E.J.U. v. A.M.U.

J-A11005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
E.J.U., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
A.M.U.,
Appellee No. 2046 MDA 2016
Appeal from the Order Entered November 14, 2016
In the Court of Common Pleas of York County
Civil Division at No(s): 2009-FC-1798-03
BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED JUNE 30, 2017
Appellant, E.J.U. (“Father”), and Appellee, A.M.U. (“Mother”), are the
parents of a daughter, A.U. (“Child”). On October 5, 2015, Father and
Mother entered into a Stipulated Order for Custody of Child. Presently,
Father appeals from the order entered on November 14, 2016, that held him
in contempt for fourteen separate violations of that child custody order.
After careful review, we affirm in part and remand for clarification.
The trial court set forth the background of this matter as follows:
The Court found Father to be in contempt of the Court’s
Order of October 5, 2015, for willfully failing to comply with the
Order fourteen times. The first contempt was failure to notify of
a vacation pursuant to the [“]out of York County[”] vacation
provision in the Order. The second, third, and fourth contempt[s]
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*
Former Justice specially assigned to the Superior Court.
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were for three separate instances of failing to comply with the
[“]extracurricular activities[”] provision of the Order. The fifth
through fourteenth contempt[s] were for ten separate instances
of violating the disparaging remarks provision of the Order. The
Court fined Father the maximum amount permitted, $500 for
each finding of contempt; a total of $7,000 for fourteen separate
instances of contempt to encourage Father’s future compliance
with the Court’s Order. The Court also ordered Father to pay
Mother’s attorney’s fees and compensate Mother for her
expenses arising from Father’s contempt.
Trial Court Opinion, 1/10/17, at 2.1
On December 12, 2016, Father filed a timely notice of appeal, and he
filed his statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) two days later on December 14, 2016.2 The trial court issued
its Rule 1925(a) opinion on January 10, 2017.
On appeal, Father raises the following issues:
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1
In addition to the fine, the trial court also ordered Father to pay Mother’s
attorney’s fees in the amount of $1,923.75, and $60.00 in costs Mother
incurred taking Child to her riding class when Father refused. The court
imposed a condition that if Father failed to pay these sums within sixty days,
he would be committed to the York County Prison for thirty days. Order
11/14/16, at 2-3. These payments were stayed pending the outcome of the
appeal by an order of the trial court granting Father’s application for
supersedeas. Order, 1/10/17.
2
As noted, Father did not file a concise statement of errors complained of on
appeal concurrently with his notice of appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). However, because Mother does not claim prejudice
as a result of Father’s procedural violation, we will not quash or dismiss his
appeal on this basis. See In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009)
(holding that the appellant’s failure to concurrently file the Rule 1925(b)
statement with the notice of appeal did not warrant quashing or dismissing
the appeal, as no court order had been violated, and there was no prejudice
to any party).
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I. Whether the trial court abused its discretion when it found
Father willfully violated a custody order for failure to follow
the notice of vacation outside of York County provision and
the extracurricular activities provision?
II. Whether the trial court committed an error of law when it
fined Father $7,000.00 and imposed incarceration upon
Father without a purge condition upon a finding that Father
was in contempt of a custody oder [sic]?
Father’s Brief at 4.3
When considering an appeal from an order holding a party in contempt
for failure to comply with a court order, we will reverse only upon a showing
that the trial court abused its discretion. Harcar v. Harcar, 982 A.2d 1230,
1234 (Pa. Super. 2009). Additionally:
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.
Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa. Super. 2002). To
sustain a finding of civil contempt, the complainant must prove: (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. Stahl v.
Redcay, 897 A.2d 478, 489 (Pa. Super. 2006).
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3
For purposes of our discussion, we have renumbered Father’s issues on
appeal.
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Here, Father is challenging the trial court’s findings only with respect
to taking Child out of York County to Maine and failing to transport Child to
her horseback riding classes. Father’s Brief at 12-13. After review, we
conclude that this argument is meritless because the record confirms
Father’s contumacious conduct. N.T., 11/10/16, at 11-21; Mother’s Exhibits
6, 11, 12. The exhibits illustrate the vitriol with which Father expresses
himself to Mother and demonstrates his knowledge of the agreement, the
volition of his actions, and his wrongful intent.4 Father’s text messages
memorialized his refusal to take Child to her horseback riding classes, and a
text message from Child to Mother reveals that Mother was informed by
Child, not Father, of the trip to Maine on the night before their departure.
Mother’s Exhibits 6, 11, 12. The trial court addressed this issue as follows:
At the November 10, 2016 contempt hearing, the Mother
established by a preponderance of the evidence that Father was
in contempt for violating the notice of vacation outside of York
County provision in the Order. Page 5 of the Order provides that
if either parent is going to take the child out of York County on
vacation, they will advise the other parent where they will be
going, where they will be staying, and an emergency telephone
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4
The text messages reflect that Mother reminded Father of the custody
order, and Father responded by stating that the riding classes were a “three
hour excursion” for him and he had “no plans to take [Child] to her riding
classes during [his] custody time[.]” Mother’s Exhibit 6. Father then
resorted to taunting Mother to “schedule a hearing” calling her a “piece of
shit,” a “prick bitch,” a “fucking loser,” and telling Mother to “go fuck
yourself.” Id. Father continued to use profanity and disparaging remarks in
his text messages to Mother in violation of the custody order and despite
Mother making Father aware that she shared her phone with Child. N.T.,
11/10/16, at 23.
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number where they can be reached. The Court found that Father
failed to discuss with Mother a trip he made to Maine with the
child, counter to the Court’s Order. Further, the Court
determined Father’s actions to be volitional and with wrongful
intent to not notify Mother of the trip to cause her distress. The
Court therefore, found Father in contempt of the notice of
vacation provision and fined him $500 to encourage Father to
follow the Court’s Order in the future.
Second, the Court found Father in contempt of the
extracurricular activities provision of the Order. Pages 8 and 9 of
the Order provides that the parents must honor and participate
in the activities the child wishes to engage in, be supportive of
the child’s activities, and transport the child to and from such
activities. It was established at the contempt hearing that the
child’s sole extracurricular activity that she chooses to
participate in is horseback riding. The child has engaged in this
activity for six years. The Mother established at the contempt
hearing that she provided Father with the child’s 2016 horseback
riding schedule at the beginning of the 2016 year. It was further
established that on three separate occasions, Father failed to
take his daughter to her scheduled horseback riding lessons
during his periods of custody. The Court was convinced, beyond
a preponderance of the evidence that Father failed to follow the
Court’s Order. Further, the Court found that Father’s attitude
towards his daughter participating in this activity demonstrated a
volitional and wrongful intent of the Father to not have his
daughter participate in her extracurricular activity. The Court
found Father in contempt for each time he failed to take his
daughter to her scheduled extracurricular activity. Therefore, the
Court fined Father the maximum allowable amount of $500 for
each contempt as a means to encourage Father to carry out the
Court’s Order and take the child to her extracurricular activities.
Trial Court Opinion, 1/10/17, at 4-6. We agree with the trial court and
discern no abuse of discretion in the trial court’s conclusion that Father was
in contempt of the custody order on these occasions. Accordingly, no relief
is due.
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In his second issue, Father complains that the trial court committed an
error of law when it fined him $7,000.00, $500.00 for each of the fourteen
acts of contempt, and included a term of incarceration if Father did not pay
the fine within sixty days. We conclude that there was no error.
The statute that enumerates the available sanctions for contempt of a
custody order is set forth below:
(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:
(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.
23 Pa.C.S. § 5323(g)(1).
Father argues that there is no authority for the trial court fining him
the maximum amount under 23 Pa.C.S. § 5323(g)(1)(ii) for each of his
separate acts of contempt. See Father’s Brief at 10 (“There is nothing in the
statute that permits a $500.00 ‘per violation’ fine.”). Thus, Father argues
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that the maximum amount the trial court could fine him was $500.00 and
not $7,000.00.
In his brief on appeal, Father has not cited any precedent supporting
his claim, and our independent research has failed to uncover any authority
that is directly on point. Nevertheless, we conclude that Father’s argument
in untenable.
In her petition for contempt, Mother alleged that Father engaged in
numerous acts of contempt of the custody order. Petition, 7/25/16, at ¶ 6.
As noted above, the trial court concluded that Mother proved by a
preponderance of the evidence that Father failed to notify Mother of a
vacation to Maine, failed on three instances to comply with the
extracurricular-activities provision of the custody order, and violated the
prohibition against making disparaging remarks against Mother on ten
occasions. Trial Court Opinion, 1/10/17, at 2. In the absence of any
authority to the contrary, we conclude that there was no error in the trial
court fining Father for each violation of the custody order.
Moreover, were we to accept Father’s construct, he would receive a
volume discount on his actions. Such an interpretation would require Mother
to file an individual petition for contempt for each contumacious act. We
conclude that such an interpretation would create unnecessary expense for
Mother in filing multiple petitions and cause a waste of court resources.
Additionally, we conclude that there is nothing in the statute that prohibited
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Mother from alleging multiple contempts in a single petition, nor is there a
prohibition on the trial court meting out a fine for each separate act of
contempt.
Finally, Father argues that the trial court erred in imposing a term of
incarceration without a purge condition. However, Father provides no
authority requiring a purge condition under the facts of this case. Moreover,
while a purge condition is a traditional feature of civil contempt, when
imposing a contempt fine for noncompliance with a custody order under 23
Pa.C.S. § 4346,5 the order imposing the fine need not specify a purge
condition. Sutliff v. Sutliff, 522 A.2d 80, 83 (Pa. Super. 1987). For these
reasons, we conclude that no relief is due.
Finally, we are constrained to note that the trial court’s order does not
specify to whom Father is to pay the fine. Accordingly, we remand this
matter to the trial court for the limited purpose of designating the payee of
the fine. See Brocker v. Brocker, 241 A.2d 336, 339 (Pa. 1968) (stating
that the remedial punishment of a fine may be payable to a government
body or an aggrieved litigant).
For the reasons set forth above, we affirm the trial court’s November
14, 2016 order in part, and remand for the trial court to designate to whom
the fine is owed.
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5
Effective January 24, 2011, P.L. 1106, No. 112, § 2 repealed 23 Pa.C.S. §
4346 and replaced it with 23 Pa.C.S. § 5323(g).
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Order affirmed in part. Case remanded, in part, for clarification.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2017
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