Weaver, J. v. Huss, A. ( 2016 )

J-S54007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES P. WEAVER, JR. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AMY NEAL HUSS,
Appellant No. 1142 WDA 2015
Appeal from the Order Entered June 25, 2015
In the Court of Common Pleas of Washington County
Civil Division at No(s): No. 2010-10883
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 09, 2016
Amy Neal Huss (Mother) appeals from the trial court’s June 25, 2015
order finding her in contempt with regard to eight out of nine contempt
petitions filed by James P. Weaver, Jr. (Father), relating to her ongoing
failure to comply with numerous court orders that arose in the context of
litigation about custody of the parties’ child, A.J.W. (Child) (born in
November of 2010). As a sanction against Mother, the court awarded Father
$10,960 in reimbursement for counsel fees. After review, we affirm.
“When considering an appeal from an [o]rder holding a party in
contempt for failure to comply with a court [o]rder, our scope of
review is narrow: we will reverse only upon a showing the court
abused its discretion.” Harcar v. Harcar, 982 A.2d 1230, 1234
(Pa. Super. 2009) (quoting Hopkins v. Byes, 954 A.2d 654,
655 (Pa. Super. 2008)). We also must consider that:
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
J-S54007-16
prevents the administration of justice from falling
into disrepute. When reviewing an appeal from a
contempt order, the appellate court must place great
reliance upon the discretion of the trial judge.
Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa. Super.
2002) (quoting Garr v. Peters, 773 A.2d 183, 189 (Pa. Super.
2001)). “The court abuses its discretion if it misapplies the law
or exercises its discretion in a manner lacking reason.” Godfrey
v. Godfrey, 894 A.2d 776, 780 (Pa. Super. 2006). Additionally,
“[i]n proceedings for civil contempt of court, the general rule is
that the burden of proof rests with the complaining party to
demonstrate, by [a] preponderance of the evidence that the
defendant is in noncompliance with a court order.” Lachat v.
Hinchliffe, 769 A.2d 481, 488 (Pa. Super. 2001). However, a
mere showing of noncompliance with a court order, or even
misconduct, is never sufficient alone to prove civil contempt.”
Id. Moreover, we recognize that:
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.
Stahl v. Redcay, 897 A.2d 478, 489 (Pa. Super. 2006).
Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013).
In her brief to this Court on appeal, Mother lists the following issues
for our review:
I. Did the trial court commit an abuse of discretion by finding
Mother in civil contempt multiple times for violations of two (2)
[o]rders of [c]ourt when there were no purge conditions stated
or findings that Mother violated clear and specific provisions of
the [o]rders and that Mother acted with wrongful intent?
II. Whether the trial court committed an abuse of discretion in
awarding Father $10,960 in counsel fees for Mother’s civil
contempt without making a determination as to the
-2-
J-S54007-16
reasonableness of the fees as it related to the various
[c]ontempt [m]otions?
III. Whether the trial court committed an abuse of discretion in
awarding counsel fees years after the complained of
contemptuous behavior?
Mother’s brief at 4.1
Our review of this matter has encompassed the certified record, the
parties’ briefs, the pertinent law, and the Honorable John F. DiSalle’s
opinion, dated January 6, 2016. Having concluded that Judge DiSalle’s
opinion properly disposes of the issues Mother raises on appeal, we adopt
Judge DiSalle’s opinion and affirm the June 25, 2015 order for the reasons
stated therein.
Order affirmed.
____________________________________________
1
In the context of our review of this case, we note that Mother alleges that
the court never stated whether it found Mother in civil or criminal contempt,
that the court did not state whether the counsel fee award was a sanction or
was intended as a reimbursement to Father for costs of litigation, and that
the court failed to explain why its June 25, 2015 order finding contempt was
delayed by fifteen months after the custody trial was concluded in March of
2014. We suggest that Mother review the court’s opinion and particularly
note that the court identifies its actions as one in civil contempt. Trial
Court’s Opinion, 1/6/16, at 10. The court also explains that the award is a
“reimbursement for counsel fees as a sanction.” Id. at 1. Additionally, the
court relates that “by agreement of the parties, court action on these
contempt petitions was ultimately deferred until the conclusion of the
custody hearings.” Id. at 1-2.
-3-
J-S54007-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
-4-
r\-t-to Jr., ) 1 • .....'- __ __/ • ·'·· - •• , .. c-;"- •• •• \ •
) L:tt~ ,
Plaintiff, )
) . s. ``-+J~ «tS o 1 . .
vs. ) No.2010-10883
)
AMY NEAL HUSS, )
)
Defendant. )
QPINION
This is an appeal from the order of the trial court dated June 25, 2015, disposing of.the
nine (9) separate contempt petitions filed by Father, plaintiff James P. Weaver ("Father''), against
Mother, defendant Amy Neal Huss ("Mother), over the course of nearly four years of litigation
arising out of the custody of the parties Minor Child A.J.W., now age five (born November 3,
20 I 0). The trial court made findings of contempt against Mother in all but one of the nine (9)
contempt petitions and awarded Father $10,960 in reimbursement for counsel fees as a sanction.
From this order, Mother filed a timely appeal to the Superior Court of Pennsylvania.
Procedmal History:
These nine (9) petitions for contempt were brought by Father over the course of the
lengthy custody litigation, alleging Mother's willful-disobedience of the interim custody orders
dated January 6, 2011 and March 10> 201-1, and the orders dated March 1, 2012 and April 15>
2013. Father alleges Mother's contempt of the orders for missed visits, interference with visits,
failure to complete the mandatory parenting program, and failure to provide notice of theChild's
medical and therapy appointments. Although in some instances, a hearing date was scheduled
upon the initial presentation of the petitions, by agreement of the parties, court action on these
1
contempt petitions was ultimately deferred until the conclusion of the custody hearings. Upon
the close of the record of the custody trial de nova on March 14, 2014, Father's counsel made a
brief summation of the contempt petitions, offered the petitions into evidence as exhibits, and
referred to testimony previously presented over the course of the custody hearings. Father also
submitted documentation of attorney's fees he had incurred in the litigation of this custody
action, in excess of $91 ,000.1
Mother was afforded ample opportunity to be heard and present a defense to the _contempt
petitions. Mother's prior counsel had filed written answers to some of the petitions
contemporaneous with their presentation. At the close of the proceedings on March 14, 2014,
the parties then suggested and the trial court agreed to allow Mother's new counsel to submit
written responses to the contempt petitions within thirty (30) days, and that the petitions would
be decided without further testimony. Mother did file prose written responses to the remaining
contempt petitions. Accordingly, the trial court issued its decision on the contempt petitions
based on the record before it, the petitions and the responses.
In reviewing these cont~mpt petitions, the trial court not~d. that its contempt power is
"essential to-the preservation of the court's authority and prevents the administration of justice
from falling into disrepute." Garr v. Peters, 773 A2d 183, 189 (Pa.Super. 2001).2
As set forth below, there was no allegation or evidence presented that Mother did not
have the present ability to comply with the trial court's orders, with one exception. With respect
to Father's contempt petition filed March 24, 2011, Mother filed a written response claiming that
she did not receive the interim custody order dated March 10, 2011 until March 15, 2011, and
that she did not then have adequate transportation to comply with the order. The trial court took
.Mother's explanation into account, as stated, supra. Otherwise, there was no evidence or
I
Father's Exhibit 28,
2Quoting Marian Shop, Inc. v. Baird, 448 Pa.Super. 52, 670 A.2d 671, 673 (1996) (citing Fisher v. Pace, 336 U.S.
155, 69 S. Ct. 425, 93 L. Ed. 569 (1949).
2
argument presented suggesting that Mother suffered from some disability or obstacle which
caused or contributed to her non-compliance ~th the orders, resulting in missed visits,
...
interference with visits, fail~e to complete the mandatory parenting program, and failure to
provide notice of medical and therapy appointments. Thus, the trial court was convinced beyond
a reasonable doubt, from the totality of the evidence presented, that Mother had the present
ability to comply with all of the provisions of the orders in question, had she chosen to do so.
Furthermore, the trial court found t~at Father had met his burden of ~roof, by a preponderance of
the evidence that Mother had failed to comply and had violated the clear provisions of the
custody orders and related orders in question.
Factual History:
1) Contempt Petition filed February 10, 2011:3
This petition was filed when A.J.W. was three (3) months old, and accused Mother of
being in contempt of the trial court's January 6, 2011 order by interfering with Father's custody
at her home, even though that order specifically required that Mother "shall not interfere with
[Father's] visitation and shall allow [Father] with private time with child." Mother filed a
written response to the petition generally denying all of the allegations in the petition. Following
a hearing before the master Dawn Haber, Child Custody Conference Officer, Mother was found-
in contempt of the order of January 6, 2011. 4 From the testimony presented at the custody trial,
the trial court found that Mother did willfully disrupt Father's custody time by interfering and
refusing to allow Father reasonable visitation with the Child.5 Based on its findings, the trial
court found Mother in contempt and awarded Father counsel fees in the amount of $1, 100.00.
3
Father's Exhibit 20.
4 1 11 of the Recommended Order dated March 10, 2011.
5
See 1s (1), (8), (13) and (16) of the Opinion & Order dated March 25, 2014.
3
2) Contempt Petition filed March 24, 2011:6
This petition sought a finding of contempt for Mother's failure to comply with the trial
court's March 10, 2011 custody order by continuing to withhold the Child from Father> despite
having been found in contempt and been given the opportunity to purge the contempt by
complying with the then current order.7 The petition further alleged that Mother refused to allow
Father to have custody time unless he provided all of the transportation for the Child, despite the
clear language of the order which provided that the parties must share transportation,8 Father
sought make-up time and an additional $3,395 in counsel fees.
Mother filed a written response to the petition generally denying all of the allegations, but
also claiming that Mother did not receive the order in question until March 15, 2011, and that
Mother did not have adequate transportation to comply with the order,
The trial court refused to enter any finding of contempt regarding the March 15, 2011
order due to the delay in notice. However, the trial court found that Mother continued to be in
contempt of the January 6, 2011 order, and awarded additional counsel fees in the amount of
$1,700. At that point in the proceedings, having handing down the final custody order, the trial
court declined to award any make-up custody time.
3) Contempt Petition filed November 17, 2011 :9
This petition asked the trial court to find Mother in contempt for failing to complete the
mandatory parenting program known as the P.A.C.E.10 program, which Mother became obligated
to do upon her filing of the request for a custody trial de nova, as required by local rule. Mother.
6
Father's Exhibit 21.
7
See Note 4 above.
8
9
t 7 of the Recommended Order dated March 10, 2011.
Father's Exhibit 22.
10
This is an acronym for the mandatory parenting program for custody litigants then being utilized under
Washington County local rule L-1915.4, entitled Parenting And Communicating Effectively, a program offered by
Southwest Pennsylvania Human Services, Inc. (the SPHS Care Center), supporting the conflicted family facing
divorce, custody and/or separation.
4
filed a written response to this petition generally denying the allegations of contempt, and
offering various excuses for her failure to timely complete the program. Father had completed
his required sessions of the program by April 13, 2011. Despite several court orders to do so,
Mother did not compete her required sessions for the PACE program until September 13, 2013,
after two of the five days of the final custody trial were 'completed. Despite Mother's blatant
disregard of the local rule and the trial court's order and her failure to heed her obligation to
complete the program in a timely fashion, by that point in the proceedings, the trial court
declined to issue any sanction against Mother for her obvious contempt.
4) Contempt Petition filedNovember 18, 2011:11
As set forth, supra, this is the first of several contempt petitions brought alleging
Mother's contempt of the custody order and seeking sanctions for her failure to consult Father
with respect to the Child's medical care and for failing to notify Father of health care
appointments or for failing to provide notice until the last minute, so that Father would be unable
to attend the Child's appointment. Mother filed a response to this petition, generally denying the
allegations·and claiming that any instance where Father had been given short notice of the
Child's medical appointments was the result of the medical issue involved at the time, and not
the result of any willful di.sobedience of the custody order. In her response, Mother further
alleged that Father's petition Is 11a deliberate attempt to prejudice this Court prior to the De Novo
hearing.''12
From the testimony elicited during the five days of custody hearings, and as set forth in
these contempt petitions, throughout the history of the case, Mother has engaged in a willful
course of conduct designed to restrict Father's access to the Child's health care providers by her
unilateral actions with respect to the Child's medical and therapeutic needs. Mother repeatedly
u This contempt petition contains a notice of presentation for October 6, 2011, a scheduling order for a hearing
signed by Judge Melograne on November 17, 2011, but was docketed on November 18, 2011.
12
Mother's response at i 14.
5
has failed to notify Father of medical and therapeutic appointments made for the Child, or would
inform Father within hours of the appointment so that his ability to attend would be impaired.
· This is a running theme throughout the testimony of the trial de novo and throughout these
petitions. As the trial court noted subsequent to the Final Custody order, following the two days
of hearings on Father's petition for special relief, November 21st and December 19th of 2014,
Mother continues to refuse to accept the reports of medical providers that the Child is not autistic
or developmentally delayed, and continues to assert to his pre-school administrators, teachers
and others that the Child is so. The trial court found Mother's behavior in this regard to be
irrational and detrimental to the welfare of the Child. The trial court further found that Mother's
behavior regarding scheduling appointments and attempting to convince health care
professionals and others that the Child is autistic or developmentally challenged is an element of
her course of conduct designed to impair Father's custody rights and to circumvent the Child's
progress in his preschool, which Father selected and to which Mother objects.
Based on the foregoing, the trial court found Mother in willful contempt of the custody
order and awarded counsel fees to Father in the amount of $660.00 with respect to this petition,
as requested.
5) Contempt Petiti.on filed February 2, 2012: 13
In this petition Father asked the trial court to sanction Mother for scheduling medical
appointments for the Child on December 23, 2011, January 19, 2012, and January 24, 2012
without adequate notice or without anynotice to Father as required under the custody order of
March 10, 2011, paragraph 8. During the appointment on December 23, 2011, Mother informed
the doctor that the Child is experiencing developmental delays, and requested that the Child be
assessed for these issues, over Father's objection. Mother filed a response to this petition
n Father's Exhibit 27,
6
generally denying the allegations. Based on the pleadings, and the testimony elicited during the
five days of custody hearings, the trial court found Mother in contempt of paragraph 8 of the
March 10, 2011 custody order by willfully failing to comply with the requirement that she
consult with Father regarding the medical care of the Child, and by failing to provide adequate
notice to Father of appointments she scheduled so that both parents could attend.
'the trial court found Mother in contempt of the order and awarded counsel fees to Father
in the amount of$1,000.00 with respect to this petition.
6) Contempt Petition filed March l , 2012:14
In this petition Father asked for sanctions for Mother's failure to notify him of an
appointment at the Children's Hospital Development Unit on February 13, 2012, as both parties
are required to do under the March 10, 2011 custody order, paragraph 8. Mother filed an answer
to the petition stating general denials to the allegations. Although the order in question required
that "the parent scheduling medical appointments shall notify the other on the date the
appointment is made and shall attempt to schedule the appointment so that both parents can
attend," and although this requirement was reiterated by the trial court in its order of February 2,
2012, it is clear that Mother did neither. As noted above, Mother's failure to notify Father of
medical and therapy appointments shy had made for the Child was a running th~me throughout
the testimony of the custody trial de novo.
On these facts, the trial court found Mother in contempt of the order and awarded counsel
fees to Father in the amount of $1 ,000 .00 with respect to this petition.
7) Second Contempt Petition filed March l, 2012:15
In this petition Father alleged that Mother enrolled the Child in "speech classes" without
consulting Father and without allowing Father to participate in the decision or in the therapy.
14
Father's Exhibit 23.
15
Father's Exhibit 24.
7
Mother responded in writing by stating general denials to the allegations. As stated previously,
although the custody order in effect at that time required that 'The parent scheduling medical
appointments shall notify the other on the date the appointment is made and shall attempt to
schedule the appointment so that both parents can attend," it is clear from the pleadings and the
testimony heard by the trial court that Mother did neither. Again, as noted above, Mother's
unilateral actions with respect to the Child's medical and therapeutic treatment and her failure to
notify Father of appointments made were a running theme throughout the testimony of the trial
de nova.
Again, based on the pleadings arid the testimony, the trial court found Mother in willful
contempt of the order and awarded counsel fees to Father in the amount of $1,000.00 with
respect to this petition.
8) Contempt Petition filed April 18, 2012:16
In this petition Father sought reasonable counsel fees for Mother's contempt of the
custody order dated March 10, 2011, and the two more recent court orders of March l, 2012 by
continuing to act unilaterally with respect to the Child's medical and therapy appointments, by
failing to provide adequate notice to Father of the appointments made, by scheduling medical
and therapy appointments during Father's custody timeor demanding make-up time for
appointments she scheduled during her own custody time, and for engaging in "absurd, harmful,
bizarre, obdurate, and vexatious conduct.''17 As a result of Mother's obdurate and vexatious
behavior and her irrational interpretation of the court orders, the petition further sought
clarification of the order in an effort to curtail the conflict going forward. Mother filed a written
response to the petition on April 14, 2014, which stated only general denials to the allegations set
forth in the petition.
16
Father's Exhibit 25.
17
Id, at ,r 53.
8
Based on the testimony elicited during the five days of custody hearings and on the
pleadings, including the exhibits attached to Father's petition, the trial court found Mother in
contempt of the orders of'March 10, 2011, and two dated March 1, 2012, and awarded counsel
fees to Father in the amount of $2,000.00 with respect to this petition .
. 9) Contempt Petition filed December 3, 2013:18
In this petition Father sought an award of counsel fees due to Mother's contempt of the
order of court dated April 15, 2013, by attempting to subject the Child to lab work r~commended
by a Dr. Faber for treatment of autism. Despite the clear provision of the court order, and despite
assurances from other medical professionals that the Child is not developmentally delayed, or at
best, is no longer developmentally delayed, Mother attempted to subject the Child to these lab
tests on October 31, 2013, and on November 4, 2013, as documented in the exhibits to the
petition. Mother also engaged in other inappropriate behavior contrary to the Child's best
interests, as documented in the exhibits to the petition, including an incident at Washington
Hospital. Mother brought the Child to emergency room at Washington Hospital alleging that he
was not breatlyng and unresponsive (which was not accurate), but refused to bring the Child into
the exam room arid made multiple requests for additional testing.
Mother filed a response to the petition, generally denying the allegations and accusing
Father of hindering the medical evaluations of the Child by not cooperating and by threatening
the health care professionals with legal action,
As noted by the trial court in its factual findings of the Custody Order dated March 25,
2014, Mother continues to claim that the Child has special needs, particularly "autistic features,"
and that the Child has developmental delays, although the medical evidence shows the
16
Father's Exhibit 26.
9
19
contrary. The trial court noted this again after hearings conducted on November 21st and
December 19th of 2014, s~heduled on Father's Motion for special relief In its order granting
special relief dated December 19, 2014, filed on December 24, 2014, the trial found that Mother
was. not acting in the Child's best interests by refusing to accept the reports ofm.edical providers
that. the Child is not autistic or developmentally delayed, but continuing to assert to his pre~
school administrators, teachers and others that be is so.20 The order entered December 24, 2014
also ordered Mother.to cease and desist from telling anyone that the Child is autistic or
developmentally delayed. The trial court further found that Mother's irrational behavior in this
regard is detrimental to the welfare of the Child, In addition, based on the testimony of the
Child's pediatrician, Dr. Foley, the trial court found that Mother's behavior interferes with the
Child's health care, particularly her inaccurate reporting of the Child's behaviors and symptoms.
Although some of this testimony was heard subsequent to the custody trial and the contempt
petitions which are currently before the Court, this evidence confirms Mother's steadfast refusal
to abide by the trial court's orders and to act in the Child's best interests.
Based on the foregoing, including the exhibits attached to Father's petition, the trial court
found Mother in willful contempt of the order dated April 15, 2013, and awarded counsel fees to
Father in the amount of $2,500.00 with respect to this petition.
!&gal Analysis:
The award of attorney's fees is a proper exercise of the trial court's civil contempt power.
"Because an award of counsel fees is 'intended to reimburse an innocent litigant for expenses
made necessary by the conduct ofan opponent,' it is 'coercive and compensatory, and not·
punitive."' Luminella v. Marcocci, 814 A.2d 711, 719 (Pa.Super. 2002).
19
Opinion & Order dated March 25, 2014, ~ 10.
20
Mother filed an appeal of this order to the Superior Court, docketed at number 170 WDA 2015. By order dated
October 29, 2015, the Superior Court affirmed the trial court's order. On November 30, 2015, Mother filed a
Petition for Allowance of appeal to the Supreme Court of Pennsylvania which is pending at docket number 465
WAL2015.
10
While the amount of attorneys' fees awarded by the trial court herein may seem merely a
token amount in light of the extensive fees expended by Father over the course of this litigation,
and undoubtedly similar fees spent by Mother, the ~al court found it important to issue these
sanctions against Mother, to partially compensate Father for expenses made necessary by her
conduct and to coerce her to comply with the court's orders hereafter. As stated, there was no
question that Mother was not compliant with the trial court's orders. Clearly, the record
supported the trial court's finding that Father had met his burden of proof, by a preponderance of
the evidence, that Mother had failed to comply and has violated the clear provisions of the
custody orders and related orders in question.
Furthermore, Mother did not aver that she unable to comply with the trial courts orders,
except with respect to Father's contempt petition filed March 24, 2011, where she claimed that
she did not receive the order timely and that she did not then have adequate transportation to
comply with the order, as noted above. Other than this instance, there was no reason offered to
explain Mother's refusal to abide by the orders, and the trial court found that the totality of the ,
evidence presented established, beyond a reasonable doubt, that Mother had the present ability to
comply with all of the provisions of the orders in question, had she chosen to do so. Under the
circumstances, the trial court was compelled to find contempt and to award counsel fees.
A court may exercise its civil contempt power to. enforce compliance with its
orders for the benefit of the party in whose favor the order runs but not to inflict
punishment. A party must have violated a court order to be found in civil
contempt. The complaining party has the burden of proving by a preponderance
of the evidence that a party violated a court order , , .. To impose civil contempt
the trial court must be convinced beyond a reasonable doubt from the totality of
the evidence presented that the contemnor has the present ability to comply with
the order.
Garr v. Peters, supra, 773 A.2d at 189 (Pa.Super. 2001), citing Sinaiko v. Sinaiko, 664 A.2d
1005, 1009-10 (Pa.Super, 1995).
11
Based on the foregoing, the trial court respectfully submits that the order appealed from
dated June 25, 2015, be affirmed, and that the appeal be dismissed.
Date
12