Frierson, T. v. Love, R.

J-A19013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TENA M. FRIERSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RANDALE L. LOVE : No. 538 MDA 2022
Appeal from the Orders Entered March 8, 2022
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2020 CV 11245 CU
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: NOVEMBER 8, 2022
Tena M. Frierson (“Mother”), pro se, appeals the orders entered on
March 8, 2022, wherein the court disposed of competing petitions for
contempt between Mother and Randale Love (“Father”) with respect to their
son, R.L., born in July of 2020, and awarded Father sole legal and physical
custody of the child.1 We affirm.
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* Former Justice specially assigned to the Superior Court.
1 Mother timely filed a single notice of appeal from two orders entered on
March 8, 2022. While the notice of appeal did not identify the substance of
either order, Mother attached both orders to the notice, which this Court
docketed as a single appeal at 538 MDA 2022. Although Mother’s conjoined
appeal presents a procedural anomaly, that is not a basis to quash it in light
of Pa.R.A.P. 902, which provides, “Failure of an appellant to take any step
other than the timely filing of a notice of appeal does not affect the validity of
the appeal, but it is subject to such action as the appellate court deems
appropriate[.]” See e.g., Commonwealth v. Young, 265 A.3d 462, 477
(Pa. 2021)(“[W]here a timely appeal is erroneously filed . . ., Rule 902 permits
(Footnote Continued Next Page)
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Mother initiated the underlying custody action pro se on November 12,
2020, and, prolonged by Mother’s conduct and litigiousness, the following
tortuous procedural history ensued.2 During the initial custody conciliation
conference, the parties stipulated to a custody order that awarded Mother
primary physical custody, granted Father periods of partial physical custody,
and established shared legal custody. Approximately six days later, Mother
filed a petition to modify that order. In separate pro se filings on March 24,
2021, and April 12, 2021, Mother issued notice of her proposed relocation to
Valdosta, Georgia. The certified record does not indicate whether Father was
served with either notice, and no counter-affidavit was forthcoming.
Mother obtained counsel for the subsequently-scheduled conciliation
conference, and on May 5, 2021, again by stipulation, the court awarded the
parties shared legal custody, Mother primary physical custody, and Father
partial physical custody on alternating weeks from Thursday at 3:00 p.m. until
Sunday at 9:00 p.m. See Order, 5/5/21, at ¶¶ 1-2. In addition,
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the appellate court, in its discretion, to allow correction of the error, where
appropriate.”); Oster v. Serfass Constr. Co., Inc., 2022 WL 3440490 at *2
n.4 (non-precedential decision) (Pa.Super. 2022) (overlooking procedural
deficiency caused by appellant filing one notice of appeal from two trial court
orders). Here, we opt to exercise our discretion to overlook Mother’s
procedural misstep, deem done what should have been done, and treat this
matter as a consolidated appeal of the two orders entered on March 8, 2022.
2 The trial court observed, and our review of the certified records confirms,
that the parties filed seven emergency petitions for special relief, five petitions
for modification of the custody order, and three petitions for contempt. See
Trial Court Opinion, 5/5/22, at 1 n.1.
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notwithstanding Mother’s two previously filed pro se notices of her proposed
relocation, she subsequently stipulated in the May 5, 2021 order that any
parent seeking to relocate may not do so “unless the other parent consents in
writing or the Court approves the proposed relocation,” and the parent seeking
to relocate must follow the procedures set forth in 23 Pa.C.S. § 5337. Id. at
¶ 24.
Less than two weeks after the entry of the stipulated custody order,
Mother filed a petition for contempt, wherein she alleged that Father
“consistently refuses to abide by the court order.” Petition for Contempt,
5/17/21, at ¶ 5. Specifically, Mother alleged that, on May 11, 2021, “I went
to pick up [R.L.], . . . and [Father] refused to bring my baby out.” Id. In
addition, on May 17, 2021, Mother filed pro se a petition for modification of
the May 5, 2021 custody order, wherein she requested sole legal and physical
custody.
Thereafter, as stated by the trial court, Mother filed a Protection from
Abuse (“PFA”) petition against Father on June 1, 2021, “which included the
minor child, and the temporary [PFA] order was issued. Following the hearing,
for which [Father] did not appear, a final [PFA] order was issued on June 23,
2021, which does not include the minor child. That [o]rder expired on
September 23, 2021.” Trial Court Opinion, 5/5/22, at 5 n.3. Meanwhile, on
June 3, 2021, Mother filed yet another pro se petition for modification.
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A non-record custody conciliation occurred on July 29, 2021, during
which Father was represented, but Mother attended pro se. As best we can
discern from the certified record, Mother revealed during the conciliation that
she had relocated out-of-state with R.L.
No order was issued disposing of Mother’s three outstanding pro se
petitions. However, by interim order entered on August 6, 2021, the trial
court directed that R.L. “shall return to and remain in Dauphin County
immediately.” Interim Order, 8/6/21, at ¶ 1. In addition, the trial court
ordered the parties to continue to follow the terms of the May 5, 2021 custody
order.
On August 31, 2021, Father filed an emergency petition for special relief,
wherein he alleged that Mother moved to Florida with R.L., and that he had
not interacted with R.L. since June 1, 2021. See Emergency Petition, 8/31/21,
at ¶ 16. The trial court scheduled an evidentiary hearing for September 22,
2021, and appointed a guardian ad litem (“GAL”) to represent R.L.’s best
interests during the custody proceedings. On September 23, 2021, the trial
court granted Father’s emergency petition, and repeated its directive that
Mother return R.L. to Dauphin County and abide by the May 5, 2021 custody
order. We quashed as untimely Mother’s appeal from the September 23, 2021
order directing R.L.’s return to Pennsylvania.
On October 13, 2021, Father filed a petition for contempt, wherein he
alleged that Mother was in contempt of the May 5, 2021 custody order by
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“refusing to return” R.L. to Dauphin County and “refusing to allow” him to
exercise his custodial rights. Petition for Contempt, 10/13/21, at ¶ 21. Father
again alleged that he had not seen R.L. since June 1, 2021. He requested that
the court hold Mother in contempt and grant him “full legal and physical
custody.” Petition for Contempt, 10/13/21, at 4 (unpaginated).
On January 14, 2022, Mother filed a motion to continue the contempt
proceedings due to a COVID-19 related family emergency. The trial court
ultimately granted the motion and continued the hearing to March 3, 2022.
The re-scheduling order noted, “This will be the final continuance granted in
this matter.” Scheduling Order, 1/20/22, at 1. Approximately two weeks
later, Mother sought a second continuance because her daughter “was
involved in a tragic accident and sustained severe injuries.” Motion for
Continuance, 2/7/22, at 1. The Court denied that motion the following day.
Mother did not attend the March 3, 2022 hearing on the parties’
competing petitions for contempt. At the outset of the hearing, the trial court
stated its intention to summarily dismiss Mother’s petition due to her failure
to appear. N.T., 3/3/22, at 2. In so doing, the court referenced Mother’s
formal requests for continuances and noted her ex parte email
communications with the trial court requesting further extensions. Id.
Father, who appeared at the hearing with legal counsel, testified about
his frustratingly futile interactions with Mother, generally, his attempts to
contact R.L., specifically, and his current living arrangement, which included
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exercising shared physical custody of his fourteen-year-old son from a prior
relationship. Id. at 3-5. At the conclusion of the evidence, Father requested,
with the agreement of the GAL, an order granting him sole legal custody and
physical custody of R.L. and the issuance of a warrant to register the custody
order in Georgia and/or Florida pursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act, 23 Pa.C.S. §§ 4501-5482. Id. at 7-8.
On March 8, 2022, the trial court entered a pair of orders that
respectively (1) dismissed Mother’s petition for contempt based on her failure
to appear; and (2) granted Father’s petition for contempt, awarded Father
sole legal and physical custody of R.L., and authorized law enforcement to
take custody of R.L. if necessary.
As noted supra, Mother filed a single notice of appeal that referenced
“the orders from March 8, 2022,” and attached copies of the respective orders.
Notice of Appeal, 4/4/22, at 1. She concurrently filed a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Therein, Mother raised a litany of allegations assailing, inter alia, (1) the trial
court’s partiality; (2) the finding of contempt against her; (3) Father’s general
parenting ability; (4) the trial court’s refusal to grant her request for a
continuance of the March 3, 2022 hearing; and (5) the concomitant dismissal
of her petition for contempt due to her failure to appear. The trial court filed
a Rule 1925(a) opinion that addressed each of these concerns and explained
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the court’s rationale for awarding Father sole legal and physical custody of
R.L.
On appeal, Mother presents one issue for review:
The law states that when there are safety concerns and a parent
is not abiding by an order, that is NOT considered contempt,
therefore, [Father] should have never been granted a contempt
hearing in the first place. They never held him in contempt for
violating the custody order in the months of February through
May, so how dare they try to hold me in contempt. I filed
relocation papers and he didn’t respond with a counter affidavit[,]
so he is at fault for not seeing [R.L.] for so long. [Father] has also
refused to agree to the visitation schedule after several attempts.
Mother’s brief at 8.3 Neither Father nor the GAL filed a brief in this Court.
We review the subject orders pursuant to an abuse of discretion
standard, which occurs if the trial court “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.” K.M.G. v. H.M.W., 171 A.3d
839, 844-845 (Pa.Super. 2017) (citation omitted).
The Child Custody Act provides that “[a] party who willfully fails to
comply with any custody order may, as prescribed by general rule, be
adjudged in contempt.” 23 Pa.C.S. § 5323(g)(1). This Court stated:
“To be in contempt, a party must have violated a court [o]rder,
and the complaining party must satisfy that burden by a
preponderance of the evidence.” Hopkins v. Byes, 954 A.2d
____________________________________________3 In addition, Mother filed in this Court an application for relief requesting that
we consider “new[-]found information” that supports her challenge to Father’s
parental fitness. Application for Special Relief, 9/6/22, at 1. As we are not a
fact-finding court, we deny the application for relief without prejudice to
Mother’s ability to present the information in the trial court, ostensibly in yet
another motion to modify the custody arrangement.
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654, 655 (Pa. Super. 2008) (citation omitted). Specifically, “the
complainant must prove certain distinct elements[:] (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).
J.M. v. K.W., 164 A.3d 1260, 1264 (Pa.Super. 2017) (en banc).
We begin with Mother’s challenge to the order dismissing her contempt
petition due to her failure to appear at the evidentiary hearing.
Mother asserts,
[I] was unable to attend because I was exposed to the coronavirus
and contracted it from my grandmother. The judge knew this and
still refused to continue the hearing to a later date. On top of
that, my daughter was involved in a fatal accident and sustained
severe injuries. I shared the news article with [Father,] and he
knows that[,] for these reasons, I told him I was not coming to
the hearing on March 3, 2022. If the judge had held a contempt
hearing when I filed in 2021, [Father] would have lost custody and
that is exactly why Judge Marsico did not grant me a hearing
sooner.
Mother’s brief at 5-6 (cleaned up).
As this matter implicates the trial court’s denial of Mother’s latest
request for a continuance, the following legal principles are relevant to our
review.
The grant or denial of a motion for a continuance is within the
sound discretion of the trial court and will be reversed only upon
a showing of an abuse of discretion. An abuse of discretion is not
merely an error of judgment; rather discretion is abused when the
law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record. Moreover,
a bald allegation of an insufficient amount of time to prepare will
not provide a basis for reversal of the denial of a continuance
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motion. An appellant must be able to show specifically in what
manner he was unable to prepare for his defense or how he would
have prepared differently had he been given more time. We will
not reverse a denial of a motion for continuance in the absence of
prejudice.
Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa.Super. 2014)
(cleaned up).
In its Rule 1925(a) opinion, the trial court explained:
While [Mother] repeatedly complained of an implied unfairness to
her for this court’s failure to schedule a contempt hearing, once
scheduled, [Mother] requested to have the hearing continued on
two separate occasions. Alternatively, in correspondence with this
court, [Mother] maintained that she would not appear for a
contempt hearing.
Trial Court Opinion, 5/5/22, at 5. The certified record supports the court’s
findings.
Specifically, the certified docket reflects that the trial court originally
scheduled the subject proceeding for January 21, 2022. One week prior to
that date, January 14, 2022, Mother filed a motion for continuance, which the
trial court granted on January 20, 2022. The court rescheduled the hearing
for March 3, 2022. In doing so, the court stated it will be the final continuance.
Mother filed another motion for continuance on February 7, 2022, which the
court denied the next day. She subsequently notified the court via e-mail that
she would not attend the hearing. Id. at 3 n.2. In addition, during the
hearing, Father testified that Mother “sent me a message and said, just a
heads up, I’m not coming” to the subject proceeding. N.T., 3/3/22, at 6. In
light of the foregoing, we discern no abuse of discretion in the trial court’s
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decision to deny Mother’s serial request for a continuance and to dismiss her
contempt petition after she failed to appear at the hearing and present
evidence in support of her assertions.
Next, with respect to Mother’s claim that the court abused its discretion
in granting Father’s contempt petition, she alleges bias throughout the
entirety of this case by the trial court, the custody conciliators, Father’s
counsel, and the GAL. See Mother’s brief at 4, 6, 11-12. Mother contends,
without support, that “they ignored everything I said and ruled in [Father]’s
favor just to appease their friend[, counsel for Father].” Id. at 4. Mother
alleges that the trial court’s partiality has “disregarded my baby’s safety and
best interest.” Id. at 2.
Mother contends that Father poses a threat to R.L.’s safety because he
allegedly (1) is a convicted felon related to the sale of illegal drugs; (2) “comes
from a family of drug addicts and thugs”; and (3) is mentally ill. Id. at 2, 5,
7. Mother implies that she moved out of state with R.L. due to these safety
concerns. Mother asserts she filed a relocation petition to which Father did
not file a counter-affidavit. Therefore, Mother claims, it is Father’s “fault for
not seeing [R.L.] for so long.” Id. at 8.
Mother also baldly asserts that Father was in contempt of the original
custody order during the months of February, March, April, and May of 2021.
Id. at 2; Rule 1925(b) statement at 1 (unpaginated). She characterizes
Father’s conduct as “parental kidnappings,” but she neglects to describe his
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behavior or explain how it is tantamount to kidnapping. Mother’s brief at 2.
In this vein, she flatly demands “to be reunited with my son, who was
wrongfully taken away from me.” Id. at 12.
In granting Father’s petition for contempt, the court explained that
Mother “continues to make allegations regarding Father, including his mental
health, that she has failed to substantiate at any point during these custody
proceedings.” Trial Court Opinion, 5/5/22, at 6. The court further reasoned
that Mother
was in contempt for her repeated failure to follow the directives of
the court. [Mother]’s blatant disregard for any order issued by
this court has become a pattern of behavior expected from
[Mother]. . . . Further, during a September 22, 2021 hearing in
this matter, [Mother] stated several times that she was not going
to follow any order(s). (N.T., 9/22/21, [at] 10, 15, 17).
Further, while [Mother] has refused to confirm her whereabouts,
she has essentially acknowledged that she has moved out of
Pennsylvania, specifically Dauphin County, with [R.L.]. . . .
[Mother] has proven by her words and conduct that she will not
follow any order issued by this court. Aside from [Mother]’s
brazen disregard for this court’s scheduling orders, she has also
completely ignored this court’s custody order(s) [directing her to
return R.L. to Pennsylvania]. . . Accordingly, it was not error to
find [Mother] in contempt of court.
Trial Court Opinion, 5/5/22, at 5-6 (cleaned up). Our review of the certified
record confirms these findings.
Father testified that he last saw R.L. on June 1, 2021. See N.T., 3/3/21,
at 4. He indicated that R.L. was in his physical custody on that date, but
“[t]hey just came to my house, and they took him.” Id. Father does not
specify who removed R.L., but he explained that after Mother obtained the
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PFA order against him on behalf of her and R.L., and the child was removed
for that reason. Id. Father explained that he subsequently retained counsel
“to reverse” the PFA order prohibiting his contact with R.L., and although the
final PFA order did not apply to R.L., “I haven’t seen my son since.” Id. Father
further described Mother’s evasiveness, “I get calls and other correspondence”
from Mother, but she has not provided her specific location or address. Id. at
5. He testified, “She . . . recently told me she was in Valdosta, Georgia, and
asked me to fly there and get my son. This is the second or third time she
[has] asked me to fly there.” Id. at 4. Based on the foregoing, and our review
of the entirety of the certified record, it is clear that Mother has prevented
Father from exercising his physical custody since approximately June 23,
2021, when the final PFA order was issued which did not include R.L.
Furthermore, the certified record supports the court’s determination
that Father proved by a preponderance of the evidence that Mother had notice
of the order instructing her to return R.L. to Pennsylvania and willfully failed
to comply with that directive. Indeed, as the trial court accurately observes,
Mother foretold her intentions during the September 22, 2022 hearing
involving Father’s emergency petition for special relief when she “stated
several times that she was not going to follow any order(s). (N.T., 9/22/21,
[at] 10, 15, 17).” Trial Court Opinion, 5/5/22, at 5. During that same hearing,
Mother defended relocating with R.L., without Father’s or the court’s approval,
because she had filed a notice of relocation. N.T., 9/22/21, at 10. However,
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the trial court accurately clarified on the record and in open court, “You did
file that but then after that there was an agreed-upon custody order that was
entered into after you file[d] the relocation.” Id. The trial court’s statement
is accurate. As noted supra, the record bears out that notwithstanding
Mother’s previously-filed pro se notices of her proposed relocation, Mother
subsequently consented to the custody order requiring her to obtain Father’s
consent or the court’s approval prior to relocation. As Mother neglected to
secure either consent or approval for the relocation and failed to return the
child to Pennsylvania when ordered to do so, we do not disturb the finding of
contempt.
Finally, we review whether the trial court abused its discretion in
modifying the May 5, 2021 custody order by granting Father sole legal and
physical custody. This issue implicates the following principles of law:
It is settled that an adjudication of contempt is not a proper basis
to modify an existing custody arrangement. See Clapper v.
Harvey, 716 A.2d 1271, 1275 (Pa.Super. 1998) (“[A] mother's
violation of a custody order may be an appropriate foundation for
a finding of contempt, but it cannot be the basis for an award of
custody”); Rosenberg v. Rosenberg, 504 A.2d 350, 353
([Pa.Super.] 1986) (“A custody award should not be used to
reward or punish a parent for good or bad behavior”). This Court
has confronted several cases where the trial court awarded one
party custody as a sanction for the other party’s contumacious
conduct. See e.g. Langendorfer v. Spearman, 797 A.2d 303(Pa.Super. 2002); and Everett v. Parker, 889 A.2d 578, 581
(Pa.Super. 2005); cf. Steele v. Steele, 545 A.2d 376 (Pa.Super.
1988) (noting that it is generally improper for trial court to modify
custody arrangements without petition for modification before it).
The effect of this jurisprudence is that a trial court’s ability
to alter custody as a contempt sanction is restricted to
circumstances where the responding party is given express
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notice that custody will be at issue during the contempt
proceeding and the modification is based upon the
determination of the child’s best interest.
J.M., supra at 1267 (cleaned up) (emphasis added).
In explaining the basis for its custody decision, the trial court noted that
Father requested sole legal and physical custody in his contempt petition. See
Trial Court Opinion, 5/5/22, at 6-7. As such, the court explained, “While this
matter has a protracted procedural history due to multiple filings, the crux of
the filings made by Father have consistently challenged underlying custody.”
Id. at 7. The certified record supports the court’s findings, and its conclusion
is reasonable that Mother had “express notice that custody will be at issue”
during the March 3, 2022 contempt proceeding.
Furthermore, the trial court determined that the change of physical and
legal custody served R.L.’s best interest. It observed, “modifying the custody
order was the only option that would allow Father access to [R.L.], which is in
the best interests of [R.L.]. Because [Mother] unilaterally decided to withhold
custody of [R.L.] from Father, and because preserving Father’s relationship
with [R.L.] is in [R.L.]’s best interests, the court did not abuse its discretion
in granting Father sole legal and physical custody.” Trial Court Opinion,
5/5/22, at 7. Mother’s general protestations against the trial court’s decision
do not warrant relief.4 See J.M., supra at 1267. Accordingly, we affirm the
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4 Significantly, Mother does not assert that the trial court erred in awarding
Father sole physical custody without considering the mandated best-interest
(Footnote Continued Next Page)
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orders disposing of the respective petitions for contempt and granting Father
sole legal and physical custody of R.L.
Orders affirmed. Application for Special Relief, filed September 6, 2022,
denied without prejudice.
P.J.E. Stevens joins this Memorandum.
Judge King concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
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factors outlined in 23 Pa.C.S. 5328(a), which requires the court to consider
the factors “[i]n ordering any form of custody.” As this potential claim does
not implicate jurisdiction, we do not address it sua sponte. See Turner
Const. v. Plumbers Local 690, 130 A.3d 47, 63 (Pa.Super. 2015) (“[I]t is
improper for this Court to address the non-jurisdictional issue sua sponte as
a grounds for reversal.”).
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