Dimitri, P. v. Dimitri, M. ( 2022 )

J-A04033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATRICIA A. DIMITRI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS DIMITRI :
:
Appellant : No. 314 EDA 2021
Appeal from the Order Entered December 22, 2020
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2014-09013
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 4, 2022
M.D. (“Father”) appeals from the order finding him in contempt for
failing to follow a custody order. Father argues the order was not definite,
clear, and specific, he did not act volitionally or with wrongful intent, and the
counsel fees did not have evidentiary support. We conclude the trial court did
not abuse its discretion and affirm.
Father and P.D. (“Mother”) share custody of two minor children, A.D.,
born July 2004, and C.D., born August 2006. The parties have filed various
motions to modify custody and emergency motions since the original 2017
custody order. The most recent custody order was issued in February 2020,
and provided for shared physical custody, as follows:
Mother shall have physical custody of [A.D.] on every other
weekend from Friday to Monday at school and overnight on
Monday and Tuesday, and Father shall have physical
custody of [A.D.] on every other weekend from Friday to
Monday and overnight on Wednesday and Thursday.
J-A04033-22
Custody Order, filed Feb. 11, 2020, at 1-2. On December 3, 2020, Mother filed
an emergency petition for contempt. Mother alleged that she had continued
to see C.D. per the custody schedule but had not had her custody time with
A.D. since November 9, 2020. Father filed an answer claiming that Mother’s
actions were preventing her contact with A.D.
The court held a Zoom conference on the motion on December 7, 2020,
and entered an order directing Father to comply with the February 2020
custody order. The following day, December 8, 2020, the court1 entered an
order requiring Father to comply with the December 7 order, granting Mother
make-up custody time, and warning Father of possible contempt sanctions:
Father shall fully comply with the Court’s Order of December
7, 2002 or face sanctions including a finding of contempt
and possible incarceration. Mother shall also be granted
make-up time for December 7-8, 2020 and any other dates
for which Father failed to comply with the custody schedule
of 2/11/20.
Order, Dec. 8, 2020.
A week later, on December 15, 2020, Mother filed a third emergency
petition for contempt, stating she had still not had her custody time with A.D.
That same day, the court2 ordered that “[p]ending the December 22, 2020
hearing, Father and Mother shall comply with existing custody orders or face
sanctions.” Order, Dec. 15, 2020. Father filed a response asserting, among
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1The Honorable Daniel J. Clifford, III is the trial judge in this case, but the
Honorable Garrett D. Page entered the order on this emergency motion.
2The Honorable Henry S. Hilles, III entered the order on this emergency
motion.
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other things, that A.D. “is 16 ½ years old and can drive or upon leaving the
house, be picked up by friends, etc.,” Father does not prevent A.D. from being
with his Mother, and Father “has no ability to physically make [A.D.] be with
his Mother against [A.D.’s] will.” Answer to 3rd Emergency Petition for
Contempt, filed Dec. 21, 2020, at ¶ 19.
The trial court summarized the testimony at a December 22, 2020
hearing as follows:
At the Hearing, Mother testified that she had not really seen
[A.D.] since an overnight visit on November 8, 2020.18
When asked the reason why, she responded that Father was
not allowing [A.D.] to go to Mother's residence. In her
testimony, Mother recalled one phone call from [A.D.] where
he was in a closet, crying, and stating that: “I can’t come
and see you right now. Dad’s upset and I have to listen to
what he says or else he’s never going to see me again, and
he’s never going to pay for my school.”
18. . . There had been one dinner visit at a restaurant
on December 11, 2020 and a two hour time period on
the eve of the Hearing. In all, Mother calculated she
had missed 19 custodial days.
A series of text messages, admitted as Exhibits to the
record, bolstered Mother’s testimony wherein [A.D.]
indicated that Father would not speak to him ever again and
would refuse to pay for his private school tuition if he did go
to Mother’s residence. Furthermore, the text exchanges
clearly demonstrated that [A.D.] did wish to see his Mother
but, according to [A.D.], Father was refusing to let him go—
not even for Thanksgiving.22
22 . . . [A.D.] specifically sent Mother numerous texts
that stated: “dad said I can’t go.”; “he said u can’t
pick me up.”; “dad is treating [sic threatening] me and
saying that he will leave me and stop paying for my
school if I go to your house. . . I obviously want to see
you but I am not aloud (sic) .”; and “I wish I could see
u.” See Exhibit “M- 1”
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When Mother was questioned about [A.D.’s] whereabouts
the night prior to the Hearing, she stated that she saw
[A.D.] on December 21, 2020 only briefly, for about 2 hours,
before he left to go stay at the home of his girlfriend’s
parent’s. Mother stated that she attempted to text [A.D.] to
confirm where he was and told him to come back. According
to Mother, [A.D.] stated he was confused as to what “the
right thing to do” was because he had been given different
information from both Mother and Father. Moreover, [A.D.]
had witnessed Father continuously violate the Order
believing he also did not have to follow it [].
In his testimony, Father clearly was allowing [A.D.] to go
to-and-from staying overnight at his girlfriend’s parent’s
house freely, in lieu of going to Mother’s house on her
custodial time. Additionally, despite the ongoing behavioral
issues [A.D.] was having with school (he was suspended
from his current private school for one week due to drug
use, having been expelled for drug dealing at his prior
private school), Father was allowing him to decide where he
was going to be staying during the 3 or 4 nights of Mother’s
custodial time during each week.” Father argued that [A.D.]
did not want to go to Mother’s house because he felt unsafe.
This was contraindicated since [C.D.] was observing the
50/50 schedule, without any issues, and the substance of
[A.D.’s] texts to Mother.29
29 . . . Notably, Father did not object to the
authenticity of the texts or, when questioned
numerous times by the undersigned, offer any
explanation of his own on their content. . . .
Notably, when Father was pressed by the undersigned on
exactly what form of discipline he had imposed on [A.D.] for
failing to comply with the Court Order, the following
exchange occurred:
THE COURT: I want to know what form of discipline
that you’ve imposed on him for failing to comply with
the court order, [Father]. I want to know exactly the
form of discipline you’ve imposed on him for not
complying with the order.
THE WITNESS. We took away his Xbox. We took away
his phone. He was grounded.
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THE COURT: How long was the Xbox taken away for?
THE WITNESS: That was for the drugs. That was for
the drugs.
THE COURT. I want to know exactly what form of
discipline you imposed on [A.D.] for not complying
with this order and when and for what length of time
since November 9th.
THE WITNESS: I’ve been trying to reason with
him. I didn’t put any discipline. What am I
supposed to do? [Emphasis added]
It was clear that Father had no problem punishing [A.D.] for
his drug related issues, but that he chose not to punish him
for failing to comply with the Court Order to see his Mother.
In addition, as Father’s testimony continued, it became
abundantly clear that Father had no reservation about
“turfing” responsibility for [A.D.’s] care and control on
Mother’s custodial days to somebody else, [A.D.’s]
girlfriend’s mother, despite knowing very little firsthand
about that household.
In short, just since December 7, 2020, Father testified that
he had essentially permitted five overnights at [A.D.’s]
girlfriend’s parent’s house, while Mother did not have one.
Father simply did not have any interest in controlling
[A.D.’s] behavior under the Agreed Order and appeared
more focused instead on building his case on the custody
modification proceedings he has pending against Mother.
In addition, during the course of the hearing, it was
disclosed that Father had once again scheduled therapy for
the children with the parent’s co-parenting counselor,
instead of the very specific instructions in the undersigned’s
July 20, 2020 Order to resume with Mr. Matika, which the
Court found to be a “work-around” and manipulative.
Trial Court Opinion, filed Feb. 26, 2021, at 5-8 (“1925(a) Op.”) (footnotes
citing record omitted).
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The court found Father in contempt of the December 7 and December 8
orders and imposed a sanction of payment of counsel fees and filing costs of
$4,396.50, and directed that Father relinquish A.D. to Mother “forthwith.” It
further ordered that Mother would have custody of both Children until January
11, 2021, except for time during the Christmas holiday. The order provided
that if Father did not comply, he would be sanctioned $500 per day until he
complied and directed him to surrender himself to the Sheriff’s Office for
additional proceedings to be conducted on December 30. Father complied with
December 22 order and the court cancelled the December 30 hearing.3 Father
filed a timely notice of appeal.
Father raises the following issues:
1. May a party be held in contempt of a custody order which
does not specify the date on which custody is to take place?
2. May a party be held in contempt of an order which
requires him to control a 17 year old boy who is larger than
he is?
3. May a party be assessed counsel fees where there was
no proof offered in support of the necessity or amount of
counsel fees?
Father’s Br. at 6.4
In first two issues, Father challenges the finding of contempt. He argues
the order did not make clear which parent had custody when and therefore
____________________________________________
3 The trial court also sanctioned Father in the divorce/equitable distribution
case between the parties. Father appealed that order, which we address in a
separate memorandum filed at docket number 313 EDA 2021.
4 Mother did not file an appellate brief.
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there was doubt in Father’s mind as to when Mother’s custody period began.
He argues that the orders referred back to the February 2020 order, which
provided custody on an alternating week schedule. Father maintains there was
no way to tell from the order whose custodial week was when and therefore
claims Mother failed to show the order was sufficiently clear.
Father next argues that he did not act volitionally or with wrongful
intent. He claims he cannot control the acts of his then nearly 17-year-old son
and argues that A.D. “simply visited his girlfriend” rather than his Mother or
Father. He points out that the trial court thought Father should have imposed
discipline, as Father did when A.D. was selling drugs, but argues that the level
of offense was not the same. Father claims the transcript shows the court “was
not willing to accept anything [Father] had to say, and just did not like his
parenting style.” Id. at 17. He claims the court ignored that Mother also could
not control A.D.
We review an order holding a party in contempt for an abuse of
discretion. Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009). “The
court abuses its discretion if it misapplies the law or exercises its discretion in
a manner lacking reason.” Id. (citation omitted). “Each court is the exclusive
judge of contempts against its process. The contempt power is essential to
the preservation of the court’s authority and prevents the administration of
justice from falling into disrepute.” Habjan v. Habjan, 73 A.3d 630, 637
(Pa.Super. 2013) (quoting Langendorfer v. Spearman, 797 A.2d 303, 307
(Pa.Super. 2002)).
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“To sustain a finding of civil contempt, the complainant must prove
certain distinct elements: (1) that the contemnor had notice of the specific
order or decree which he is alleged to have disobeyed; (2) that the act
constituting the contemnor’s violation was volitional; and (3) that the
contemnor acted with wrongful intent.” Lachat v. Hinchcliffe, 769 A.2d 481,
489 (Pa.Super. 2001). To be punished for the contempt, the order must have
been ”definite, clear, specific – leaving no doubt or uncertainty in the mind of
the contemnor of the prohibited conduct.” Id. at 488-89 (quoting Marian
Shop, Inc. v. Baird, 670 A.2d 671, 673 (Pa.Super. 1996)) (emphasis
removed).
Here, the orders were definite, clear, specific, and left no doubt or
uncertainty as to the conduct required. The December 7 order directed
compliance with the February 2020 order “forthwith.” When Father did not
bring A.D. on December 7, the court again ordered him to do so on December
8. And, when he again did not comply, the court issued a third order requiring
Father to resume the custody schedule. That the February 2020 custody order
provided for alternating weeks does not make it indefinite. Indeed, December
7, 2020, and December 8, 2020, were a Monday and a Tuesday, and the
February 2020 order explicitly gave Mother overnight custody on Mondays and
Tuesdays.
Father next contends that he did not act volitionally and with wrongful
intent. The trial court found that Mother established by a preponderance of
the evidence that Father acted volitionally or with wrongful intent. It noted
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there had been three separate orders since December 7, 2020, directing
Father to comply and he repeatedly chose not to. He also chose not to
discipline A.D. for A.D.’s alleged refusal to follow the schedule, yet he
permitted A.D. to spend nights at his girlfriend’s house. Further, the court
credited Mother’s testimony and the texts from A.D. regarding Father’s intent
not to comply. The court noted that Father attempted to excuse his behavior,
claiming it was not his fault, but then testified he did not do anything when
A.D. did not comply with the order. It concluded there was no justification for
Father’s noncompliance. The court did not find Father’s testimony that A.D.
did not feel safe at Mother’s house credible, citing Mother’s testimony and the
text messages. The court found that “it was clear that [A.D.] was afraid of
Father and his threats of retaliation (and that he truly wanted to see his
Mother).” 1925(a) Op. at 16. It further noted that Father’s testimony “was
belied by the fact that the parties’ other child . . . was observing the 50/50
schedule without any issues or concerns over safety.” Id. The record supports
the trial court’s findings and it did not abuse its discretion in finding Father
acted volitionally and with wrongful intent.
In his final issue, Father claims Mother failed to offer proof of counsel
fees. He claims that counsel fees must be proven and no proof was offered.
He argues the court awarded fees without holding a hearing, accepted the
allegations of the petition for counsel fees, and relied on an affidavit that was
not of record. Father states counsel sent the affidavit to the court and to Father
but did not file it with the trial court.
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Father failed to object at the hearing and failed to raise the issue in the
Rule 1925(b) statement and has therefore waived the claim. See Pa.R.A.P.
302(a) (“[i]ssues not raised in the trial court are waived and cannot be raised
for the first time on appeal”); Pa.R.A.P. 1925(b)(vii) (“[i]ssues not included in
the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived”). At the hearing on the contempt petition, the
court asked Mother’s counsel if he had a certification of counsel fees. N.T.,
12/22/2020, at 73. Counsel stated he had it with him and would email it. Id.
at 73-74. Counsel stated the bill was itemized and pertained solely to the
contempt petitions. Id. at 74. When issuing its ruling on the record, the court
stated Mother was entitled to reimbursement of counsel fees and the court
would review the fees following the proceedings and issue an amount. Id.
Father did not object, to either relying on the certification, although it had not
been admitted, or to the lack of a hearing on fees.
Further, in his Rule 1925(b) statement, Father alleged:
1. The attorneys fees were excessive, punitive and
unwarranted and not related to any actual attorneys fees
and unrelated to the facts presented in the petition.
2. The remedy is overreaching in not being related to the
alleged violation.
3. The remedy is overreaching in not being supported by
the proven facts.
Pa.R.A.P. 1925(b) Statement.
Due to the vagueness of Father’s Rule 1925(b) statement, the court
incorrectly “guessed” at the issues Father was trying to raise. See 1925(a)
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Op. at 19 (noting the issue that the fees were excessive, punitive, and
unwarranted was “‘vague’ and “[i]f it had to guess, Father may be questioning
the sanction of attorney’s fees because Father routinely argued . . . that
Mother was to blame for [A.D.’s] refusal to see Mother on her custodial days”);
id. at 21 (finding issue that remedy is overreaching was “vague” and “[i]f the
court [was] forced to guess, Father may be arguing that the Order directing
him to report to the court for sentencing if he did not comply, was
overreaching”). The trial court therefore did not address Father’s argument
that the award of attorney’s fees was not proper because the support was not
admitted into the record. Father’s issues do not mention that the certification
and affidavit were not part of the record or that the court failed to hold a
hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/04/2022
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