellant's belief that no indigent may be imprisoned for civil contempt by willfully failing to support his dependents, even though the indigency was voluntarily created, the courts of the Commonwealth would lose all power to enforce support orders. We will not so hold.'

237 Pa.Superior Ct. at 596, 352 A.2d at 77. In so stating, the Superior Court confused the coercive and prospective function of imprisonment in civil contempt with criminal punishment for past acts and thus fell...