T.J.N. v. K.M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
T.J.N. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.M. :
:
Appellant : No. 903 MDA 2023
Appeal from the Order Entered May 24, 2023
In the Court of Common Pleas of York County Civil Division at No(s):
2009-FC-001666-03
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 13, 2023
K.M. (“Mother”) appeals from the May 24, 2023 order entered in the
York County Court of Common Pleas which, inter alia, awarded Mother and
T.J.N. (“Father”) shared legal custody of their thirteen-year-old child, R.V.
(“Child”) and awarded Mother primary physical custody of Child.1 The trial
court also found both parents in contempt of a previous custody order. Mother
raises challenges to the trial court’s award of shared legal custody as well as
the court’s finding that she was in contempt. Upon review, we affirm.
The following factual and procedural history is relevant to this appeal.
Mother and Father were never married, ended their relationship shortly after
Child’s birth in July 2009, and have been involved in custody litigation since
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1 While the trial court’s docket utilized the parents’ names, the parties used
their initials on their briefs to this Court. We have changed the caption to the
parties’ initials to prevent the identification of Child. Pa.R.A.P. 904(b)(2);
Super. Ct. I.O.P. 65.44(B).
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September 2009. Both parents have filed numerous petitions for modification
and/or contempt, and legal and physical custody arrangements have
alternated throughout the years. Notably, since 2014, parents have shared
legal custody of Child.
Relevant to this appeal, on September 2, 2021, the trial court issued a
custody order that awarded shared legal custody of Child to Mother and
Father, primary physical custody to Mother, and partial physical custody to
Father on alternating weekends and one evening every other week during the
school year. The September 2, 2021 custody order also included instructions
on how the parties should communicate through OurFamilyWizard in a brief,
“neutral, business-like tone” without swear words or multiple exclamation
points as well as an “Extracurricular Activities” section that provided, inter
alia, that “[n]either parent shall commit [] Child to activities that fall on the
other parent’s period of custody, without the consent of the other parent,
which consent shall not be unreasonably withheld.” Order, 9/2/21, at 6, 8.
Most recently, on October 12, 2022, Mother filed a petition for contempt
and modification requesting that the trial court find Father in contempt of the
September 2, 2021 custody order and grant Mother sole legal and physical
custody. In the petition, Mother specifically averred that Father refused to
allow Child to take prescribed ADHD medication while in his care, refused to
transport Child to extracurricular activities such as field hockey, continued to
make disparaging comments about Mother, and failed to follow the
communication rules provided in the previous custody order. Mother’s Petition
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for Contempt and Modification, 10/12/22, at ¶¶ 7-10. In response, on
December 28, 2022, Father filed a petition for contempt averring, inter alia,
that Mother was resistant to enrolling Child in therapy, cancelled a telemed
appointment that Father scheduled for Child at Wellspan Behavioral Health to
review medication, and failed to comply with Father’s request that Mother
submit to a drug test. Father’s Petition for Contempt, 12/28/22, at ¶¶ 6, 12,
14. On April 12, 2023, Father filed a second contempt petition averring, inter
alia, that Mother failed to seek Father’s consent for Child to participate in the
Central Penn Field Hockey (“CPFH”) club team during the spring season, failed
to inform Father about scheduled field hockey games, withheld custody of
Child from Father on various occasions, and continues to alienate Child from
Father. Father’s Petition for Contempt and Special Relief, 4/12/23, at ¶ 9, 15-
17, 18, 30-33, 41.
To address the parties’ petitions, the court held a two-day-long custody
trial on May 15, 2023, and May 18, 2023. The court heard testimony from
Mother; Father; Tonya Noye, Father’s wife; Belinda Heltzel, Director of CPFH;
and Child. The trial court authored a thorough and accurate summary of
testimony, which we adopt for purposes of this appeal. Trial Ct. Op., 5/24/23,
at 2-10.
At the conclusion of the trial, the court issued an order and opinion in
which the court considered the 23 Pa.C.S. § 5328 custody factors and found
two factors to favor Father, six factors to favor Mother, and the rest to be
neutral. Based on its consideration of the Section 5328 custody factors, the
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trial court denied Mother’s request for sole legal and physical custody of Child.
Instead, the court maintained the status quo, by awarding shared legal
custody to both parents, primary physical custody to Mother, and partial
physical custody to Father on alternating weekends and one evening every
other week during the school year, and alternating weeks during the summer
months.
Additionally, the trial court found Mother in contempt of the September
2, 2021 custody order for enrolling Child in CPFH without consulting Father
but declined to order a sanction. Finally, the trial court found Father in
contempt for willful violations of the communication protocols set forth in the
September 2, 2021 custody order and ordered Father to pay a $1500 sanction.
The court granted Father’s request for a parent coordinator, but ordered
Father to fund the parent coordinator as follows: $1500 from his own funds
and $1500 from the sanction.
Mother timely appealed. Both Mother and the trial court complied with
Pa.R.A.P. 1925.
Mother raises the following issues for our review:
A. Did the trial court err as a matter of law and abuse its discretion
when finding that shared legal custody remains in the best
interest of [] Child?
B. Did the trial court err as a matter of law and abuse its discretion
when it found Mother to be in contempt of shared legal custody
for not seeking Father’s consent prior to permitting [] Child to
participate in a field hockey club tryout?
C. Did the trial court err as a matter of law and abuse its discretion
when indirectly sanctioning Mother by refusing to analyze and
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consider her request for sole legal custody in complete
disregard of the best interest of [] Child?
D. Did the trial court err as a matter of law and abuse its discretion
when imposing a contempt sanction that is only enforceable
upon Father’s voluntary compliance?
Mother’s Br. at 4.
A.
In her first issue, Mother challenges the trial court’s award of shared
legal custody. Id. at 4. This court reviews a custody determination for an
abuse of discretion, and “our scope of review is broad.” S.W.D. v. S.A.R., 96
A.3d 396, 400 (Pa. Super. 2014). This court will not find an abuse of discretion
“merely because a reviewing court would have reached a different conclusion.”
In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). This Court must accept the
findings of the trial court that the evidence supports. S.W.D., 96 A.3d at 400.
Importantly, “[o]n issues of credibility and weight of the evidence, we defer
to the findings of the trial judge who has had the opportunity to observe the
proceedings and demeanor of the witnesses.” K.T. v. L.S., 118 A.3d 1136,
1159 (Pa. Super. 2015) (citation omitted). We can interfere only where the
“custody order is manifestly unreasonable as shown by the evidence of
record.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation
omitted). Further, in a custody case, relief is not warranted unless the party
claiming error suffered prejudice from the mistake. J.C. v. K.C., 179 A.3d
1124, 1129-30 (Pa. Super. 2018).
Legal custody is defined as “[t]he right to make major decisions on
behalf of the child, including, but not limited to, medical, religious and
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educational decisions.” 23 Pa.C.S. 5322(a). The Custody Act requires a trial
court to consider all of the Section 5328(a) custody factors when “ordering
any form of custody,” including legal custody, and further requires the court
to give “weighted consideration to those factors which affect the safety of the
child[.]” 23 Pa.C.S. § 5328(a). While a trial court must consider each of the
statutory factors in accordance with Section 5328, “the amount of weight that
a court places on any one factor is almost entirely discretionary.” O.G. v. A.B.,
234 A.3d 766, 777 (Pa. Super. 2020). Moreover, a trial court must “delineate
the reasons for its decision when making an award of custody either on the
record or in a written opinion.” S.W.D., 96 A.3d at 401. See also 23 Pa.C.S.
§ 5323 (d). However, “there is no required amount of detail for the trial
court’s explanation; all that is required is that the enumerated factors are
considered and that the custody decision is based on those considerations.”
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013).
When reviewing child custody matters and the trial court’s consideration
of the Section 5328(a) custody factors, our paramount concern is the best
interests of the child. See Saintz, 902 A.2d at 512 (explaining that this
Court’s “paramount concern and the polestar of our analysis” in custody cases
is the best interests of the child) (citation omitted). “The best-interests
standard, decided on a case-by-case basis, considers all factors which
legitimately have an effect upon the child’s physical, intellectual, moral, and
spiritual well-being.” D.K.D. v. A.L.C., 141 A.3d 566, 572 (Pa. Super. 2016)
(citations omitted). “Common sense dictates that trial courts should strive,
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all other things being equal, to assure that a child maintains a healthy
relationship with both of his or her parents, and that the parents work together
to raise their child.” S.C.B. v. J.S.B., 218 A.3d 905, 916 (Pa. Super. 2019).
Finally, in any action regarding the custody of the child between the parents
of the child, there shall be no presumption that custody should be awarded to
a particular parent and no preference based upon gender. 23 Pa.C.S. §§
5327(a) and 5328(b).
Instantly, Mother avers that the trial court abused its discretion when it
denied her request for sole legal custody of Child and, instead, found that
awarding shared legal custody to both parents was in Child’s best interest.
Mother’s Br. at 4. Mother argues that the trial court failed to consider the
parents’ high level of conflict and communication issues, Father’s
“communication abuse,” Father’s refusal to cooperate with Child’s ADHD
diagnosis and treatment, Father’s refusal to cooperate with Child’s
extracurricular activities, the impact of Father’s behavior on his relationship
with Child, and the fact that Father is unwilling to cooperate in Child’s best
interests. Id. at 22-36. Essentially, Mother argues that the trial court’s award
of shared legal custody is against the weight of the evidence.
We are unpersuaded by Mother’s argument that the trial court should
have focused more on Father’s transgressions to ultimately determine that
she should have the sole right to make major decisions on behalf of Child.
Indeed, the trial court did consider Father’s actions, including his problematic
communications, and found that they did not impact his ability to make
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decisions on behalf of Child. The trial court found that it was in Child’s best
interest to maintain the status quo and award shared legal custody to parents.
The court opined:
As a general matter, this [c]ourt only strips a parent of legal
custody only in extreme circumstances. Furthermore, this [c]ourt
is reluctant to give one parent sole legal custody when that
parent’s hands are not entirely clean when it comes to the exercise
of joint legal custody. This [c]ourt found that Father should
continue to enjoy joint legal custody. There is no question, but
that Father’s communications are problematic at times. This
[c]ourt, however, does not find that the communication issues
have reached the point that Father’s ability to participate in the
important issues involving his daughter [should] be stripped from
him.
Trial Ct. Op., 6/30/23, at 1-2. The trial court’s award of shared legal custody
attempts to assure that Child maintains a healthy relationship with both of her
parents, and that the parents work together to raise Child by both making
decisions about Child’s life. Upon review, the record supports the trial court’s
findings, and we decline to reweigh the evidence. Accordingly, we find no
abuse of discretion.
B.
In her second issue, Mother avers that the trial court abused its
discretion when it found Mother to be in contempt for not seeking Father’s
consent prior to permitting Child to participate in CPFH club team tryouts.
Mother’s Br. at 4. Mother argues that she acted in Child’s best interest, and
not with wrongful intent, when she took Child to tryouts for a club field hockey
team. Id. at 40. Mother further argues that Child had been playing field
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hockey for several years and Mother was just promoting the “status quo” and
acting as “coordinator” of Child’s extracurriculars. Id.
We review a contempt order for a “clear abuse of discretion.”
Chrysczanavicz v. Chrysczanavicz, 796 A.2d 366, 368 (Pa. Super. 2002)
(citation omitted). We give great deference to the trial court’s findings. Id.Our review is, thus, “confined to a determination of whether the facts support
the trial court’s decision.” Id. at 368-69 (citation omitted).
“In civil contempt cases, the complaining party has the burden of
proving non-compliance with the court order by a preponderance of the
evidence.” Stahl v. Redcay, 897 A.2d 478, 489 (Pa. Super. 2006) (citation
omitted). To sustain a contempt finding, the complainant must prove: “(1)
that the contemnor had notice of the specific order or decree which [s]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.” Id. (citation omitted).
At the time that Mother drove Child to tryouts for the CPFH club team,
both parents were operating under the September 2, 2021 custody order. As
explained above, that order contained an “Extracurricular Activities” provision,
which stated that “[n]either parent shall commit [C]hild to activities that fall
on the other parent’s period of custody, without the consent of the other
parent, which consent shall not be unreasonably withheld.” Custody Order,
9/2/21, at 6.
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While Mother argues that she did not have wrongful intent in taking
Child to CPFH club team tryouts without first informing Father, the trial court
disagreed. The trial court emphasized the fact that Mother knew Child would
be excited about making the CPFH team—that required more time, travel, and
money—and that Father would have no choice but to agree to Child’s
participation or face further alienation from Child. The court opined:
Mother had to have known that Child would be excited about the
prospect of playing for CPFH after she made the team. Playing for
CPFH requires a substantial financial commitment as well as a
commitment of time on the weekends, which would have
necessarily include an intrusion on Father’s time. Mother’s
decision to take Child to the tryouts without any advanced notice
constitutes a clear violation of Father’s rights under joint legal
custody.
Trial Ct. Op., 5/24/23, at 20. The court further opined, “[t]his act essentially
bound Father to agreeing to the new field hockey program so as to avoid
further alienating Child from Father.” Trial Ct. Op., 6/20/23, at 2. Finally, the
trial court found Mother’s actions to be “volitional and willful.” Id. We defer
to the trial court’s findings, which are supported in the record. Accordingly,
we find no abuse of discretion.
D.
In her third issue, Mother asserts for the first time on appeal that the
trial court erred when it indirectly sanctioned her by refusing to consider her
request for sole legal custody. Mother’s Br. at 4. In her fourth issue, Mother
avers, also for the first time on appeal, that the trial court erred when it
imposed a contempt sanction on Father that is only enforceable upon Father’s
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voluntary compliance. Id. Both issues are waived because Mother failed to
include them in her Rule 1925(b) statement. See Pa.R.A.P. 302(a) (“Issues
not raised in the trial court are waived and cannot be raised for the first time
on appeal.”); Id. at 1925(b)(4)(vii) (“Issues not included in the [s]tatement
. . . are waived.”).
E.
In conclusion, the trial court did not abuse its discretion when it awarded
shared legal custody to Mother and Father and found Mother in contempt of
the September 2, 2021 custody order.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/13/2023
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