N.D.J. v. D.E.J. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
N.D.J. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
D.E.J., : No. 1976 MDA 2019
:
Appellant :
Appeal from the Order Entered December 2, 2019,
in the Court of Common Pleas of York County
Civil Division at No. 2015-FC-001144-03
BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 19, 2020
D.E.J. (“Mother”) appeals pro se from the December 2, 2019 order of
adjudication of contempt of Mother and finding of no contempt of N.D.J.
(“Father”) entered in the Court of Common Pleas of York County
(“Contempt Order”). We affirm.
The record reflects that Father initiated the underlying custody action
when he filed an action in divorce and custody against Mother on June 23,
2015. The custody action concerns the parties’ children, A.D.J., born in
February 2010; R.L.J., born in January 2012; and L.N.J., born in May 2014
(collectively, the “Children”). Since Father’s initiation of the underlying
custody action, the parties have filed numerous petitions that eventually
resulted in the entry of a final custody order on September 5, 2019
(“Custody Order”) wherein the trial court awarded shared legal custody of the
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Children to Mother and Father and primary physical custody of the Children to
Father. We note that following entry of the Custody Order, Mother and Father
filed timely appeals of that order. This court consolidated Mother’s and
Father’s cross-appeals of the Custody Order at Nos. 1609 MDA 2019 and
1629 MDA 2019.
As it relates to this appeal, on October 15, 2019, Mother filed a petition
for contempt against Father, alleging that Father
willfully failed to obey the [Custody O]rder in that:
Father was ordered to arrange and begin the
[C]hildren with a new counselor within 30 days of the
[Custody O]rder, and he has not done so. Father was
ordered to ensure prior to selecting a proposed
counselor, the practice accepts the [C]hildren’s
insurance and would be able to establish an
appointment within 30 days.
Mother’s “petition for contempt of custody,” 10/15/19 at 1, ¶ 5.
Father filed an answer to petition for contempt that included a “counter
petition for contempt and modification.” (Father’s answer to petition for
contempt, 10/29/19 at 31 (full capitalization omitted).) In his counter-petition
for contempt, Father set forth the following:
9. In the Opinion entered by the [trial c]ourt in
Support of its [Custody Order,] the trial court
indicated:
“Credible testimony from the
[Children’s] therapist illustrates that
[M]other engaged in a course of
1 We note that Father’s answer to petition for contempt is devoid of page
numbers. For ease of reference, we have assigned page numbers to the
answer.
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conduct to undermine the therapeutic
relationship and failed to cooperate
with therapy. Mother discussed
[A.D.J.’s and R.L.J.’s] past sexual
conduct in their presence despite the
therapist’s admonishment that
[M]other should desist, which was
corroborated by [F]ather. When the
therapist did not agree with
[M]other’s opinions, [M]other’s
conduct became so antagonistic [that
M]other was banned from the
therapist’s practice. As a result, the
therapist is no longer able to maintain
a positive therapeutic relationship
with the entire family and believes
the [C]hildren should engage with a
new therapist. This conduct is in
direct violation of the prior order.”
10. As per the [Custody O]rder, and with the
assistance of the [C]hildren’s prior counselor,
Laura Frie, Father had identified Betsy Craft and
Andrew Rupert of the Center for Creative Arts
and Play Therapy as appropriate therapists for
the [C]hildren and did so in a timely fashion by
scheduling their first appointment for October 3,
2019.
11. It is averred that when Father notified Mother
on September 18, 2019 of his selection of the
therapists, Mother began to engage in a
campaign to contact the above referenced
therapists and their practice incessantly in an
effort to impart her continuing irrational
“concerns” with regard to the [C]hildren having
been sexually abused or physically abused by
Father and/or Father’s family.
12. It is averred that a new allegation of abuse
against Father (the 8th in two years) was lodged
with York County Children Youth and Families
on or about September 17, 2019.
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13. Father provided notification to Ms. Craft and
Mr. Rupert of the newest allegations.
14. It is believed that the [C]hildren’s former
therapist, Laura Frie, also communicated with
Betsy Craft prior to the [C]hildren’s first
scheduled appointment.
15. It is averred that as a result of Mother’s past
behaviors with Ms. Frie, combined with the
latest allegation of abuse, combined with
Mother’s harassing contact of the Craft/Rupert
offices in the weeks prior to the scheduled
appointment, that the Center for Creative Arts
and Play Therapy declined the [C]hildren as
they did not wish to be enmeshed with Mother’s
continuing campaign of false allegations of
sexual and physical abuse against Father.
....
17. Father has significant concerns that Mother will
do everything in her power to undermine any
selection of the [C]hildren’s counselors who are
not of her liking, and specifically who do not
have as their focus “sexual abuse” and/or
“sexual trauma.”
18. Father avers that Mother’s behaviors as
delineated with more specificity above are in
willful contempt of the [Custody Order] for
which he deserves to be reimbursed for his
counsel fees and costs.
Id. at 3-5. In addition to these averments, Father identified Mother’s “refusal
to allow the [C]hildren to participate in extracurricular activities as a willful
violation of the [Custody Order.”] Id. at 5, ¶ 25.
On November 22, 2019, the trial court held a contempt hearing. At the
conclusion of the hearing, the trial court found that Mother’s allegations of
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contempt against Father were unfounded. (Notes of testimony, 11/22/19 at
98-99.) The trial court then found Mother in contempt of court for
unreasonably withholding her consent to permit the Children to participate in
extracurricular activities. (Id. at 98-100.) The trial court took sanctions
against Mother under advisement. (Id. at 100-102.) On December 5, 2019,
the trial court entered the Contempt Order. In that order, the trial court noted
that “[p]rior sanctions have been unsuccessful in encouraging Mother to
comply with [o]rders of [the trial c]ourt.” (Contempt Order at 6-7.) The trial
court imposed sanctions of seven days of incarceration at York County Prison,
but suspended the sanctions
conditioned on [Mother’s] cooperation with the
co-parent counseling[2] and compliance with any
recommendations made by the co-parent counselor.
In the event that Mother fails to appear for scheduled
sessions, engages in behaviors that obstruct the
co-parent counseling, or fails to comply with
recommendations, upon motion and sufficient
evidence, Father may petition for the [trial c]ourt to
issue a Rule upon Mother to show cause why the
sentence should not be imposed. Mother is on notice
that incarceration will be imposed for noncompliance.
2 The trial court noted that it had “repeatedly directed” that Mother and Father
participate in co-parenting counseling. (Contempt Order at 7.) The trial court
further noted that it had first ordered co-parent counseling in its July 24, 2018
custody order and that neither party complied. (Id.) The trial court again
ordered co-parent counseling in the Custody Order. (Id.) The trial court
noted that although Mother and Father are appealing portions of the Custody
Order, the requirement for co-parenting counseling is not an issue on appeal.
(Id.) The trial court then noted that Father reported that co-parenting
counseling was scheduled to begin on or about December 5, 2019. (Id.)
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Id. at 7-8. The trial court also found “it necessary to appoint a parent
coordinator” pursuant to Pa.R.Civ.P. 1915.11-1. (Id. at 8.) The trial court
stated that the “appointment of a parenting coordinator shall be made by
separate order with the initial responsibility of cost of the parent coordinator
being assessed at 75% to Mother and 25% to Father.” (Id.)
Mother filed a timely notice of appeal, together with a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The
trial court then filed its Rule 1925(a)(2)(ii) opinion.
Mother raises the following issues:
1. Did the trial court commit an abuse of discretion
in finding Mother in civil contempt and ordering
sanctions, including incarceration with a vague
purge condition?
a) Did the trial court commit an abuse of
discretion in finding that Mother and
Father had come to an “agreement”
regarding extracurricular activities
when Mother believed they were still
in negotiations?
b) Did the trial court commit an abuse of
discretion in finding that Mother
unreasonably withdrew any
agreement that may or may not have
been reached?
c) Did the trial court commit an abuse of
discretion for issuing a vague purge
condition for the contempt?
2. Did the trial court commit an abuse of discretion
in failing to find Father in contempt of court for
failing to enroll the children in counseling within
the period required?
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3. Did the trial court commit an error of law or an
abuse of discretion in modifying a provision of
an order that is currently under appeal?
4. Did the trial court commit an abuse of discretion
in ordering an unequal contribution of the
parties for payment of the parenting
coordinator?
5. Did the trial court commit an abuse of discretion
in failing to admit or consider exhibits that were
submitted into evidence and not objected to?
Mother’s brief at 2-3.
At the outset, we note that after the filing of an appeal, a lower court
generally loses jurisdiction to proceed further in a matter. Pa.R.A.P. 1701(a);
see also In re J.A., 107 A.3d 799, 809 (Pa.Super. 2015). Rule 1701(c),
however, provides that “[w]here only a particular item, claim or assessment
adjudged in the matter is involved in the appeal, . . . the appeal . . . shall
operate to prevent the trial court . . . from proceeding further with only such
item, claim or assessment,” unless the lower court or this court otherwise
orders. Pa.R.A.P. 1701(c); see also In re J.A., 107 A.3d at 809.
Here, when the trial court held the contempt hearing and entered the
Contempt Order, Mother’s and Father’s cross-appeals of the Custody Order
were pending before this court. Mother’s pending appeal raised claims of error
and abuses of discretion with respect to the trial court’s application of certain
of the rules of civil procedure; the trial court’s permitting Father to choose a
new therapist for the Children; the trial court’s failure to adequately safeguard
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the Children; the trial court’s finding of Mother in contempt of its July 24, 2018
custody order; and the trial court’s analysis of the 23 Pa.C.S.A. § 5328(a)
factors to consider when awarding custody. Father’s pending appeal only
challenged the trial court’s denial of his relocation request.
In her petition for contempt of the Custody Order, Mother alleged that
Father was in contempt because he failed to have the Children seen by a
therapist within 30 days. (Mother’s “petition for contempt of custody,”
10/15/19 at 1, ¶ 5.) In Father’s counter-petition for contempt, Father alleged
that Mother interfered with his arranging for the Children to be seen by a
therapist3 and identified “Mother’s refusal to allow the [C]hildren to participate
in extracurricular activities as a willful violation of the [Custody Order].”
(Father’s counter-petition for contempt and modification, 10/29/19 at
unnumbered pp. 3-6, ¶¶ 9-18, 25.) Because the claims raised in the pending
appeals of the Custody Order were not relevant to or at issue in the contempt
proceeding, the trial court retained jurisdiction over the issues relating to the
parties’ petitions for contempt.
Appellate review of a contempt order is limited to
determining whether the trial court abused its
discretion. 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.
3 We note that the trial court determined that Father’s contention that Mother
violated the Custody Order by interfering with his scheduling of the Children’s
new therapist was “unfounded.” (Notes of testimony, 11/22/19 at 99.)
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N.A.M. v. M.P.W., 168 A.3d 256, 261 (Pa.Super. 2017) (internal citations
and quotation marks omitted).
Each court is the exclusive judge of contempts against
its process. The contempt power is essential to the
preservation of the court’s authority and prevents the
administration of justice from falling into disrepute.
When reviewing an appeal from a contempt order, the
appellate court must place great reliance upon the
discretion of the trial judge.
Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa.Super. 2002).
Moreover, this 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).
It is established[ that t]o be in contempt, a party must
have violated a court [o]rder, and the complaining
party must satisfy that burden by a preponderance of
the evidence. Specifically, the complainant must
prove certain distinct elements[:] (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.
J.M. v. K.W., 164 A.3d 1260, 164 (Pa.Super. 2017) (en banc) (internal
citations and quotation marks omitted; some brackets in original).
Mother first complains that the trial court abused its discretion in finding
her in contempt. In this issue, Mother includes three sub-issues in her brief.
Mother’s first and second sub-issues are interrelated. In those, Mother claims
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that the trial court abused its discretion in finding that her withholding of
consent to permit the Children to participate in extracurricular activities was
unreasonable. Mother claims that even though she initially agreed to permit
the Children to participate in extracurricular activities in exchange for Father’s
agreement to adjust her periods of custody, her subsequent withholding of
consent was not unreasonable because the parties were engaged in ongoing
negotiations. (Mother’s brief at 12-14.) According to Mother, because she
and Father had not agreed to all of the terms of their agreement, “[it] was
clearly an abuse of discretion for the trial court to find an agreement to all
terms had occurred . . . .” (Id. at 13-14.) Mother then discusses three-day
contract cancellation rights, unjust enrichment, and promissory estoppel. (Id.
at 16.) Mother’s argument entirely misses the mark. This appeal concerns a
contempt finding, not a contract dispute. Because Mother has failed to
develop a relevant legal argument and cite to relevant authority, Mother
waives her first and second sub-issues on appeal. See Pa.R.A.P. 2119(a) (an
appellate brief must contain “discussion and citation of authorities” to each
issued raised); see also Butler v. Illes, 747 A.2d 943, 944 (Pa.Super. 2000)
(“When issues are not properly raised and developed in briefs, when briefs are
wholly inadequate to present specific issues for review, [this] court will not
consider the merits thereof.” (citations omitted)).4
4 We note that Mother’s pro se status does not relieve her of her duty to
properly raise and develop appealable claims. Smathers v. Smathers, 670
A.2d 1159, 1160 (Pa.Super. 1996).
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Notwithstanding waiver, we note that in finding Mother in contempt, the
trial court determined, as follows:
It is clear that [Mother] did consent provided [that
Father] adjusted the schedule, which he agreed to.
Then she unreasonably withheld consent with other
conditions related to an irrelevant area of the
[Custody] Order to the extracurriculars because
[Father] had already agreed to abide by the [Custody]
Order and make the counseling a priority. So [the
trial court does] find that [Mother] is in willful violation
of the [Custody O]rder.
As [Mother] started, she outlined what the conditions
are for making a finding of contempt, that there was
a clear order, and that the violation was willful. It is
clear that after agreeing to the extracurriculars
provided the conditions were held, and after [Father]
agreed to her conditions, then she wanted to add
more conditions to the consent. [The trial court]
find[s] that unreasonable.
Notes of testimony, 11/22/19 at 99-100.
Even if Mother had not waived her first and second sub-issues on appeal,
our thorough review of the record demonstrates that the trial court properly
exercised its discretion.
In her final sub-issue of issue one, Mother complains that the trial court
abused its discretion in imposing a vague purge condition. Mother did not
raise this issue in her Rule 1925(a)(2)(i) statement and, therefore, waives it
on appeal. See Pa.R.A.P. 1925(b)(4)(vii) (stating that issues not included in
the concise statement are waived).
In her second issue, Mother claims that the trial court abused its
discretion when it did not find Father in contempt for failing to enroll the
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Children in counseling within 30 days of the Custody Order. In her argument
on this issue, Mother concedes that Father had appointments for the Children
set for October 3, 2019, which was within the 30-day period provided in the
Custody Order. (Mother’s brief at 22.) Mother also concedes that the practice
cancelled the appointments on October 2, 2019. (Id.) Mother’s complaint is
that “Father’s refusal to have the [C]hildren evaluated by a practice that
specializes in experiences these [C]hildren have had is clearly with wrongful
intent . . . .” (Id. at 23-24.) Mother identifies the experiences as sexual in
nature. (Id. at 24.) Mother then requests that this court remand “the case
to the trial court with instructions to order the [C]hildren into therapy that is
qualified to meet their needs . . . .” (Id.) Clearly, Mother is unhappy that
Father will not enroll the Children in the type of therapy that Mother believes
that Father should enroll them in. Indeed, Mother requests that we remand
this case “with instructions to order the [C]hildren into therapy that is qualified
to meet their needs[.]” (Id.)
In finding that Father was not in contempt, the trial court first
determined that Father’s evidence was credible. (Contempt Order at 2.) The
trial court then concluded that
Mother has failed to support her claim that Father did
not timely schedule the counseling session pursuant
to the [Custody O]rder. Father provided sufficient
evidence to show that on September 18, 2019 he did
timely arrange for counseling to begin for [A.D.J.] and
[R.L.J.] on October 3, 2019 which was within thirty
(30) days of the [Custody] Order and for which Mother
was provided timely notice. Father was not notified
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that the counselor would be unable to provide services
until the eve of the appointment deadline. Upon
receipt of notification that the counselor was unwilling
to provide counseling services to the [C]hildren,
Father took immediate remedial action to secure an
appointment with a qualified and appropriate
counselor, utilizing the recommendations by the
professionals referred by the initial counselor. Father
has sole legal custody as it relates to enrolling the
[C]hildren into counselling and, therefore, has the
exclusive right to consent to the counseling treatment
for the [C]hildren. The [trial c]ourt finds that,
although the counseling session did not occur within
thirty (30) days, Father did not willfully violate the
Custody Order.
Id. 2-3. We have thoroughly reviewed the record. We find no abuse of
discretion.
Mother next complains that “the trial court commit[ed] an error of law
or an abuse of discretion in modifying a provision of [the Custody O]rder that
is currently under appeal.” (Mother’s brief at 24.)
At the outset, and as discussed above, the trial court had jurisdiction to
conduct the contempt hearing pursuant to Pa.R.Civ.P. 1701. As Mother
suggests, however, a contempt proceeding cannot be converted into a custody
modification proceeding without proper notice and due process. (See
Mother’s brief at 25-27; see also G.A. v. D.L., 72 A.3d 264, 270 (Pa.Super.
2013) (concluding that trial court abused its discretion where it modified
custody by reinstating previous order notwithstanding that father, in his
contempt petition, never sought modification).)
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Here, in its Custody Order, the trial court directed that “Father shall
have sole legal custody for the purpose of enrolling the Children with a new
counseling practice” which included the “exclusive right to consent to
counseling treatment for the Children.” (Custody Order at 2.) In the
Contempt Order, the trial court directed that:
[f]or clarification purposes and without the need to
modify the Custody Order, the [trial c]ourt orders and
directs that Father shall notify the counselor for each
child that he has the exclusive right to consent to the
treatment of the [C]hildren. Despite this right, both
parents shall cooperate with the counseling sessions
by ensuring that the [C]hildren attend for the
frequency and duration as recommended by the
child’s counselor. Mother shall have the right to
verbally communicate with the counselor so long as
such communication is initiated by the counselor or
occurs at the specific request of the counselor.
Otherwise, communication shall be in writing with a
copy of any such communication to Father. Any
communication by Mother to the counselor shall be
relevant to the counselor’s treatment plan as it is
determined by the counselor, shall not be excessive in
length or frequency, and shall not be disruptive to the
sessions or treatment as a whole. Father shall ensure
that the counselor treating each child has contact
information for Mother and Laura Frie to enquire at
his/her option, of any treatment needs of the subject
child.
Contempt Order at 3.
To support her contention that the trial court improperly modified
custody, Mother relies on P.H.D. v. R.R.D., 56 A.3d 702 (Pa.Super 2012).
There, mother filed a contempt petition alleging that father had violated a
provision of the custody order that directed that father “have no contact with
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the children other than supervised visits” when father appeared at one of the
children’s band concerts. Id. at 704. At the contempt hearing, the trial court
“clarified” the custody order by explaining that father was “not to appear at
places where the children would reasonably be expected to be.” Id. Father
appealed, claiming that the trial court abused its discretion and/or erred as a
matter of law by modifying the custody order without a modification hearing.
Id. at 705-706. This court determined that the trial court’s “clarification” was
a modification of the custody order because it imposed new restrictions on
father’s custody such as prohibiting him from attending school and community
activities that the children were likely to attend. Id. at 706-707. Accordingly,
this court vacated that part of the contempt order that purported to relate to
a custody modification, but was labeled as a “clarification,” because father had
no notice that custody would be an issue at the contempt hearing which
violated his due process rights. Id. at 707-708.
Here, and unlike P.H.D., custody was not at issue in the contempt
proceeding. Father had already been awarded sole legal custody for the
purpose of enrolling the Children in counseling, as well as the exclusive right
to consent to treatment. The Contempt Order’s clarification only concerned
the manner in which Mother must communicate with the Children’s therapist –
not the manner in which Mother must communicate with the Children. The
contempt order in no way deprived Mother of her right to share in “making
decisions of importance in the life of [the] Children, including educational,
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medical, and religious decisions.” (Custody Order, 9/5/19 at 2; see also
23 Pa.C.S.A. § 5322 (defining legal custody). Therefore, this issue lacks
merit.
In her fourth issue, Mother complains that the trial court abused its
discretion “in ordering an unequal contribution of the parties for payment of
the parenting coordinator.” (Mother’s brief at 27.)
In its Contempt Order, the trial court found it necessary to appoint a
parent coordinator pursuant to Pa.R.Civ.P. 1915.11-1 Order “due to the high
conflict nature of the parties and the recent dispute regarding participation in
extracurricular activities[.]” (Contempt Order at 8.) The trial court directed
that Mother pay 75 percent of the cost of the parent coordinator and Father
pay 25 percent. (Id.) The trial court explained that it required Mother to pay
a larger percentage because she had twice previously been found in contempt
and Father had never been found in contempt. (Trial court opinion, 12/24/19
at 8.)
In her brief on this issue, Mother fails to set forth a legal argument to
support her claim. Rather, Mother complains that the trial court “fail[ed] to
consider Father’s role in all of these issues” and that “Father [refuses] to have
the [C]hildren seen by a therapist qualified to treat children who have engaged
in” certain sexual activities. (Mother’s brief at 28-29.) Mother waives this
issue on appeal for failure to develop a legal argument. See
Pa.R.A.P. 2119(a); see also Butler, 747 A.2d at 944.
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In her final issue, Mother claims that the trial court “abuse[d its]
discretion in failing to admit or consider exhibits that were submitted into
evidence and not objected to[.]” (Mother’s brief at 30.) Mother claims that
she “specifically asked that all exhibits discussed by her in testimony and
arguments be admitted into evidence” (id.), citing to the following portion of
Mother’s direct examination of Father:
Q. . . . So on 9/16, you’re asking me about
baseball and wrestling 11 days after the Order.
Is that correct? Exhibit G, I’m sorry, I’d like to
submit any exhibits I discuss into evidence,
please. So Exhibit G?
A. Okay.
Notes of testimony, 11/22/19 at 40-41.
Mother claims that because she stated that she would “like to submit
any exhibits [she] discuss[es] into evidence” (id.), the trial court abused its
discretion in not admitting all of her exhibits. Mother fails to cite to any legal
authority for this proposition, and we know of none. We have held that:
This [c]ourt is neither obliged, nor even particularly
equipped, to develop an argument for a party. To do
so places the [c]ourt in the conflicting roles of
advocate and neutral arbiter. When an appellant fails
to develop his issue in an argument and fails to cite
any legal authority, the issue is waived.
In re S.T.S., 76 A.3d 24, 42 (Pa.Super. 2013) (internal citations and citation
omitted). Therefore, Mother waives this issue on appeal.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/19/2020
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