T.K. v. J.D. ( 2019 )

J-A25017-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.K., : IN THE SUPERIOR COURT OF
Appellee : PENNSYLVANIA
:
v. :
:
J.D. & O.C., :
Appellants :
:
: No. 3283 EDA 2017
Appeal from the Order September 11, 2017
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 15-80483,
15-80485
BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY PANELLA, J.: FILED MAY 23, 2019
Appellants, J.D. and O.C., the maternal grandparents (“Grandparents”)
of two minor grandchildren (“Children”), appeal from the order modifying the
stipulation negotiated by counsel to resolve a Protection from Abuse petition
(“PFA”) filed by Appellee, T.K. (“Father”), on behalf of himself and the
Children. Grandparents claim they were denied due process by the trial
court’s decision to modify the negotiated stipulation without an additional
hearing. We affirm.
J-A25017-18
This is one of three inter-related companion appeals with a long,
complex, contentious, and convoluted history.1 The parties, and the
Children’s mother (“Mother”) have apparently been involved in some form of
custody dispute since at least 2011. We derive the facts and procedural
history of this case from the trial court’s opinion.2
Briefly summarized, Father is a citizen of the United States. Mother is
a native of Argentina.3 Grandparents are also from Argentina. The marriage
of Father and Mother resulted in two children, M.A.K. (born in 2009) (“Son”)
and T.M.K. (born in 2010) (“Daughter”). For a time, Grandparents lived with
Father, Mother, and the Children.
Father has been granted primary physical custody of the Children.
Pertinent to this appeal, Father filed for a Protection from Abuse order,
alleging, inter alia, that Grandparents, as well as Mother, were violent toward
the Children. Grandparents denied that they had ever abused the Children.
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1At 3321 EDA 2017, Mother appealed from her conviction for indirect criminal
contempt for violating a PFA order after concluding her visit with the Children
under an existing custody order. At 3499 EDA 2017, Father appealed from an
order finding him in contempt of the custody order and directing him to pay
$1,000 in counsel fees to Mother.
2 Among numerous procedural lapses, counsel for Grandparents fails to
include the trial court’s opinion, or the Grandparents’ statement of errors in
their appellate brief. See Pa.R.A.P. 2111. The brief cites, but omits,
Appendices A, B, C, and D. See Grandparents’ Brief, at 3.
3 Mother claims, without dispute, that she now has dual citizenship (both
Argentina and the United States).
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Father testified that he confronted Mother about her violent behavior
toward Daughter during a vacation trip to Colorado. Father alleged that in
response, Mother claimed that corporal punishment was justified because the
Children were not well-behaved.
She also attacked Father, banging his head against a wall, kicking him
repeatedly in the testicles, biting his hand, trying to scratch his eyes, and
choking him, in the presence of the Children. See id. at 3-4. Father called
the police. Mother was arrested. Eventually, a Colorado jury convicted Mother
of assault and harassment.
Notably, Mother was also charged with, but eventually acquitted of, child
abuse. Under Colorado law, violence against a spouse in front of children
constitutes child abuse. See, e.g., In re Marriage of Yates, 148 P.3d 304,
308 (Colo. App. 2006) (noting that mother’s conviction for misdemeanor child
abuse was based on menacing father with a knife in front of children).
Therefore, while the child abuse charges were pending, Mother’s access to her
children was restricted by the Colorado court pending action by the court
which had jurisdiction over custody, the Delaware County Court of Common
Pleas. The Delaware County Court of Common Pleas granted restricted
visitation rights to Mother in an attempt to maintain “partial physical custody”
for Mother which would meet with the approval of the Colorado court.
Father also asserted in his petition that in 2011, maternal Grandfather
intimidated, by brandishing a firearm, a custody supervisor, and absconded
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with the Children from Buenos Aires to a more remote location in Argentina.
See Petition For Relief Under Protection From Abuse Act, 4/14/15, at
unnumbered page 3. Father has further accused Mother and Grandparents
of plotting by various means, such as trying to obtain duplicate Argentinian
passports for the Children, to remove the Children from the United States and
return them to Argentina to live with Mother. See id.At one point, Father’s home in Pennsylvania was ransacked and the
Children’s passports were stolen. See id., at unnumbered page 4. The
passports were eventually returned to Father through Mother’s counsel. Father
also asserted Grandparents have exploited custody, visitation and related
availability of the Children to extort money from him. See id.Pertinent to the issues in this appeal, it is important to note that
Mother’s visitation with Children had been restricted to one hour, twice a
week, held in a room of the Children’s local church, in the presence of an
armed security guard and a translator. See Emergency Custody Order,
4/24/15, at ¶ 4.4
Because the trial court wanted the partial physical custody to maintain
a continuity of relationship between Mother and the Children, the court
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4 This custody order is incorporated into the stipulated PFA order by way of
paragraph 7.a. of the PFA order: “[Grandparents] will stay away from [Father]
and [the Children] except for any visitation or custody with Children as
ordered by the Court in existence entered prior to this date or hereafter.”
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directed that the visitation period was for Mother alone. No other persons,
except for the translator and the security guard, were permitted to be present.
See id. The order specifically prohibited Grandparents from being on the
grounds of the church during Mother’s visitation period. See id.When Grandparents attended Mother’s visitation period with her on
December 28, 2015, the security guard called the police.5 Father brought an
action for violation of the amended PFA order. The district attorney brought
an action for indirect criminal contempt.
Grandparents responded by asserting that the stipulation was
ambiguous, and filing a motion for the trial court to vacate or clarify the order.
The stipulated PFA order forbade any contact between Grandparents and
Grandchildren when they were with Father (or direct contact with Father). See
Stipulated PFA Order, 10/23/15, at ¶ 7, d. Another provision granted
Grandparents no greater rights of visitation than Mother had. See id., at ¶
5(a). Grandparents argued these two provisions conflicted, resulting in an
ambiguous order.
Following a hearing, the trial court found the provisions to be ambiguous
and dismissed the contempt charges against Grandparents. See Order,
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5 Father also testified to Grandparents’ presence at the church earlier in
December. However, the Grandparents left at the direction of the security
guard, and no arrests occurred at this earlier event. See N.T., 2/11/16, at 16-
17.
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2/11/16. On May 2, 2016, following up on the trial court’s finding of
ambiguity, Grandparents filed a motion to clarify or dismiss the PFA order.
After a hearing, at the suggestion of counsel for Father, the trial court
struck the provision declaring that Grandparents had no greater rights than
Mother. The court directed counsel to “[s]end in an order.” See N.T. Hearing,
12/15/16, at 12. No one did. However, on December 27, 2016 Grandparents
filed a motion for reconsideration, which the trial court denied on January 11,
2017.
Seven months later, in August of 2017, Grandparents assert, they filed
a writ of mandamus asking this Court to issue an order on the motion to clarify
or dismiss. See Grandparents Brief, at 11. We are unable to locate such a
writ in this Court’s docket.6 The trial court also refers to a mandamus action,
but does not include a citation for it in the record. See Trial Court Opinion,
at 7.
In any event, the docket confirms that on September 11, 2017, the trial
court filed what might be characterized as a “catch–up” order, which
reaffirmed the court’s oral decision from the bench on December 15, 2016,
striking the “no greater rights” provision, and declining to make any other
alterations to the stipulated order. See Order, 9/11/17, 1-2. On September
29, 2017, Grandparents filed a notice of appeal from the order of September
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6Grandparents’ writ of mandamus is also problematic for multiple reasons,
not the least of which is that the writ has been abolished. See Pa.R.A.P. 1502.
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11. Both Appellants and the trial court complied with Rule 1925. See
Pa.R.A.P. 1925.
Grandparents present one question for our review:
Whether the [trial] court abused its discretion when it denied
[G]randparents due process by modifying the stipulated PFA order
in a manner that negated the stipulation, and yet precluded
hearing [sic] to correct the error on the ground that the order was
stipulated[?]
Grandparents’ Brief, at 9 (superfluous capitalization omitted).
The Protection from Abuse Act is codified at 23 Pa.C.S.A. §§ 6101-6109.
Our standard of review for PFA orders is well settled. “In the
context of a PFA order, we review the trial court’s legal conclusions
for an error of law or abuse of discretion.” We review the
evidence of record in the light most favorable to, and grant all
reasonable inferences to, the party that prevails before the PFA
court. The petitioner need only establish her case by a
preponderance of the evidence to be entitled to relief.
Furthermore, we must defer to the credibility determinations
of the trial court. Finally, we note that a PFA petitioner is not
required to file a police report, nor is it necessary for her to
introduce medical evidence of an injury. The petitioner’s
testimony is sufficient if it is believed by the trial court.
Id. (internal citations omitted) (emphasis added).
Grandparents claim a denial of due process. However, they failed to
include this claim in their statement of errors. Instead, they raise three issues
asserting the court erred by not modifying the stipulated PFA order, and one
challenge to the length of time the court took to resolve their motion to vacate
or clarify the PFA order. As a result, the trial court does not address the issue
of due process in its opinion. Accordingly, the issue is waived. See Greater
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Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224
(Pa. Super. 2014) (en banc).
Moreover, Grandparents’ due process claim would not merit relief.7
Procedural due process is not a fixed precept, but rather, a flexible
concept that “calls for such procedural protections as the
particular situation demands.” Morrissey v. Brewer, 408 U.S.
471, 481, 92 S. Ct. 2593, 33 L.Ed.2d 484 (1972). Our Supreme
Court reiterated the relevant considerations in In re Merlo, 609
Pa. 598, 17 A.3d 869, 872 (2011).
Determining what process is due in a particular situation
generally requires consideration of three distinct
factors: [f]irst, the private interest that will be
affected by the official action; second, the risk of an
erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and
finally, the Government’s interest, including the
function involved and the fiscal and administrative
burdens that the additional or substitute procedural
requirement would entail.
Ferko-Fox v. Fox, 68 A.3d 917, 922 (Pa. Super. 2013) (per curiam) (citation
omitted).
Here, the trial court scheduled a hearing on Grandparents’ motion to
vacate or modify the stipulated PFA order. At that time, counsel for
Grandparents asserted, “[w]e’re not looking to put on testimony … [w]e’re
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7 Notably, the due process argument did not prevail in either of the two cases
cited by Grandparents. See Universal Builders Supply, Inc. v. Shaler
Highlands Corp., 175 A.2d 58, 60 (Pa. 1961) (no reversible error); Lower
Frederick Twp. v. Clemmer, 543 A.2d 502, 513 (Pa. 1988) (cited as dicta
in dissent.)
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asking [the court] to just rule on the law and the [m]otion itself.” N.T.,
12/15/16, at 8. Therefore, the claimed due process error came at the request
of Grandparents themselves.
Moreover, the over-arching claim to visitation rights advanced by
Grandparents in this appeal rests on a demonstrably false premise. The
essence of Grandparents’ argument is that they only entered into a stipulation
as a compromise to obtain visitation rights to see their grandchildren. See,
e.g., Grandparents’ Brief, at 10, 13, 16. They maintain that once they
complained that the stipulation was ambiguous, and the trial court agreed with
them (incidentally saving them from the penalties for contempt); the court
deleted the stipulated language they had relied on in the first place.
Therefore, they claim, the court improperly denied them both the visitation
rights that they had sought to achieve in the stipulation, and the opportunity
for a new hearing on the stipulation.
The record belies their claim. To the contrary, the stipulated PFA order
amounted to a stay-away provision, to the effect that Grandparents would
stay away from their grandchildren while they were with their Father. In
addition, the Grandparents explicitly agreed not to “bother,” “harass,” or
“stalk” Father, or “steal [the Children] or take them to Argentina, or run[]away
some place with them.” N.T., Hearing, 10/23/15, at 11.
Importantly, it was expressly understood that visitation rights were to
be addressed in separate custody proceedings, not in the stipulated PFA order.
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See id. at 16 (confirming counsel for both parties’ agreement that the PFA
order was subject to “any existing Custody Order”). A Spanish interpreter
explained the entire arrangement to Grandparents in their native language.
See id. at 17. There is no basis in the record for the claim that Grandparents
did not understand what they were agreeing to in settling the PFA order by
stipulation.
One of Father’s attorneys explicitly noted that “[T]he [G]randparents
currently are not allowed−they’re not present−they’re not allowed to be
present at the supervised visitation and this does not change that.”
Id. at 16 (emphasis added). The best explanation of the now-deleted
language is provided by the trial court, who observed, “No, but if, God forbid,
something happens to their daughter, they would have rights under the law
to apply for grandparents’ rights.” N.T., Hearing, 10/23/15, at 16.
Viewing the evidence in the light most favorable to Father as the
prevailing party, as we must under our standard of review, we discern no
abuse of discretion or error of law in the process used or the conclusion
reached by the trial court. Appellants’ due process claim is waived and would
not merit relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/19
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