Superior Court Bans Suspended Sentences for Civil Contempt
The Pennsylvania Superior Court has ruled that it is illegal for judges to impose suspended sentences for civil contempt. In a unanimous published opinion issued May 8 in Thompson v. Thompson, a three-judge panel of the court reversed a Clarion County trial judge's order that a mother would have to serve a six-month jail sentence if she fell behind on monthly payments toward child support arrears. "The law is clear that an indefinitely suspended sentence is not a sentencing alternative and is illegal," Judge Jacqueline Shogan wrote for the court, citing the Superior Court's 2004 ruling in Commonwealth v. Joseph. "Although Joseph dealt with sentencing in a criminal matter, we conclude that its rationale is instructive in our review of a sentence imposed for civil contempt." Shogan was joined in the ruling by President Judge Susan Peikes Gantman and John Musmanno. According to Shogan's opinion, defendant Ashley Thompson entered into an agreement with the Clarion County Domestic Relations Office to pay $138 per month in child support arrears. As part of the agreement, Thompson acknowledged she was in civil contempt for failing to comply with a previous court order to make the payments. She also agreed to serve a suspended six-month sentence if she fell behind on the payments. The trial court subsequently issued an order incorporating the agreement, Shogan said. Thompson appealed, arguing that suspended sentences are not one of the enumerated punishments for contempt for noncompliance with a support order. She also argued that the order constituted a due process violation because it called for Thompson to be incarcerated without a hearing on her ability to pay and because it failed to provide a purge amount. "In addition to our conclusion that the indefinitely suspended sentence is illegal, we further find the Feb. 15, 2017, order incorporating the agreement provided no purge amount and contained no mechanism through which the trial court could consider appellant’s present ability to pay," Shogan said. "Thus, in addition to imposing an illegal sentence, the Feb. 15, 2017, order incorporating the agreement violated appellant’s right to due process." Shogan said Thompson "is correct in her assertions that a suspended sentence is not one of the enumerated punishments, and that 23 Pa.C.S. Section 4345(b) requires a purge condition." "Moreover, the statute requires the trial court to determine if the alleged contemnor has the present ability to pay; it does not contemplate future ability to pay or provide for incarceration if there is an inability to pay in the future. In other words, the agreement removes from consideration a subsequent change in circumstances," Shogan said. Shogan also vacated the trial court's denial of Thompson's petition to proceed in forma pauperis. "The trial court’s conclusion in its March 8, 2017, order, wherein it stated that because the costs incurred were due solely to appellant’s failure to make payments, was an abuse of discretion because the trial court did not hold a hearing or make any findings," Shogan said. "Moreover, the trial court’s subsequent orders denying in forma pauperis status failed to provide any rationale, and these denials were ordered without a hearing to determine the veracity of appellant’s assertion concerning her inability to pay or counsel’s statement that he was providing representation without compensation." Thompson's attorney, John P. Troese of Alexander, Troese & Seidle in Clarion, said use of the agreement his client entered into, imposing a suspended sentence for civil contempt, was "widespread" in Clarion County. Troese said the system amounted to "a debtor's prison" where people were put in jail for their inability to pay arrears and had no real recourse to challenge those determinations. (Copies of the 11-page opinion in Thompson v. Thompson, PICS No. 18-0582, are available at http://at.law.com/PICS.)
