K.M.G. v. H.M.W.

J-A16045-17
2017 PA Super 311K.M.G., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
H.M.W., :
:
Appellant : No. 116 WDA 2017
Appeal from the Order December 14, 2016
in the Court of Common Pleas of Clearfield County
Civil Division at No(s): 2011-1215-CD
BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER,* J.
OPINION BY STRASSBURGER, J.: FILED SEPTEMBER 29, 2017
H.M.W. (Mother) appeals from the December 14, 2016 order finding
her to be in contempt of court. We reverse.
Mother and K.M.G. (Father) are the parents of C.F.G. (Child), born in
July 2010. Father initiated custody proceedings in 2011 and Mother filed a
counterclaim for custody thereafter. In January 2013, the trial court entered
an order granting Mother sole legal custody of Child and primary physical
custody, subject to periods of supervised custody with Father every other
weekend. As described by the trial court, over the next three years,
each party filed a litany of petitions for modification of custody
as well as emergency petitions for modification of custody, which
evidenced the ongoing turmoil between the parties. Thus, the
[trial] court felt it necessary to appoint Courtney L. Kubista, Esq.
as Guardian Ad Litem [GAL] on July 10, 2015. These various
filings by the parties first culminated in the [trial court’s order]
[entered] January 2[5], 2016, wherein the [trial] court ordered
that the parties utilize the Child Access Center in Bellefonte,
*Retired Senior Judge assigned to the Superior Court.
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Pennsylvania, to facilitate Father’s periods of custody with Child.
The January 2[5], 2016 order also stated that following one []
month of visits with Father through the Child Access Center, the
Child Access Center was to facilitate the transition by Father to
unsupervised periods of partial custody, including overnights,
with the intent to afford Father periods of partial custody with
Child on alternating weekends.
Unfortunately, the January 2[5], 2016 order did not prove
effective in resolving the parties’ issues regarding the custody
arrangement of Child, and Father thereafter filed an additional
petition to modify custody as well as an emergency petition to
establish right of partial custody. After various proceedings, on
April 29, 2016, [the trial] court ultimately ordered that its
January 2[5], 2016 order was to be followed by the parties.
On July 12, 2016, Father filed a petition for contempt,
wherein he alleged that Mother willfully failed to abide by the
[trial] court’s orders of January 2[5], 2016[,] and April 29,
2016[,] by failing to have Child meet with Father at the Child
Access Center.
Trial Court Opinion, 2/15/2017, at 2-3 (unnecessary capitalization and
articles omitted).
The trial court conducted a hearing regarding Father’s contempt
petition on December 14, 2016. Following the hearing, the trial court
entered an order finding Mother to be in contempt for failing to comply with
the trial court’s January 25, 2016 and April 29, 2016 orders. After stating
that “no sanctions shall be imposed at this time,” the order continued,
stating that
[i]t is the further order of [the trial] court that the parties shall
immediately schedule an appointment for family counseling with
a mutually agreed upon counselor and shall unconditionally
follow the requests and recommendations of said counselor.
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Mother, Father and [Child] shall attend all sessions unless
otherwise directed by the counselor.
Order, 12/14/2016, at 1 (unnecessary capitalization omitted).
Mother timely filed an appeal of this order. Both Mother and the trial
court complied with Pa.R.A.P. 1925. On appeal, Mother raises two issues.
1. Did the trial court abuse its discretion by determining that
sufficient evidence was presented to hold [Mother] in contempt
of the trial court’s orders of January 2[5], 2016[,] and April 29,
2016?
2. Did the trial court abuse its discretion by requesting and
considering testimony from the [GAL] during the hearing on
December 14, 2016, in violation of Pa.R.C.P. 1915.11-2 and 23
Pa.C.S. § 5334?
Mother’s Brief at 9 (suggested answers and unnecessary capitalization
omitted).1
Before we may address Mother’s substantive claims, we must
determine the appealability of the December 14, 2016 order. “This [C]ourt
may examine appealability sua sponte because it affects our jurisdiction over
the matter.” In re K.K., 957 A.2d 298, 303 (Pa. Super. 2008) (quoting In
re Estate of Fritts, 906 A.2d 601, 605 (Pa. Super. 2006)).
To that end, this Court ordered Mother to show cause as to why her
appeal should not be quashed, citing Genovese v. Genovese, 550 A.2d
1021 (Pa. Super. 1988), for the proposition that contempt orders are
appealable only after imposition of sanctions. Mother complied with the
1
Father and Child’s GAL did not submit a brief.
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show-cause order, arguing that her appeal should not be quashed. Mother’s
argument had two components. First, Mother contended that although the
trial court stated it was not imposing any sanctions, it did, in fact, impose a
sanction when it ordered Mother to engage in family counseling with Father
because family counseling was never previously ordered and could only be
conducted at financial cost to Mother. Reply of Mother to Show-Cause
Order, 2/10/2017, at 1-3. Second, Mother argued that even if ordering her
to undergo family therapy did not constitute a sanction, because the
contempt order disposed of all pending claims and parties in the custody
action, the contempt order falls within the scope of a final order as defined
by Pa.R.A.P. 341. Id. at 4. We agree with both of Mother’s arguments.
Generally, “[a]n appeal may be taken only from a final order, unless
otherwise permitted by rule or statute.” Rhoades v. Pryce, 874 A.2d 148,
151-53 (Pa. Super. 2005); Pa.R.A.P. 341(a). “A final order is one that
disposes of all the parties and all the claims, is expressly defined as a final
order by statute, or is entered as a final order pursuant to the trial court’s
determination.” Stahl v. Redcay, 897 A.2d 478, 485 (Pa. Super. 2006)
(quoting In re N.B., 817 A.2d 530, 533 (Pa. Super. 2003) (citing Pa.R.A.P.
341(b)(1)-(3)).
Here, a review of the record reveals that the only matter pending on
the docket prior to the entry of the trial court’s December 14, 2016 order
was Father’s petition for contempt. The sole relief requested by Father’s
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petition was for the trial court to enter an order directing Mother to appear
for a hearing to show cause why she was not in contempt of court. Petition
for Contempt, 10/23/2016, at 2 (pages unnumbered). The court entered
such an order. Order, 10/27/2016, at 1. On December 14, 2016, Mother
appeared before the trial court, and a hearing was conducted regarding
Father’s petition wherein the parties presented testimony and exhibits.
Subsequent to the hearing, the trial court entered an order with a direct
finding that Mother was in contempt of the court’s prior orders. It is clear
from the text of the order that no further proceedings or orders regarding
the matter were contemplated. Thus, because the trial court’s December
14, 2016 order “disposes of all claims and of all parties,” it is a final order.
Pa.R.A.P. 301(a).
We recognize that the order stated that sanctions were not imposed on
Mother, a contention the trial court echoes in its Pa.R.A.P. 1925(b) opinion.
Order, 12/14/2016, at 1; Trial Court Opinion, 2/15/2017, at 4. This Court
has often stated that “an order of contempt is not appealable if sanctions
were not imposed.” See, e.g., N.A.M. v. M.P.W., __ A.3d __, 2017 WL
3378878, at *3 (Pa. Super. 2017) (citing Takosky v. Henning, 906 A.2d
1255, 1258 (Pa. Super. 2006) and Genovese v. Genovese, 550 A.2d 1021,
1022–23 (Pa. Super. 1988)). However, we find this line of cases to be
distinguishable.
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First, assuming arguendo that the order in the instant case did not
impose sanctions, the lack of sanctions does not change the fact that the
contempt order at issue plainly disposed of all claims and all parties.
Although this Court has often repeated the refrain that sanctions must be
imposed before an order is final and appealable, an examination of the cases
reveals that there is often more nuance to the cases beyond a mere lack of
sanctions.
In most of the cases, it is clear that either the order did not make a
present finding of contempt, or revealed that the trial court contemplated
further proceedings, thereby failing to meet the finality requirement of
disposing of all claims and all parties. See Takosky, 906 A.2d at 1255(holding indirect criminal contempt order was not final because order
indicated that sentencing would be held at a future time, and, therefore,
punishment phase of matter had not yet been determined); Sargent v.
Sargent, 733 A.2d 640, 641 (Pa. Super. 1999) (holding order was not final
because “threatened sanction of imprisonment may or may not be imposed
in the future depending on whether [a]ppellant pays the past due support”);
Kenis v. Perini Corp., 682 A.2d 845, 848 (Pa. Super. 1996) (holding order
was not final because order merely stated that court may hold appellant in
contempt and impose daily fine in the future if appellant did not hand over
file as ordered); Genovese, 550 A.2d at 1022–23 (holding order requiring
appellant to pay child support “or be held in contempt” was not final because
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it did not impose present finding of contempt or order a sanction); Rulli v.
Dunn, 487 A.2d 430, 431 (Pa. Super. 1985) (holding order was not final
because it ordered appellant to comply with order within ten days or face
sanctions in the future); McManus v. Chubb Grp. of Ins. Companies, 493
A.2d 84, 86 (Pa. Super. 1985) (holding that appellant was “not out of court”
until “threatened sanction” in the form of dismissal of action actually was
imposed); Guisler v. Alexander, 453 A.2d 4, 4–5 (Pa. Super. 1982)
(holding show-cause order was not final because it simply ordered a hearing
to determine whether a party should be held in contempt); Brodsky v.
Philadelphia Athletic Club, Inc., 419 A.2d 1285, 1286–88 (Pa. Super.
1980) (holding order was not final because chancellor merely threatened to
hold party in contempt and issue jail time and fine in future if a decree was
not performed); Cedar Valley Civic Ass’n v. Schnabel, 362 A.2d 993, 994
(Pa. Super. 1976) (holding order was not final because term of
imprisonment imposed after contempt finding was stayed to permit
appellant to post a bond to ensure compliance with court’s previous orders).
In other cases, this Court quashed the appeal because the contempt
order merely re-ordered a party to do what the party was already obligated
to do via a prior order (the hoary writ of “we really mean it”), but neither
specifically discussed Rule 341 nor indicated whether the order disposed of
all parties and claims. See In re Koll, 457 A.2d 570, 570–71 (Pa. Super.
1983) (quashing contempt order which reissued bench warrant ordering
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appellant to appear before a grand jury); Hester v. Bagnato, 437 A.2d 66,
67 (Pa. Super. 1981) (holding order adjudicating appellant in contempt but
giving appellant opportunity to purge himself by paying a settlement sum
appellant was previously ordered to pay was not a final order). See also
Rhoades, 874 A.2d at 153 (stating that “sanctions for contempt cannot
simply be a requirement that the contemnor do as directed, i.e., pay
arrearages”) (interpreting Sonder v. Sonder, 549 A.2d 155 (Pa. Super.
1988) (en banc) (quashing an order, which adjudicated a party in contempt
and ordered specific performance of a prior order, due to lack of imposed
sanctions, without discussion of Rule 341(a))).
Second, to the extent that our caselaw requires a contemnor to suffer
harm or penalty, that standard is met in the instant case. Because no
further issues were pending, Mother’s inability to appeal the contempt
finding means that Mother has no means to purge herself of the contempt or
otherwise contest the blot on her escutcheon. Her inability to appeal would
also result in Mother being forced to undergo family therapy as ordered
without review of the propriety of that decision. Therefore, the contempt
order in this case is an appealable final order for purposes of Pa.R.A.P.
301(a).
Alternatively, notwithstanding the trial court’s statement that it did not
order sanctions, it is clear that the trial court did just that. As a result of the
December 14, 2016 order regarding Father’s petition for contempt against
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Mother, the parties now had to schedule an immediate appointment for
family counseling and “unconditionally follow the requests and
recommendations” of the counselor, including attending all sessions unless
otherwise directed by the counselor. Order, 12/14/2016, at 1-2.
The purpose of a civil contempt proceeding is remedial. Stahl v.
Redcay, 897 A.2d 478, 486 (Pa. Super. 2006). This Court has previously
observed that “sanctions for civil contempt can be imposed for one or both
of two purposes: to compel or coerce obedience to a court order and/or to
compensate the contemnor’s adversary for injuries resulting from the
contemnor’s noncompliance with a court order.” Rhoades, 874 A.2d at 152(citation omitted).
Here, none of the court’s prior orders required Mother and Father to
attend family counseling. Therefore, this is not a situation where the court
simply reiterated a prior order after adjudicating a party in contempt. See
Rhoades, 874 A.2d at 153 (stating that “sanctions for contempt cannot
simply be a requirement that the contemnor do as directed, i.e., pay
arrearages”). Although not as direct as a financial penalty, in effect this was
a new requirement imposed to compel or coerce Mother to comply with the
court’s prior order requiring Mother to utilize the Child Access Center for
Father’s periods of custody. One does not need to look any further than the
trial court’s opinion to come to this conclusion. The trial court described its
findings that Mother failed to encourage Child’s visits with Father and that
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Mother was unwilling to advocate for any type of relationship between Father
and Child. Immediately following this discussion, the trial court stated,
“[t]hus, following the December 14, 2016 hearing, the [trial court] found
Mother in [c]ontempt, did not impose sanctions, but did order that the
parties immediately schedule an appointment for family counseling.” Trial
Court Opinion, 12/14/2016, at 3-4. Even if the trial court did not intend
family counseling to serve as a sanction and ordered family therapy for
Child’s benefit, because the court ordered Mother in mandatory terms to
attend therapy as a response to Father’s petition for contempt, the
requirement operated as a coercive and remedial sanction in effect.
Having settled the appealability of the order, we may now turn to the
merits. Regarding her first issue, Mother argues that Father failed to prove
that she violated the trial court’s January 25, 2016 order, because the
evidence of record indicates that Mother brought Child to visits at the Child
Access Center and followed the Child Access Center’s directives on when to
terminate the visits. Mother’s Brief at 31-32. Mother further argues that
while the trial court faults her for allegedly not encouraging Child to attend
visits at the Child Access Center, the January 25, 2016 order did not provide
Mother notice that encouragement was required. Id. at 33.
Our review of contempt orders is limited to determining whether the
trial court abused its discretion. Bold v. Bold, 939 A.2d 892, 895 (Pa.
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Super. 2007). We have described judicial discretion regarding contempt
orders as follows.
Judicial discretion requires action in conformity with law on facts
and circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion if, in
resolving the issue for decision, it misapplies the law or exercises
its discretion in a manner lacking reason. Similarly, the trial
court abuses its discretion if it does not follow legal procedure.
Id. (citation omitted).
The trial court offered the following analysis regarding its
determination that Mother violated the January 25, 2016 order by her own
volition.
[I]t appeared to the court that Mother indeed failed to facilitate
Father’s periods of custody via the Child Access Center by her
own volition, especially in light of Mother’s past behaviors. …
[I]t was established during the December 14, 2016 hearing that
Mother would drive Child to the Child Access Center, but upon
Child’s refusal to participate, Mother would simply leave the
facility. [N.T., 12/14/2016, at 31-34] Given Child’s age, that
being five [] to six [] years old, it would seem that with the
appropriate encouragement from Mother, the court[-]ordered
meetings could have taken place, and Father would have gotten
to enjoy his periods of custody through the Child Access Center.
However, this was never the case. Especially in light of Mother’s
earlier pattern of denying Father’s requests to communicate with
Child, the court believes that Mother’s refusal to facilitate
meetings between Father and Child was indeed volitional.
Trial Court Opinion, 2/15/2017, at 5 (unnecessary articles and capitalization
omitted).
We discern two problems with the trial court’s analysis. Although we
must afford the trial court great deference as the fact-finder, to withstand
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appellate review, the trial court’s factual findings must have support in the
record. N.H.M. v. P.O.T., 947 A.2d 1268, 1272 (Pa. Super. 2008). The
trial court’s finding that Mother failed to encourage Child to visit Father or
make efforts to facilitate their interaction simply has no support in the
record, as the following questioning of Mother on direct examination
demonstrates.
Q[:] Can you tell the [c]ourt what happened whenever you
appeared at the Child Access Center following the initial entry of
the order of January 2[5th], 2016? Did you take [Child] to the
Child Access Center?
A[:] Yes. We went all three, four times, I believe it was. The
first time we went, [Child] refused to get out of the car. He was
refusing from the minute that we left the house. I encouraged
him, I supported him, and I helped him to get there. We were in
the driveway. [The director of the Child Access Center] came
out. [Child] refused to get out of the car. He was very upset.
He was picking his fingers until they bled, and he was pulling his
hair, and he kicked the whole back of the car – the back of the
seat of the car the entire hour-and-a-half drive. And [the
director] and I were discussing it. She wanted to send us away.
I was the one [who] said let’s try and give him a little bit of
time. We waited about 20 minutes. [Child] refused to get out.
[The director] said, I’m not physically allowed to put my hands
on him to take him out of the car. She said, Do you want to
reschedule? I said, Yes. We came back the next three times.
[Child] went into the building with me all three times.
Q[:] So there were actually four visits scheduled following the
first order?
A[:] Yes.
Q[:] And … the second, third and fourth visits [Child] went into
the building?
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A[:] We went to all of the visits, into the building for all of the
visits, except for the first one. …
Q[:] Following the fourth visit, did you terminate the services at
the Child Access Center?
A[:] No. The Access Center director determined that it was not
appropriate for [Child] to be in that situation. And I waited to be
dismissed all of the times that I was there. We were there from
20 to 25 minutes every single time in the building.
Q[:] When you were there at the Child Access Center, did you
follow written and verbal protocol and directions given to you by
the Child Access Center?
A[:] Yes.
***
Q[:] … Once [the trial court] … reinstate[d] the January 2[5],
2016 order directing you to go back to the Child Access Center,
what did you do?
A[:] I contacted the director, Jamie Jones. We scheduled three
appointments. They were weekly; June 4th, 11th, and 18th.
Q[:] Of 2016?
A[:] Yes. And we went in each time; and, again, we were there
20, 25 minutes each time. The Access workers actually stopped
trying to encourage [Child], and I was the one [who] – basically,
I was doing therapy with [Child] to try to get him to go to the
door. I even took his hand and brought him inside the building
to the door that [Father] was in in a small waiting room, and
[Child] pulled away and ran to the exit and refused to have any
more interaction. The workers determined that it was not
appropriate or healthy for [Child] to be in that situation. I
waited to be dismissed all three times, and left.
***
Q[:] On [June 11, 18 and 21, 2016], did [Child refuse to see
[F]ather?
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A[:] He did.
Q[:] And, on June 21, 2016, did you receive a letter from [the
director] indicating that the Child Access Center was terminating
the visits effective immediately?
A[:] Yes.
N.T., 12/14/2016, at 31-34. This testimony by Mother, despite being relied
upon by the trial court, fails to support the trial court’s factual finding that
Mother failed to encourage Child to visit Father or make efforts to facilitate
their interaction. Nor does anything else in the record lend support. Neither
Father’s attorney nor the GAL cross-examined Mother, and the parties did
not call a representative from the Child Access Center to testify. Father did
not observe whether Mother encouraged Child, as Father acknowledged that
he did not have contact with Child, and Father admitted that the director of
the Child Access Center informed him that Child “would not come in” to see
him. Id. at 6, 8, 10.
Moreover, even assuming arguendo that Mother did not encourage
Child to visit Father, the trial court still erred by finding Mother in contempt
of court. This Court has emphasized that
the mere showing of noncompliance of a court order or
misconduct, is never sufficient, alone, to prove contempt. The
order or decree which the contemnor has been held to have
violated, must be definite, clear, and specific - leaving no doubt
or uncertainty in the mind of the contemnor of the prohibited
conduct. Moreover, the contemnor must have had notice of the
order [s]he disobeyed, the act constituting her violation must be
volitional[,] and she must have acted with wrongful intent.
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Because the order forming the basis for civil contempt must be
strictly construed, any ambiguities or omissions in the order
must be construed in favor of the [contemnor].
Id. (citation and quotation marks omitted).
Mother relies upon Sutliff v. Sutliff, 522 A.2d 80, 83–84 (Pa. Super.
1987), wherein this Court determined that because none of the custody
orders explicitly required that the appellant encourage her child, the
appellant could not be held in contempt for failing to encourage her child to
visit with her father. In Sutliff,
[t]he original custody [o]rder … mandated that appellant “shall
have the children ready and prepared to make the visits on the
times indicated” in the Order. But a requirement of “ready and
prepared” is far different from a requirement of “encourage”,
which appellant was found in contempt for failing to do. We
understand the lower court’s belief that visitation must be forced
in this case less future efforts by appellee to visit and develop a
relationship with [his child] be thwarted, … but we cannot ignore
the basic elements to support a finding of contempt. Thus, based
on the existing custody orders on record in this case, we hold
that appellant/mother cannot be held in contempt for failing to
encourage [the child] to visit with her father.
Sutliff, 522 A.2d at 83-84.
In the instant case, the underlying order at issue2 states “the parties
shall utilize the Child Access Center in Bellefonte, Pennsylvania, to facilitate
Father’s periods of custody with [Child].” Order, 1/25/2016, at 1 (emphasis
2
The trial court found Mother to be in contempt of the April 29, 2016 order
as well. However, the April 29, 2016 order merely reinstated the January
22, 2016 order and ordered the parties to “unconditionally comply” with the
January 22, 2016 order. Order, 4/29/2016, at 1.
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added). The trial court faults Mother for refusing to facilitate Father’s
periods of custody because she did not encourage Child to visit. But neither
the January 25, 2016 order nor any of the other custody orders in this case
“specifically or clearly state[s] that [A]ppellant must ‘encourage’ [Child] to
visit.” Sutliff, 522 A.2d at 83–84. Further, the order required Mother to
utilize the Child Access Center. The use of the Child Access Center, would,
in turn, facilitate Father’s periods of custody. If the trial court intended for
Mother to encourage Child to visit Father or to go above and beyond
following the instructions of the Child Access Center, it should have ordered
Mother specifically to do so.
Based on the foregoing, the trial court erred in holding Mother in
contempt of the order. Therefore, we reverse the December 14, 2016 order
holding Mother in contempt.3
Order reversed and vacated. Jurisdiction relinquished.
Judge Stabile joins.
PJE Ford Elliott files a dissenting opinion.
3
Mother’s second issue questions whether the trial court abused its
discretion by allowing Child’s GAL to testify without being subject to cross-
examination and without submitting a report twenty days prior to the
hearing in contravention of Pa.R.C.P. 1915.11(c). Based on our resolution of
Mother’s first issue, we need not address her second issue. Even if we
addressed the second issue, we would find it to be waived, as Mother did not
make a contemporaneous objection to the GAL’s testifying during the
hearing or request to cross-examine the GAL. See N.T., 12/14/2016, at 49-
50. See also Pa.R.E. 103(a); Commonwealth. v. Thoeun Tha, 64 A.3d
704, 713 (Pa. Super. 2013).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2017
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