P.R. v. C.B.

J-A08009-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
P.R., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
C.B.,
Appellee No. 1809 MDA 2014
Appeal from the Order Entered October 3, 2014
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2010 FC 41665, 2011 FC 40155
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 08, 2015
P.R. (“Father”) appeals pro se from the order entered on October 3,
2014, in this custody matter concerning the parties’ daughter, S.R. (“Child”),
who was born in June of 2010. The order denied Father’s petition for
contempt. The petition had alleged that Appellee, C.B. (“Mother”), violated
a provision of the trial court’s June 6, 2014 order proscribing the parties’
inclusion of the guardian ad litem (“GAL”) in e-mails. The trial court also
found Father’s contempt petition to be frivolous, determined that Father had
failed to file a reply to Mother’s Answer and New Matter, and directed Father
to pay Mother’s counsel $300 in attorney’s fees. We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Father commenced this custody matter on December 3, 2010, when
Child was six months old, seeking shared legal and physical custody. Mother
filed a counterclaim for primary physical custody on December 9, 2010. The
trial court granted the parties shared legal custody and awarded Father
three-hour periods of supervised visitation by interim order. Order,
12/14/10. Eventually, the parties agreed to extended visitation for Father,
including one biweekly overnight visit. Order, 10/18/11. The parties sought
court intervention multiple times over disagreements about Child’s custody.
Eventually, on January 10, 2012, Mother filed a petition to modify custody
seeking elimination of Father’s visitation due to his in-patient treatment for
alcoholism. The trial court eliminated Father’s overnight visitation but left
the visitation schedule otherwise intact. Order, 1/31/12.
Following a hearing on March 30, 2012, the trial court reinstated
Father’s overnight visitation. Order, 6/8/12. The trial court ordered the
parties to “carbon copy” the GAL, who had been appointed on August 9,
2011, on every communication between the parties due to the parties’
ongoing disagreements regarding birthdays and holidays. Id. Following a
September 13, 2012 hearing, the trial court expanded Father’s visitation to
full custodial biweekly weekends. Order, 9/14/12.
Mother gave birth to a second child in November of 2012. While she
was in the hospital, Father appeared at the Dunmore Police Station on
November 16, 2012, demanding that police intervene in the parties’
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custodial arrangement. As a result, the GAL filed a petition for special relief
on December 17, 2012. Following a hearing on December 18, 2012, the
trial court rescinded Father’s overnight partial custody. Order, 12/28/12.
The trial court held additional hearings on March 14, 2013, and June 6,
2013, and entered an order on July 11, 2013, awarding Mother primary
physical custody. Order, 7/11/13. Father filed a notice of appeal to this
Court, and we affirmed on August 18, 2014. P.R. v. C.R., 1447 MDA 2013,
106 A.3d 163 (Pa. Super. filed August 18, 2014) (unpublished
memorandum).
No less than twenty-four court orders issued from the filing of the
notice of appeal until the instant petition for contempt filed by Mother on
March 27, 2014. The following procedural history, as set forth by the trial
court, is relevant to our disposition of the instant appeal:
Mother filed a Petition for Contempt of Custody Orders on
March 27, 2014. In Mother’s Petition, Mother’s prayer for relief
included a request that she be awarded sole legal custody of the
Minor Child. On March 31, 2014, Father sent a letter to this
[c]ourt which this [c]ourt treated as [a] pleading. Further,
Father answered Mother’s Petition for Contempt and raised New
Matter, in which Father requested sole legal custody of the Minor
Child. Father requested that the court [o]rder [Mother] to pay
[Father] a sum of $380 for missed work and legal fees in
following up with the appropriate parties and preparing this
response along with court appearances and related expenses.
A hearing was held on April 3, 2014 on Mother’s Petition
for Contempt over Dental Insurance, as well as issues raised by
Father in his March 31, 2014 letter, including issues concerning
this [c]ourt’s past orders. Mother and Father’s dueling Petitions
for Sole Legal Custody and Father’s Petition for Modification of
Custody, initially set to be heard on April 3, 2014, were
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continued until May 29, 2014, at the request of Father to afford
him the opportunity to obtain counsel.
This [c]ourt issued an order on April 8, 2014, ordering
Mother [to] maintain dental and medical insurance for the Minor
Child and ordering that Father would reimburse Mother for half
of the Minor Child’s YPALS preschool tuition. The Court further
ordered that the Minor Child would attend Trinity preschool for
the 2014-2015 school year. The [c]ourt did not impose
attorney’s fees.
On April 17, 2014, [Father] filed a Petition for
Reconsideration of this [c]ourt’s April 8, 2014 Order. On April
21, 2014, this [c]ourt issued an order granting [Father’s]
Petition for Reconsideration in part and denying the Petition in
part. The [c]ourt granted the Petition in so far [sic] as each
Party had to provide the other Party with at least thirty (30)
days notice of the dates of his or her scheduled vacation with the
Minor Child and to order that the Minor child will spend half the
day on her birthday with each Parent. The [c]ourt denied the
Petition with respect to all other matters.
On May 29, 2014, a hearing was held to address Mother’s
Petition for Contempt and Mother’s request for sole legal
custody, as well as Father’s Petition for Sole Legal Custody.
Father retained counsel for this hearing. At the conclusion of the
testimony and at the request of Father and Father’s Counsel, this
[c]ourt issued an order, granting a forty-five (45) day trial
period, instead of ruling outright on the legal custody issue, in
which the Parties were to attempt to make decisions regarding
the Minor Child without the assistance of the GAL. Specifically,
the Order stated that the GAL would not be included on e-mails
between the Parties. After this trial period expired, a telephone
conference was held in which the Attorneys for the Parties
agreed to an additional forty-five (45) day trial period in which
the Parties would again attempt to make decisions regarding the
Minor Child without the use of the GAL. This agreement was
codified in this [c]ourt’s August 5, 2014 Order.
On August 15, 2014, Father, no longer represented by
Counsel, filed a Petition for Reconsideration of the August 5,
2014 Order, and a Petition for Contempt against Mother. Father
filed this Petition for Contempt because Mother e-mailed the GAL
requesting the GAL [to] update an existing Order based on an
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agreement between the Parties regarding the Minor Child’s
dance class. Father alleged that due to Mother reaching out to
the GAL without going through the documented process that was
described in the June 6, 2014 Order from this Court, Mother was
in violation of the June 6, 2014 Order of Court. Father requested
$292.37 for legal fees.
On August 25, 2014, this [c]ourt issued an order setting a
hearing for September 16, 2014 on [Father’s] Petitions as well
as any other matters raised by the Parties. A stipulated order in
regards to the Minor Child’s ballet class was entered by this
[c]ourt on August 28, 2014.
Mother filed an answer and new matter to Father’s Petition
for Contempt on September 11, 2014. In the new matter,
Mother’s counsel requested $1000.00 in legal fees to reimburse
Mother for attorney’s fees in connection with defending the
Petition. Father failed to answer the new matter raised.
During the hearing on September 16, 2014, this [c]ourt
addressed Father’s Petition for Contempt. Father called Mother
to the stand to question her about the alleged violation. During
Father’s questioning, Mother’s counsel stipulated that Mother
communicated with the GAL as alleged in Father’s Petition. N.T.
9/16/14 at p. 12. However, Mother’s testimony demonstrated
that Father had e[-]mailed Mother on July 21, 2014 in response
to an e-mail Mother sent Father regarding the Minor Child’s
ballet class. Id. at p. 14. Mother read Father’s email on the
record. Id. at p. 15-16. Father agreed to adjusting the custodial
schedule to allow the Minor Child to attend ballet class and
stated[,] “[J]ust have the order updated so that there’s no
misunderstanding and forward [it] to me so that there is no time
loss for me and [Child].” Id. at p. 16. Thus, Father’s Petition for
Contempt for Mother contacting the GAL was a result of Father
instructing Mother to do so. This [c]ourt denied Father’s Petition
for Contempt[,] and found it to be frivolous. Id. at p. 24, 34.
This [c]ourt then ordered that Father pay Mother $300.00 in
attorney’s fees. Id. at p. 36. This [c]ourt had never before
entered an Order for attorney’s fees against Father, even though
this [c]ourt found specifically that Father used the Court in a
vexatious manner[,] and it appeared to this [c]ourt that Father
had intentionally tried to drive up Mother’s legal costs. Id. at p.
36. This [c]ourt entered an Order codifying the decision to
impose attorney’s fees on October 3, 2014.
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Trial Court Opinion, 11/19/14, at 13–17 (some internal citations omitted).
On October 27, 2014, Father filed a notice of appeal from the
October 3, 2014 order, along with a concise statement of errors complained
of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In his brief on
appeal, Father raises the following issues:
1. Did the trial court commit an error of law and abuse its
discretion by finding that Mother was not in contempt for
reaching out formally via email to the Guardian Ad Litem given
the direct testimony of the witnesses and documented answer to
the petition[?]
2. Did the trial court commit an error of law and abuse [its
discretion] by failing to delinieate [sic] its reasoning at or near
the time it issued its decision in the matter[?]
3. Did the trial court commit an error of law and abuse its
discretion by ordering [Father] to pay [$]300 in legal fees for not
being allowed to answer new matter in [Mother’s] answer/new
matter[?]
4. Did the court commit an error of law and abuse its discretion
by failing to issue an opinion as of the date of the filing of
[Father’s] 1925 (b) statement of matters complained of on
appeal, thus prohibiting [Father] from complying with the rules
of appe[llate] procedure in preserving the necessary issues on
appeal through the this [sic] 1925(b) statement[?]
5. Did the court commit an error of law and abuse its discretion
by failing to communicate to [Father] the appropriate process to
answer new matter and to allow the plaintiff time to formally
answer new matter in documented forms and reference case law
as well as allow [Father] to retain counsel in order to answer
new matter brought by [Mother?]
Father’s Brief at v (full capitalization omitted).
In Krebs v. United Refining Company of Pennsylvania, 893 A.2d
776, 797 (Pa. Super. 2006), this Court stated that any issue not set forth in
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or suggested by an appellate brief’s statement of questions involved and in
the concise statement of errors complained of on appeal is waived. This
Court has held that a party can waive an issue in a child custody case. See
Schwarcz v. Schwarcz, 548 A.2d 556, 560 n.10 (Pa. Super. 1988).
Herein, issues one, three, and five in Father’s Statement-of-Questions-
Involved portion of his brief are stated somewhat differently in his Concise
Statement of Errors Complained of on Appeal. Father’s Brief at v; Pa.R.A.P.
1925 (b) Statement, 10/27/14. Nevertheless, we find that he adequately
preserved those issues for our review. Father failed, however, to raise
issues two and four, set forth in his brief, in his Rule 1925 statement. Thus,
issues two and four in Father’s brief are waived. Krebs; Schwarcz.
In issues one, three, and five of his brief, Father argues that the trial
court erred and committed an abuse of its discretion in denying his petition
for contempt against Mother. Father asserts that it was clear from Mother’s
answer to new matter and from the testimony of the witnesses at the
hearing, that Mother contacted the GAL in violation of the June 6, 2014
order. Father’s Brief at VII. Father contends that the trial court erred and
abused its discretion by ordering him to pay Mother’s counsel fees, based on
Father’s failure to answer the new matter filed by Mother’s counsel. Id.Father asserts that he was not informed of the process for filing a response
to Mother’s new matter, not given adequate time to file such answer, and
was not given time to obtain counsel to assist him in the filing of a response
to the new matter. Id.-7-
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We note that Father has failed to provide any relevant legal discussion
and has not included any citation to authority. Our appellate procedural
rules provide that “[i]f reference is made to the pleadings, evidence, charge,
opinion or order, or any other matter appearing in the record, the argument
must set forth, in immediate connection therewith, or in a footnote thereto,
a reference to the place in the record where the matter referred to appears.”
Pa.R.A.P. 2119 (c) (emphasis added). “The Rules of Appellate Procedure
state unequivocally that each question an appellant raises is to be supported
by discussion and analysis of pertinent authority.” Estate of Haiko v.
McGinley, 799 A.2d 155, 161 (Pa. Super. 2002); Pa.R.A.P. 2119(b).
“Appellate arguments which fail to adhere to these rules may be considered
waived, and arguments which are not appropriately developed are waived.
Arguments not appropriately developed include those where the party has
failed to cite any authority in support of a contention.” Lackner v. Glosser,
892 A.2d 21, 29-30 (Pa. Super. 2006) (citations omitted).
Father makes bald, unsupported claims without specific reference to
the testimony in the record. In Smathers v. Smathers, 670 A.2d 1159(Pa. Super. 1996), we explained that a party who chooses to proceed pro se
cannot expect this Court to act as his attorney. We stated, “We decline to
become appellant’s counsel. When issues are not properly raised and
developed in briefs, when the briefs are wholly inadequate to present
specific issues for review, a court will not consider the merits thereof.” Id.-8-
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at 1160 (quoting Commonwealth v. Sanford, 445 A.2d 149, 150 (Pa.
Super. 1982)). Because Father fails to direct our attention to the specific
testimony of record that supports his claim, we find the issues waived.
Pa.R.A.P. 2119(b); see Stimmler v. Chestnut Hill Hosp., 981 A.2d 145,
153 n.9 (Pa. 2009) (stating that argument portion of brief must contain
“sufficient citation to the record . . . .”). It is not this Court’s responsibility
to comb through the record seeking the factual underpinnings of an
appellant’s claim. Irwin Union National Bank and Trust Company v.
Famous and Famous and ATL Ventures, 4 A.3d 1099, 1103 (Pa. Super.
2010) (citing Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5
(Pa. 1997)). See also Chapman-Rolle v. Rolle, 893 A.2d 770, 774 (Pa.
Super. 2006) (“It is well settled that a failure to argue and to cite any
authority supporting any argument constitutes a waiver of issues on
appeal.”).
Even if we were to ignore these defects and address Father’s issues
one, three, and five, we would conclude that those issues lack merit. We
apply the following standard of review in matters involving a trial court’s
decision on a contempt petition:
When we review a trial court’s finding of contempt, 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 judge when reviewing an order of
contempt. This [C]ourt also has stated that each court is the
exclusive judge of contempts against its process.
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G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013) (citations and quotation
marks omitted).
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.
P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012) (citation
omitted).
Here, the trial court found as follows:
This [c]ourt finds that Father’s actions in filing his Petition
for Contempt against Mother on August 15, 2014 were
vexatious. Father filed the Petition alleging Mother had
contacted the GAL in violation of this Court’s June 6, 2014 Order.
However, in Father’s Petition, he failed to note that Mother
contacted the GAL because Father asked her to obtain an
updated Court Order based on Father’s request. Mother and
Father were discussing the Minor Child’s ballet class and had
reached an agreement. N.T. 9/16/14 at p. 16. Mother e-mailed
Father regarding the class, and Mother credibly testified that
Father e-mailed her in response[,] and Father specifically stated
in his e-mail[,] “[J]ust have the order updated so that there’s no
misunderstanding and forward to me so that there is no time
loss for me and [Child].” N.T. 9/16/14 at p. 16. Mother further
testified that “she wouldn’t know any other way to modify an
order.” Id. at 18. The Parties have used the GAL to update
Orders throughout this cases’ [sic] history. In sum, this [c]ourt
finds Father baited Mother into e-mailing the GAL, as the Parties
have done to have Orders updated in the past, and then filed a
Petition for Contempt after Mother contacted the GAL. Thus,
Father’s Petition had no factual basis and required Mother to pay
her counsel to defend her against his Petition, even though it
completely lacked merit. Father’s actions . . . were meant to
cause annoyance to Mother and intensify the dispute
surrounding this custody matter.
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This [c]ourt also notes that Father failed to answer
Mother’s new matter raised in Mother’s Answer to Father’s
Petition for Contempt. Although the [c]ourt did find that Father
failed to answer the new matter and could have simply held the
failure to answer resulted in an award of attorney’s fees to
Mother, this [c]ourt heard testimony on the merits of Father’s
Petition for Contempt. After finding the Petition to be frivolous
and denying the Petition, this [c]ourt had the power to impose
attorney’s fees on Father. Thus, this [c]ourt had two separate
grounds for awarding attorney’s fees to Mother.
***
Based on the foregoing reasons, this [c]ourt awarded
Mother’s counsel $300.00 in attorney’s fees for answering
Father’s frivolous Petition for Contempt and for appearing in
[c]ourt to defend Mother against the Petition.
Trial Court Opinion, 11/19/14, at 18–19.
The trial court determined that Mother did not commit a violation of its
June 6, 2014 order that was volitional, nor did Mother act with wrongful
intent in contacting the GAL. P.H.D., 56 A.3d at 706 n.7. Rather, the trial
court found that Mother was merely acting in accordance with Father’s
request when she contacted the GAL. In fact, contrary to Father’s claims
regarding Mother, the trial court concluded that Father’s conduct was
vexatious, and his contempt petition was frivolous. As noted supra, the trial
court is the judge of contempts against its own orders. G.A., 72 A.3d at
269. After a careful review of the record, we would conclude there was no
error or abuse of discretion on the part of the trial court in denying Father’s
petition for contempt.
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Next, Father asserts that he was neither informed of the process for
filing a reply to Mother’s new matter in her Answer to Plaintiff’s Petition for
Contempt and New Matter filed on September 11, 2014, nor given adequate
time to file an answer to the new matter and to obtain counsel to assist in
the filing of a response to the new matter. Father’s Brief at VIII. Our review
of Mother’s new matter reflects that Mother was requesting “reasonable
attorney fees, in the amount of One Thousand Dollars ($1,000) representing
her reasonable attorney’s fees in preparing this written response and
appearance at hearing.” In its opinion filed on November 19, 2014, the trial
court explained that it awarded Mother reasonable counsel fees in the
amount of $300 based on the argument on the petition on September 16,
2014, and not merely on Father’s failure to reply to Mother’s new matter.
Thus, we would conclude that the trial court did not render its decision solely
on the failure of Father to file a reply to Mother’s new matter.
Moreover, Father opted to proceed as a pro se litigant when he filed
his petition for contempt against Mother on August 15, 2015, requesting
legal fees in the amount of $292.37 against Mother, and “[a]ny other relief
as that [t]his Honorable Court deems just and proper.” As we instructed in
Smathers, “[A]ny layperson choosing to represent [himself] in a legal
proceeding must, to some reasonable extent, assume the risk that [his] lack
of expertise and legal training will prove [his] undoing.” Smathers, 670
A.2d at 1160 (quoting O’Neill v. Checker Motors Corp., 567 A.2d 680,
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682 (Pa. Super. 1989)) (citations omitted in original). Accordingly, we
would agree with the trial court that there is no merit to Father’s contention
that the trial court improperly denied him an opportunity to reply,
represented by counsel, to Mother’s new matter.
Our Supreme Court has set forth the standard of review for an award
of attorney’s fees as follows:
Appellate review of a trial court’s order awarding attorney’s fees
to a litigant is limited solely to determining whether the trial
court palpably abused its discretion in making a fee award. If
the record supports a trial court’s finding of fact that a litigant
violated the conduct provisions of the relevant statute providing
for an award of attorney’s fees, such award should not be
disturbed on appeal.
Thunberg v. Strause, 682 A.2d 295, 299 (1996).
“The so-called ‘American rule’ provides that parties to litigation are
responsible for their own counsel fees ‘unless otherwise provided by
statutory authority, agreement of the parties, or some other recognized
exception.’” Mrozek v. Eiter, 805 A.2d 535, 538 (Pa. Super. 2002)
(citation omitted). Section 2503 of the Judicial Code allows the award of
reasonable counsel fees under several circumstances, including to any
participant in the litigation “as a sanction against another participant for
dilatory, obdurate or vexatious conduct during the pendency of a matter.”
42 Pa.C.S. § 2503(7).
In Thunberg, our Supreme Court, in construing 42 Pa.C.S. § 2503,
stated that a party opponent can be deemed to have brought the action
“vexatiously” if he filed the matter without sufficient grounds in either law or
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fact, or if the action served the “sole purpose of causing annoyance.”
Thunberg, 682 A.2d at 299 (citing Bucks County Board of Supervisors
v. Gonzales, 632 A.2d 1353, 1356 (1993); Black’s Law Dictionary 1565
(6th ed., reprinted 1993)). In Thunberg, the Supreme Court upheld the
imposition of counsel fees. Thunberg, 682 A.2d at 302; cf. Berg v.
Georgetown Builders, Inc., 822 A.2d 810, 823 (Pa. Super. 2003) (holding
that there was no basis to conclude that a suit was brought in bad faith,
where the plaintiffs had no choice but to institute the underlying suit to
vindicate their injuries; thus, an award of counsel fees under § 2503(9) was
improper).
Here, the trial court found that Father’s contempt petition lacked any
factual basis because he baited Mother into e-mailing the GAL and then filed
a petition for contempt. Trial Court Opinion, 11/19/14, at 18. The trial
court stated, “Father’s actions . . . were meant to cause annoyance to
Mother and intensify the dispute surrounding this custody matter.” Id. at
18–19. The trial court determined that Father’s petition for contempt was
vexatious. Id. at 18. We would conclude that the record supports the trial
court’s determination that Father’s contempt petition was vexatious and that
the trial court did not abuse its discretion in imposing on Father, as a
sanction pursuant to 42 Pa.C.S. § 2503(7), Mother’s reasonable counsel fees
in the amount of $300. Thus, we would not award Father credit for $300, as
he requests in his brief. Father’s Brief at IX.
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Finally, we acknowledge Father’s allegations that the trial court acted
with bias against him and has a history of making incorrect rulings, such
that its order in this case was improper. Father’s Brief at VI. For these
reasons, Father asks us to remand the case and assign it to another trial
judge. Id. at IX.
To the extent that Father is attempting to have this Court address the
trial court’s fitness to render a decision on his contempt petition and to
impose on him Mother’s reasonable attorney fees, we cannot do so. “Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a). See Kelley v. Mueller, 912 A.2d 202,
204 (Pa. 2006). Additionally, Father failed to include such claim in his
appellate brief’s Statement of Questions Involved and in his Pa.R.A.P.
1925(b) statement. Thus, it is waived. Krebs, 893 A.2d at 797.
Moreover, to the extent that Father is referring to matters involving
the trial court which are outside of the record in this case, we remind Father
that we are bound to review only matters in the certified record before this
Court. Warfield v. Warfield, 815 A.2d 1073, 1074 (2003); Pa.R.A.P.1921
(setting forth the composition of the record on appeal); Bennyhoff v.
Pappert, 790 A.2d 313, 318 (Pa. Super. 2001) (stating “[f]or purposes of
appellate review, what is not of record does not exist.” (Citation omitted)).
We note, however, that adverse rulings alone do not establish the requisite
bias warranting the recusal of a trial court, especially where the rulings are
legally proper. See In re S.H., 879 A.2d 802, 808 (Pa. Super. 2005). If
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Father had preserved his issues for appellate review, we would have
determined that the rulings were legally proper and therefore, would have
concluded that the appeal lacked merit.
Accordingly, we affirm the trial court’s October 3, 2014 order denying
Father’s petition for contempt and imposing on Father the payment of
Mother’s reasonable counsel fees in the amount of $300.
Order affirmed.
Judge Wecht joins the Memorandum.
Judge Strassburger files a Concurring and Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2015
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