Moore, J. v. Vidovich, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENNA MOORE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOHN VIDOVICH : No. 697 WDA 2022
Appeal from the Order Entered May 12, 2022
In the Court of Common Pleas of Beaver County Civil Division at No(s):
2021-10452
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED: April 4, 2023
Jenna Moore (Mother) appeals from the May 12, 2022 order holding her
in civil contempt of a prior custody order. Mother contends that the trial court
erred or abused its discretion in finding her in contempt and in setting the
amount of monetary sanctions in the contempt order. We affirm.
A previous panel summarized the factual and procedural history of this
matter as follows:
Mother and [John Vidovich (Father)] are the parents of two boys[1]
[(collectively, the Children)], aged [three] and [five]. Father filed
a petition for custody in March 2021, seeking shared legal and
physical custody of the children. Following a custody conference,
the trial court entered its recommended order, awarding the
parties shared legal custody and awarding Mother primary
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* Retired Senior Judge assigned to the Superior Court.
1 Both of the Children have the initials “K.V.,” therefore we refer to the
Children as “the older child” and “the younger child,” respectively.
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physical custody, subject to Father’s periods of partial physical
custody. On May 20, 2021, Father filed exceptions to the
recommended order, seeking shared physical custody. Mother did
not file exceptions. A trial was held on August 19, 2021,
November 5, 2021, and January 28, 2022. Following trial, the
trial court stated its findings and conclusions on the record, and
these were incorporated into the written custody order entered on
January 28, 2022. The custody order continued the parties’
shared legal custody, maintained Mother as the primary physical
custodian, and awarded Father an additional two overnights of
custody.
Moore v. Vidovich, 217 WDA 2022, 2022 WL 15596051, at *1 (Pa. Super.
filed Oct. 28, 2022) (unpublished mem.). Mother filed a timely appeal from
the trial court’s January 28, 2022 custody order. Id. This Court affirmed the
custody order on October 28, 2022. Id. at *6.
Meanwhile, on April 21, 2022, Father filed a petition for contempt
alleging that Mother had withheld custody of the Children from Father in
violation of the custody order.2 The trial court held a contempt hearing on
May 10, 2022. At the outset, the trial court conducted an in camera
examination of the older child.3 At the hearing, Father testified that Mother
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2 Although Mother’s appeal at 217 WDA 2022 was pending at the time Father
filed his petition for contempt, the trial court had jurisdiction to consider the
petition. See Pa.R.A.P. 1701(b)(2) (providing that after an appeal is taken,
the trial court retains jurisdiction to “[e]nforce any order entered in the
matter”); Travitzky v. Travitzky, 534 A.2d 1081, 1084 n.3 (Pa. Super.
1987) (explaining that “trial court[s] possess inherent powers to enforce their
orders and decrees by imposing sanctions for failure to comply with their
orders. This power is retained even after an appeal is filed” (citations
omitted)).
3We note that the notes of testimony from in camera questioning of the older
child are not included as part of the certified record, but they are included as
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first withheld custody of the Children in March of 2022. N.T. Hr’g, 5/10/22,
at 13-16. Specifically, Father explained Mother did not bring the Children to
the custody exchange on March 21, 2022 because the Children were sick.
Although Father agreed to make up that period of custody at a later date,
Father stated that he has not seen the Children since then. Id. at 34. Father
also testified that his counsel had billed him $4,720.11 for work related to the
custody dispute, filing the petition for contempt, and preparing for the
contempt hearing. Id. at 20-23. A copy of the invoice for Father’s attorney’s
fees was admitted as Father’s Exhibit 2.4 Id.
Mother admitted that she had not complied with the terms of the
January 28, 2022 custody order and had been withholding custody of the
Children from Father. Id. at 59. Mother stated that she has acted with the
best interests of the Children in mind. Id. at 58. Mother explained that she
was scared that Father would harm her and/or the Children. Id. at 52-53.
Mother also indicated that she filed a petition for a protective order5 in Ohio
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part of Mother’s reproduced record. Father did not object to the accuracy of
these notes of testimony. Because “their veracity is not in dispute, we rely on
the copy contained within the reproduced record.” See C.L. v. M.P., 255 A.3d
514, 519 n.3 (Pa. Super. 2021) (en banc) (citation omitted).
4 This invoice was not included in the certified record.
5Also known as a “domestic violence civil protection order.” See N.T. Hr’g at
26; see also Ohio Rev. Code § 3113.31. This is similar to an order under
Pennsylvania’s Protection From Abuse (PFA) Act, 23 Pa.C.S. §§ 6101-6122.
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where she resides. Id. at 16, 26, 50, 66-67. However, Mother’s petition for
a protective order was dismissed after she failed to appear for the hearing.
Id. at 16, 26, 67.
On May 12, 2022,6 the trial court issued an order in which it concluded
that Mother was in contempt of the custody order because she had withheld
custody of the Children from Father on three occasions in 2022: March 22 to
24, March 30 to 31, and April 1 to 3, 2022. Order, 5/12/22, at 1
(unpaginated). The trial court ordered Mother to pay Father’s attorney’s fees
in the amount of $4,720 as a sanction and awarded Father make-up time with
the Children on dates of Father’s choosing. Id. at 1-2 (unpaginated).
Mother filed a timely notice of appeal, and both Mother and the trial
court complied with Pa.R.A.P. 1925.
On appeal, Mother raises the following issues:
1. Whether the trial court abused its discretion and erred as a
matter of law in issuing the order of court dated May 1[2],
2022.
2. Whether the trial court committed reversible error and abused
its discretion when it ordered that [Mother] pay an excessively
unreasonable and egregious fee in the amount of $4,720.00 for
the attorney fees [Father] had to pay to bring his contempt
petition against [Mother].
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6 We note that although the trial court’s order is dated May 11, 2022, the
record reflects that the trial court sent notice of the order to the parties on
May 12, 2022. See Pa.R.A.P. 108(b); Pa.R.C.P. 236(b). We have amended
the caption accordingly.
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Mother’s Brief at 2 (some formatting altered).7
Contempt of Court
In her first issue, Mother argues that the trial court erred in finding her
in contempt of the custody order. Id. at 7-16. Specifically, Mother claims
that Father failed to prove by a preponderance of the evidence that she acted
with wrongful intent.8 Id. at 9-16. Mother claims that she did not act with
wrongful intent when she failed to bring the Children to custody exchanges in
March 2022 because Father agreed to cancel his periods of partial physical
custody when the Children were ill. Id. at 11-12 (citing N.T. Hr’g at 42-45).
Mother further contends that she did not act with wrongful intent in
subsequently withholding custody of the Children from Father because she
acted out of her concerns for the Children’s safety. Id. at 12 (citing N.T. Hr’g
at 46-49). Namely, Mother claims that Father failed to administer the
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7 Mother additionally argues that the trial court erred in excluding her
testimony about the older child’s statements as hearsay because Mother was
offering those statements to show the effect on her as the listener, not for the
truth of the matter asserted. Mother’s Brief at 12 n.2 (citing N.T. Hr’g 45-49).
Mother also contends that the older child was not competent to testify because
of his young age. Id. at 15. However, Mother has waived these issues
because she did not raise them in her Rule 1925(b) statement or in the
statement of questions involved. See Pa.R.A.P. 1925(b)(4)(vii) (stating that
“[i]ssues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived”), 2116(a) (providing that
“[n]o question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby”).
8 Mother concedes that she had notice of the January 28, 2022 custody order
and that she deliberately withheld custody of the Children from Father in
violation of that order. Mother’s Brief at 9.
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Children’s medication as prescribed, and that Father had engaged in abusive
or threatening behavior towards the Children. Id. at 12-13 (citing N.T. Hr’g
at 16, 28). Mother explains that because of her concerns for the Children’s
safety, she filed a petition for a restraining order in Ohio, where she resides.
Id. at 13 (citing N.T. Hr’g at 51-52). Mother asserts that she also reported
her concerns about Father’s alleged abuse to Children and Youth Services in
both Pennsylvania and Ohio. Id. at 13-14 (citing N.T. Hr’g at 49, 52).
Additionally, Mother argues that the trial court improperly weighed the older
child’s testimony by disregarding the older child nodding his head affirmatively
when the trial court asked him if Father had hurt him. Id. at 14-16 (citing
N.T. In Camera Test., 5/10/22, at 9-10). Mother concludes that the trial court
abused its discretion by holding her in contempt because she did not act with
wrongful intent, and claims that the record establishes that she was “actively
pursuing the assistance of the court system and independent agencies to
address the welfare of . . . [C]hildren[.]” Id. at 14.
We review Mother’s claim bearing in mind the following principles:
Our standard of review concerning a trial court’s contempt findings
is very narrow:
This Court’s review of a civil contempt order is limited to a
determination of whether the trial court abused its discretion. If
a trial court, in reaching its conclusion, overrides or misapplies the
law or exercises judgment which is manifestly unreasonable, or
reaches a conclusion that is the result of partiality, prejudice, bias
or ill will as shown by the evidence of record, then discretion is
abused.
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Gross v. Mintz, 284 A.3d 479, 489 (Pa. Super. 2022) (citation omitted and
formatting altered).
Additionally, this Court has explained:
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. When reviewing an appeal from a contempt order,
the [appellate] court must place great reliance upon the discretion
of the trial judge. . . .
* * *
This Court defers to the credibility determinations of the trial court
with regard to the witnesses who appeared before it, as that court
has had the opportunity to observe their demeanor.
Harcar v. Harcar, 982 A.2d 1230, 1235-36 (Pa. Super. 2009) (citations
omitted and formatting altered).
To sustain a finding of civil contempt, the complainant must prove
certain distinct elements by a preponderance of the evidence: (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. Moreover, 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.
Gross, 284 A.3d at 489 (citations omitted and formatting altered); see also
Thomas v. Thomas, 194 A.3d 220, 226 (Pa. Super. 2018) (explaining that
“a mere showing of noncompliance with a court order, or even misconduct, is
never sufficient alone to prove civil contempt” (citation omitted)); Sutch v.
Roxborough Mem’l Hosp., 142 A.3d 38, 68 (Pa. Super. 2016) (stating that
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“[u]nless the evidence establishes an intentional disobedience or an
intentional disregard of the lawful process of the [trial] court, no contempt has
been proven” (citation omitted and formatting altered)).
“When making a determination regarding whether a defendant acted
with wrongful intent, the court should use common sense and consider
context, and wrongful intent can be imputed to a defendant by virtue of the
substantial certainty that his [or her] actions will violate the court order.”
Gross, 284 A.3d at 492-93 (citation omitted and formatting altered).
In Luminella v. Marcocci, 814 A.2d 711 (Pa. Super. 2002), the trial
court found the mother in contempt after she withheld custody of the parties’
two youngest daughters from the father in violation of the parties’ custody
order. Luminella, 814 A.2d at 714-15. On appeal, the mother argued that
she was not in willful contempt of the custody order because she feared for
the children’s safety while they were in the father’s custody. Id. at 719. In
rejecting the mother’s claims, this Court explained:
To accept [the m]other’s argument is to accept anarchy. By
relying on fears for the children’s safety as a reason that she
could not comply with the court order, [the] mother relies
on factors she should have argued during the development
of the custody order . . . . [The m]other is not permitted to
ignore the order and unilaterally institute measures she
feels appropriate instead of the order.
Id.Here, the trial court explained:
In the instant case, following a hearing where both parties testified
as well as the parties’ five (5) year old son, this court found that
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the evidence established that [Mother] “intentionally withheld the
[] Children from [Father] on March 22 - March 24, 2022; March
30 - 31, 2022; and, April 1 - April 3, 2022. The actions of [Mother]
cannot be justified in light of her testimony and the testimony of
the parties’ five (5) year old son.” [Order, 5/12/22, at 1
(unpaginated).]
Trial Ct. Op., 7/7/22, at 5-6 (footnote omitted and formatting altered).
Based on our review of the record, we discern no abuse of discretion by
the trial court in holding Mother in contempt of the January 28, 2022 custody
order.9 See Gross, 284 A.3d at 489.
As noted previously, Mother claims that she did not act with wrongful
intent in withholding custody from Father because she had concerns about the
Children’s safety and had been acting in the Children’s best interest. See N.T.
Hr’g at 52-53, 58-59. However, because there is no dispute that Mother
violated the custody order, the trial court was permitted to find that Mother
acted with wrongful intent. See Gross, 284 A.3d at 492-93 (stating that
“wrongful intent can be imputed to a defendant by virtue of the substantial
certainty that his [or her] actions will violate the court order”). Here, the trial
court acted within its discretion in concluding that Mother’s stated reasons for
withholding custody of the Children from Father were belied by the record and
that she disobeyed the custody order with wrongful intent. See id. at 489.
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9 We note that Mother also contends the trial court erred because it failed to
consider the best interest of the Children. Mother’s Brief at 7 (citing M.J.M.
v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013)). M.J.M. involved an appeal
from a custody order, not a contempt order. M.J.M., 63 A.3d at 334. As
stated above, this Court applies a different standard when reviewing a
contempt order. See Gross, 284 A.3d at 489.
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Specifically, Mother claimed she withheld custody because she feared for
Children’s safety, but she failed to appear for the hearing on her petition for
a domestic violence civil protection order in Ohio. See N.T. Hr’g, 5/10/22, at
16, 26, 67. Additionally, the trial court found the testimony of the older child
to be credible. See Trial Ct. Op. at 5-6. Further, this Court has previously
condemned such behavior by a parent. See Luminella, 814 A.2d at 719(stating that a parent “is not permitted to ignore the order and unilaterally
institute measures [the parent] feels appropriate instead of the order”).
Finally, we note that the trial court’s credibility determinations are supported
by the record. See Harcar, 982 A.2d at 1236. Therefore, to the extent
Mother claims that the trial court improperly weighed the older child’s
testimony, we will not reweigh or disturb the trial court’s credibility
determinations on appeal. See id. For these reasons, we find no error by the
trial court in concluding that Mother acted with wrongful intent when she
withheld custody of the Children from Father in violation of the January 28,
2022 custody order. Accordingly, Mother is not entitled to relief.
Attorney’s Fees
In her second issue, Mother argues that the trial court erred by ordering
her to pay an unreasonable amount of attorney’s fees as a sanction for her
contempt. Mother’s Brief at 16-21. Specifically, Mother contends that Father
failed to provide sufficient evidence for the trial court to determine if the
services billed by Father’s counsel were reasonably necessary for the
prosecution of Father’s contempt petition. Id. at 19-20 (citing N.T. Hr’g at
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20-23). Mother also claims that the trial court failed to determine if those
billed services were necessary to enforce Mother’s compliance with the
custody order. Id. at 17-18. Additionally, Mother argues that the trial court
erred by failing to consider her ability to pay before imposing the sanction.
Id. at 20. Although Mother acknowledges that trial courts are not required to
determine a contemnor’s ability to pay a monetary sanction, she contends
that this approach is unjust because it creates a situation where the
contemnor is exposed to future sanctions because of an inability to pay the
previous sanctions award. Id. at 20-21 (citing Hopkins v. Byes, 954 A.2d
654, 659 (Pa. Super. 2008)). Therefore, Mother concludes that the trial court
erred in ordering her to pay $4,720 in attorney’s fees to Father as a contempt
sanction.
As stated above, we review a contempt order for an abuse of discretion.
See Gross, 284 A.3d at 489; see also Goodman v. Goodman, 556 A.2d
1379, 1391 n.8 (Pa. Super. 1989) (stating that “[i]n reviewing a grant of
attorney’s fees, we will not disturb the decision below absent a clear abuse of
discretion” (citations omitted)).
Although the responsibility for setting counsel fees lies primarily
with the trial court, this Court has the power to reverse that
exercise when there is plain error. Plain error is found where the
award is based either on factual findings for which there is no
evidentiary support or on legal factors other than those that are
relevant to such an award.
Sutch, 142 A.3d at 70 (citations and quotation marks omitted)).
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The Child Custody Act provides that a court may impose an award of
“counsel fees and costs” after finding a party in contempt of a custody order.
23 Pa.C.S. § 5323(g)(1)(v). Additionally, the Child Custody Act states that “a
court may award reasonable interim or final counsel fees, costs and expenses
to a party if the court finds that the conduct of another party was obdurate,
vexatious, repetitive or in bad faith.” 23 Pa.C.S. § 5339. Further, when
determining the reasonableness of a request for attorney’s fees, the trial court
must consider several factors, including “the reasonableness of time spent by
counsel in relation to the particular case.” Sutch, 142 A.3d at 70 (citation
omitted).
In Hopkins, this Court rejected an argument that a trial court must
determine the contemnor’s ability to pay the injured party’s attorney’s fees
before the court can impose counsel fees as a sanction for contempt of custody
order. Hopkins, 954 A.2d at 659.
Here, the trial court explained its award of sanctions as follows:
Pursuant to 23 Pa.C.S. § 5323(g)[(1)](v), this court ordered
[Mother] to pay [Father’s] counsel fees in the amount of
$4,720.00.[FN9] This court imposed this sanction of counsel fees
in order to compensate [Father] “for the attorney fees he had to
pay to bring this petition concerning [Mother’s] contemptuous and
dilatory conduct[,]” and not as a punitive sanction. [Order,
5/12/22, at 1 (unpaginated).] As such, this court did not abuse
its discretion in finding [Mother] in contempt, nor did it abuse its
discretion in ordering [Mother] to pay [Father’s] counsel fees
incurred in bringing and litigating his contempt petition.
This court maintains that these counsel fees are not
[FN9]
excessive, unreasonable, nor egregious.
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Trial Ct. Op. at 6 (citations and some footnotes omitted).
Here, Father testified that his attorneys billed him $4,720.11 for work
performed in connection with these contempt proceedings and submitted an
invoice from his attorneys. See N.T. at 20-23. Father further explained that
his counsel had redacted all fees related to Mother’s appeal from the January
28, 2022 custody order, which was also pending at that time. See id. at 20-
21. Based on the evidence presented at the hearing, we discern no abuse of
discretion or plain error in the trial court’s conclusion that these fees were
reasonable to compensate Father for expenses incurred as a result of Mother’s
contempt. See Goodman, 556 A.2d at 1391 n.8 (explaining that “an award
of counsel fees is intended to reimburse an innocent litigant for expenses
made necessary by the conduct of an opponent, [and that] it is coercive and
compensatory, [but] not punitive” (citations omitted and formatting altered));
see also Gross, 284 A.3d at 489; Sutch, 142 A.3d at 70.
Further, to the extent Mother claims that the trial court should have
considered her ability to pay Father’s attorney’s fees before imposing them as
a sanction for contempt, she is not entitled to relief. As noted previously, this
Court has held that trial courts are not required to consider a contemnor’s
ability to pay before imposing attorney’s fees as a sanction. See Hopkins,
954 A.2d at 659. It is well-established that a three-judge panel of this Court
panel does not have the power to overrule a prior, precedential decision of
this Court, “except in circumstances where intervening authority by our
Supreme Court calls into question a previous decision of this Court.” E.C.S.
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v. M.C.S., 256 A.3d 449, 456 (Pa. Super. 2021) (citation omitted and
formatting altered). Therefore, we are bound by Hopkins and conclude that
the trial court did not abuse its discretion by ordering Mother to pay Father’s
attorney’s fees as a contempt sanction without first assessing Mother’s ability
to pay those fees. See id.; Hopkins, 954 A.2d at 659; Goodman, 556 A.2d
at 1391 n.8.
For these reasons, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2023
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