Sands, W. v. Sands, E. ( 2023 )

J-S38003-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
WAYNE T. SANDS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELIZABETH A. SANDS :
:
Appellant : No. 1629 EDA 2022
Appeal from the Order Entered May 23, 2022
In the Court of Common Pleas of Bucks County Civil Division at No(s):
A06-2020-61675-C
BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED JUNE 2, 2023
Elizabeth A. Sands (“Mother”) appeals from the order awarding Wayne
T. Sands (“Father”) attorney’s fees following its finding that Mother engaged
in vexatious and bad faith litigation.1 Following our review, we vacate the
order and remand for an evidentiary hearing.
The trial court set forth the factual and procedural history of this case,
which, in relevant part, is as follows:
This [matter arises from] a custody [dispute] between . . .
[Father and Mother]. [I]n June [] 2021, the parties agreed to
participate in a custody evaluation during their [c]ustody
[c]onference. . . . [T]he parties [also] executed [the Court
Conciliation and Evaluation Services (“CCES”)-required] Consent
and Waiver form (“CCES Consent and Waiver”). There[after], . .
. [the trial c]ourt entered an [o]rder requiring that the parties
participate in [CCES].
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1 See 23 Pa.C.S.A. § 5339.
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The parties participated in the CCES evaluation resulting in
a report dated October 11, 2021. [Father later alleged] that
Mother delayed the CCES process by failing to timely remit her
application fee. Mother’s [asserted] delay w[ould have been] a
direct breach of the CCES Consent and Waiver that she voluntarily
signed, which requires the application fee to be paid within 14
days. Father remitted his application fee on June 4, 2021. . . .
[Mother’s p]ayment was not confirmed until July 6, 2021, when
Father’s counsel contacted CCES [following several inquiries by
Father’s counsel directed to Mother and her attorney].
On September 16, 2021, Mother filed an Emergency Petition
for Reassignment of CCES Evaluator Due to Conflict of Interest
(“Mother’s Emergency Petition”). Mother’s emergency filing did
not occur until after the parties had attended all sessions
necessary for the completion of the evaluation report. . . .
[Further: previously], [i]n January [] 2021, Mother filed a
Protection [F]rom Abuse [(“PFA”)] Petition[,] . . ., [which she
later] withdrew . . .[,] with prejudice, without a hearing.
Mother’s Emergency Petition asserts an alleged conflict of
interest regarding the CCES evaluator, Helen (Betsy) Leatherman,
MS, LPC, CAADC [(“Ms. Leatherman”)]. . .. On September 3,
2021, Mother’s counsel sent a letter [to] Reb Brooks, Ed.M.,
Director of CCES . . ., requesting a new evaluator be assigned and
alleging [several] conflicts of interest [including that Ms.
Leatherman may have known Father’s sister because the two had
previously worked at St. Luke’s Penn Foundation (“Penn
Foundation”); Ms. Leatherman used a term of endearment (“Little
Wayne”) for Father; and Ms. Leatherman commented on Father’s
attractiveness.]
****
Further, Mother alleged that [Ms. Leatherman] made
statements that Father would get more custodial time and
suggested that Mother be more flexible. Lastly, Mother alleged
that Mother’s mother (“Maternal Grandmother”) was asked to
consent to some[ unknown] thing before Maternal Grandmother’s
session with [the e]valuator. . . . [I]n her Emergency Petition,
[and apparently] in direct breach of the CCES Consent and Waiver,
Mother asked that any recordings from all sessions throughout the
CCES evaluation process be released to counsel for parties and to
the [c]ourt.
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[I]n September [] 2021, Father filed a Response with
Counterclaim to Mother’s Emergency Petition[,] followed by an
Amended Response with Counterclaim (“Father’s Counterclaim”) .
. .. Father’s Counterclaim was for bad faith, vexatious ligation.
Mother [filed no] response to Father’s [c]ounterclaim . . ..
Father’s Response to Mother’s Emergency petition
addressed each of Mother’s alleged conflicts of interest. Attached
to Father’s Response [wa]s a letter authored by [the d]irector of
CCES, dated September 7, 2021, in response to Mother’s counsel’s
letter requesting a new evaluator. Father [indicated in his
response that Ms. Leatherman had no prior interaction with or
knowledge of his sister; “Little Wayne” referred to the parties’
child, and Ms. Leatherman never used the term to refer to Father;
and conceding that while Ms. Leatherman commented on both
parties’ “drive and determination,” she did not comment on
Father’s attractiveness.]
****
[T]h[e c]ourt entered . . . [o]rder[s] listing a hearing date
of November 5, 2021, in consideration of Mother’s [e]mergency
[p]etition and Father’s [c]ounterclaim.
On November 3, 2021, less than forty-[e]ight hours before
the scheduled hearing, Mother served a [s]ubpoena . . . upon
[Penn Foundation]. The [s]ubpoena requested that Penn
Foundation produce “[a]ny and all documentation regarding the
work schedule of [Ms. Leatherman] . . ..” Counsel for Penn
Foundation attempted to communicate with Mother’s counsel to
withdrawal the [s]ubpoena and received no response.
On November 4, 2021, Robert A. Pinel, Esquire, Counsel for
. . . Penn Foundation . . ., filed a Motion to Quash Subpoena of
Non-Party St. Luke’s Penn Foundation . . ..
On November 5, 2021, th[e c]ourt held [a] [“]hearing[”]
[on] Mother’s [e]mergency [p]etition and Father’s [c]ounterclaim.
Immediately preceding the hearing, the parties participated in a
conference with th[e c]ourt and Mother agreed to withdraw her
petition. [Attorney Pinel, attorney for Penn Foundation, attended
the hearing, as well.]
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[O]n the record, Mother moved to withdraw[] her
[e]mergency [p]etition. The reason provided for Mother’s
withdrawal of her [e]mergency [p]etition was that Mother, in good
faith, reasonably believed she could subpoena [the CCES
e]valuator solely on the limited issue [of whether] an alleged, yet
unsubstantiated, conflict of interest existed between Father and
[the e]valuator. Mother did not testify []or call any other
witnesses to provide any additional evidence. [Father’s counsel
made argument for his counterclaim for attorney’s fees. Father’s
counsel also marked several exhibits, but none were formally
admitted into evidence, nor did Father testify or present other
evidence.] At the end of the [proceedings], the [c]ourt took the
issue of attorney’s fees under advisement.
On May 18, 2022, th[e c]ourt entered an [o]rder [awarding
Father attorney’s fees.]
Trial Court Opinion, 8/11/22, at 1-6 (footnotes and citations to the record
omitted). Mother timely moved for reconsideration; however, no order
denying the motion is docketed. Mother then timely appealed on June 17,
2022 and both she and the trial court complied with Pa.R.A.P. 1925.
Mother raises the following issue for our review:
Do the facts of record support the finding that Mother acted
in bad faith or vexatiously, such that would warrant a sanction in
the form of attorney’s fees?
Mother’s Brief at 3.
Our standard of review is well-settled: “[W]e will not disturb a trial
court’s determination absent an abuse of discretion. A trial court has abused
its discretion if it failed to follow proper legal principles or misapplied the law.”
Moyer v. Leone, 260 A.3d 245, 252 (Pa. Super. 2021) (citation omitted);
see also A.L.-S. v. B.S., 117 A.3d 352, 361 (Pa. Super. 2015) (explaining
that this Court’s review “in cases involving counsel fees is limited to
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determining whether [the] trial court abused its discretion”) (internal citation
omitted).
In her sole issue, Mother asserts that the trial court abused its discretion
in ordering her to pay Father’s attorney’s fees. Section 5339 of the Child
Custody Act,2 provides, “Under this chapter, 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.A. § 5339. “A suit is vexatious, such as would support
an award of counsel fees, if it is brought without legal or factual grounds and
if the action served the sole purpose of causing annoyance.” Dong Yuan
Chen v. Saidi, 100 A.3d 587, 592 (Pa. Super. 2014). A party may be charged
with initiating an action in “‘bad faith’ if [s]he filed the suit for purposes of
fraud, dishonesty, or corruption.” Moyer v. Leone, 260 A.3d 245, 255 (Pa.
Super. 2021). The burden is on the moving party to establish by a
preponderance of the evidence his or her entitlement to attorney’s fees. See
In re Roos’ Estate, 451 A.2d 255, 256-57 (Pa. Super. 1982). Crucially,
[d]isposition of claims . . . generally requires an evidentiary
hearing. However, no hearing is necessary where the facts are
undisputed. We have further held that, where the record is
unclear as to whether the appellant brought the instant
action vexatiously or in bad faith, the trial court errs in
awarding attorney’s fees and costs in the absence of a
hearing to determine whether the appellant actually acted
vexatiously or in bad faith.
____________________________________________
2 23 Pa.C.S.A. §§ 5321-5340.
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Moyer, 260 A.3d at 255 (internal brackets and quotations omitted; emphasis
added);3 see also In re Estate of Burger, 852 A.2d 385, 391 (Pa. Super.
2004).4 An award of attorney’s fees “serves not to punish all those who initiate
legal actions that are not ultimately successful . . .. Rather, the statute
focuses attention on the conduct of the party from whom counsel fees are
sought and on the relative merits of that party’s claims.” Dong Yuan Chen,
100 A.3d at 592.
Mother’s argument is straightforward. She asserts that “[t]he only
factual proceeding relevant [to] the instant appeal was the hearing held on
November 5, 2021.” Mother’s Brief at 4. Mother maintains, however, that
the parties entered no evidence at the hearing, but, rather, “[a]t best, the
hearing was simply oral argument between counsel.” Id. Mother emphasizes
that neither Mother nor Father were sworn in as witnesses to offer testimony,
nor were there any facts in the form of stipulations. See id. at 5-6. Instead,
“[t]he [t]rial [c]ourt regularly cited filings of record, such as Father’s petition
seeking attorney’s fees, but the allegations therein were never admitted,
____________________________________________
3 As noted above, and per Moyer, an “evidentiary hearing” is generally
required, which, of course, is a hearing at which “evidence is presented, as
opposed to a hearing at which only legal argument is presented.” Black’s Law
Dictionary (11th ed. 2019).
4 Pennsylvania Rule of Civil Procedure 1915.5(d) provides that, in custody
matters, apart from exceptions not germane to this issue, “a responsive
pleading shall not be required. If a party files a responsive pleading, it shall
not delay a hearing or trial.”
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stipulated, or proven facts of record.” Id. at 6. Mother asserts that Father
had the burden of proof, but the trial court took no evidence in support of
Father’s counterclaim. See id. at 7.
The trial court concluded that Mother’s conduct “through the entire
matter” was in bad faith, vexatious, and arbitrary, and the facts were “mostly
uncontested.” See Trial Court Opinion, 8/11/22, at 9. The trial court found
Mother had been “noncooperative when Father’s counsel attempted to address
Mother’s delayed payment.” Id. The court also found that Mother’s
emergency petition was dilatory as she filed it after the completion of all nine
sessions, though the allegations were based on the first three. See id.
Additionally, in a letter sent to Mother’s attorney, the CCES director addressed
Mother’s concerns about Ms. Leatherman’s alleged conflict of interest,
asserting, more specifically, that Ms. Leatherman had not worked at Penn
Foundation at the same time as Father’s sister. See id. at 10. The court also
concluded Mother’s late, and overly broad, subpoena of personnel files from
Penn Foundation was an “attempt[] to annoy and harass non-parties.” Id.
The trial court further noted that Mother’s emergency petition included a
request for recordings which violated her prior written waiver of that same
right. See id. at 11.
Following our review, we vacate the order awarding Father attorney’s
fees and remand for an evidentiary hearing. We note that the trial court
concluded that Father had made a prima facie case of Mother’s bad faith,
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vexatious, and arbitrary conduct, “which remained mostly uncontested,” and,
as Mother failed to rebut the evidence, Father satisfied his burden and was
therefore entitled to attorney’s fees. See Trial Court Opinion, 8/11/22, at 9
(citing In re Roos, 451 A.2d at 256). However, in Roos, the trial court held
an evidentiary hearing at which it heard testimony by the party seeking
attorney’s fees; and the opposing party failed to offer testimony in rebuttal.
See In re Roos, 451 A.3d at 256. Here, in contrast, the trial court held no
evidentiary hearing. In a hearing that spans approximately eight pages of
transcripts, the trial court heard legal argument but took no evidence or
testimony. For example, while Mother’s subpoena to Penn Foundation, along
with several responsive letters by Penn Foundation’s counsel, was marked as
an exhibit, Mother’s counsel objected to admission of the attached letters; and
the trial court failed to rule on the objection, and further, did not formally
enter the letters into evidence. See N.T., 11/5/21, at 8-9. Additionally,
Father did not testify. See generally id. Also, the trial court failed to
distinguish between which facts were undisputed based on the record (e.g.,
Mother’s last-minute subpoena and Penn Foundation’s motion to quash the
subpoena) and which required presentation of evidence at an evidentiary
hearing (e.g., whether Ms. Leatherman made the contested statements at the
custody evaluation; whether Ms. Leatherman and Father’s sister ever
encountered each other; the circumstances of Mother’s delayed CCES
payments and the reasons therefore; and whether Mother had a good-faith
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basis for believing her emergency petition did not violate her previous waiver
of her right to seek recordings from the evaluation).
The trial court thus failed to consider whether the undisputed facts
properly gleaned from the record alone were sufficient to support Father’s
claim for attorney’s fees, or whether additional evidence was required to
establish the factual bases for Father’s claim. See In re Estate of Burger,
852 A.2d at 391; see also Moyer, 260 A.3d at 255-56 (reversing an order
awarding attorney’s fees where the record did not contain “undisputed facts”
establishing bad faith conduct, and remanding for the trial court to hold a
hearing “to develop the record on the issue of whether [the] conduct, in light
of the relative merits of [the] claim, was repetitive, vexatious, or in bad faither
as a matter of law, and, if so, determine a reasonable award of counsel fees .
. ..”). Therefore, we vacate the order awarding Father’s attorney’s fees and
remand for an evidentiary hearing at which Father may present evidence in
support of his claim, and Mother will have the opportunity to rebut Father’s
evidence.5 After presentation of evidence, the trial court shall decide anew
____________________________________________
5 We observe that Father’s amended response and counterclaim for attorney’s
fees stemmed from the allegation—namely the assertion of Ms. Leatherman’s
conflict of interest—in Mother’s Emergency Petition, filed on September 16,
2021. See Father’s Amended Response with Counterclaim, 9/20/21, at ¶ 16
(asserting that Mother’s Emergency Petition “represents bad faith, vexatious
litigation”); accord Father’s Fees Schedule, p.1 (Reproduced Record, 200a)
(detailing charges for Father’s counsel’s actions, beginning on September 3,
2021, in response to Mother’s assertion of Ms. Leatherman’s conflict of
interest). The remedy Father sought is thereby limited to “counsel fees related
(Footnote Continued Next Page)
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whether the evidence presented is sufficient to establish Mother’s bad-faith or
vexatious litigation and, thereby, whether Father is entitled to attorney’s fees.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2023
____________________________________________
to this action,” i.e., Mother’s Emergency Petition. See Father’s Amended
Response with Counterclaim, 9/20/21, at p. 7.
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