Lennex, B. v. Jarvis, L. v. Taylor, D.

J-S35025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRANDON LENNEX : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEAH JARVIS :
:
Appellant : No. 1712 WDA 2016
:
:
:
:
v. :
:
:
DARLA TAYLOR :
Appeal from the Order Entered October 7, 2016
In the Court of Common Pleas of Washington County
Civil Division at No(s): No. 2015-176
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED AUGUST 17, 2017
Appellant, Leah Jarvis (“Mother”), appeals from the order entered
October 7, 2016, denying her petition against Appellee, Brandon Lennex
(“Father”), for contempt of the order entered April 22, 2015, granting Father
primary legal and physical custody of their child. We affirm.
We adopt the following procedural history and statement of facts
derived from the trial court’s opinion and the record. Father and Mother
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S35025-17
have a seven-year old son (“Son”) who was born on September 2, 2010.
The parties never married. Trial Ct. Op. (TCO), 12/23/2016, at 1.
In January 2015, Father filed a complaint for custody and petition for
special relief requesting interim physical custody of Son. The court entered
an order granting Father primary physical custody and Mother partial
custody of the child on the weekends from Friday at 3:00 p.m. to Sunday at
3:00 p.m. See id. at 2.
In February 2015, Father filed a second petition for special relief,
seeking to modify Mother’s right to partial physical custody to supervised
visits. The court granted Father’s request and limited Mother’s physical
custody to two three-hour periods per week to be supervised by Try-Again
Homes or another supervisor approved by Father. Additionally, the court
ordered Mother to submit to a drug test based on her history of drug abuse.
Mother failed to comply. See id.
On April 6, 2015, Mother did not appear at the court-scheduled
custody conciliation conference and hearing before a child custody
conference officer. On April 22, 2015, the trial court issued a recommended
order granting Father primary legal and physical custody of Son. See
Recommended Order of Court, 4/22/2015, at ¶¶ 1-2.
Upon consent of the parties, the court granted the petition of Darla
Taylor (“Intervenor”), who is Son’s maternal grandmother, to intervene and
seek partial custody pursuant to 23 Pa.C.S. § 5325. See Order, 2/3/2016.
In March 2016, Intervenor filed a petition for modification for partial custody
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and/or grandparent visitation rights. On April 18, 2016, Mother filed a
counterpetition to modify custody.
Upon consideration of Intervenor’s motion for emergency custody
relief and a hearing, the trial court entered an interim order authorizing
Intervenor to serve as supervisor of visits between Mother and Son. See
Order, 5/4/2015.
In May 2016, Mother filed a petition for contempt against Father,
asserting that he acted in contempt of the court’s April 2015 recommended
order. The court referred Mother’s petition to the child custody conference
officer pursuant to local rules. TCO at 3. In June 2016, the court granted
Intervenor partial physical custody on Saturday evenings and ordered that
Mother shall not be present during visits. See Interim Order, 6/2/2016.
On August 24, 2016, the court entered a modified custody order.
Under its terms, the order provided Intervenor with partial physical custody
for increasing lengths of time each week through January 2017. Mother’s
custody rights were conditional. Initially, Mother was entitled to two hours
of supervised visitation on one day per week at Try-Again Homes. Upon
successful completion of three, consecutive weekly visits, as well as three,
consecutive weekly clean drug tests, Mother could exercise her period of
partial custody during the partial custody periods of Intervenor. However, if
Mother failed a drug test, she was required to start over to regain her rights
to partial custody under Intervenor’s supervision. See Order, 8/22/2016, ¶¶
3-4.
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Following a hearing in October 2016, the court entered an order
denying Mother’s petition for contempt. Mother timely appealed and filed a
court-ordered 1925(b) statement. The trial court issued a responsive
opinion.
On appeal, Mother raises the following issues:
I. Did the lower court err in dismissing the rule to show
cause why [Father] should not be held in contempt for
denying [Mother] any contact with the parties child for
months?
II. Can a custody order which provides partial custody “at
such times as the parties agree and under the
supervision of a supervisor approved by father” be
dismissed by the trial court as unenforceable after a
custodial parent denies [Mother] any contact with the
parties child for months?
Appellant's Br. at 4.
Mother contends that the trial court erred in dismissing her petition to
hold Father in contempt for denying Mother any contact with Son. Our
standard and scope of review are well-settled.
A court may hold a party in civil contempt for the willful
disobedience of a custody order. 23 Pa.C.S. § 4346; see also
Pa.R.C.P. 1915.12. In reviewing a trial court's finding on a
contempt petition, we are limited to determining whether the
trial court committed a clear abuse of discretion. This Court
must place great reliance on the sound discretion of the trial
judge when reviewing an order of contempt.
Flannery v. Iberti, 763 A.2d 927, 929 (Pa. Super. 2000) (internal citations
omitted). An abuse of discretion occurs when the trial court misapplies the
law or exercises its discretion in a manner lacking reason. Hyle v. Hyle,
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868 A.2d 601, 604 (Pa. Super. 2005) (citation omitted).
First, Mother contends that “[w]oven into [the language of the order]
is the concept that the parties will communicate and arrive at an
arrangement so that the [c]ourt is not required to micro-manage their
affairs.” Appellant's Br. at 7. Mother asserts that Father repeatedly ignored
her requests to arrange visits with Son. According to Mother, Father made
no attempt to comply with the court’s order, despite numerous attempts by
Mother and Intervenor to arrange partial custody. See id. at 7-9. Further,
Mother maintains that Father’s failure to comply was willful and intentionally
disregarded the language providing Mother with visitation rights. Id. at 7-8.
To sustain a finding of civil contempt, the complainant must
prove certain distinct elements by a preponderance of the
evidence: (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) (citation
omitted).
In relevant part, the April 2015 order stated:
3. That Mother… shall be entitled to partial physical custody as
follows:
a. At such times as agreed to by the parties; and
b. Only under the supervision of a supervisor approved by
Father.
Recommended Order of Court, 4/22/2015, at ¶ 3.
Here, the court found that the language authorizing Mother’s partial
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custody “at such times as agreed to by the parties” did not impose a duty
upon Father to actively negotiate with Mother for periods of partial custody.
TCO at 6. The court found the language to indicate that Mother may have
custody only if the parties could agree upon such an arrangement. TCO at
6. According to the court, the order was so phrased “due to [Mother’s]
failure to appear for the custody hearing and due to her serious and lengthy
history of drug abuse.” Id. at 6. The court considered the testimony of the
Child Custody Conference Officer, who expressed “grave concerns” regarding
Mother’s extensive history of drug abuse, Mother’s failure to appear and
testify at the custody hearing to address those concerns, and her continued
failure to submit to previously ordered drug tests. Id. at 7.
As correctly noted by the trial court, any ambiguities in the order must
be resolved in favor of the person charged with contempt. Id. (citing
Marian Shop, Inc. v. Baird, 670 A.2d 671, 673 (Pa. Super. 1996) (noting
that contradictory terms in an order whose specific terms have not been
violated will not serve as the basis for a finding of contempt)). The trial
court found that Father did not engage in any activity prohibited by the
definite, clear, and specific language of the order to sustain a finding of
contempt. TCO at 4. We agree. Here, the court’s recommended order of
April 2015 did not specifically command Father to actively negotiate with
Mother. Accordingly, Father did not willfully violate any specific terms of the
court’s order. Accordingly, the trial court did not abuse its discretion.
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Second, Mother contends that the court failed to include specific
language suggesting a sanction or penalty for a party’s failure to comply
with the court’s April 2015 order. See Appellant's Br. at 10. According to
Mother, the court should have established conditions for Father to purge
contempt, including make-up visitation. See id. at 11.
Initially, we note that the premise of Mother’s argument is incorrect.
A court may exercise its civil contempt power to enforce
compliance with its orders for the benefit of the party in whose
favor the order runs but not to inflict punishment. A party must
have violated a court order to be found in civil contempt. The
complaining party has the burden of proving by a preponderance
of evidence that a party violated a court order…. To impose civil
contempt the trial court must be convinced beyond a reasonable
doubt from the totality of evidence presented that the contemnor
has the present ability to comply with the order.
Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001). Where the trial court
declines to exercise its civil contempt power, the court is not required to
impose conditions to purge contempt. See, e.g., Flannery, 763 A.2d at
929 (affirming trial court’s decision to deny contempt petition despite alleged
contemnor’s “repeated flagrant violations” of the custody order).
As discussed above, we agree with the trial court’s decision not to find
Father in violation of any specific terms of the trial court’s order.
Notwithstanding, we note that the trial court modified the terms of its order
to insure Mother will have opportunities for supervised visitation with her
Son if she adheres to specific drug testing and monitoring. See Order,
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8/22/2016, ¶¶ 3-4.1 In this way, the trial court effectively resolved
ambiguities in the earlier order and provided Mother with visitation rights by
adding more terms that are specific. Accordingly, we discern no abuse of
discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2017
____________________________________________
1
Notwithstanding, modifying the terms of the custody arrangement for the
future was an appropriate way for the trial court to address issues with
previous custody arrangements that were raised in a contempt petition.
See, e.g., Flannery, 763 A.2d at 930 (concluding that the trial court’s
“sound approach in substantively addressing past violations by modifying the
custody arrangement for the future was an appropriate method of handling
Mother's repeated recalcitrance and Father's justifiable concerns for [child’s]
safety.”).
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