K.T. v. P.H.

J-A11016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.T. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
P.H.
Appellant No. 1806 MDA 2016
Appeal from the Order Entered September 27, 2016
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2010 FC 41013
BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY MOULTON, J.: FILED JULY 20, 2017
P.H. (“Father”) appeals, pro se, from the September 27, 2016 order1
of the Lackawanna County Court of Common Pleas finding him in contempt
and ordering him to pay K.T.’s (“Mother”) counsel fees. We affirm.
The trial court set forth the factual and procedural background as
follows:
[T]his case began in 2010 when [Mother] filed for a
Petition for Custody of [C.H. (“Child”)]. Thereafter, Mother
and [Father] were Ordered to attend mediation. Pursuant
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Father’s notice of appeal to this Court states he is appealing from the
order “entered in this matter on the 27th day of October, 2016.” Because
there is no order dated October 27, 2016 in the certified record and in his
brief Father states the order in question is the September 27, 2016 order,
see Father’s Br. at 1, it is clear that Father intended to appeal from the
September 27, 2016 order.
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to a Stipulated Court’s Order dated January 11, 2011, the
parties have shared legal custody of the minor child with
Mother having primary physical custody subject to Father’s
periods of partial physical custody every other weekend.
There were numerous Petitions filed thereafter.1
1
It is necessary for this Court to note the lengthy
procedural history in this matter as it shows the
litigious nature of the parties and the level of conflict
that exists between Mother and Father.
Father filed a Petition for Modification of Physical
Custody during the Minor Child’s Summer Vacation in April
2015. Oral arguments were held during Motion Court on
[Father]’s Motion for Special Relief in Custody and
[Mother]’s Answer for Special Relief and New Matter. At
that time, this Court scheduled a hearing on [Father]’s
Petition for Modification of Physical Custody for September.
Numerous continuances were filed thereafter. On April 18,
2016, this Jurist and the attorneys spent numerous hours
discussing a settlement. Subsequently, a hearing on the
Petition for Modification was held on April 25, 2016. The
June 9, 2016 Order states “This custody schedule shall
remain in place for at least two (2) years and neither party
shall file any petition and/or motion to change said
schedule for two (2) years except for an actual emergency
(i.e. criminal charges). Any motion and/or petition filed
that does not rise to an emergency level shall result in
contempt of this Court’s Order.” Further, the Order states
“Any frivolous motions will not be tolerated by this Court.”
Both parties, under oath, agreed to the terms of the Order.
Furthermore, this Court addressed the summer vacation
schedule in the June 9, 2016 Order which provided that
Mother shall have custody of the minor child June 9 at
5:00 p.m. until June 12 at 5:00 p.m., June 26 at 5:00
p.m. until July 10 at 5:00 p.m., and July 21 at 5:00 p.m.
until August 7 at 5:00 p.m. Father shall have custody of
the minor child June 12 at 5:00 p.m. until June 26 at 5:00
p.m., July 10 at [5:]00 p.m. until July 21 at 5:00 p.m.,
and August 7 at 5:00 p.m. until two days prior to school
starting at 5:00 p.m. During the hearing, the Court and
counsel were informed that school began on the week of
August 22, 2016. Additionally before this Court issued the
June 9, 2016 Order, counsel for the parties reviewed and
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approved the Order. Thereafter, Mother filed an Oral
Motion to Clarify to the Order based on [s]chool [s]tarting
five (5) days later than was known at the time of the
hearing. A conference was held and this Court clarified the
June 9, 2016 Order by issuing the August 2, 2016 Order in
which the Court divided the extra vacation days between
the parents.
Thereafter, Father filed a Petition for Contempt, in
which he averred that Mother was in contempt of this
Court’s June 9, 2016 order. Mother filed a Response to
said Motion, in which she included a Counterclaim Petition
for Contempt. This Jurist heard oral arguments on both
petitions on September 26, 2016. Subsequently, this
Court issued the September 27, 2016 Order.
Opinion, 11/28/16, at 1-3 (“1925(a) Op.”) (internal citations omitted).
In the September 27, 2016 order, the trial court: (1) denied Father’s
petition for contempt, finding that Mother’s oral motion to clarify was not in
violation of the June 9, 2016 order; (2) granted Mother’s petition for
contempt, finding Father violated the June 9, 2016 order “by filing the
frivolous August 29, 2016 Petition for Contempt knowing during negotiations
with counsel regarding the June 9, 2016 Order and before this Court entered
the [order] that school started five . . . days later than the court was
originally advised of”; (3) ordered that Father could purge himself of the
contempt finding by not filing further frivolous motions for one year; and (4)
ordered Father to pay Mother $2,000 in counsel fees within 30 days. Order,
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9/27/16. On October 28, 2016, Father timely filed his notice of appeal. 2
The trial court did not order Father to file a Pennsylvania Rule of
Appellate Procedure 1925(b) statement. On November 28, 2016, it filed a
Rule 1925(a) opinion.
Father raises the following issues on appeal:
A. Whether Judge Trish Corbett abused her discretion in
imposing sanctions against [Father] for contempt and
violation of 42 Pa.C.S.A. § 2503(7) in the absence of
credible evidence establishing that [he] engaged in
willful violation of a court order or any vexatious,
obdurate or dilatory conduct, such as “entrapment” or
hiding information regarding the end of his daughter’s
summer vacation schedule?
B. Whether Judge Trish Corbett abused her discretion,
acting clearly in excess of her jurisdiction, by imposing
an injunction against [Father], prohibiting him from
filing poorly and vaguely or even utterly undefined
“frivolous” motions or pleadings, or for that matter
“non-emergency” pleadings?
C. Whether Judge Trish Corbett abused her discretion,
acting clearly in excess of her jurisdiction, enjoining
[Father] from filing any motions or pleading for two
years concerning his shared custody and visitation
schedule with his daughter?
D. Whether Judge Trish Corbett abused her discretion by
entering bo[t]h of the orders, subject of this appeal,
without a separate hearing or making any effort to
comply with the multiple procedural safeguards,
including consideration of all alternative safeguards
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2
Because the docket entry for September 27, 2016 does not include a
Pa.R.Civ.P. 236(b) notation that notice of an order was provided to the
parties, the date of commencement of the 30-day appeal period is not
apparent from the record. See Pa.R.A.P. 108. Thus, we are constrained to
find Father’s petition timely filed. See Trial Ct. Docket, 9/27/16 Entry.
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against an imminent real harm or injury against a
compelling government or public interest, prior to
imposing any prior restraint, as outlined in Nebraska
Press Association v. Stuart, 427 U.S. 539, 96 S.Ct.
2791, 49 L.Ed.2d 683 (1976)[ ](Also cited in
Commonwealth v. Lambert, [723 A.2d 684, 689
(Pa.Super. 1998)]?
E. Whether the trial court committed numerous procedural
errors, thereby depriving [Father] of his right to due
process under the law and abandoned her role as
neutral arbiter by:
(i) denying his Motion for Recusal summarily and
without proper argument or presentation, and
requiring him to answer to [Mother]’s
“Counterclaim” in contempt without proper notice
or opportunity; (See Exhibit E: Transcript of
Hearing held on September 26, 2016, page 12
line 20- page 13, line 15)[3]
(ii) hopelessly confusing the procedural and
substantive distinction between civil and criminal
contempt, and improperly adjudicating [Mother]’s
20 September 2016, Cross-Motion for Contempt
without a separate “rule to show cause” and
discrete and independent hearing on the issues
raised in [Mother]’s “Counterclaim7[”;]
7
Procedural due process—which is essential
in a civil contempt adjudication—requires a
five-step, two-hearing procedure that
includes: (1) a rule to show cause why an
attachment of the person should not issue;
(2) an answer and hearing; (3) a rule
absolute (arrest); (4) a hearing on the
contempt citation; and (5) an adjudication.
Stewart v. Foxworth, 65 A.3d 468, 2013
PA Super 91 (19 April 2013). The essential
due process requisites for a finding of civil
contempt are notice and an opportunity to
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3
Father has abandoned this issue on appeal. Father’s Br. at 10 n.6.
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be heard. Cleary v. Department of
Transportation, 919 A.2d 368(Pennsylvania Superior Court 23 March
2007).
(iii) failing to conduct a proper hearing in civil
contempt, comingling civil and criminal contempt,
in violation of the Pennsylvania rule as expressed
in Schnabel Associates, Inc. v. Building and
Const. Trades Council of Philadelphia and
Vicinity, AFL-CIO, 338 Pa.Super. 376, 487 A.2d
1327 (Superior Court of Pennsylvania, 4 January
1985)[;]
(iv) imposing criminal contempt sanctions on [Father]
without affording him the requisite due process
protections guaranteed by the United States and
Pennsylvania Constitutions as outlined in
Nebraska Press Association v. Stuart, cited
above;
(v) improperly punishing [Father] by imposing a “civil
contempt” injunction against him against filing
“frivolous” and/or “non-emergency” motions
concerning his daughter’s custody for a period of
two years[;]
(vi) [e]ffectively imposing an unreasonable burden of
proof on [Father] to establish that his motions
and pleadings are not frivolous, rather than
requiring [Mother] to establish that any of
[Father]’s actions fit within any category of either
“frivolous” or “non-emergency” defined and
established by Pennsylvania law;
(vii) by finding “entrapment” and intent as predicates
for civil contempt - the sole substantive evidence
supporting its conclusion being highly confusing
hearsay statements regarding the parties’
understanding and information concerning the
minor child, in whose interest these proceedings
allegedly take place. These statements should
have been excluded as inadmissible hearsay.
F. Whether the trial court abused its discretion when it
imposed sanctions in the total amount of $2,000.00
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without any testimony concerning attorney time or
effort at the hearing, and without competent evidence
to establish the reasonableness of the amount in
circumstances where the amount imposed bore no
reasonable relationship to any loss incurred and hence
was punitive in nature?
Father’s Br. at 11-14.4
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4
We note that Father’s brief does not comply with the dictates of
Pennsylvania Rule of Appellate Procedure 2116(a), which requires that the
statement of questions involved “state concisely the issues to be resolved,
expressed in the terms and circumstances of the case but without
unnecessary detail.” Indeed, as stated by the Honorable Ruggero J. Aldisert
of the United States Court of Appeals for the Third Circuit:
With a decade and a half of federal appellate
court experience behind me, I can say that
even when we reverse a trial court it is rare
that a brief successfully demonstrates that the
trial court committed more than one or two
reversible errors. I have said in open court that
when I read an appellant’s brief that contains
ten or twelve points, a presumption arises that
there is no merit to any of them . . . [and] it is
[this] presumption . . . that reduces the
effectiveness of appellate advocacy.
Aldisert, “The Appellate Bar: Professional Competence and Professional
Responsibility–A View From the Jaundiced Eye of the Appellate Judge,” 11
Cap. U.L. Rev. 445, 458 (1982) (emphasis in original); accord
Commonwealth v. Robinson, 864 A.2d 460, 479 n.28 (Pa. 2004).
We further note that Father has failed to include an “Argument”
section in his brief in violation of Pennsylvania Rule of Appellate Procedure
2111 and 2119. Although the Rules of Appellate Procedure allow this Court
to quash or dismiss an appeal if the defects in the brief are substantial, see
Pa.R.A.P. 2101, we decline to find waiver on this basis given that the defects
do not impede our ability to conduct a meaningful review, see In re R.D.,
44 A.3d 657, 674 (Pa.Super. 2012) (“[W]hen defects in a brief impede our
ability to conduct meaningful appellate review, we may dismiss the appeal
entirely or find certain issues to be waived.”) (quotation omitted).
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We will address Father’s issues out of order for ease of disposition. In
Father’s second and third issues and in portions of his fourth and fifth issues
he is challenging the June 9, 2016 order.
Generally, “an appeal may be taken as of right from any final order.”
Pa.R.A.P. 341(a). “A final order is any order that . . . disposes of all claims
and of all parties.” Pa.R.A.P. 341(b). “[A] custody order is considered final
and appealable only if it is both: (1) entered after the court has completed
its hearings on the merits; and (2) intended by the court to constitute
complete resolution of the custody claims pending between the parties.”
Beltran v. Piersody, 748 A.2d 715, 717 (Pa.Super. 2000) (quoting G.B. v.
M.M.B., 670 A.2d 714, 720 (Pa.Super. 1996) (en banc)). Thereafter, an
appellant must file his or her notice of appeal “within 30 days after the entry
of the order from which the appeal is taken.” Pa.R.A.P. 903.
The trial court entered the June 9, 2016 custody order after
conducting a full hearing on April 25, 2016. At the time, there was no
hearing pending or any issue remaining to be resolved. Further, it is evident
from the language of the order that it was intended to be a complete
resolution of the case. See Order, 6/9/16, at 6 (“This custody schedule shall
remain in place for at least two (2) years and neither party shall file any
petition and/or motion to change said schedule for two (2) years except for
an actual emergency (i.e. criminal charges.”)) (emphasis in original).
Therefore, the trial court’s June 9, 2016 order was final and appealable.
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Because Father did not file a notice of appeal within 30 days of the entry of
this order, Father has waived any challenge to the June 9, 2016 order.5
In Father’s first issue, he contends that the trial court abused its
discretion in finding him in contempt of the June 9, 2016 order. Father
claims that there was insufficient evidence to establish that he “engaged in
willful violation of a court order or any vexatious, obdurate or dilatory
conduct, such as ‘entrapment’ or hiding information regarding the end of his
daughter’s summer vacation schedule.” Father’s Br. at 11.
When reviewing a trial court’s finding of contempt, our scope of review
“is very narrow.” Garr v. Peters, 773 A.2d 183, 189 (Pa.Super. 2001). We
review the trial court’s finding for a clear abuse of discretion. Id. We have
explained that “[e]ach court is the exclusive judge of contempts against its
process.” Id. (quoting Fatemi v. Fatemi, 537 A.2d 840, 846 (Pa.Super.
1988)). “The contempt power is ‘essential to the preservation of the court’s
authority and prevents the administration of justice from falling into
disrepute.’” Id. (quoting Marian Shop, Inc. v. Baird, 670 A.2d 671, 673
(Pa.Super. 1996)). “When reviewing an appeal from a contempt order, the
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5
Even if Father had not waived his claims challenging the June 9,
2016 order, we would conclude they are meritless. The trial court was
within its right to prohibit the parties from filing frivolous and/or non-
emergency petitions. The trial court did not completely bar all claims the
parties may have; it merely limited them in light of “the litigious nature of
the parties and the level of conflict that exists between Mother and Father.”
1925 Op. at 2 n.1.
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appellate court must place great reliance upon the discretion of the trial
judge.” Id. We have further stated that
[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. The complaining party has the burden of
proving by a preponderance of evidence that a party
violated a court order . . . . To impose civil contempt the
trial court must be convinced beyond a reasonable doubt
from the totality of evidence presented that the contemnor
has the present ability to comply with the order.
Id. (quoting Sinaiko v. Sinaiko, 664 A.2d 1005, 1009 (Pa.Super. 1995)).
Here, the trial court found:
This Court’s June 9, 2016 Order regarding the filing of
petitions for two (2) years is clear. The language states,
“Neither party shall file any petition and/or motion to
change said schedule for two (2) years except for an actual
emergency (i.e. criminal charges).” Mother’s Motion to
Clarify was not a filing to change custody, but a simple
clarification [of] this Court’s Order. Furthermore, Father
admitted during oral arguments on September 26, 2016
that he was aware when school began prior to this Court
entering the June 9, 2016 Order, but failed to inform
Mother or the Court. Thus, this Court found that Mother
was not in Contempt of the June 9, 2016 Order.
Moreover, the June 9, 2016 Order states, “Any frivolous
motions will not be tolerated by this Court.” Father is in
clear contempt of that portion of this Court’s Order.
During oral arguments and testimony held before the Jurist
on September 26, 2016, Father admitted that he was
aware that school began later than both the Court and the
parties believed before this Court entered the June 9, 2016
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Order.[6] Yet, he failed to inform the Court or Mother of
the start date, but filed a frivolous Petition for Contempt.
As discussed above, Mother’s Motion to Clarify was not a
motion to change the custody schedule, but to clarify it.
This Court finds that Father’s actions were entrapment. He
withheld the school information before the June 9, 2016
Order was entered, which required Mother to file a Motion
to Clarify. Therefore, this Court held that Father is in
contempt of the June 9, 2016 regarding frivolous motions
because he knew of the start date of school, failed to
inform this Court of said date, and attempted to have this
Court hold Mother in contempt for clarifying the Order
after she became aware of the new start date.
1925(a) Op. at 4-5 (internal citations omitted); see also N.T., 9/26/16, at
39.
We conclude that the trial court did not abuse its discretion in finding
Father in contempt of the June 9, 2016 order.
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6
The following exchange occurred during the September 26, 2016
hearing:
[FATHER]: This is the school calendar. It was up on the
website prior to our executing our July [9]th court order.
[MOTHER’S COUNSEL]: How do we know that?
[FATHER]: I’m going to testify to it, Your Honor. I looked
at it three days prior to June [9]th. I called and asked
them when it was up. They said three days prior to me
calling. So it was up for six -- at least up for six days prior
to the order being executed.
[MOTHER’S COUNSEL]: So, wait, you’re saying you knew
about it, when?
[FATHER]: Approximately the 25th or so of May.
N.T., 9/26/16, at 26.
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In Father’s fourth issue, and in the portions of his fifth issue
challenging the September 27, 2016 order, Father claims the trial court
erroneously confused criminal and civil contempt. He further claims that the
trial court erred by entering the September 27, 2016 order without
conducting a hearing and by not issuing an order to show cause or other
advance notice.
We have explained that the difference between civil and criminal
contempt is their purpose. Warmkessel v. Heffner, 17 A.3d 408, 414
(Pa.Super. 2011).
If the dominant purpose is to vindicate the dignity and
authority of the court and to protect the interest of the
general public, it is a proceeding for criminal contempt.
But where the act of contempt complained of is the refusal
to do or refrain from doing some act ordered or prohibited
primarily for the benefit of some private party, proceedings
to enforce compliance with the decree of the court are civil
in nature.
Id. (quoting Stahl v. Redcay, 897 A.2d 478, 486 (Pa.Super. 2006)).
“When contempt is civil, ‘a court must impose conditions on the
sentence so as to permit the contemnor to purge himself.’” Gunther v.
Bolus, 853 A.2d 1014, 1018 (Pa.Super. 2004) (quoting Cecil Township v.
Klements, 821 A.2d 670, 675 (Pa.Commw. 2003)). The purpose “is
remedial.” Diamond v. Diamond, 792 A.2d 597, 600 (Pa.Super. 2002)
(quoting Lachat v. Hinchcliffe, 769 A.2d 481, 488 (Pa.Super. 2001)).
“Judicial sanctions are employed to coerce the defendant into compliance
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with the court’s order, and in some instances, to compensate the
complainant for losses sustained.” Id. (quoting Lachat, 769 A.2d at 488).
Here, we agree with the trial court that the contempt was civil in
nature. 1925(a) Op. at 3. The June 9, 2016 order stated that “[a]ny motion
and/or petition filed that does not rise to an emergency level shall result in
contempt of this Court’s Order.” Order, 6/9/16. The order further stated
that “frivolous motions w[ould] not be tolerated.” Id. The contempt
adjudication was not meant to punish Father, but to enforce compliance with
the June 9, 2016 order – that is, to prevent Father from filing non-
emergency or frivolous motions and petitions. Moreover, the September 27,
2016 order indicated that Father could purge himself by not filing another
frivolous motion for the next year. Thus, the contempt was civil in nature.
See Warmkessel, 17 A.3d at 414; Diamond, 792 A.2d at 600.
We must next determine whether the trial court complied with the
procedural requirements for a finding of contempt. Trial courts generally
follow a five-step process: “(1) a rule to show cause why an attachment
should not issue, (2) an answer and hearing, (3) a rule absolute, (4) a
hearing on the contempt citation, and (5) an adjudication.” Wood v.
Geisenhemer-Shaulis, 827 A.2d 1204, 1208 (Pa.Super. 2003) (quotation
omitted). However, we have held that “[f]ulfillment of all five factors is not
mandated.” Id. “[W]hen the contempt proceedings are predicated on a
violation of a court order that followed a full hearing, due process requires
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no more than notice of the violations alleged and an opportunity for
explanation and defense.” Id. (quoting Diamond, 792 A.2d at 601).
Here, the June 9, 2016 order followed a full and thorough hearing on
April 25, 2016. Thereafter, on September 20, 2016, Mother filed and served
a response to Father’s petition, which included a contempt petition and
provided notice of Father’s alleged violations of the June 9, 2016 order.7 At
the September 26, 2016 hearing,8 in which Father was acting pro se, Father
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7
At the September 26, 2016 hearing, the following exchange took
place:
[MOTHER’S COUNSEL]: Right. And, Your Honor, just for
the record, [the petition for contempt] was e-mailed to
him, because he’s been e-mailing everything to me, on the
day it was filed by my office. And I will give you the
verification -- the filing date is September 20th.
[COURT]: Okay. Well that would, with today being
September 26th –
[MOTHER’S COUNSEL]: It was Wednesday of last week it
was filed.
[COURT]: That would be sufficient notice for that to be
heard. All right.
N.T., 9/26/16, at 13; see also Trial Ct. Docket, 9/20/16 Entry.
8
At the outset of the September 26, 2016 proceeding, the trial court
clarified that while the proceeding was listed as “a hearing,” the trial court
was prepared to hear argument from counsel. However, during the course
of the proceeding, the trial court decided to also receive limited testimony.
See N.T., 9/26/16 at 13 (“[COURT]: Let’s proceed on -- and as -- I mean,
it’s listed as a hearing, but it’s really argument.”), 30 (“[COURT]: . . . I
haven’t taken testimony up to this point, because I was considering oral
argument, but I am going to take testimony on this limited point.”).
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had an extensive opportunity to explain and defend himself and did in fact
exercise that opportunity.9 We conclude the trial court complied with the
necessary procedural requirements, because Father had notice of the
contempt allegations and an opportunity to respond. See id. at 1208.
Father’s final issue is that the trial court erred in ordering him to pay
Mother’s counsel fees without conducting a hearing regarding counsel’s time
and effort.
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9
See supra note 6. Further, the following exchange occurred:
[COURT]: . . . But I just want to be clear. You’re telling
me now, as you sit here today, that you were aware back
in May --
[FATHER]: Late May.
[COURT]: -- what the actual start date was for the school?
[FATHER]: It was on the school website, Your Honor.
[COURT]: When you knew that we were unclear as to
what the actual start date was? So is it that you were
surreptitiously trying to keep that to yourself?
[FATHER]: No, Your Honor. Was it my responsibility to
notify [Mother] of the start date?
[COURT]: But officers of the court have an obligation to
notify the Court. Did you notify your attorney?
[FATHER]: I did not, Your Honor.
N.T., 9/26/16 at 29. Father also stated, “I have no legal obligation to tell
the Court or [Mother] that I knew that school was starting six days later. I
have no obligation to do that.” Id. at 38.
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Father has waived this issue. He fails to develop this claim in the
argument section, or in any other part, of his brief. Further, he includes no
authority to support his assertion that imposition of counsel fees was
inappropriate or that the trial court should have held a hearing. See
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2017
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