Osborne, T. v. Osborne, W.
553 WDA 2017
| Pa. Super. Ct. | Dec 12, 2017Background
- Wife petitioned for civil contempt after Husband failed to comply with prior divorce-related orders (Sept. 30, 2014 and June 16, 2015) requiring alimony, return/payment for specific personal property, payment of a First Commonwealth Bank commercial loan, and attorney fees.
- The June 16, 2015 order (final, unappealed by Husband) specifically required Husband to pay $6,000 in past-due alimony, $500/month ongoing alimony through May 2022, pay Wife’s $5,100 attorney fee, satisfy the First Commonwealth commercial loan, and return enumerated items of personal property (with stated values).
- Wife paid portions of the bank loan ($5,392.88) and some alimony; Husband refinanced one parcel per court permission and paid $5,900 in attorney fees and $14,500 toward arrears.
- Trial court found Husband in willful contempt, concluded he had the present ability to pay/return property (pointing to multiple parcels, some unencumbered, and unreasonable sales listings), and calculated a total award of $37,055.38 (alimony arrears, property value, loan reimbursements, attorney fees).
- Court ordered payment, allowed Wife to reduce award to judgment and recover collection costs and further fees, and sentenced Husband to 30 days incarceration unless he paid $9,980.38 by a specified date; continued nonpayment could prompt further contempt findings.
- Husband appealed, arguing lack of ability to comply, improper award of attorney fees, erroneous assignment of the bank loan responsibility, and improper incarceration; the Superior Court affirmed.
Issues
| Issue | Wife's Argument | Husband's Argument | Held |
|---|---|---|---|
| Whether Husband was properly held in civil contempt for violating Sept. 30, 2014 and June 16, 2015 orders | Contempt proven: Husband had notice, willfully failed to pay/return property and reimburse bank loan; Wife incurred fees and payments | Lack of present ability to comply; non-volitional failure; limited/variable income and unsuccessful sale efforts | Affirmed: record supports finding of willful contempt; trial court credited Wife and discredited Husband’s inability defense |
| Whether attorney fees could be awarded to Wife | Fees are compensatory/coercive for litigant injured by contempt and are recoverable | Husband lacked ability to pay, so fees improper | Affirmed: fees proper element of civil contempt award; trial court did not abuse discretion |
| Whether Husband was responsible for First Commonwealth Bank commercial loan and reimbursements | June 16, 2015 order fixed Husband’s obligation; Wife entitled to reimbursement for payments she made | Confusion in Sept. 30, 2014 order; Husband contends loan was Wife’s obligation | Affirmed: Husband failed to appeal the June 2015 order; res judicata bars relitigation; Husband liable and must reimburse |
| Whether incarceration sentence was improper | Incarceration is coercive to obtain compliance and permitted where contemnor can comply but refuses | Jail would be punitive and counterproductive if Husband lacks ability to pay | Affirmed: incarceration appropriate as coercive remedy because trial court found Husband able to comply; no abuse of discretion |
| Whether Husband made good-faith efforts to sell property | Wife: Husband listed parcels unreasonably (e.g., appraised $60,000 listed at $495,000), indicating lack of good faith | Husband: attempted to liquidate holdings but market and income constraints prevented sales | Affirmed: trial court found Husband’s sale efforts not in good faith; supported by record |
Key Cases Cited
- Bold v. Bold, 939 A.2d 892 (Pa. Super. 2007) (standard of appellate review for civil contempt orders)
- Harcar v. Harcar, 982 A.2d 1230 (Pa. Super. 2009) (elements of civil contempt: notice, volitional act, wrongful intent)
- Gates v. Gates, 967 A.2d 1024 (Pa. Super. 2009) (abuse of discretion standard for family law matters)
- Mescanti v. Mescanti, 956 A.2d 1017 (Pa. Super. 2008) (trial court as factfinder for witness credibility)
- Sinaiko v. Sinaiko, 664 A.2d 1005 (Pa. Super. 1995) (impossibility defense in contempt when inability to perform shown in good faith)
- Commonwealth ex rel. Ermel v. Ermel, 469 A.2d 682 (Pa. Super. 1983) (burden on contemnor to prove inability to comply)
- Rhoades v. Pryce, 874 A.2d 148 (Pa. Super. 2005) (attorney fees recoverable in civil contempt as compensatory/coercive remedy)
- Mrozek v. James, 780 A.2d 670 (Pa. Super. 2001) (discussing attorney-fee recovery in contempt matters)
- Taylor v. Shiley Inc., 714 A.2d 1064 (Pa. Super. 1998) (doctrine and purpose of res judicata)
- Yamulla Trucking & Excavating Co., Inc. v. Justofin, 771 A.2d 782 (Pa. Super. 2001) (elements required to apply res judicata)