Foulk v. Foulk

• Decision Date: 17 December 2001
• Citation: 789 A.2d 254
• Parties: Rose M. FOULK, Appellee, v. Bernard R. FOULK, Appellant.
• Court: Pennsylvania Superior Court

789 A.2d 254

Rose M. FOULK, Appellee, v. Bernard R. FOULK, Appellant.

Superior Court of Pennsylvania.

Argued September 5, 2001.

Filed December 17, 2001.

Christopher D. Ferry, Meadville, for appellant.

James R. Irwin, Meadville, for appellee.

Before DEL SOLE, President Judge, McEWEN, President Judge Emeritus, JOHNSON, FORD ELLIOTT, EAKIN, JOYCE, STEVENS, MUSMANNO and ORIE MELVIN, JJ.

MUSMANNO, J.

¶ 1 Appellant Bernard R. Foulk ("Bernard") appeals from an Order adjudging him in contempt for failing to pay his ex-wife, Appellee Rose M. Foulk ("Rose"), one-half of his monthly pension benefits. We affirm.

¶ 2 Rose filed a Complaint in divorce against Bernard on May 31, 1991. At a hearing before a master on January 7, 1999, the parties read into the record an agreement as to the distribution of their marital property ("agreement"). The agreement provided as follows in regard to Bernard's pension under the Pennsylvania State Employees Retirement System (SERS):

[Bernard] is the owner of a pension through [SERS], and has in fact retired from his employment on March 29, 1997. He currently receives a gross monthly benefit of 1,617 dollars and 27 cents. [Rose], whose date of birth is 12/28/45, has not reached retirement age at this time. However, since the retirement pension is in a pay status, the parties agree that if it is permissible with the retirement system, the gross monthly benefit of [Bernard] shall be divided equally between [Rose] and [Bernard]. [Rose's] counsel shall be responsible for preparing a Qualified Domestic Relations Order, or Approved Domestic Relations Order. In the event [Rose's] age prohibits her from actually receiving one-half of the gross monthly benefit, the parties agree that [Bernard] shall pay alimony in an amount equal to one-half of the gross monthly benefit until such time as [Rose] qualifies to receive her one-half of said gross monthly benefit. Any cost of living increases of any nature whatsoever shall be shared equally between the parties.

N.T., 1/7/99, at 5-6. The trial court entered a divorce Decree on March 12, 1999, in which the trial court ordered that the parties' property be distributed in accordance with the terms of the January 7, 1999 agreement.

¶ 3 On November 3, 1999, Rose filed a Motion to enter a qualified domestic relations order (QDRO) in regard to her entitlement to a portion of Bernard's monthly pension benefits. On the same day, the parties filed a stipulation for the entry of the QDRO, and the trial court issued an Order providing that the parties' stipulation be incorporated, but not merged, into that Order.

¶ 4 On February 18, 2000, Rose filed a Petition for contempt. In her Petition, Rose alleged that, according to SERS, her payments under the QDRO were to begin in January 2000, but that, pursuant to the parties' agreement, payments to her from Bernard's pension were to begin on January 7, 1999, the date of the agreement. Rose alleged that she had requested that Bernard pay her one-half of his pension benefits from January 7, 1999 to January 2000, or $9,884.16, but Bernard had failed to do so. Therefore, Rose requested that Bernard be held in contempt of court for failing to comply with the divorce Decree.

¶ 5 On April 20, 2000, Bernard filed a response to the Petition for contempt, in which he alleged that there was no agreement between the parties that the payments from Bernard's pension would begin on any date other than the date determined by SERS. The trial court conducted a hearing on the Petition for contempt. No witnesses testified at the hearing. On April 24, 2000, the trial court ordered that Rose was entitled to receive one-half of Bernard's pension, commencing on the day after the date of the parties' divorce Decree. The trial court also awarded Rose counsel fees in the amount of $250.00.

¶ 6 On May 5, 2000, the trial court entered an Order finding Bernard in contempt of the parties' agreement and the divorce Decree. The trial court sentenced Bernard to a prison term of three months and a fine of $1,000. The trial court indicated that Bernard could purge himself of the contempt adjudication by paying Rose the sum of $7,413.00 on or before July 1, 2000. That amount constituted one-half of Bernard's pension benefits from March 12, 1999 through December 31, 1999. The trial court further directed that Bernard pay Rose's attorneys' fees as a condition of purging himself from the trial court's contempt finding. Thereafter, Bernard filed a timely appeal of the May 5, 2000 Order.

¶ 7 On appeal, Bernard raises three issues:

1. Whether the trial court erred in determining that the express language of the parties' agreement required a payment prior to the entry and acceptance of the QDRO by SERS, where Rose's age did not prohibit her from receiving one-half of Bernard's retirement benefit?

2. Whether the trial court erred in finding that Bernard willfully failed to comply with a court order, and, if so, whether the trial court erred in failing to consider whether Bernard has the present ability to comply with the Order?

3. Whether the trial court's setting of a purge condition in the contempt Order precludes an appeal of that Order?

See Brief for Appellant at 2-3.

¶ 8 We will first address the issue of the appealability of the trial court's May 5, 2000 Order. That issue was certified to this en banc Court for review on April 23, 2001.¹

¶ 9 This Court will only consider appeals from final orders of a trial court. Pa. R.A.P. 341(a). This Court has held that an order finding a party in contempt for failure to comply with a prior order of court is final and appealable, if sanctions are imposed. Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155, 159 n. 1, 160 (1988) (en banc); Lachat v. Hinchliffe, 769 A.2d 481, 488 (Pa.Super.2001); Steel v. Weisberg, 368 Pa.Super. 590, 534 A.2d 814 (1987); Hester v. Bagnato, 292 Pa.Super. 322, 437 A.2d 66 (1981).

¶ 10 In a fairly recent case, Sargent v. Sargent, 733 A.2d 640 (Pa.Super.1999), a panel of this Court reached a different conclusion concerning the appealability of a contempt order. In Sargent, the panel concluded that the contempt order therein, which found Sargent in contempt for failing to pay child support, and which sentenced him to six months in prison unless he paid $5,538.80 plus fees within thirty days, was an interlocutory order, because the sanctions were merely "threatened" and had not been actually imposed. Sargent, 733 A.2d at 641.

¶ 11 Sargent, however, is in conflict with other cases decided by this Court. For example, in Sonder, an en banc panel of this Court held that the trial court's order directing husband to pay $29,800 "forthwith" and $1,000 in counsel fees and expenses, was interlocutory "as no sanctions were imposed." Sonder, 549 A.2d at 159. Notwithstanding that holding, the Court in Sonder also found that a separate order directing husband to pay "$10,000 forthwith or [be] commit[ed] to jail for 90 days," was final and appealable.² Id. at 166. Clearly, the second order imposed sanctions on husband in the form of a jail sentence. However, the second order also contained a purge condition, i.e., that husband pay $10,000 "forthwith."

¶ 12 Similarly, this Court determined that an order finding the defendant in contempt for failing to comply with an order enforcing a settlement agreement, which gave defendant an opportunity to purge himself by paying the settlement sum, but which did not impose sanctions on the defendant, was interlocutory and not appealable. Hester, 437 A.2d at 66-67; cf. Lachat, 769 A.2d at 488 (holding that an order finding the defendant in contempt and requiring him to pay $450 in counsel fees and one-half the cost of a property survey "on or before the 31st day following this Order" was final and appealable because the order contained both a finding of contempt and a directive to make remedial payment to the plaintiffs for surveyors' fees and attorneys' fees).

¶ 13 In Steel v. Weisberg, 368 Pa.Super. 590, 534 A.2d 814 (1987), the trial court entered an order finding the defendant in contempt for failing to answer questions at a deposition, as the trial court had previously directed. Id. at 815. The trial court imposed a fine of "$25.00 conditionally" upon defendant. In addition, the trial court directed that the defendant could purge himself of the contempt and the necessity to pay the fine "by answering all questions provided to him...." Id. at 816. On appeal, this Court found that the order was final and "immediately appealable," even though the trial court had given the defendant a purge condition. This Court explained as follows:

Although [defendant] was given the opportunity to remove the sanction, such a feature is typical of civil contempt orders, which must contain conditions on the sentence so as to permit the contemnor to purge himself; he must be allowed to carry the keys to the jail in his pocket. Here, no further order would be necessary before the sanction would become effective. The order is properly before us for review.

Id. (citations and quotations omitted).

¶ 14 We find the above reasoning by this Court in Steel more persuasive than that relied upon by the panel in Sargent. When a contempt order that imposes sanctions also contains a purge condition, the purge condition does not transform a final, appealable order into one that is interlocutory. If that were so, a contemnor in a civil contempt action would not be able to appeal the contempt order until he/she was incarcerated or had paid the sums owing as sanctions for contempt. It seems inappropriate and unnecessarily harsh for a contemnor in a civil contempt action to undergo incarceration or fulfill another sanction before this Court will accept an appeal of a contempt order. Rather, we conclude that, for a contempt order to be properly appealable, it is only necessary that the order impose sanctions on the alleged contemnor, and that no further court order be required...