N.A.M. v. M.P.W. ( 2017 )

J. S02001/17
2017 PA Super 254N.A.M., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 2255 EDA 2016
:
M.P.W. :
Appeal from the Order Entered August 18, 2016,
in the Court of Common Pleas of Bucks County
Civil Division at No. A06-06-61635-C-37
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED AUGUST 07, 2017
N.A.M. (“Father”) appeals pro se1 from the August 18, 2016 order
entered in the Court of Common Pleas of Bucks County that found M.P.W.
(“Mother”) in contempt, but imposed no sanctions.2 After careful review, we
affirm to the extent that the trial court held Mother in contempt. To the
1
Father is an attorney.
2
Although this case was initially labeled as a Children’s Fast Track case and
set for expedited disposition, it is, in fact, merely an appeal of a contempt
order entered by the trial court.
We further note that the record reflects that the trial court held a
contempt hearing on June 20, 2016, at which time it found Mother in
contempt and entered an on-the-record order finding her in contempt. The
trial court reduced the June 20, 2016 on-the-record order to writing by order
docketed on August 18, 2016.
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extent that it refused to impose any sanction, we are constrained to reverse
and remand.
This matter, commenced by complaint for custody on May 15, 2006,
involves the custody of N.J.M., born in February of 2000, and H.A.M., born in
November of 2002 (collectively, the “Children”). In the approximately
ten years subsequent to the entry of an order of shared legal and physical
custody of the Children, the parties filed numerous petitions eventually
resulting in the March 2, 2010 award of sole legal custody and primary
physical custody of the Children to Father, and partial physical custody of
the Children to Mother,3 which the trial court has continuously maintained.
As it relates to the current appeal, in May of 2016, Father filed a
petition for contempt against Mother, alleging violations of court orders with
respect to attendance at religious events4 and interference with education
3
The trial court awarded Father primary physical custody during the school
year, from Wednesday after school through Saturday morning at 10:00 a.m.
(Order, 3/2/10.)
4
Pursuant to order dated November 25, 2014:
11. Father may enroll the children in religious
school and observe or not observe holidays as
he sees fit. Mother shall transport the children
to religious school and special religious events
in a timely manner if the children are in her
physical custody at the appropriate time.
Father shall provide notice to Mother, in writing
(including e-mail), at least 72 hours in advance
of special events at the religious school. The
number of special religious events [is] to be
reasonably limited in number. Father is to
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and his custodial time.5 Specifically, as summarized by the trial court:
Most recently, Father filed a Petition for
Contempt (hereinafter “the Petition”) on May 2,
2016. In the Petition, Father argued that Mother
(1) refused to take [H.A.M.] to a Hebrew school
Seder in celebration of Passover on April 19, 2016,
(2) interfered with [H.A.M.]’s education by
preventing Father from attending a student led
parent-teacher conference (3) interfered with
Father’s custody at activities, namely [N.J.M.]’s
baseball game on April 16, 2016 and (4) interfered
provide Mother a copy of the religious school
schedule by e-mail.
Order, 11/25/14 at 4.
5
Pursuant to order dated September 25, 2015:
3. Mother and Father are prohibited from having
any contact with the children while the children
are in the other[’]s custody except for the one
phone call provided for in section 15 of the
Order of November 25, 2014.
....
6. If the non-custodial parent is at any activity of
one of the children during the other parent’s
custodial time, the non-custodial parent shall
limit his/her contact with the children to a brief
hello and goodbye. The non-custodial parent
is not permitted to otherwise sit with or be in
contact with either child at any such activity.
....
8. The daily phone calls provided for in section 15
of the Order of November 25, 2014 shall not
exceed five minutes with each child.
Order, 9/25/15 at 1-2.
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with Father’s custody by having her parents pick-up
[H.A.M.] at the end of a school day and deliver her
to Father’s house in lieu of her using the school bus
for the trip, which technically took place during
Father’s custodial period which began at the
beginning of the school day.
Trial court opinion, 8/30/16 at 2.
On June 20, 2016, the trial court held a hearing on Father’s petition.
Father and Mother, who were both pro se by this time, testified. At the
conclusion of the hearing, the court found Mother in contempt, but declined
to impose sanctions. In so doing, the court stated:
All right. The issues before me are whether or
not Mother was in contempt of the prior Orders of
this Court, and I find that she is.
....
As I said, it’s troubling -- I don’t know what
else I can do to get you, [Mother], to understand
that you need to abide by the Orders of this Court.
[Father] has requested that I, in essence, give
him sole physical custody other than some
supervised visitation by you, and I’m getting close to
doing that. The only reason I’m not doing something
like that is because, quite frankly, I think that will
cause the children more harm and won’t improve
[Father]’s relationship with the children; will
probably have the adverse effect, and I’m not
inclined to do that.
You’ll get my written Order, which may have
some other provisions once I go through all of these
other Orders and try to put them all in one
document.
But, [Mother], I’m telling you, the next time
you come back you may find yourself with the type
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of provision that [Father] is now requesting. I don’t
know what else to do. This has to end.
Notes of testimony, 6/20/16 at 148, 151-152.
On July 19, 2016, Father filed a notice of appeal, along with a concise
statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). By order dated August 23, 2016, this court,
recognizing that “no order of court [had] been entered on the trial court
docket,” directed the trial court to enter an order within 14 days, no later
than September 5, 2016. (Per curiam order, 8/23/16.)
In the interim, on August 18, 2016, the trial court entered a written
order confirming its finding of contempt as to Mother without the imposition
of sanctions.6 The order of August 18, 2016 provided as follows:
[T]he Order entered in open Court on June 20, 2016
is confirmed and [Mother] is held in contempt for
having violated the prior[] Orders of this Court,
including but not limited to the Orders entered on
November 25, 2014 and September 25, 2015 due to
her having amongst other things (1) interfered with
[H.A.M.]’s participation in a Seder on or about
April 19, 2016, which was part of her Hebrew School,
(2) interfered with Father’s planned participation in a
student led school conference on or about April 26,
2016, (3) exceeded the allowable time during daily
telephone calls with the children while they were in
Father’s custody and (4) interfered with Father’s
custodial time when the children were at activities
where Mother was also present.
6
Father filed an appeal of the August 18, 2016 order at No. 2902 EDA 2016
which, at Father’s request, was dismissed as duplicative of the instant
appeal on October 12, 2016.
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No specific penalty was/is imposed on Mother
however she was/is admonished that any further
violations of the Orders of the Court could result in
the Court granting Father’s request that he be given
sole physical custody with Mother’s only contact with
the children being supervised visitation.
Order, 8/18/16.
On appeal, Father raises the following issues:
1. Where Appellee/Mother has been held in
contempt for violating custody orders,
eight (8) separate times involving multiple
major violations each time, from 2014 to
mid-2016, for the same major things each
time, necessitating Father to file eleven (11)
contempt petitions during that period, and
attend eight separate hearing days, did the
trial court abuse its discretion by refusing to
impose any sanctions upon Mother when it
held her in contempt on June 20, 2016,
indirectly empowering Mother to continue [to]
violate Father’s custody rights and the best
interests of the children?
2. Did the trial court have a duty to enforce its
Orders against one who has repeatedly defied
them by imposing whatever sanctions are
available to protect the dignity of the judiciary
and enforcement of law to provide protection
of, and justice for the children and family that
has come to court?
3. While issuing powerful orders finding Mother in
contempt for abusing the children and Father
by alienating them from Father, filing false
child abuse complaints for ten (10) years,
interfering with religious school, and taking self
help time and time again, by refusing to
impose sanctions on June 20, 2016 has the
trial court favored Mother, because she is a
[m]other and she is pro se?
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4. Has the trial court punished Father for
exercising his due process rights by filing this
appeal and demonstrated personal bias or the
appearance thereof, where, in its Opinion, it
has wrongfully, for reasons not related to the
Order appealed, mocked Father, blatantly
mischaracterized his demeanor and the history
of this case, without citation to the record?
Father’s brief at 2-3. In essence, Father challenges the trial court’s lack of
imposition of sanctions.
At the outset, we must determine the appealability of the order that
Father wishes to appeal from because “[t]he appealability of an order goes
directly to the jurisdiction of the [c]ourt asked to review the order.”
Takosky v. Henning, 906 A.2d 1255, 1258 (Pa.Super. 2006). To that end,
we note that following receipt of Father’s appeal, this court ordered Father to
show cause as to the appealability of the order because, to be appealable, a
contempt order must not only find contempt, but it must also impose
sanctions. See, e.g., id. See also, Genovese v. Genovese, 550 A.2d
1021 (Pa.Super. 1988). Father timely complied with this court’s show-cause
order.
In his reply to show-cause order, Father maintains that the case law
requiring imposition of sanctions for purposes of appealability applies to the
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contemnor when the contemnor seeks to appeal the order.7 Father further
maintains that even though he is the obedient party, he is still the aggrieved
party because the trial court’s continuous failure to enforce its contempt
orders against Mother merely allows Mother to continue to engage in
contemptuous behavior that violates Father’s custodial rights and damages
his relationship with the Children. Consequently, Father argues, the trial
court’s failure to enforce its contempt orders against Mother is a “de facto
denial of contempt” without redress because “Mother could continue to be
found in contempt and the trial court could choose to do nothing, again and
again and again, [] and Father could not appeal.” (“Corrected Reply of
Appellant [N.A.M.] to Order to Show Cause Why Order Appealed from is
Final,” 9/26/16.)
Our research has revealed only one precedential decision where
following a finding of contempt, the trial court declined to impose sanctions
and the obedient party appealed to this court alleging an abuse of discretion
for the trial court’s failure to impose sanctions. In Harcar v. Harcar, 982
A.2d 1230 (Pa.Super. 2009), a child’s mother took the child to another
7
It is well settled that as to the contemnor, an order of contempt is not
appealable if sanctions were not imposed. See Genovese, 550 A.2d at
1022 (reiterating that “[u]nless sanctions are imposed, an order declaring a
party in contempt is interlocutory); see also Rhoades v. Pryce, 874 A.2d
148, 153 (Pa.Super. 2005) (finding that where the imposition of sanctions
causes the contemnor to suffer harm or a penalty, the contempt order is
appealable). Therefore, Mother would have been precluded from appealing
the finding of contempt against her.
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country for a vacation, but did not return to the United States after the
vacation ended, as required by a court order. The trial court entered a
second order mandating that mother return with the child, but mother also
disregarded that order. Id. at 1232. While the trial court found mother in
contempt, it declined to impose any sanctions on her. Id. at 1233. Father
appealed and contended that the trial court’s failure to impose sanctions on
mother rewarded her ongoing contempt and permitted the child to remain
outside of the United States, even though the custody order and the order
requiring mother to return remained in force. Id. at 1233-1234.
On appeal, this court affirmed the contempt finding, but reversed the
omission of sanctions. In so doing, we noted that the “contempt power is
essential to the preservation of the court’s authority and prevents the
administration of justice from falling into disrepute.” Id. at 1235 (citation
omitted). We observed that mother had knowingly violated two court
orders, which sustained the contempt determination. We then found that
the trial court abused its discretion when it declined to sanction mother for
“her flagrant contempt” of the court orders. Id. at 1240.
Although the Harcar court did not specifically address the
appealability of the order finding mother in contempt but declining
imposition of sanctions, it seems that because mother’s contempt was
“flagrant,” the trial court’s finding of contempt without imposition of
sanctions was effectively a denial of father’s motion for contempt, which left
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father aggrieved. We might also simply reason that the trial court’s order in
the instant case is clearly appealable as to Father inasmuch as it is a denial
of relief to Father, similar to a complete denial of a motion for contempt,
which is an appealable order. See Basham v. Basham, 713 A.2d 673, 674
(Pa.Super. 1998) (reiterating that “[w]here a petition alleges refusal to
comply with a court order, and the trial court denies the petition, the denial
order is appealable”); see also Flannery v. Iberti, 763 A.2d 927, 930 n.1
(Pa.Super. 2000) (noting that “a trial court’s denial of a civil contempt
petition is appealable”).
In the case now before us, the trial court found Mother in contempt for
violating its prior orders, “including but not limited to the Orders entered on
November 25, 2014 and September 25, 2015.” (Order, 8/18/16.)
Nevertheless, it imposed “[n]o specific penalty,” but merely admonished
Mother and warned her that any further violations of court orders “could
result in the [trial c]ourt granting Father’s request that he be given sole
physical custody with Mother’s only contact with the [C]hildren being
supervised visitation.” (Id.) The record further reflects that Mother has
continuously violated court orders for approximately ten years. Therefore, if
we were to wait to address the contempt finding until the trial court imposes
sanctions, which it has not done and which it may never do, Father would
lose all ability to seek judicial relief and his involvement, or lack thereof, in
his Children’s lives would be placed in the hands of Mother, the contemnor,
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and removed from the administration of justice. Consequently, we conclude
that the August 18, 2016 order is a collateral order and appealable as of
right.
Appellate review of a contempt order is limited to determining whether
the trial court abused its discretion. Bold v. Bold, 939 A.2d 892, 894-895
(Pa.Super. 2007). “If a trial court, in reaching its conclusion, overrides or
misapplies the law or exercises judgment which is manifestly unreasonable,
or reaches a conclusion that is the result of partiality, prejudice, bias or
ill will as shown by the evidence of record, then discretion is abused.”
Gates v. Gates, 967 A.2d 1024, 1028 (Pa.Super. 2009).
Here, the trial court abused its discretion by declining to impose any
sanction on Mother despite her flagrant contempt, which has been ongoing
for ten years. The trial court’s refusal to impose sanctions not only permits
Mother to disobey custody orders, but it rewards her for doing so by allowing
her to determine matters of custody without adverse consequences and
without regard to Father’s parental rights. Therefore, in failing to impose
any sanction, the trial court exercised its discretion without reason, which
constitutes an abuse of discretion.
What is abundantly clear from the review of the record in this case is
that both Mother and Father have been in contentious litigation in this
matter for ten years. As cogently stated by the trial court, neither party is
without blame for the stress that the parents’ actions in the custody battle
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has placed on the Children. Although we understand the trial court’s
concern that a sanction by way of reduced custody would be detrimental to
the Children, no sanction at all for Mother’s repeated and flagrant abuse of
the orders of the trial court is unacceptable under Harcar, 982 A.2d 1230.
Therefore, we are constrained to remand for imposition of sanctions without
resolution of any other issue raised by Father.
Order affirmed to the extent that the trial court held Mother in
contempt. Order reversed and remanded for further proceedings to the
extent that the trial court did not sanction Mother. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2017
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