Liebersohn, A. v. Dyer, D.A.

J-A03023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANDREA LIEBERSOHN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DAVID A. DYER : No. 341 MDA 2020
Appeal from the Order Entered January 29, 2020,
in the Court of Common Pleas of Lycoming County,
Civil Division at No(s): FC-2012-0020925-DI.
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 31, 2021
Andrea Liebersohn (Wife) appeals, pro se, the decision by the Lycoming
County Court of Common Pleas to find her in contempt of a settlement
agreement, which, inter alia, prohibited Wife from harassing David A. Dyer
(Husband). After review, we affirm.
Both parties acknowledge the acrimonious and litigious history of this
case, some of which is unintelligible from the record, and even more of which
is irrelevant to our disposition. The pertinent background is as follows. The
parties divorced in June 2016, and Wife has since married Benjamin
Liebersohn (Wife’s Spouse). Although the parties had four biological children,
Husband eventually consented to the termination of his parental rights, which
facilitated the children’s adoption by Wife’s Spouse. In January 2018, Wife
obtained a temporary Protection From Abuse (PFA) order against Husband,
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but evidently the matter lingered for over a year without ever coming to a
final hearing. These facts resulted in four separate dockets: the divorce
docket (No: 12-20,925); the support docket (No: 12-21,246); the custody
docket (12-20,788); and the PFA docket (No: 18-20,016).
On January 2, 2019, the parties reached an agreement to settle all
outstanding issues across the four dockets. Husband and Wife referred to this
settlement agreement as the Stipulation, which they asked the court to give
legal effect by order. That order provides in its entirety: “And now, this 2nd
day of January, 2019, the [c]ourt enters the attached Stipulation as an Order
of Court.” See Order (the Stipulation), 1/2/19.
At issue in this appeal is Paragraph 4 of the Stipulation, wherein the
parties agreed Wife would withdraw her PFA petition against Husband (thereby
causing the temporary PFA order to expire), once the trial court confirmed
Husband’s consent to the adoption of the children by Wife’s Spouse.
Importantly, Paragraph 4 also utilized language from the Protection From
Abuse Act; the parties promised not to “harass, abuse, stalk or threaten” each
other, even after the withdrawal of the PFA petition. Paragraph 4 provides:
With respect to Docket No: 18-20,016 [(the PFA docket)],
the parties agree that the PFA shall be withdrawn with
prejudice with respect to any of the factual allegations
contained in the PFA Petition on the day that [Husband’s]
consent [to allow Wife’s Spouse to adopt] is confirmed.
However, the parties specifically agree that [Husband] shall
not harass, abuse, stalk or threaten [Wife] or [Wife’s
Spouse]. [Husband] is specifically excluded and prohibited
from going to [Wife’s address]. In addition, [Wife and Wife’s
Spouse] shall not harass, abuse, stalk or threaten
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[Husband] at any place he may be. [Wife and Wife’s
Spouse] are specifically excused and prohibited from going
to [Husband’s address].
See id., at ¶4.
But the parties did not keep the peace. In April 2019, the trial court
found Wife in contempt for failing to make the children available for a visit
with Husband. The court ordered Wife to pay $450 in attorney’s fees. As a
further sanction, the court continued the termination and adoption hearing
until July 5, 2019, to afford Husband the final visitations Wife had blocked.
Around this same time, Wife and Wife’s Spouse began pursuing a PFA
contempt action against Husband. Wife’s Spouse brought the matter to the
district attorney’s office, claiming Husband violated the no-contact provision
of the temporary PFA order in March 2018 (ten months prior the entry of the
Stipulation), when Husband texted Wife to say: “Have the kids call me.” Wife’s
Spouse also alleged Husband still possessed firearms, also in violation of the
temporary PFA order. As of Spring of 2019, the temporary PFA order was still
active, because the termination and adoption proceedings had been
continued.
In June 2019, the local district attorney’s office declined to pursue the
PFA contempt complaint. But in July 2019, after the termination and
adoption, Wife’s Spouse petitioned the trial court to review the district court’s
decision. In August 2019, the trial court ordered the district attorney’s office
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to reconsider the allegations.1 In September 2019, the district attorney’s
office then brought a PFA contempt complaint against Husband, based solely
on the text message.2 The court issued a warrant, and Husband was arrested.
All told, the PFA contempt complaint pressed by Wife against Husband
came some nine months after the entry of the Stipulation, after the adoption,
and concerned Husband’s conduct that occurred ten months prior to the
Stipulation. The court held a hearing on the matter and declined to find
Husband in contempt. The court noted that although Husband violated the
temporary PFA order by sending Wife the text, Husband’s violation was not
willful.
Around the time of the hearing on the PFA contempt complaint, Husband
petitioned the court to find Wife in contempt. That contempt petition is the
subject of this appeal. Husband alleged Wife’s pursuit of the PFA contempt
complaint constituted a willful violation of Paragraph 4 of the Stipulation’s
prohibition against one party stalking or harassing the other. Husband’s
sought Wife’s incarceration, along with attorney’s fees and costs.
The court held a hearing on Husband’s contempt petition on January 24,
2020, where both parties appeared with counsel. At the hearing, Wife
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1 The order was issued by a different judge of record.
2 When the district attorney’s office reconsidered bringing charges, the office
concluded Husband sold his firearms after the temporary PFA order prohibited
their possession. Notwithstanding the order’s prohibition against transferring
the firearms, the district attorney’s office declined to pursue this count in its
complaint.
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advanced several theories, but her primary argument was, by the terms of
Paragraph 4 of the Stipulation, the temporary PFA order was still in effect until
the adoption; Wife reasoned she was within her rights to seek a PFA contempt
complaint. The court disagreed and determined Wife sought the PFA contempt
complaint in order to harass Husband, in contravention of Paragraph 4 of the
Stipulation. The court declined to order incarceration, but ultimately
sanctioned Wife to pay Husband’s attorney’s fees in the amount of $3,000.
Acting pro se, Wife filed a proper and timely notice of appeal.3 Her
concise statement, filed pursuant to Pa.R.A.P. 1925(b), consisted of 22
matters complained of on appeal. Wife reduced those matters to a dozen
issues in her statement of questions involved:
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3 It appears Wife was evidently confused about how to appeal the contempt
order. The Stipulation and the order were entered on the divorce docket, but
concerned the temporary PFA order on the PFA docket. Wife simultaneously
appealed from the PFA docket (340 MDA 2020) and the contempt decision
from the divorce docket (341 MDA 2020 – the instant matter). The trial court
was apparently confused, as well. The court issued a statement in lieu of a
Rule 1925(a) opinion, noting that there was no order entered on January 24,
2020 on the PFA docket, and recommended that we dismiss Wife’s entire
appeal.
This Court entered Rule to Show Cause orders directing Wife to clarify what
order she meant to challenge. Wife responded, explaining that she meant to
contest the January 24, 2020 order finding her in contempt and awarding
attorney’s fees. We discharged the Rule on 341 MDA 2020 and quashed Wife’s
appeal on 340 MDA 2020. Because the trial court explained its decision from
the bench, our review is not impeded by the court’s decision to forgo a
traditional Rule 1925(a) opinion.
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1. Did the lower court commit errors of law in failing to
hold that [Wife] was entitled to immunity with regards
to [Husband’s] petition for contempt?
2. Did the lower court commit errors of law in finding
[Wife] in contempt, where [Husband’s] petition for
contempt was illegal?
3. Did the lower court commit errors of law in finding
[Wife] in contempt, where her actions were justified
and the allegations she made were true?
4. Did the lower court commit errors of law in finding
[Wife] in contempt, where [Husband] failed to allege
facts or provide sufficient evidence to support a claim
or the court’s holding?
5. Did the lower court commit errors of law and violate
[Wife’s] constitutional rights during the process of and
in finding [Wife] in contempt and further violate
[Wife’s] rights through its language and sanctions?
[Sic]
6. Did the lower court commit errors of law in finding
[Wife] in contempt, where it improperly interpreted
the language [of] the Stipulation Agreement/Order
and failed to consider that document in its entirety?
7. Did the lower court commit errors of law in finding
[Wife] in contempt, where [Wife] did not knowingly or
willfully disobey the Stipulation Agreement/Order?
8. Did the lower court commit errors of law and/or
abuses of discretion in finding [Wife] in contempt
under a different docket than the order [Wife] was
accused of violating?
9. Did the lower court commit other errors of law and/or
abuses of discretion with regards to the docket
numbers and selectively acknowledging [Wife’s]
pleadings?
10. Did the lower court commit an error of law by
sanctioning [Wife] to pay attorney’s fees, where those
fees were directly related to [Husband] having to
defend against a charge of indirect criminal contempt
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for violating a PFA order, where [Wife] was the victim
and protected party?
11. Did the lower court commit errors of law and
violate [Wife]’s due process rights by failing to apprise
her of her rights when facing a charge of indirect
criminal contempt?
12. Did the lower court demonstrate bias or the
appearance thereof during the process of and in
finding [Wife] in contempt of the Stipulation
Agreement/Order?
Wife’s Brief at 2-4 (superfluous capitalization omitted).
Before we reach the merits, we observe Wife’s circumvention of our
Rules of Appellate Procedure governing briefs, and we evaluate whether Wife
has waived some or all of these issues. Although Wife is pro se, her status
does not relieve her of her duty to properly raise and develop an appealable
claim. Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996).
This Court has stated:
[A]ppellate briefs and reproduced records must materially
conform to the requirements of the Pennsylvania Rules of
Appellate Procedure. This Court may quash or dismiss an
appeal if the appellant fails to confirm to the requirements
set forth in the Pennsylvania Rules of Appellate Procedure.
Although this Court is willing to liberally construe materials
filed by a pro se litigant, pro se status confers no special
benefit upon the appellant. To the contrary, any person
choosing to represent [herself] in a legal proceeding must,
to a reasonable extent, assume that [her] lack of expertise
and legal training will be [her] undoing.
In re Ullman, 995 A.2d 1207, 1211-1212 (Pa. Super. 2010) (citations
omitted), appeal denied, 20 A.3d 489 (Pa. 2011).
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Here, Wife fails to conform with several tenets within our Rules of
Appellant Procedure. Thus, many of her issues are waived.4 Nevertheless,
Wife has preserved the crux of her appeal, namely whether the court erred
when it found Wife in contempt and ordered her to pay attorney’s fees, and
whether the trial court demonstrated bias. We begin with the contempt issue
and our standard of review concerning such orders.
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4 For instance, when obligated to do so, Wife’s brief does not specifically
reference where she preserved the issues below, in circumvention of Rule
2117(c) and Rule 2119(e). Indeed, Wife made no objections, evidentiary or
procedural, to the court during the hearing. In another instance of
noncompliance, Wife presents a question she did not raise first in her concise
statement, a violation under Rule 1925(b)(4) for which the consequence is
waiver. “It is axiomatic that claims not raised in the trial court may not be
raised for the first time on appeal.” Commonwealth v. Johnson, 33 A.3d
122, 126 (Pa. Super. 2011) (citation omitted). See Wife’s Question 4, supra.
But the biggest impediment to our review is that the Brief’s argument section
was not “divided into as many parts as there are questions or be argued,” nor
does Wife’s Brief “have at the head of each part…the particular point treated
therein, followed by such discussion and citation of authorities are deemed
pertinent.” See Pa.R.A.P. 2119(a). While Wife’s Brief includes headings, many
do not correspond with the questions Wife presents. Instead, they are
jumbled, causing large swathes of Wife’s argument to be indecipherable.
Within these headings, Wife’s argument is largely a personal account of the
case, without a succinct articulation of where and how the trial court erred.
And Wife only occasionally cites to the record or legal authority, the vast
majority of which is irrelevant. As a consequence, our review is partially
impeded. “When a court has to guess what issues an appellant is appealing,
that is not enough for meaningful review.” See Commonwealth v. Dowling,
778 A.2d 683, 686 (Pa. Super. 2001) (citation omitted). After review, we
conclude Mother has waived a number of her issues presented, specifically
Questions 1-2, 4-5, 8-9, and 11.
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When reviewing an order holding a party in contempt of court, our scope
of review is very narrow, and we place great reliance on the court’s discretion.
Thomas v. Thomas, 194 A.3d 220, 225 (Pa. Super. 2018) (citing Garr v.
Peters, 773 A.2d 183, 189 (Pa. Super. 2001). “The court abuses its discretion
if it misapplies the law or exercises its discretion in a manner lacking reason.”
Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa. Super. 2009). “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 failing into disrepute.” Habjan v. Habjan, 73
A.3d 630, 637 (Pa. Super. 2013). We are also mindful that this Court defers
to the credibility determinations of the trial court with regard to the witnesses
who appeared before it, as that court has had the opportunity to observe their
demeanor. Garr, 773 A.2d at 189 (citations omitted). Absent an error of law
or an abuse of discretion, we will not disrupt a finding of civil contempt if the
record supports the court’s findings. Thomas, 194 A.3d at 225.
“In proceedings for civil contempt of court, the general rule is that the
burden of proof rests with the complaining party to demonstrate that the
[contemnor] is in noncompliance with a court order.” MacDougall v.
MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012). “To sustain a finding of
civil contempt, the complainant must prove, by a preponderance of the
evidence, that: (1) the contemnor had notice of the specific order or decree
which he is alleged to have disobeyed; (2) the act constituting the contemnor's
violation was volitional; and (3) the contemnor acted with wrongful
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intent.” Id. Nevertheless, “a mere showing of noncompliance with a court
order, or even misconduct, is never sufficient alone to prove civil
contempt.” Habjan, 73 A.3d at 637.
“If the alleged contemnor is unable to perform and has, in good faith,
attempted to comply with the court order, then contempt is not
proven.” Cunningham v. Cunningham, 182 A.3d 464, 471 (Pa. Super.
2018). “The contemnor has the burden to prove the affirmative defense that
he lacks the ability to comply.” Id. “The defense of impossibility of
performance is available to a party in a contempt proceeding if the
impossibility to perform is not due to the actions of that party.” Id.“The imposition of counsel fees can serve as a sanction upon a finding
of civil contempt.” Sutch v. Roxborough Memorial Hospital, 142 A.3d 38,
69; Rhoades v. Pryce, 874 A.2d 148, 152 (Pa. Super. 2005), appeal denied,
899 A.2d 1124 (Pa. 2006). The purpose of awarding counsel fees in this
context is “to reimburse an innocent litigant for the expenses the conduct of
an opponent makes necessary, such as the cost of the contempt hearing, so
it can be coercive and compensatory but it cannot be punitive.” Sutch,
supra at 69. We review an award of contempt sanctions in the form of
counsel fees for an abuse of discretion. Mrozek v. James, 780 A.2d 670, 674
(Pa. Super. 2001).
Here, the trial court determined Wife willfully violated Paragraph 4’s
harassment prohibition when Wife sought to advance PFA claims which she
already settled via the Stipulation. Wife had argued she was authorized to
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pursue a private PFA complaint, because the temporary PFA order was still
active after the entry of the Stipulation. The court was not persuaded.
Regardless of whether the temporary PFA order was still active when Wife and
Wife’s Spouse went to the authorities with a private PFA complaint, the
allegations concerned Husband’s violations that occurred prior to the
Stipulation. In other words, while the temporary PFA order remained active
after the entry of the Stipulation, the purpose of keeping the temporary PFA
active was to provide Wife with protection against future violations, until such
time as Husband consented to the termination of his rights. The court relied
on Paragraphs 1-2 of the Stipulation, which provided that “[t]he parties wish
to settle all outstanding matters and claims,” including the PFA docket. See
Order (the Stipulation), 1/2/19, at ¶¶1-2; see also N.T., at 55-56.
Alternatively, Wife argued she did not actually pursue the private PFA
complaint, but that it was Wife’s Spouse who, supposedly without her input,
pressed the issue with the district attorney’s office, and then it was the district
attorney who then pursued the matter. The trial court did not find Wife
credible:
And while I have trouble believing that [W]ife had absolutely
nothing to do with [Wife’s Spouse]’s filing, even if I take that
with a grain of salt and accept that, what it ultimately boiled
down to was a PFA contempt filed to [Wife’s] PFA docket
that only she had control over and she sat in this courtroom
and testified to it. Clearly if she had told the DA, [“]I’m not
pursuing it,[”…] they would not have pursued it because
their victim would not cooperate. And [Wife] knew [full]
well on September 23rd when she was in this court that
[Husband’s] contempt petition was pending because it was
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filed on September 11th. So she was put on notice that
[Husband] believed that it was a violation and it was still
[being] pursued.
N.T., at 56-57 (footnote added).
The court also noted the timing of the PFA contempt complaint appeared
to be “very disingenuous,” because it occurred immediately before and after
the termination of Husband’s parental rights. Id. at 55-56. Around this time,
the parties were to coordinate final visitations between Husband and the
children.
On appeal, Wife merely attempts to relitigate the same arguments she
made to the trial court. Throughout her Brief, she argues: as a protected
party, she was entitled to enforce an active PFA order; that the trial court
misinterpreted the Stipulation’s declaration that it settled the PFA docket; that
her pursuit of the PFA complaint did not constitute willful harassment; and
failing this, that she actually had little to do with the private PFA complaint.5
Wife repeatedly asserts the victimization of PFA petitioners as a defense
to her actions. But Wife never invoked these protections prior to the
Stipulation, nor did she invoke these protections for any conduct which
transpired after the entry of the Stipulation. Thus, we agree with the trial
court’s decision that Wife harassed Husband when she sought to hold him in
contempt for violations that occurred months prior to the entry of the
Stipulation.
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5 We must proceed without Husband’s position, as we ordered his Brief
stricken for noncompliance with our briefing procedure.
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We also agree with the trial court that the Stipulation’s terms were clear.
The parties meant to settle the PFA docket up to that moment, including all
previous allegations and potential violations, which occurred prior to the
Stipulation’s entry on January 2, 2019. Per the Stipulation, Wife agreed, “after
[a] lengthy discussion” between counsel and the parties, “to settle all
outstanding matters and claims” relating to the PFA docket; Wife promised to
withdraw “with prejudice with respect to any of the factual allegations
contained in the PFA petition….” See Stipulation, at ¶¶ 1-4. Despite believing
Husband’s text message violated the temporary PFA order in March 2018, Wife
did not raise the matter during the ten months leading up to the entry of the
Stipulation. This was an outstanding claim at the time of the Stipulation, and
thus settled by the same.
Contrary to Wife’s argument otherwise, we agree with the trial court’s
determination that Wife acted “with volition” and with “wrongful intent” when
she violated Paragraph 4’s prohibition against harassment. See MacDougall,
49 A.3d at 892. First, Wife never pursued a PFA contempt complaint based
on Husband’s text before the Stipulation. Then, she then agreed “to settle all
outstanding matters and claims.” Wife tried to use the shield of the
temporary PFA order as a sword when she sought to punish Husband for his
past actions, just as the date of the termination and adoption neared. Even
after the district attorney’s office originally declined to bring a complaint – and
even after the termination of Husband’s rights – Wife and Wife’s Spouse asked
the trial court to review the DA’s decision. We agree with the trial court’s
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reasoning; even assuming Wife was not the driving force behind the PFA
contempt complaint, Wife was in the position to inform her Spouse, the district
attorney’s office, and the trial court, that the Stipulation had already settled
all prior PFA issues. As the trial court observed, Wife’s Spouse and the
authorities acted on her behalf, as she was the only protected party in the PFA
matter.
Significantly, we cannot gloss over the trial court’s credibility
determination that Wife played a role in her Spouse’s efforts to bring
Husband’s PFA violation to the attention of the authorities. Wife claimed she
had absolutely nothing to do with the campaign against Husband, but the trial
court determined otherwise. Indeed, the timeline of events coincides with
Wife’s efforts to prevent Husband from enjoying his final visits with the
children.
In sum, we place great reliance on a trial court’s discretion in contempt.
See Thomas, 194 A.3d at 225. When doing so here, we conclude the court
did not err or abuse its discretion when it found Wife in contempt for willfully
violating Paragraph 4’s prohibition against harassment. See MacDougall,
supra. The trial court’s award of Husband’s attorney’s fees was a proper,
compensatory sanction. See Sutch, supra at 69.
Lastly, we turn to Wife’s contention that the trial court demonstrated
bias. We review challenges to a court’s impartiality for an abuse of discretion.
Lewis v. Lewis, 234 A.3d 706, 722 (Pa. Super. 2020).
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The appearance of bias or prejudice can be as damaging to
public confidence in the administration of justice as the
actual presence of bias or prejudice. However, simply
because a judge rules against a party does not establish bias
on the part of the judge against that party. Along the same
lines, a judge’s remark made during a hearing in
exasperation at a party may be characterized as
intemperate, but that remark alone does not establish bias
or partiality.
Id. (Citations and brackets omitted).
In practice, “[d]iscretion is abused when the course pursued represents
not merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.” Commonwealth
v. Goldman, 70 A.3d 874, 879 (Pa. Super. 2013) (quoting Commonwealth
v. Widmer, 744 A.2d 745, 753 (Pa. 2000).
Wife’s only allegations of bias were the court’s determination that her
testimony was not credible, and its decision to award attorney fees. Both of
these decisions were squarely in the trial court’s purview. Wife points to no
specifics in her accusation of prejudice. Thus, we conclude the accusations
are baseless.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/31/2021
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