H.P.T. v. R.A.R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
H.P.T : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
R.A.R. :
:
Appellant : No. 226 WDA 2020
Appeal from the Order Entered February 5, 2020
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD08-7200-001
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 18, 2020
Appellant, R.A.R. (“Mother”) appeals from the February 5, 2020 Order
that found Mother in contempt of the existing custody Order. Upon review,
we affirm.
The Honorable Alan Hertzberg, who has presided over this case since its
inception, has provided a thorough and accurate procedural and factual
history, which we adopt for purposes of this appeal. Trial Ct. Op., filed
3/19/20, at 1-9. Relevant to this appeal, Mother and H.P.T. (“Father”), who
are parents to 12-year-old S.T. (“Child”), have been involved in a contentious
custody dispute for the last 10 years. Mother, a dentist, and Father, a
surgeon, married in October 2005 and separated multiple times until their
final separation in January 2008 when Child was less than a year old.1 Father
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1 The court entered the parties’ final Divorce Decree on September 8, 2010.
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filed a Complaint in Custody and the trial court ordered both parties to submit
to mental health evaluations. The examining psychiatrist diagnosed Mother
with general anxiety disorder, obsessive-compulsive disorder, and narcissistic
personality traits, and concluded that Father did not have a psychiatric
diagnosis.
After a six-day trial, the trial court awarded the parents shared legal and
physical custody of Child. The October 28, 2009 Order2 (“Custody Order”)
directed parties to follow a “5-5-2-2” schedule, where in repetitive two-week
cycles, Mother has physical custody of Child for 5 days, Father has physical
custody of Child for 5 days, and then Mother and Father both have physical
custody of Child for 2 days, respectively. The trial court also ordered Mother
to continue medication and psychotherapy, as recommended by her
physicians. See Order, 10/28/2009.
Following a hearing in December 2013 on Petitions for Contempt filed
by both parties, the trial court modified the Custody Order to include a
requirement that Mother “be examined by a psychiatrist by March 31, 2014
and by March 31 of each year thereafter with written proof promptly provided
to Father after each such examination.” Order, 12/23/13.
Over the next five years, the parties required court intervention on
various custody related issues, but continued to share physical custody of
Child on the 5-5-2-2 schedule. During this time, Father married J.L.T.
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2The court dated the Order October 27, 2009, but did not docket the Order
until October 28, 2009.
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(“Stepmother”) and, in September 2014, Father had a second child with
Stepmother. Mother also remarried, but she is currently divorced.
In August 2018, after a two-day hearing, the trial court found Mother in
contempt for withholding custody from Father after then-11-year-old Child
told Mother he was afraid of Father when Father attempted to discipline him.
The trial court heard evidence, inter alia, of a recorded telephone conversation
between Father and Child in which Mother was whispering instructions to
Child, and ultimately found Child’s testimony to be coached by Mother and not
credible. The trial court ordered Mother to pay Father’s counsel fees and
provide Father with 21 days of make-up physical custody. See Order,
8/28/18.
By January 2019, after Father and Child experienced a marked
improvement in their relationship, they ceased attending ongoing family
therapy by agreement of Father, Child, and the therapist.
In August 2019, Mother again withheld custody from Father after Child
told Mother he was afraid of Father when Father attempted to discipline him.
The facts of the triggering incident are largely undisputed. Specifically, late
in the evening on August 18, 2019, Child was in his bedroom laying down on
the top bunkbed in his underwear, which he usually slept in. Father entered
Child’s bedroom and the two got into an argument because Child lied to Father
about overdue library books and resulting fines. Stepmother entered the room
as the argument escalated; Father informed Child that Child would have to
pay for the fines and Child told Father to “shut up.” Father, who had never
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used physical discipline on Child, began to climb the bunkbed ladder and told
Child that he was going to kill Child. Stepmother told Father to stop and held
him back while Child jumped from bed and ran next door to the neighbor’s
house. While at the neighbor’s home, Child used the neighbor’s telephone to
make a call. Stepmother and Father immediately went to neighbor’s house to
talk to Child, and Child returned home voluntarily.
The next day after work, Father and Child made up; Father hugged and
kissed Child and told Child “I love you,” and Child apologized to Father. Father
disciplined Child by taking away his electronics. Father, Stepmom, Child, and
Child’s little brother all attended a baseball game together that evening.
The next morning, Child attended a scheduled dentist appointment
where Father, Stepmother, and Mother were all present. The next two nights,
Father, Child, and Child’s little brother had a “camp-out” in the living room
while Stepmother was traveling for work.
Child returned to Mother’s custody four days after the argument, on
August 22, 2019. That evening, during Child’s scheduled phone call with
Father, Child told Father that he was scared of Father and did not want to
return to Father’s home. Child was supposed to return to Father’s care the
next evening. Mother withheld custody.
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On August 26, 2019, Father served Mother with an Emergency Petition
for Enforcement, Contempt, Counsel Fees, and Other Appropriate Sanctions.3
On August 29, 2019, Mother served Father with a Motion to Suspend Custody
and for Contempt.4
On September 17, 2019, after meeting with counsel, the trial court
ordered Father and Child to attend a counseling session within 10 days and
resume the existing custody schedule within 20 days.
On September 24, 2019, Mother filed a Petition for Modification of
Custody, requesting sole legal custody and primary physical custody of Child.
Mother discontinued the Petition on November 22, 2019.
On December 4, 2019, the trial court held an evidentiary hearing on
Father’s Petition for Contempt and Mother’s Motion to Suspend Custody, but
parties could not complete all of the testimony. On December 5, 2019, the
trial court once again ordered Father and Child to attend a counseling session
within 10 days and resume the existing custody schedule within 20 days. Child
resumed therapy, and spent a weekend with Father around the Christmas
holiday, but the regular custody schedule did not resume.
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3Father’s Emergency Petition is dated August 26, 2019, and the trial court
avers that it was served on that date; however, the court did not docket the
Emergency Petition until September 19, 2019. See Trial Ct. Op. at 8.
4 Mother’s Motion is dated August 29, 2019, and both the trial court and
Mother aver that it was served on that date; however, the court did not docket
the Emergency Petition until September 19, 2019. See Trial Ct. Op. at 8;
Mother’s Br. at 24.
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On February 3, 2020, the trial court heard additional testimony on
Father’s Petition and Mother’s Motion. During the hearing, the trial court
heard testimony from Father; Mother; Child; Stepmother; Shirley Mitchell, a
family therapist (“Therapist”); M.D., Child’s nanny (“Nanny”); and M.P., the
neighbor.
On February 4, 2020, the trial court found Mother in contempt of both
the Custody Order and the December 20, 2013 Order that directed Mother to
obtain a psychiatric evaluation every year and provide written proof to Father.
The trial court ordered Father and Child to begin reunification counseling
forthwith. The trial court ordered Mother, inter alia, to follow the Custody
Order schedule to begin within 60 days, provide Father with 60 days of make-
up custody, pay $4,000 of Father’s counsel fees, and provide Father proof of
Mother’s annual psychiatric evaluations from 2014-2020 within 30 days.
Mother timely appealed. Both Mother and the trial court complied with
Pa.R.A.P. 1925.
Mother raises the following issues for our review:
1. Whether the trial court abused its discretion and committed an
error of law when it held Mother in contempt for withholding
custody after Father threatened to kill [] Child and [T]herapist
recommended supervised custody for Father.
2. Whether the trial court abused its discretion and erred as a
matter of law by awarding Father make-up custody time and
ordering Mother to pay Father’s counsel fees.
3. Whether the trial court abused its discretion and committed an
error of law when it held Mother in contempt of the Custody
Order while still suspending Father’s custody for two (2)
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months and ordering reunification counseling for Father and []
Child.
4. Whether the trial court abused its discretion and committed an
error of law by setting an arbitrary date for Father to resume
custody without any reference to success of the reunification
therapy, therapeutic goals, or what needed to be accomplished
before custody resumed.
5. Whether the trial court abused its discretion and erred as a
matter of law by holding Mother in contempt of the December
20, 2013 Order where Mother provided proof of completion of
psychiatric examinations.
Mother’s Br. at 3-4 (reordered for ease of disposition; some capitalization
omitted).
It is well settled that “each court is the exclusive judge of contempts
against its process.” G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013)
(citation omitted). We review a trial court’s finding on a contempt petition for
a clear abuse of discretion, and must place great reliance on the sound
discretion of the trial judge. P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa. Super.
2012). A trial court abuses its discretion if it “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[.]” N.A.M. v. M.P.W., 168 A.3d 256, 261 (Pa. Super.
2017) (citation omitted). Importantly, “[t]his Court defers to the credibility
determinations of the trial court with regard to the witnesses who appeared
before it, as that court has had the opportunity to observe their demeanor.”
Harcar v. Harcar, 982 A.2d 1230, 1236 (Pa. Super. 2009) (citations
omitted).
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The Custody Act 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 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).
In her first two issues, Mother avers that Father did not present
adequate evidence to hold her in contempt of the Custody Order and,
therefore, the trial court erred when it ordered Mother to provide Father with
make-up custody time and pay Father’s counsel fees. Mother’s Br. at 23, 60.
Mother concedes that she failed to relinquish custody to Father as required by
the Custody Order. Id. at 23. However, she argues that she did not act with
the requisite wrongful intent because once Child told her about the incident
with Father, she could not “in good conscience return [] Child to Father’s care
without the incident being addressed.” Id. Mother contends that the trial
court abused its discretion when it disregarded “nearly uncontradicted”
evidence that Child was genuinely afraid of Father, including evidence that
Therapist recommended supervised visitation, and that the trial court failed to
consider that Mother acted prudently in seeking court and therapeutic
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intervention. Id. at 20. Finally, Mother argues that the trial court abused its
discretion when it considered testimony and evidence from the initial custody
hearing in 2009 and a contempt proceeding in 2018 to evaluate Mother’s
wrongful intent in 2019. Id. at 25. Mother’s arguments fail.
Instantly, the trial court did not find Mother and Child’s testimony to be
credible that Child was fearful of Father. Trial Ct. Op. at 8, 10. Instead, the
trial court credited the testimony of both Father and Nanny that Mother
influences Child to say things, and the testimony of Father, Stepmother, and
Nanny that Child did not exhibit fear of Father in the days after the incident.
Trial Ct. Op. at 9-11.
The trial court opined:
[T]here was abundant evidence, both direct and circumstantial,
that Mother’s noncompliance was volitional and that she acted
with wrongful intent. When Father called [Child] on August 22,
2019 and [Child] told Father he did not want to go to Father’s
home, Father credibly testified he heard Mother whispering to
[Child]. During the August[] 2018 contempt hearing, I personally
listened to Mother doing this same thing in the early April 2018
tape-recorded conversation. [Nanny], who has cared for [Child]
for ten years, credibly testified that [Child] lied when he said he
was afraid of Father due to “a lot of influence from his mom to say
these things[.]”
This is volitional behavior by Mother with the wrongful intent to
obtain Father’s custody time. On August 18, 2019, when [Child]
jumped from the bed and went to the neighbor’s home, the
“violence” he avoided, being smacked or spanked, was not
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unreasonable.[5] Furthermore, [Child] showed no fear of Father
afterwards.
Trial Ct. Op. at 9-10.
Moreover, the record belies Mother’s claim that Therapist recommended
to the court that Father and Child have supervised visitation. Therapist
testified that she discussed supervised visitation with Child as an option to
make him feel comfortable, but clarified that, in her opinion, supervised
visitation was not necessary, she was not concerned about overnight
visitation, and that it was in Child’s best interest to continue to have contact
with Father. N.T., 2/3/20, at 69-71.
The evidence of record supports the trial court’s findings. We decline to
usurp the credibility determinations of the trial court or reweigh the evidence.
Accordingly, we find no abuse of discretion in the trial court’s finding of
contempt and order for Mother to provide Father with make-up custody time
and pay Father’s counsel costs.
Even if the trial court had found Child and Mother’s testimony credible
that Child was fearful of Father, Mother’s alleged fear for her Child’s safety
was not a valid reason for Mother to withhold custody without court
intervention. This Court rejected a similar argument in Luminella v.
Marcocci, 814 A.2d 711 (Pa. Super. 2002), when a mother, who withheld
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5 The trial court also emphasizes that Father subsequently agreed with
Therapist to remove Child’s electronics to discipline him instead of physical
force, and the trial court explained, “Whether reasonable or not, I do not
endorse or encourage [Father] or any parent to use physical force to discipline
a child.” Trial Ct. Op. at 10 n.5.
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custody from her children’s father in violation of an existing custody order,
argued that she should not be held in contempt because she feared for her
children’s safety. Id. at 719. In rejecting the mother’s argument, this Court
concluded, “[t]o accept [this] argument is to accept anarchy.” Id. This Court
was persuaded in part by the fact that the mother did not pursue modifying
the existing custody order until the father filed a contempt petition, and held
that a parent “is not permitted to ignore the order and unilaterally institute
measures she feels appropriate instead of the order.” Id.
In its Opinion, the trial court also highlighted that, like the parent in
Luminella, Mother withheld custody from Father and did not attempt to
modify the custody order until after Father filed a Petition for Contempt,
lending more support to the trial court’s finding of contempt. The trial court
concluded that Mother may not “unilaterally institute measures she feels
appropriate instead of the [O]rder.” Trial Ct. Op. at 11 (quoting Luminella,
814 A.2d at 719). We agree.
Finally, Mother contends that the trial court erred when it considered
testimony and evidence regarding Mother’s psychiatric diagnosis from the
initial custody proceeding in 2009, and the recorded evidence of Mother
whispering in the background of a phone conversation between Child and
Father that Father had presented during the previous 2018 contempt
proceeding. Mother avers that the trial court abused its discretion when it
used “facts not of record” to determine whether Mother exhibit wrongful intent
in her most recent violation of the Custody Order. Id at 25 (citing Eck v. Eck,
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475 A.2d 825, 827 (Pa. Super. 1984), and In re Custody of Frank, 423 A.2d
1229, 1237 (Pa. Super. 1980)). We find no abuse of discretion.
This Court has held that a parent’s past conduct is an appropriate
consideration when it has an ongoing negative effect on a child. Vicki N. v.
Josephine N., 649 A.2d 709, 712 (Pa. Super. 1994). “It would be patently
ridiculous to say . . . that a court must blind itself to all that a parent has done
prior to the custody hearing. We do not live our lives in distinct and
unconnected periods of time, with the past importing nothing for the present,
nor the present for the future.” Snarski v. Krincek, 538 A.2d 1348, 1360
(Pa. Super. 1988).
As discussed above, the credible testimony of Father, Stepmother, and
Nanny that Father presented during the instant 2019-2020 contempt
hearings, standing alone, was sufficient to sustain a finding of contempt.
Moreover, contrary to Mother’s assertion, the past evidence that Mother
challenges is part of the record as a whole. Based on the above case law, we
conclude the trial court properly exercised its discretion in considering the past
conduct.
In her third issue, Mother avers that the trial court abused its discretion
when it held Mother in contempt of the Custody Order for withholding custody,
and then concluded that an immediate return to Father’s custody would not
be in Child’s best interest. Mother’s Br. at 50. Mother argues that the trial
court’s 60-day suspension of custody and the requirement that reunification
counseling take place demonstrates that she was acting in Child’s best interest
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when she withheld custody in violation of the Custody Order and should not
be held in contempt. Id.
Mother mischaracterizes the trial court’s disposition. She assumes that
Father’s actions precipitated the trial court’s Order for reunification counseling
prior to Child returning to Father’s physical custody. On the contrary, as the
trial court explained, “it was Mother’s contemptuous behavior that created the
need for reunification therapy. Thus, there is no inconsistency in [the court’s]
findings, no error and no abuse of discretion.” Trial Ct. Op. at 12. We agree
and find no abuse of discretion.
In her next issue, Mother asserts that the trial court abused its discretion
when it set an “arbitrary” date for Father to resume custody without any
requirement that reunification counseling was successful or that Father and
Child achieve therapeutic goals prior to reunification. Mother’s Br. at 52.
Mother fails to cite any controlling legal authority to support her
argument that the trial court should have based its custody disposition on a
therapeutic goal or recommendation. Moreover, the trial court did not pick an
“arbitrary” date for reunification; rather, the court based its timeline on (1)
Father’s history of successfully resuming custody of Child within 10 to 20 days
after a counselling session; and (2) the fact that Father and Child might need
more time to facilitate a change in family counselors. See Trial Ct. Op. at 13.
Accordingly, this issue lacks merit.
Finally, Mother argues that the trial court abused its discretion when it
found her in contempt of the December 23, 2013 Order which required her to
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submit to annual psychiatric examinations and provide written proof to Father.
Mother’s Br. at 58. Mother first contends that Father’s testimony at trial
indicated that Mother complied in 2013 or 2014, and 2018, and, therefore,
the trial court should not have held Mother in contempt. Id. at 58-59. Mother
then argues, in contradiction, that Father’s testimony is not credible because
it is based on “vague recollection” and “contradicts” the allegation in his
Emergency Petition that Mother had provided no proof of compliance. Id.
Mother presents no logical argument to address her abuse of discretion claim.
Moreover, the trial court found Father’s testimony—that Mother failed to
provide him with written proof that she submitted to a psychiatric evaluation
in 2014, 2015, 2016, 2017, and 2019—to be credible. Trial Ct. Op. at 13-14
(citing N.T. 12/3/19 at 37-38). We decline to usurp the trial court’s credibility
determinations. We, therefore, conclude this issue merits no relief.
In conclusion, the trial court did not abuse its discretion when it found
Mother in contempt of the Custody Order and the December 23, 2013 Order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2020
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