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A Support Contempt Case Petitioners Can Love.

January 20, 2025

Every once in a while you see an appellate case that doesn’t seem to follow the law. Batterman v. Santos, decided by the Superior Court appears to fit that bill but then there are some references to “undeveloped” arguments suggesting the defendant may have waived his claim to have been unjustly incarcerated for non-support.

The facts in the case are pretty common. A parent who was found to have a $26,000 earning capacity claims it’s beyond his range and he can’t pay. The result is that he has over $10,000 in arrears on a $674 a month order. He’s a frequent flyer in contempt court and like many such defendants he pays nothing between hearings and then hits up his parents or friends and family when the judge says: “Pay or the sheriff will take you into custody for 30 days.”

The purge order from the Philadelphia judge on this flight was significant: $5,000. This was the second time Mr. Batterman was held in contempt within four months. Each time the order came down, he ponied up the $5,000 aided by his loving parents. But on this order, he appealed.

The defense to the contempt was the obligor had no assets, no income and no ability to earn his capacity because of his health. There is no indication he had filed any petition to re-assess his earning capacity since the Superior Court fixed that amount by its ruling of August 2021 (Batterman v. Batterman, 1258 EDA 2020).

Mr. Batterman notes that he would be in jail but for the fact that his parents pay the $5,000 purge amounts but he adds that he had no ability to pay that amount and his parents have no obligation to support his two kids.

The Superior Court cites the right standard for these contempts. Under Habjan v. Habjan 83 A.3d 630, 637 (Pa.S. 2013) the contempt is shown where the timely payments are not rendered; that non payment was volitional; and that the contemnor acted with wrongful intent. The crux of the fight here were the last two conditions.

The trial court in Philadelphia County appears to have employed the record of parents paying the purge order as evidence the non payment was volitional. Here, the Superior Court correctly disagrees. The parents have no support obligation and their advance of funds to avoid seeing their child go to jail is not relevant to volitional non-payment or wrongful intent. Gifts or loans of purge amounts or even to make regular payments are not income under 23 Pa.C.S. 4302

But then the court shifts. Gifts or loans are not income for purposes of support but they can demonstrate present ability to pay. The defendant acknowledged to the court that his parents help support him. But here the trial and appellate courts miss the distinction that merits the difference. On the day that contempt was found in January 2024, if the defendant possessed cash or equivalents of $5,000, the imposition of a $5,000 purge amount would have been perfectly legal, regardless of where that asset came from. But, 42 Pa C.S. 5108 makes clear that once a defendant tenders his “estate” to his creditors, he cannot be incarcerated for civil contempt. This law embodies pieces of Pennsylvania’s 1790 Constitution. See 4 Am. Journal Legal History p. 205 (1960); 14 Drexel Law Review p. 1 (2022).  The trial court opinion notes that there is a history of money flowing through his parents and into his accounts. But there is no finding that the defendant had money in his possession at or about the time of the contempt hearing. That is central in any incarceration. In fact, a court must be convinced beyond a reasonable doubt that the defendant has the ability to pay the purge amount before he can be taken into custody. Barrett v. Barrett, 368 A.2d 616 (Pa.S. 1979).

The defendant also provided the novel defense that his physician said he should not be incarcerated. The appellate court dismissed that assertion as undeveloped for disposition but it would be strange if the medical community should be in a position to assert authority over trial court judges in non-support cases.

The case often incorporates some “Wizard of Oz” aspects. Our impecunious defendant is reported to have testified that his parents loan him $3,000 a month for rent and directly pay his utilities, groceries and health insurance (including the childrens). In 2021 he was able to find $15,000 for a custody evaluation and in 2023 he arranged for a $10,000 mental health assessment. It is apparent that money is “around” but the law seems clear that a purge order needs to focus on assets in hand when the contempt is found in contrast to funds that were available last month or last year.

The case is found at 469 EDA 2024 and was decided on January 17, 2025. Its different than the seven appeals involving the same parties decided two days earlier, many of which address whether the litigants are paupers. The dockets appear to show 19 related appellate cases in 2023 and 2024 arising from proceedings in Montgomery and Philadelphia counties.