A.Y. v. T.S. and B.P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.Y. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
T.S. AND B.P. : No. 964 MDA 2019
Appeal from the Order Entered May 14, 2019
In the Court of Common Pleas of Lackawanna County Orphans' Court at
No(s): 07-FC-41243
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 24, 2020
A.Y., the paternal grandmother (“Grandmother”), appeals from the May
13, 2019 order denying her petition for contempt in the underlying custody
litigation concerning her then-thirteen-year-old grandson, E.P. We affirm.1
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1 The trial court entered two orders on the above-referenced date. The first
order denied Grandmother’s motion for contempt. The second order included
several administrative directives, scheduled one visit between Grandmother
and E.P., instructed the guardian ad litem to arrange future visits at her
discretion, and scheduled a review hearing for June 26, 2019. While the notice
of appeal in the certified record does not indicate which of the two orders
Grandmother sought to appeal, only the order denying the petition for
contempt of an existing order is final. See Schultz v. Schultz, 70 A.3d 826,
828 (Pa.Super. 2013). The second order is interlocutory insofar as it
contemplated further proceedings on June 26, 2019. See Kassam v.
Kassam, 811 A.2d 1023 (Pa.Super. 2003) (custody order that provided for
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During 2005, E.P. was born of the high school romance between T.S.
(“Mother”) and B.P. (“Father”). The couple never married. E.P., Mother, and
Father resided in Grandmother’s home when the child was an infant, and
Grandmother continued to exercise periods of partial physical custody
throughout the first ten years of the child’s life. In October 2007, the parties
agreed to a custody order wherein Mother and Father shared physical custody
and allotted Grandmother “ample” partial physical custody “which [was] to be
worked out among the parties.” See Order, 10/3/07.
During October 2017, Grandmother filed a custody complaint that
culminated with an October 16, 2018 order that awarded Grandmother three
hours of partial physical custody every Tuesday evening, seven hours of
daytime custody on alternating Sundays, and overnight custody between
Friday and Saturday on one of the remaining non-custodial weekends. See
Order, 10/16/18 at 1-2. In addition, the order directed Father to engage in
therapy with E.P. and advised the guardian ad litem of the name of therapist
and the time of the scheduled sessions. Id. at 2.
Grandmother’s last physical contact with E.P. occurred on October 9,
2018, one week prior to the entry of the pertinent custody order. N.T.,
5/10/19, at 7. On multiple occasions after that date, Grandmother attempted
to exercise physical custody pursuant to the newly-entered custody order;
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further review in nine months is interlocutory because it was not meant as
final resolution of the custody matter). Accordingly, we address the merits
only of Grandmother’s appeal relating to the order denying the petition for
contempt.
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however, twelve-year-old E.P. either refused to accompany Grandmother or
berated her when she arrived at the custody exchange. Id. at 10-11.
Ultimately, prior to the visit scheduled for November 19, 2018, E.P. contacted
Grandmother by text and advised her, “Don’t bother coming [to pick me] up.”
Id. at 11. Grandmother subsequently testified that E.P.’s change of tone
concerned her because she could not point to any event that precipitated the
volte-face and the child never expressed any reason for the rejection. Id. at
12.
In December 2018, Grandmother filed a petition for contempt of the
approximately two-month-old custody order. She alleged, inter alia, that
Mother failed to abide by the custody order by refusing to permit Grandmother
to exercise partial physical custody and in neglecting to schedule the required
therapy sessions. On January 18, 2019, the trial court continued the contempt
proceedings and directed that the petition be heard in conjunction with a
previously scheduled custody conciliation conference before a custody master.
Four days later, the trial court entered an order that adopted the custody
master’s recommendation to temporarily suspend Grandmother’s partial
custody, held the contempt petition in abeyance, and directed E.P. to continue
therapy, including addressing his reluctance to visit Grandmother. Thereafter,
the trial court continued the consolidated custody and contempt hearing until
May 10, 2019.
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Mother, Father, and Grandmother testified during the ensuing
contempt/custody evidentiary hearing, and the trial court conducted an in
camera interview with E.P. and the guardian ad litem at the close of the
evidence. The court explained, “I think at this time we’ll close the proceeding
as to the contempt, but since [E.P.] is here, [guardian ad litem], I would like
to go back into chambers and have a discussion with [E.P.] with you on the
phone.” N.T., 5/10/19, at 101. None of the parties objected to the in camera
exchange or mentioned the fact that counsel’s exclusion from the discussion
was contrary to Pa.R.C.P. 1915.11(b) (“The interview shall be conducted in
the presence of the attorneys and, if permitted by the court, the parties.”).
As it relates to the latter point, the trial court responded to the inquiry by
counsel for Grandmother whether the attorneys would be present during the
interview by stating, “I don’t want to put undue pressure on [E.P.], make him
feel uncomfortable.” Id. 105. Counsel did not invoke Rule 1915.11(b),
demand to participate, or object to the court’s decision. Instead, counsel
ceded, “That’s okay,” and the trial court continued, “Aside from the contempt
issue, we are all here for what’s in the interest of [E.P.] not what's in the best
interest of [Mother] or [Grandmother] or [Father]. My concern is what’s in
[E.P.’s] best interest.” Id.
In this vein, the trial court later revealed that during the interview, E.P.
“indicated to [it] and the [g]uardian ad [l]item that he would only be amenable
to supervised visits with Grandmother so that they may begin the process of
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reunification.” Trial Court Opinion, 7/20/19, at 6-7. The guardian ad litem
also supported reunification, but she cautioned against an immediate return
to the prior custody arrangement. She explained, “I just think that there
needs to be contact sooner rather than later, [but] it needs to be at a slower
pace. So, to dump, essentially, you know, have them spend a weekend
together would be a little bit too much too fast.” N.T., 5/10/19, at 34.
On May 14, 2019, the trial court entered the above-referenced order
denying the petition for contempt because Grandmother “failed to establish
that there was willful disobedience of the Court’s October 10, 2018 Order.”
Trial Court Order, 5/14/19 (citation and internal quotation marks omitted).
On the same date, the court entered a concomitant order that (1) scheduled
a visitation between Grandmother and E.P.; (2) afforded the guardian ad litem
discretion to schedule additional periods of partial custody; (3) directed E.P.
to continue with counseling; and (4) scheduled a custody review hearing for
the following month. This appeal followed.
Pursuant to Pa.R.A.P. 1925(b), Grandmother filed a concise statement
of errors complained of on appeal raising sixteen issues, which the trial court
addressed in its Rule 1925(a) opinion along with a review of the statutory best
interest factors enumerated in § 5328(a) of the Child Custody Law.
Grandmother presents the following issues for our review:
1. Did the trial court err as a matter of law or otherwise abuse its
discretion in denying [Grandmother’s] Petition for Contempt given
that the trial court conducted an in camera interview of the minor
child and failed to transcribe or keep a record of the interview?
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2. Did the trial court err as a matter of law or otherwise abuse its
discretion in denying [Grandmother’s] Petition for Contempt given
that [Grandmother] established by a [p]reponderance of the
evidence that Respondents willfully violated the October 10, 2018
Order of Court?
3. Did the trial court err or otherwise abuse its discretion by
improperly using the contempt proceeding to modify custody?
Grandmother’s brief at 6.
While all three of the issues that Grandmother presents on appeal are
subsumed by the sixteen issues asserted in her Rule 1925(b) statement, the
first issue she asserts is waived pursuant to Pa.R.A.P. 302 because
Grandmother did not level a contemporaneous objection to the manner of the
in camera exchange during the custody hearing. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). Moreover, although Grandmother raised this assertion
in her twenty-six-page motion for reconsideration, without a predicate
contemporaneous objection to the court’s proposed handling of the interview,
there was no ruling for the trial court to reconsider after the fact. Indeed, this
is not a situation where Grandmother objected to the manner of the in camera
hearing and then subsequently presented novel arguments in support of the
objection in her petition for reconsideration. To the contrary, Grandmother
acquiesced to the trial court’s decision to conduct an in camera hearing
without the presence of counsel and neglected to demand that the discussion
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be placed on the record. Accordingly, these issues are waived. See
Schwarcz v. Schwarcz, 548 A.2d 556 (Pa.Super. 1988).
Grandmother’s second issue challenges the trial court’s denial of her
petition for contempt. We review civil contempt orders pursuant to an abuse
of discretion standard. K.M.G. v. H.M.W., 171 A.3d 839, 844 (Pa.Super.
2017). A trial 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. at 844-45 (quoting Bold v. Bold, 939 A.2d 892, 895
(Pa.Super. 2007)).
Grandmother asserts that Mother violated the October 16, 2018 custody
order by refusing her physical custody, failing to encourage E.P.’s relationship
with Grandmother, and disregarding E.P.’s counseling sessions with Father.
As it relates to the first two allegations, Grandmother’s argument relies upon
an unpublished memorandum that this Court filed prior to May 1, 2019, and
Luminella v. Marcocci, 814 A.2d 711 (Pa.Super. 2002), two cases that
involved one parent’s interference with the custody rights of another parent.2
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2 Grandmother’s citation to an unpublished Superior Court memorandum
violates Superior Court Internal Operating Procedure 65.37, which prohibits
citation to unpublished memorandum decisions filed prior to May 1, 2019.
While Pa.R.A.P. 126(b), permits persuasive citation to unpublished non-
precedential memorandum decisions filed after May 1, 2019, the case
Grandmother references does not satisfy that requirement. Thus, we do not
consider it.
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The crux of Grandmother’s contention is that Mother’s statement that she was
“not going to force [her] son to [visit Grandmother]” evidenced her
“contumacious conduct” and interference with Grandmother’s custody rights.
See Grandmother’s brief at 28-29. She also challenges the trial court’s
reliance upon what she characterizes as Mother’s “self-serving and
unsubstantiated” testimony that Mother actively supported E.P.’s relationship
with Grandmother notwithstanding her acceptance of the child’s decision to
avoid interaction. Id. at 37. Essentially, Grandmother contends that, having
agreed to the custody arrangement outlined in the October 2018 custody
order, Mother “made [a] unilateral decision, the very next week, to disregard
it.” Id. at 31.
Our child custody statute 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). In order to support a finding
of civil contempt, the petitioning party must prove 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.” Coffman v. Kline, 167 A.3d 772, 780 (Pa.Super. 2017).
This case implicates the latter two components of the test.
In rejecting Grandmother’s contentions, the trial court reasoned that
Mother was not in flagrant disobedience of the order simply because she gave
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her thirteen-year-old son emotional support in relation to his decision to forgo
the scheduled interactions with Grandmother. The trial court accurately
highlighted that Mother not only supported Grandmother’s exercise of physical
custody, but she also consistently encouraged E.P. to nurture his relationship
with Grandmother. See Trial Court Opinion, 7/20/19, at 19-20 (citing N.T.,
5/10/19, at 55-57). The court also highlighted that Mother offered to open
her home to Grandmother’s visitation if it would help facilitate E.P.’s
cooperation. Id. at 20 (citing N.T., 5/10/19, at 55-59). Hence, it concluded,
“[Mother] has not tried to intentionally or willfully violate the [c]ourt’s order.”
Id.
As the certified record supports the trial court’s factual findings and the
legal conclusions drawn from those facts are not erroneous, we do not disturb
the court’s determination that Grandmother failed to prove that Mother acted
with wrongful intent. Grandmother’s primary contention asserted that
Mother’s testimony concerning her support of E.P.’s relationship Grandmother
was self-serving and unsubstantiated. This position ignores both the trial
court’s role as the ultimate arbiter of fact in child custody cases generally and
our standard of review of an order denying the petition for contempt. See
R.S. v. T.T. 113 A.3d 1254, 1257 (Pa.Super. 2015) (appellate court may not
find facts or reweigh evidence); and K.M.G., supra at 844 (we review civil
contempt orders for abuse of discretion, i.e., misapplication of law, lack of
legal reason, or does not following legal procedure).
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Furthermore, as it relates to Grandmother’s fixation with Mother’s
statement that she would not force E.P. to yield to Grandmother’s partial
physical custody, it is clear from the certified record that Mother simply
provided her son emotional support. Indeed, in contrast to what Grandmother
characterized as Mother’s unilateral decision to interfere with Grandmother’s
custodial rights, Mother encouraged that relationship, and even in recognizing
E.P.’s reluctance to participate in the custody exchanges, Mother insisted that
E.P. confront Grandmother directly about his feelings. Accordingly, the
certified record simply does not bear out Grandmother’s depiction of Mother
as the tyrannical interloper who is staunchly opposed to Grandmother’s
relationship with E.P. To the extent that Mother violated the custody order by
supporting her thirteen–year-old son in his hesitation to interact with
Grandmother, the certified record will not sustain Grandmother’s allegations
of malevolence. Hence, we do not disturb the court’s conclusion that
Grandmother failed to prove by a preponderance of the evidence that Mother’s
behavior was driven by wrongful intent.
The second aspect of Grandmother’s argument concerns the counseling
component of the October 2018 custody order. Grandmother assails Mother’s
role in providing the guardian ad litem inaccurate information about E.P.’s
attendance at the court-ordered counseling sessions with Father. Specifically,
Grandmother asserts that, for eight months Mother and Father misled the
guardian ad litem about the fact that E.P. and Father had not attended
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sessions since April 2018. During the evidentiary hearing, the guardian ad
litem summarized the situation as, “I do think that things were done
inappropriately which would have put us in a better position today had they
been followed.” N.T., 5/10/19, at 35.
In denying the contempt petition, the trial court acknowledged Mother’s
role in the dispute regarding the frequency of E.P.’s counseling, but also
observed that Mother consistently supported the counseling regimen and
complied with the guardian ad litem’s efforts to resume therapy sessions. As
evidenced by the testimony of the guardian ad litem that Mother has
“historically” agreed to counseling and addressed various insurance issues to
facilitate the sessions, the certified record support the court’s findings. Id. at
37 (“[Y]es, mom has been on board with counseling[.]”). Specifically, as it
relates to the insurance issues, the guardian ad litem confirmed, “it did come
to my attention that there was an issue, . . . that [the therapist] didn’t want
to engage in court ordered treatment”. Id. at 40-41. Accordingly,
notwithstanding the above-referenced evidence that Mother’s lack of candor
with the guardian ad litem contributed to the counseling delay, we do not
disturb the court’s finding that Mother’s behavior was not tantamount to
“willful disobedience.” Trial Court Opinion, 7/20/19, at 25.
Grandmother’s final issue is that the trial court erred in modifying
custody as a result of Grandmother’s custody petition. The crux of her
complaint is that the trial court violated her due process by suspending her
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custody rights under the October 2018 order when she did not have notice
that custody would be at issue. Her assertion fails for several reasons.
Preliminarily, the certified record belies Grandmother’s underlying contention
that the May 14, 2019 order denying contempt also altered the custody
arrangement. In actuality, the final order on appeal does not address physical
custody at all. It simply denied Grandmother’s petition for contempt.
Moreover, to the extent that we could review the concomitantly entered
interlocutory order that directed the guardian ad litem to schedule an initial
visitation between Maternal Grandmother and E.P., and then schedule future
visitation at her discretion, Grandmother’s assertions fail. First,
Grandmother’s underlying premise, that the October 2018 order suspended
her custody rights, is flawed. In reality, the trial court altered Grandmother’s
custody rights in its order entered on January 24, 2019, which suspended
Grandmother’s partial physical custody pending the custody review
conference, which was held in conjunction with contempt hearing. Then,
having considered the evidence adduced during the ensuing hearing, including
E.P.’s preference for supervised visitation and the guardian ad litem’s
suggestion that the reunification occur in phases, the court entered an interim
order that satisfied both conditions pending review one month later. As the
record supports the trial court’s determination, it is unassailable.
Finally, we observe that Grandmother’s due process argument, which
asserts a lack of notice that contempt would be at issue during the hearing,
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fails. Grandmother’s argument is based upon our holding in J.M. v. K.W.,
164 A.3d 1260, 1268 (Pa.Super. 2017), where we concluded that the trial
court erred in transferring physical custody as a sanction for contempt
because the court neglected to provide notice that custody was at issue.3 We
reasoned, “a trial court may transfer physical custody at the conclusion of a
contempt hearing only when the modification suits the child’s best interest in
light of the statutory factors and the respondent has been given particular
notice of that objective.” Id.
Unlike the circumstances in J.M., supra, or the case law that we
discussed therein, the trial court did not alter Grandmother’s custody rights
as a sanction for contempt. Indeed, Grandmother was the petitioning party
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3 The Child Custody Law outlines the sanctions for contempt as follows:
(1) A party who willfully fails to comply with any custody order
may, as prescribed by general rule, be adjudged in contempt.
Contempt shall be punishable by any one or more of the following:
(i) Imprisonment for a period of not more than six months.
(ii) A fine of not more than $500.
(iii) Probation for a period of not more than six months.
(iv) An order for nonrenewal, suspension or denial of operating
privilege under section 4355 (relating to denial or suspension
of licenses).
(v) Counsel fees and costs.
23 Pa.C.S. § 5323(g).
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in the contempt proceeding and the court denied that petition. More
importantly, in contrast to the appellants in J.M. and the related cases,
Grandmother did, in fact, have actual notice that custody would be addressed
during the contempt proceedings because the petition was heard in
conjunction with a custody conciliation conference. Indeed, the scheduling
order for that contempt hearing provided in relevant part:
AND Now, this 18th day of January, 2019, upon
consideration of [Grandmother’s] Petition for Civil Complaint, and
the agreement of the parties, it is Hereby Ordered and Decreed
as follows:
1. This matter will be held in abeyance until January 22,
2019, and will be heard in conjunction with the conciliation
conference.
2. The Custody Master may make a recommendation
at the conciliation conference in regards to Contempt.
Trial Court Order, 1/18/19 (emphases added, some emphasis omitted). As
Grandmother received notice that the contempt petition would be addressed
during the custody conciliation conference, she was particularly aware that
her custody rights would be at issue during that proceeding. Hence, her
attempt to invoke the due process arguments that we outlined in J.M., is
unavailing.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2020
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