Benton, A. v. Adovor, E. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALANA WRIGHT BENTON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ELENU KODJO ADOVOR : No. 617 EDA 2022
Appeal from the Order Entered January 25, 2022
In the Court of Common Pleas of Delaware County
Civil Division at No(s): CV-2006-006009
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 13, 2022
Alana Wright Benton (“Mother”) appeals, pro se, from the order, which
found Elenu Kodjo Adovor (“Father”)1 in contempt but failed to impose
sanctions on Father. Mother argues that the trial court was required to impose
sanctions after finding Father in contempt. We affirm in part and reverse in
part and remand for further proceedings. We also deny Mother’s pro se
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* Retired Senior Judge assigned to the Superior Court.
1 Although this appeal is related to a custody action, we will use the parties’
names in the caption “as they appeared on the record of the trial court at the
time the appeal was taken.” Pa.R.A.P. 904(b)(1). Notably, “upon application
of a party and for cause shown, an appellate court may exercise its discretion
to use the initials of the parties in the caption based upon the sensitive nature
of the facts included in the case record and the best interest of the child.”
Pa.R.A.P. 904(b)(2); see also Pa.R.A.P. 907(a). Neither party has applied to
this Court for the use of initials in the caption. We will, however, refer to the
parties’ son by his initials or as “Child” to protect his identity.
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“Motion for Summary Judgment” filed in this Court seeking a finding of
contempt against Father as moot given our disposition of the appeal.
This case involves a long and protracted history of contentious litigation,
including multiple petitions for custody and contempt filed by Mother and
Father regarding their child, A.A. (“Child”), born in July 2004. Relevant herein,
on November 16, 2020, the trial court issued a final custody order, awarding
the parties shared legal custody, and Father primary physical custody and
Mother partial physical custody. On April 30, 2021, the trial court found Father
in contempt of the final custody order and awarded Mother make-up time.
On July 12, 2021, Mother, through counsel, filed a petition for contempt
based upon Father’s failure to follow the November 16, 2020 and April 30,
2021 custody orders. Mother specifically sought her custody time and counsel
fees and costs. On September 20, 2021, following a hearing, the trial court
found Father in contempt of the November 16, 2020 and April 30, 2021 orders,
and awarded Mother makeup time. Thereafter, on September 29, 2021, the
trial court granted Mother’s request for counsel fees and ordered Father to
pay counsel fees in the amount of $1,000, and costs in the amount of $192,
within 60 days to Mother.
On December 1, 2021, Mother, pro se, filed a petition for civil contempt
against Father for his failure to pay the counsel fees and costs as ordered on
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September 29, 2021.2 The trial court held a hearing on the contempt petition,
at which Mother testified that she had not received the fees and costs, and
Father’s counsel admitted that Father had not paid the money. Ultimately, the
trial court found Father in contempt based on his failure to pay the counsel
fees and costs but declined to impose sanctions.
Mother filed a filed a timely appeal,3 and a Pa.R.A.P. 1925(b) concise
statement.4
Mother raises the following question for our review: “Under the rule of
law, do the errors of law apply to a custodial contempt award in favor of
[M]other, when there is a lack of enforcement written (‘no sanctions’) in an
order from the lower court?” Mother’s Brief at 2.
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2 Mother’s counsel withdrew her appearance on December 10, 2021.
3 It is well settled that a contemnor cannot appeal an order of contempt if no
sanctions were imposed. See N.A.M. v. M.P.W., 168 A.3d 256, 260 n.7 (Pa.
Super. 2017). However, a trial court’s order finding a parent in contempt for
violations of court orders, but imposing no sanctions, is a collateral order and
may be appealed by the opposing parent seeking contempt and sanction as of
right. See id. at 261. Indeed, if an appellate court were to wait to address the
contempt finding until the trial court imposed sanctions, which it may never
do, the parent could lose all ability to seek judicial relief. See id. Accordingly,
Mother’s appeal is properly before this Court.
4We note that Mother failed to file her concise statement contemporaneously
with her notice of appeal. See Pa.R.A.P. 1925(a)(2)(i) (providing that, in
Children’s Fast Track appeals, a Rule 1925(b) statement “shall be filed and
served with the notice of appeal.”); see also Pa.R.A.P. 905(a)(2) (same).
Accordingly, this Court issued an order directing Mother to comply with Rule
1925(a)(2)(i) and (b). Mother complied with this Court’s order; accordingly,
we decline to find her issue waived.
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Preliminarily, we note that Child has turned 18 years of age during the
pendency of this appeal. See 23 Pa.C.S.A. § 5322 (wherein the Child Custody
Act defines a “Child” as “[a]n unemancipated individual under 18 years of
age.”). Accordingly, neither this Court nor the trial court has subject matter
jurisdiction over Child under the Child Custody Act. See M.B.S. v. W.E., 232
A.3d 922, 928 (Pa. Super. 2020). However, this case involves the entry of
orders finding Father in contempt of custody orders prior to Child reaching the
age of 18. Therefore, because we are not deciding the parents’ ability to
exercise legal or physical custody over Child, but rather addressing the
contempt orders against Father, we have jurisdiction over the matter and will
proceed with Mother’s appeal.
Mother contends that the trial court abused its discretion in failing to
impose sanctions after finding Father in contempt for failing to pay counsel
fees and costs. See Mother’s Brief at 2-4, 7-8, 16.5 According to Mother, the
trial court should have imposed a sanction under 23 Pa.C.S.A. § 5323(g),
which lists sanctions that must be imposed after a party is found in contempt
of a custody order. See id. at 3-5, 14. In this regard, Mother highlights that
Father continually failed to abide by custody orders to allow Mother to see
Child, and that the trial court’s ruling would allow Father to violate a court
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5 Mother appears to combine her summary of the argument and argument
sections in her pro se brief. Although a pro se appellant is not entitled to
special treatment, we can discern Mother’s claims from her brief and will
address them on appeal.
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order without any penalty. See id. at 5, 9-11, 13, 19, 22. Mother argues that
the trial court’s reasoning that Mother was proceeding pro se and therefore
could not be awarded counsel fees for failing to impose sanctions is misplaced,
as she was counseled for the prior contempt petitions and is entitled to those
fees and costs. See id. at 12, 14-15. Mother asserts that due to Father’s willful
disobedience, the trial court should have incarcerated him until he pays the
counsel fees and costs per the September 27, 2021 order, and additional costs
of $26 and a penalty of $500. See id. at 21-22, 23, 25.6
Our standard of review of civil contempt orders is narrow and we will
reverse the order only if the trial court abused its discretion. See Harcar v.
Harcar, 982 A.2d 1230, 1234 (Pa. Super. 2009). A trial court “abuses its
discretion if it misapplies the law or exercises its discretion in a manner lacking
reason.” Id. (citation omitted).
Regarding civil contempt, “[i]t is axiomatic that courts have always
possessed the inherent power to enforce their orders and decrees by imposing
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6 We note that Mother also raises claims regarding a child support hearing
scheduled in New Jersey. However, the trial court explicitly stated that it was
“unable to discern any appealable issue related to the pending child support
claim in New Jersey[,]” and it “did not find any evidence of the New Jersey
child support order relevant nor did it attach any weight to any of these
statements.” Trial Court Opinion, 4/11/22, at 10. Furthermore, Mother
appears to raise a claim regarding Child’s preference regarding custody. Such
a claim is not properly before this Court in this appeal. Regardless, Child
turned 18 years of age in July 2022, after this appeal had been filed, and is
no longer subject to the custody orders. See M.B.S., 232 A.3d at 928-29.
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sanctions for failure to comply with said orders.” Wood v. Geisenhemer-
Shaulis, 827 A.2d 1204, 1207 (Pa. Super. 2003) (citation omitted).
Attorneys’ fees and other disbursements necessitated by the
contemnor’s noncompliance may be recovered by the aggrieved
party in a civil contempt case. Because an award of counsel fees
is intended to reimburse an innocent litigant for expenses made
necessary by the conduct of an opponent, it is coercive and
compensatory, and not punitive.
Id. at 1208 (citation omitted); see also Gunther v. Bolus, 853 A.2d 1014,
1016 (Pa. Super. 2004) (“The typical sanction for civil contempt is remedial
in nature. For example, a court may require the contemnor to compensate the
opposing party for losses incurred as a result of the violation or reimburse the
party’s attorneys’ fees and costs.”). Correspondingly, “[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[,]” including counsel fees and costs and a fine. 23 Pa.C.S.A.
§ 5323(g)(1).
Here, Father admitted that he did not pay the counsel fees and costs,
as required by the September 29, 2021 order. See N.T., 1/19/21, at 4.
Ultimately, the trial court found Father in contempt due to his failure to pay
but declined to impose sanctions. See id. at 57 (wherein the trial court
informed Father that there is “a court order that you’re responsible to pay. So
you’re in contempt of that order, sir. But I’m not issuing any sanctions.”); see
also id. at 58.
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The trial court reasoned that “Father’s failure to pay counsel fees and
costs did not substantially affect Mother’s legal or physical custody nor was it
flagrantly contemptible conduct that affected the best interests of the child.”
Trial Court Opinion, 4/11/22, at 9. Further, the trial court “determined that it
would have been wholly unreasonable and excessive to punish Father with
imprisonment, a monetary fine, probation, or denial of operating privileges.”
Id. The trial court noted that the only reasonable sanction—additional counsel
fees—was inapplicable because Mother was unrepresented. See id. Moreover,
the trial court highlighted that “Father’s recent substantive contempt finding
was only due to his inability to convince his extremely headstrong and
defensive seventeen-year-old son to comply with the [c]ustody [o]rder.” Id.
Because Mother failed to allege that Father acted with malicious or wrongful
intent in failing to pay the fees and costs, the trial court found, pursuant
Section 5323(g), that it was within its discretion to not assess sanctions
against Father for his failure to pay. See id.
We conclude that the trial court abused its discretion by declining to
impose any sanction on Father despite his flagrant contempt. Indeed, Father
explicitly admitted to not paying the counsel fees and costs as required by the
September 29, 2021 contempt order. See N.T., 1/19/21, at 4. The trial court’s
refusal to impose sanctions essentially rewards Father for disobeying the
relevant order without adverse consequences, which undermines the judicial
process. See Harcar, 982 A.2d at 1235 (“The contempt power is essential to
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the preservation of the court’s authority and prevents the administration of
justice from falling into disrepute.” (citation omitted)).
Likewise, the trial court’s attempt to minimize Father’s failure to abide
by the custody orders due to the fact Child was headstrong and defensive is
unsupported by the record, as the trial court expressly found Father in
contempt for his continued inability to comply with the orders. At a minimum,
Mother is owed the outstanding counsel fees and costs from the September
29, 2021 order, and her choice to represent herself after that time should not
prohibit her from obtaining that money. Furthermore, Mother’s choice to
proceed pro se in this action does not mitigate the costs she had to pay to
pursue the instant contempt petition against Father for his failure to comply
with the court’s prior contempt order. Therefore, in failing to impose any
sanction, the trial court abused its discretion. See N.A.M., 168 A.3d at 261-
62 (determining that the trial court abused its discretion in failing to impose
sanctions following a finding of contempt based upon mother’s repeated abuse
of the trial court’s custody orders); Harcar, 982 A.2d at 1241 (concluding that
the trial court abused its discretion in finding mother in contempt for violating
two custody orders but failing to impose sanctions).
The trial court found the N.A.M. and Harcar cases to be distinguishable,
as unlike those cases, Father’s failure to pay counsel fees and costs did not
substantially affect Mother’s legal or physical custody of Child. See Trial Court
Opinion, 4/11/22, at 9. We do not find such reasoning persuasive.
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Here, as in N.A.M. and Harcar, the trial court failed to impose sanctions
despite finding Father in contempt. Father admitted to not complying with the
trial court’s order to pay Mother counsel fees and costs, which arose out of
Father’s contempt for failing to comply with the custody orders. As such, the
trial court’s failure to enforce its prior contempt order essentially robs Mother
of any redress for her losses due to Father’s contemptuous behavior. This is
exactly the harm identified by the N.A.M. and Harcar panels. Accordingly, we
find those cases to be directly on point with the instant case.
Considering the foregoing, we affirm the finding of contempt against
Father, but reverse the contempt order for the failure to impose sanctions.
Upon remand, the trial court must impose sanctions.7
Order affirmed in part and reversed in part. Motion for Summary
Judgment denied. Case remanded for further proceedings consistent with this
memorandum. Jurisdiction relinquished.
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7 As noted above, aside from prison time for Father, Mother essentially seeks
her original counsel fees and costs, and additional costs and a fine. The trial
court is not required to, and indeed is prohibited from, imposing sanctions
that are punitive, absent further proceedings consistent with a finding of
criminal contempt. See In Interest of E.O., 195 A.3d 583, 586-87 (Pa.
Super. 2018). The trial court is merely required to impose sanctions that are
consistent with the goal of coercing Father to comply with the September 29,
2021 order and compensate Mother for the losses she has sustained.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2022
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