Kovalchuk, V. v. Kovalchuk, Y. ( 2023 )

J-A16025-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
VASYL S. KOVALCHUK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YELENA V. KOVALCHUK :
:
Appellant : No. 359 MDA 2023
Appeal from the Order Entered February 7, 2023
In the Court of Common Pleas of Cumberland County Civil Division at
No(s): 2016-03340
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: OCTOBER 3, 2023
Pro se Appellant, Yelena V. Kovalchuk (“Mother”), purports to appeal
from the trial court’s February 6, 2023 order finding that Mother is in contempt
of court and directing her to report for sentencing.1 After careful review, we
affirm.
The trial court summarized the factual and procedural history of this
case as follows:
This appeal arises from a hearing on [Appellee’s, Vasyl S.
Kovalchuk (“Father”),] Petition for Contempt, after which this
[c]ourt entered an Order finding Mother … in Contempt of the
Custody Order dated September 30, 2022. Thereafter, Mother
was sentenced to 6 months[’] incarceration with a condition of
purge that she return the minor children to Father’s custody.
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1 This order was entered on February 6, 2023, but dated February 3, 2023.
However, as discussed infra, Mother should have appealed from the trial
court’s later February 7, 2023 order imposing sanctions.
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This matter has a long and arduous procedural history.1 Most
recently, the parties were before the Honorable Carrie E. Hyams
for a full custody trial. After trial, Judge Hyams entered an Order
[on September 30, 2022,] granting Father sole legal and physical
custody of the parties’ minor children, M.K. (YOB 2006) and J.K.
(YOB 2008) (collectively, “the children”), and restricting Mother to
periods of supervised physical custody only. Mother appealed said
Order, but her request for supersedeas was denied. Ultimately,
the September 30, 2022 [Order] was affirmed by the Superior
Court. [See Kovalchuk v. Kovalchuk, 296 A.3d 587 (Pa. Super.
2023) (unpublished memorandum).]
1 Including this appeal, Mother has appealed Orders in this
matter eight times. See Superior Court docket numbers
1687 MDA 2017; 695 MDA 2018; 1086 MDA 2019; 1470
MDA 2019; 448 MDA 2021; 537 MDA 2022; and 1420 MDA
2022.
Mother failed to return the children to Father’s custody, and Father
filed a Petition for Contempt of the September 30, 2022 Custody
Order and a Petition for Special Relief seeking the return of the
children and coercive incarceration of Mother.[2] Judge Hyams
recused from the matter, and this [c]ourt was assigned to hear
the Petitions. On January 4, 2023, this [t]rial [c]ourt held a status
conference to inform Mother that Father was seeking coercive
incarceration and inform her that she would be entitled to the
services of the Public Defender. A hearing on the Petitions
commenced on February 3, 2023.
At the hearing, Father introduced evidence that Mother had, after
the issuance of the September 30, 2022 Custody Order, removed
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2 In Father’s Petition for Special Relief, Father alleged, inter alia, that on
October 6, 2022, the parties’ daughter was scheduled to leave school early for
an orthodontist appointment. Father’s Petition for Special Relief, 10/14/22,
at ¶ 5. Father averred that he arrived to pick the child up and was informed
that she had already departed the school. Id. at ¶ 6. He said he was
presented with an early dismissal note, indicating that the child had been
picked up by Mother. Id. at ¶ 7. Despite attending the child’s orthodontist
appointment, Father claimed that Mother chose to take the child home with
her, even though the September 30, 2022 order requires Mother’s custody to
be supervised. Id. at ¶ 8. Father stated that he believes that the children
have been in Mother’s custody since the issuance of the September 30, 2022
order. Id. at ¶ 9.
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J.K. from school on October 6, 2022[,] to take her to the
orthodontist, cancelled several counseling and medical
appointments for the children, and made other medical
appointments for the children all while having no legal custody.
Father also offered that the children remain in Mother’s custody
against the September 30, 2022 Order and that[,] while in
Mother’s custody, the children have been missing school.
Mother offered her explanations as to Father’s allegations. Mother
denied that she was in violation of the [O]rder because the
children were not residing with her, but rather, Mother’s sister was
residing at Mother’s house with the children, and Mother was
residing at her sister’s house with her sister’s children. Mother
also denied that the Order precluded her from signing forms to
remove the children from school, to which the [c]ourt informed
her that because she does not have legal custody, she could not
remove the children from school.
Mother’s main defense, however, was that she could not get the
children to obey the Order because they are “strong in their belief”
that they do not want to see Father because he is “abusive.”
Mother testified that she believes that she is not violating the
Custody Order because the children are refusing to abide by it,
and she “should not be liable for something that the children
refuse to do.”
Mother also asked this [t]rial [c]ourt to consider two affidavits of
the children that she had filed of record. These affidavits state
that the children do not want to live with Father and believe that
Judge Hyams’ assessment of the custody situation was wrong.
They also disparaged Judge Hyams; the [g]uardian ad litem,
Hannah Herman-Snyder, Esquire (hereinafter “GAL”); and Jamie
Orris, the children’s reunification counselor. They asked this
[t]rial [c]ourt not to incarcerate Mother because they need her,
and Father is engaged in a “smear campaign” against her. When
questioned about the authenticity of the affidavits, Mother told …
this [t]rial [c]ourt that it could verify the information with the
children themselves.
Ultimately, this [t]rial [c]ourt did not find Mother’s testimony to
be credible and found her in violation of the September 30, 2022
Custody Order. Father requested coercive incarceration, arguing
that all other methods of sanctioning Mother had not worked.
Mother first asked this [t]rial [c]ourt to delay sentencing because
the September 30, 2022 Order was on appeal. After being
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informed, again, that her supersedeas had been denied, Mother
urged this [t]rial [c]ourt to adopt the sanction listed in the
September 30, 2022 [Order], namely, that Mother would be fined
$20 per day for each day that the children were not returned.
This [t]rial [c]ourt set sentencing for February 7, 2023, giving
Mother four days to comply with the Custody Order and return the
children to Father. This [t]rial [c]ourt informed Mother that if she
were to return the children to Father, she would have satisfied any
purge condition of incarceration, but if she did not, she should be
prepared to stand committed. Mother appeared for sentencing
and informed this [t]rial [c]ourt that she did not return the
children, and Mother was then sentenced to six months
incarceration, with a condition of purge that the children be
returned to Father’s custody.28
28 … Mother was subsequently released from incarceration
after Mother’s parents returned the children to Father.
Trial Court Opinion (“TCO”), 3/21/23, at 1-4 (most footnotes and internal
citations omitted).
On February 22, 2023, Mother filed a notice of appeal, purporting to
appeal from the trial court’s February 6, 2023 order, which found Mother in
contempt and instructed her to report for sentencing on February 7, 2023.3, 4
However, “[u]nless sanctions are imposed, an order declaring a party in
contempt is interlocutory. … A threat to hold a party in contempt at some
future time if a decree is not performed or a threat to impose sanctions in the
future is neither final nor appealable.” Genovese v. Genovese, 550 A.2d
1021, 1022-23 (Pa. Super. 1988) (citations omitted). Thus, the trial court’s
February 6, 2023 order is interlocutory, as it did not impose sanctions.
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3 Again, this order was dated February 3, 2023, but entered on February 6,
2023.
4 Mother attached a concise statement to her notice of appeal.
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Instead of appealing from the February 6, 2023 order, Mother should
have appealed from the trial court’s February 7, 2023 sentencing order, which
— due to the finding of contempt — mandated that she pay a fine of $500.00
and undergo imprisonment for six months, with the condition that she will be
released when the children are returned to Father’s custody and control.
Nevertheless, despite Mother’s appealing from the incorrect order, we decline
to quash her appeal, as the trial court subsequently imposed sanctions in its
February 7, 2023 order and Mother filed her notice of appeal on February 22,
2023, after both orders were entered. See Commonwealth v. Jones, 2020
WL 686215, at *2 n.2 (Pa. Super. filed Feb. 11, 2020) (observing that “this
Court regularly amends captions to reflect the properly-appealed-from orders
when parties designate incorrect orders in their notices of appeal”) (citations
omitted); see also Pa.R.A.P. 126(b) (providing that unpublished, non-
precedential memorandum decisions of the Superior Court filed after May 1,
2019, may be cited for their persuasive value). As such, we have amended
the caption accordingly and proceed to the merits of Mother’s appeal.
On appeal, Mother raises a single issue for our review:
The question presented is whether the Court of Common Pleas
abused its discretion in imprisoning … [M]other by ignoring a
specific provision contained in the Order that limited the
opponent’s remedy to twenty dollars per day of noncompliance.
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Mother’s Brief at 5-6.5
“In reviewing a trial court’s finding on a contempt petition, we are
limited to determining whether the trial court committed a clear abuse of
discretion. This Court must place great reliance on the sound discretion of the
trial court when reviewing an order of contempt.” Rogowski v. Kirven, 291
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5 Even though the children have been returned to Father and Mother has been
released from jail, Mother’s appeal is not moot. See TCO at 4 n.28. This
Court has explained:
As a general rule, an actual case or controversy must exist at all
stages of the judicial process, or a case will be dismissed as moot.
An issue can become moot during the pendency of an appeal due
to an intervening change in the facts of the case or due to an
intervening change in the applicable law. In that case, an opinion
of this Court is rendered advisory in nature. An issue before a
court is moot if in ruling upon the issue the court cannot enter an
order that has any legal force or effect.
This Court will decide questions that otherwise have been
rendered moot when one or more of the following exceptions to
the mootness doctrine apply: 1) the case involves a question of
great public importance, 2) the question presented is capable of
repetition and apt to elude appellate review, or 3) a party to the
controversy will suffer some detriment due to the decision of the
trial court.
Orfield v. Weindel, 52 A.3d 275, 277-78 (Pa. Super. 2012) (citations
omitted). Here, Mother’s non-compliance with the September 30, 2022
custody order could again subject her to civil contempt proceedings, including
the possibility of coercing her compliance by imprisoning her. See id. at 278
(determining appeal from contempt order is not moot where, although the
appellant had been released from jail, he had not paid off his arrears and was
still subject to the trial court’s order to make monthly payments). Therefore,
because the question presented is capable of repetition and apt to elude
appellate review, we will not deem Mother’s appeal moot.
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A.3d 50, 57 (Pa. Super. 2023) (citation, quotation marks, and brackets
omitted). Further,
[t]o be in contempt, a party must have violated a court order, and
the complaining party must satisfy that burden by a
preponderance of the evidence. Specifically, the complainant
must prove certain distinct elements: (1) that the contemnor had
notice of the specific order or decree which he, or she, 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.
Id. (cleaned up).
In her appellate brief, Mother argues that “[a] sanction of $20/day
cannot become a sanction of incarceration.” Mother’s Brief at 9. In making
this argument, she points to the September 30, 2022 custody order. That
order stated, in relevant part, the following:
1. Legal Custody: [Father] shall have sole legal custody of the
Minor Children, M.[]K. and J.[]K. Father shall make all major non-
emergency decisions affecting the Minor Children’s general well-
being, including, but not limited to, all decisions regarding their
health, education and religion with a view toward obtaining and
following a harmonious policy in the Children’s best interests.
Father shall notify [Mother] of any activity or circumstance
concerning the Children that could reasonably be expected to be
of concern to her. Neither party shall attempt, or permit anyone
else to attempt, to alienate the affections of the Children from the
other parent. Pursuant to the terms of 23 Pa.C.S. § 5336, each
parent shall be entitled to all records and information pertaining
to the Minor Children, including, but not limited to, medical,
dental, religious or school records, and the residence address of
the Children. To the extent one parent has possession of any such
records or information, that parent shall be required to share the
same, or copies thereof[,] with the other parent within such
reasonable time as to make the records and information of
reasonable use to the other parent.
With regard to any emergency decisions which must be made, the
parent having physical custody of the Child at the time of the
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emergency shall be permitted to make any immediate decisions
necessitated thereby. However, the parent shall inform the other
of the emergency and consult with her or him as soon as possible.
2. Physical Custody: The physical custody schedule will be
amended as follows:
Father shall have primary physical custody of the children subject
to the following provisions:
a. Mother shall have supervised visitation with the children to be
fully supervised by ABC in Carlisle. Visitation shall be no less than
four hours every other week unless there is a written
recommendation from a therapeutic reunification counselor to
increase or decrease Mother’s visitation. Visitation at ABC will be
at Mother’s expense.
b. Mother is directed to immediately relinquish custody of the
children to Father by packing up their belongings in her household
needed for their day-to-day care and taking the children to the
home of Father and dropping them off into Father’s care and
custody. For each full day that the children are not in
Father’s physical custody, Mother shall pay a fine of
$20.00/day to Father.
c. If primary physical custody is established with Father and the
other provisions of this order are complied with, either party may
file a motion for status conference in order to modify the physical
custody schedule.
Order, 9/30/22, at 1-2 (unnumbered; some emphasis added).
Based on this order, Mother says the trial court was limited to
sanctioning her $20.00/day, and could not imprison her. We disagree.
Initially, Section 5323(g) of the Child Custody Act specifically permits
imprisonment as a punishment for contempt:
(g) Contempt for noncompliance with any custody order.--
(1) A party who willfully fails to comply with any custody
order may, as prescribed by general rule, be adjudged in
contempt. Contempt shall be punishable by any one or
more of the following:
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(i) Imprisonment for a period of not more than six
months.
(ii) A fine of not more than $500.
(iii) Probation for a period of not more than six
months.
(iv) An order for nonrenewal, suspension or denial of
operating privilege under section 4355 (relating to
denial or suspension of licenses).
(v) Counsel fees and costs.
(2) An order committing an individual to jail under this
section shall specify the condition which, when fulfilled, will
result in the release of that individual.
23 Pa.C.S. § 5323(g).6
Moreover, the $20.00/day fine mentioned in the order is listed in the
“Physical Custody” section of the order and applies for each full day the
children are not in Father’s physical custody. The $20.00/day fine does not
address Mother’s usurpation of Father’s legal custody or her seeing the
children unsupervised, both of which the trial court considered when finding
Mother in contempt. Indeed, Father presented evidence at the February 3,
2023 contempt hearing that Mother took J.K. out of school for an orthodontist
appointment, despite not having legal custody of her and only supervised
visitation. N.T., 2/3/23, at 6-7, 40, 53, 65. The trial court also deemed
incredible Mother’s testimony that she has seldomly seen the children since
September 30, 2022, and that the children were living in Mother’s house with
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6 As the trial court astutely observed, the $20.00/day fine set forth in the
September 30, 2022 order automatically accrues for each day the children are
not in Father’s custody, and does not require a finding of contempt in order to
be imposed. TCO at 7.
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Mother’s sister, while Mother lived in her sister’s house with her sister’s
children. See TCO at 3. As such, the trial court’s finding of contempt goes
beyond the fact that Father has not had physical custody of the children. We
therefore reject Mother’s argument that the trial court could only fine her
$20/day, and could not imprison her.7
Order affirmed.
Date: 10/3/2023
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7 We observe that, although Mother contended below that she could not get
the children to obey the September 30, 2022 order, she does not advance
that claim on appeal. See Pa.R.A.P. 2116(a) (“No question will be considered
unless it is stated in the statement of questions involved or is fairly suggested
thereby.”).
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