J-A21037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.L.L., a/k/a T.L.P.                      :        IN THE SUPERIOR COURT OF
                                          :              PENNSYLVANIA
            v.                            :
                                          :
R.F.P.,                                   :
                                          :
                   Appellant              :            No. 285 EDA 2016

                  Appeal from the Order December 23, 2015
            in the Court of Common Pleas of Philadelphia County,
                     Family Court at No(s): 0C1000744

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 14, 2017

      R.F.P. (“Father”), pro se,1 appeals from the Order granting (1) in part,

the Petition, filed by T.L.L. a/k/a T.L.P. (“Mother”), seeking to modify

custody of R.P.P. (“R.P.”), born in March of 2005; and (2) one of Mother’s

contempt Petitions against Father, and directing him to pay $500 in

attorney’s fees to Mother’s counsel.2 We affirm.

      In its Opinion, the trial court set forth the relevant factual and

procedural history of this case, which we adopt for the purpose of this

appeal. See Trial Court Opinion, 2/19/16, at 1-3.




1
  Father is an attorney, licensed to practice law in the Commonwealth of
Pennsylvania.
2
  The parties have two other children who have been involved in these
custody proceedings: S.P. (born in May of 2006); and E.P. (born in June of
2008) (all three children will collectively be referred to as “Children”).
J-A21037-16


        The   trial court entered the    Order ruling on     Mother’s custody

modification and contempt Petitions on December 23, 2015. On January 19,

2016, Father timely 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).3

        On appeal, Father raises the following issues for our review:

        I. Whether the judge erroneously denied recusal where she has
        demonstrated an unwavering pattern of bias favoring the
        abusive, suicidal [Mother], including (1) purposefully making
        hearsay “errors” to [Mother’s] advantage[;] (2) treating
        [C]hildren as a party[;] and (3) refusing to acknowledge Father’s
        contempt allegations against [Mother], thus adversely affecting
        the best interests of [C]hildren?

        II. Whether the [trial] judge impermissibly relied on her own
        personal beliefs with respect to parental communication and, in
        so doing (1) expressly refused to follow this court’s binding
        standard of “minimum of communication” between custodial
        parties[;] and (2) prevented Father from introducing and ignored
        relevant and undisputed evidence of [Mother’s] physical abuse of
        [Father]?

        III. Whether the [trial] judge’s singular finding of contempt was
        pretextual because it[] (1) was not only unsupported by the


3
  Father has attached to his brief a Supplemental Concise Statement.
However, our review discloses no request for, or order granting, leave to file
a supplemental concise statement. Nor is there any entry on the docket
indicating that such document was ever filed with the trial court. Therefore,
we decline to address any issue raised in that document. See Korman
Commercial Props. v. Furniture.com, LLC, 81 A.3d 97, 102 (Pa. Super.
2013) (deeming as waived an issue that was not raised and preserved
properly before the lower court in the concise statement); see also
Pa.R.A.P. 1925(a)(2)(i) (requiring that the appellant in a Children’s Fast
Track case to file the concise statement contemporaneously with the notice
of appeal, so that the trial court will respond to the issues raised, and this
Court can conduct proper appellate review).


                                   -2-
J-A21037-16


      record[;] but (2) contradicted by [Mother’s] own testimony[;]
      and (3) separated [C]hildren without justification?

      IV.  Whether the court erred in ordering Father to pay
      [Mother’s] counsel $500.00 in attorney’s fees?

Father’s Brief at 3.

      In his first issue, Father contends that the trial judge, the Honorable

Holly J. Ford (“Judge Ford”), erred by denying his recusal Petition because

she demonstrated bias in favor of Mother by “(1) purposefully defying the

rules of hearsay in [Mother’s] favor[;] (2) treating [C]hildren as a party[;]

and (3) refusing to litigate Father’s filed counterclaims of contempt against

[Mother].” Id. at 16. Father asserts that, at the hearings conducted on May

17, 2013, and June 4, 2015, the trial court admitted emails, sent from

Mother to Father, wherein Mother purported to paraphrase statements made

by Children. Id. at 25. According to Father, Judge Ford stated, “I will allow

it as an exception to hearsay, because I consider [C]hildren a party.    Not

everybody does that; I do.”    Id. (citing N.T., 5/17/13, at 19) (emphasis

omitted).   Father claims that Judge Ford erred by admitting the emails

because children are not parties to contempt or custody proceedings. Brief

for Appellant at 25.

      Father also argues that he filed counter-claims of contempt against

Mother, and that the trial court refused to consider such claims “because,

she speculated, Father had not ‘paid’ any money for the filings ….” Id. at

31. Father insists that he filed the contempt complaints, and that the trial



                                 -3-
J-A21037-16


court’s statements otherwise are false, and demonstrate her bias toward

him. Id. at 31-32.4

      In its Opinion, the trial court addressed Father’s first issue, set forth

the relevant law, and determined that the issue lacks merit. See Trial Court

Opinion, 2/19/16, at 4-9.    We agree with the reasoning of the trial court,

which is supported by the record and free of legal error, and affirm on this

basis as to Father’s first issue. See id.

      In his second issue, Father contends that Judge Ford “impermissibly

relied on her own personal beliefs regarding parental communication” and

ordered “excessive contact and [an] unreasonable standard of conduct”

between the parties. Father’s Brief at 36-37, 46, 49. Father asserts that

shared custody requires only that custodial parents maintain a minimal

degree of communication.      Id.   Father claims that Judge Ford “explicitly

refused to follow this Court’s binding standard and replaced it with an

impossible standard.” Id. at 50. Father argues that Judge Ford

      modified the custody Order to require Father to (1) inform
      [Mother] ahead of time[,] in writing[,] of any physician or dentist
      appointments …; (2) respond within 96 hours to [Mother’s]
      emails …; and (3) ignored this Court’s “minimal cooperation”

4
  In his brief, Father cites additional claims of error and bias by the trial
judge. See Father’s Brief at 31, 32-35. However, as related to Father’s first
issue, the only claims preserved for our review are that the trial court “(1)
purposefully ma[de] hearsay ‘errors’ to [Mother’s] advantage; treat[ed
C]hildren as a party; and (3) refus[ed] to acknowledge Father’s contempt
allegations against [Mother] ….” See id. at 3; see also Pa.R.A.P 2116(a)
(providing that “[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”); Korman,
supra. (deeming as waived any issue not raised in the concise statement).


                                    -4-
J-A21037-16


      standard in favor of a higher, “full” cooperation standard that no
      custodial party could possibly achieve …, thus more easily
      exposing Father to more serial contempt petitions and a lower
      burden of proof for Mother.

Id. at 50-51.5 Father contends that “[t]he law does not require [him] to be

amicable – or even civil – to [Mother].” Id. at 52. Father asserts that Judge

Ford “improperly modified the custody [O]rder to require an illegal,

heightened standard of interaction between the parties ….” Id. at 52.6

      In its Opinion, the trial court addressed Father’s second issue, set forth

the relevant law, and determined that the issue lacks merit. See Trial Court

Opinion,   2/19/16,    at    18-19    (explaining   that   the   communication

requirements included in the custody Order were necessary to prevent

Children   from   being     exposed   to   “unnecessary,   duplicative   medical

appointments; frustration from conflicting extracurricular activities, and/or

[the] burden [of] unnecessary, duplicative work on school projects.”).       We


5
  Contrary to Father’s characterization, our review of the custody Order
discloses that it requires both parties to (1) inform each other ahead of time,
in writing, of any physician or dentist appointments; (2) respond within 96
hours of a request by the other party to enroll Children in activities; and (3)
to “strive” for “full co-parenting skills.” Custody Order, 12/22/15, at 3.
6
  Father also attempts to argue that the trial judge improperly determined
that Father’s evidence of Mother’s behavior was “not relevant to the issue of
how Father must deal with [] abusive[,] overly-litigious and querulous
[Mother],” and erred by refusing to let Father testify as to Mother’s “heinous
acts of physical abuse.” Father’s Brief at 37-46. However, Father failed to
raise this issue in his Concise Statement.        Consequently, it was not
addressed by the trial court in its Pa.R.A.P. 1925(a) Opinion. Although
Father purported to raise this issue in his Supplemental Concise Statement,
for the reasons stated previously we decline to address any issue raised in
that document.


                                     -5-
J-A21037-16


agree with the reasoning of the trial court, which is supported by the record

and free of legal error, and affirm on this basis as to Father’s second issue.

See id.

      As the first two parts of Father’s third issue and his fourth issue are

related, we will address them together.    In the first two parts of his third

issue, Father contends that “the [trial] judge’s singular finding of contempt

was pretextual, used only to severely punish Father because the judge

harbors personal animosity against him.”        Father’s Brief at 54.    Father

asserts that the finding was unsupported by the record and contradicted by

Mother’s testimony that the underlying custody mix-up was an honest

mistake by Father. Id. Father claims that the custody Order under which

the parties were operating included an “unusual and complicated multi-day

custody exchange for Christmas and New Year[’s Day,]” which “drastically

departed from the usual week-to-week custody arrangement.”         Id. at 55.

Father argues that the trial court ignored his testimony that he returned

Children late over the Christmas holiday because he misread the holiday

custody arrangement.     Id. at 56.    Father contends that there was no

evidence of wrongful intent, and that the trial court’s contempt ruling was

merely a pretext to punish Father. Id. at 59.

      In his fourth issue, Father contends that the trial court erred in

ordering him to pay $500 in attorney’s fees to Mother’s counsel.        Father’s

Brief at 65.   Father asserts that, pursuant to the Child Custody Act (the



                                 -6-
J-A21037-16


“Act”), 23 Pa.C.S.A. §§ 5321-5340, a court may not award counsel fees,

costs or expenses to a party unless it finds that the conduct of another party

was obdurate, vexatious, repetitive or in bad faith.         Id. at 65 (citing 23

Pa.C.S.A. § 5339). Father claims that the conduct which formed the basis of

the fee award was a “one-time mistake regarding a confusing custody

schedule change.” Id. at 66. Father argues that Mother’s conduct, and not

his, was obdurate, vexatious, and in bad faith. Id. Father contends that the

only basis for the fee award is the trial judge’s “personal ill-feelings” toward

Father, and her “sympathetic or emotional identification with [Mother].” Id.

at 71.

         In its Opinion, the trial court addressed the first two parts of Father’s

third issue and his fourth issue, set forth the relevant law, and determined

that the issues lack merit. See Trial Court Opinion, 2/19/16, at 19-23. We

agree with the reasoning of the trial court, which is supported by the record

and free of legal error, and affirm on this basis as to the first two parts of

Father’s third issue and his fourth issue. See id.

         In the final part of his third issue, Father contends that the trial court

erred by reducing his custodial time with R.P. by one full day per week.

Father’s Brief at 60.       Father asserts that the trial judge found him in

contempt as a pretext to punish him “simply because she personally dislikes

him.” Id. Father points to the trial court’s stated basis for the change, i.e.,

to permit Mother to take R.P. to counseling on Fridays, and claims that there



                                     -7-
J-A21037-16


was no need to remove R.P. from Father’s custody on Thursday nights. Id.

Father also argues that he could take R.P. to counseling on Fridays.        Id.

Father contends that the reduction of his custodial time with R.P. was not

justifiable. Id. at 63.

      In any custody case decided under the Act,7 the paramount concern is

the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section

5338 of the Act provides that, upon petition, a trial court may modify a

custody order if it serves the best interests of the child.       23 Pa.C.S.A.

§ 5338; see also E.D. v. M.P., 33 A.3d 73, 80-81 n.2 (Pa. Super. 2011).

Section 5328(a) sets forth a list of sixteen factors that the trial court must

consider when making a “best interests of the child” analysis for a custody

determination.    See 23 Pa.C.S.A. § 5328(a).      Moreover, section 5323(d)

mandates that, when the trial court awards custody, it “shall delineate the

reasons for its decision on the record in open court or in a written opinion or

order.” Id. § 5323(d).

      Section 5328(a) of the Act provides as follows:

      § 5328. Factors to consider when awarding custody

      (a) Factors.—In ordering any form of custody, the court shall
      determine the best interest of the child by considering all
      relevant factors, giving weighted consideration to those factors
      which affect the safety of the child, including the following:

7
  See 23 Pa.C.S.A. § 5321 et seq. Because the custody trial was held in
2015, the Act applies to this case. See C.R.F. v. S.E.F., 45 A.3d at 445
(holding that, if the custody evidentiary proceeding commences on or after
the effective date of the Act, i.e., January 24, 2011, the provisions of the Act
apply).


                                  -8-
J-A21037-16


             (1) Which party is more likely to encourage and permit
      frequent and continuing contact between the child and another
      party.

             (2) The present and past abuse committed by a party or
      member of the party’s household, whether there is a continued
      risk of harm to the child or an abused party and which party can
      better provide adequate physical safeguards and supervision of
      the child.

            (2.1) The information set forth in section 5329.1(a)(1) and
      (2) (relating to consideration of child abuse and involvement
      with protective services).8

            (3) The parental duties performed by each party on behalf
      of the child.

           (4) The need for stability and continuity in the child’s
      education, family life and community life.

            (5) The availability of extended family.

            (6) The child’s sibling relationships.

            (7) The well-reasoned preference of the child, based on
      the child’s maturity and judgment.

           (8) The attempts of a parent to turn the child against the
      other parent, except in cases of domestic violence where
      reasonable safety measures are necessary to protect the child
      from harm.

            (9) Which party is more likely to maintain a loving, stable,
      consistent and nurturing relationship with the child adequate for
      the child’s emotional needs.




8
  Effective January 1, 2014, the Act was amended to include an additional
factor at 23 Pa.C.S.A. § 5328(a)(2.1). As this subsection was applicable at
the time of the custody trial in the present matter, the trial court considered
it when making its modification determination. See Trial Court Opinion,
2/19/15, at 11.


                                   -9-
J-A21037-16


            (10) Which party is more likely to attend to the daily
      physical, emotional, developmental, educational and special
      needs of the child.

            (11) The proximity of the residences of the parties.

           (12) Each party’s availability to care for the child or ability
      to make appropriate child-care arrangements.

             (13) The level of conflict between the parties and the
      willingness and ability of the parties to cooperate with one
      another. A party’s effort to protect a child from abuse by
      another party is not evidence of unwillingness or inability to
      cooperate with that party.

          (14) The history of drug or alcohol abuse of a party or
      member of a party’s household.

          (15) The mental and physical condition of a party or
      member of a party’s household.

            (16) Any other relevant factor.

Id. § 5328(a).

      In its Opinion, the trial court addressed the final part of Father’s third

issue, set forth the relevant law, and determined that the issue lacks merit.

See Trial Court Opinion, 2/19/16, at 10-18 (wherein the trial court discussed

each of the sixteen custody factors set forth in the Act, and determined that

the modification was in R.P.’s best interest). We agree with the reasoning of

the trial court, which is supported by the record and free of legal error, and

affirm on this basis as to the final part of Father’s third issue. See id.

      Order affirmed.




                                  - 10 -
J-A21037-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/14/2017




                          - 11 -
                                                                                         Circulated 02/02/2017 10:48 AM




                                  IN THE COURT OF COMMON PLEAS
                             FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                   DOMESTIC RELATIONS DIVISION



..--·~
    ~.f P.

          v
                       FATHER
                                                                COURT OF COMMON PLEAS.
                                                                PHILADELPHIA COUNTY, PA

                                                                IN CUSTODY: OCl 00074-
                   -r.k P.
                       MOTHER                                   NO.: 285 EDA 2016




                                                         OPINION

                       R-F.P.
    Appellant     w•llllllll!lt             (hereafter "Father") appeals from an order dated December 22.

2015 entered by the Honorable Holly J. Ford. After a hearing the trial court granted, in part,

               --~:r
                       1".L.P·  ~
                            , __ . .   -
Appellee                                   (hereafter "Mother") petition to modify custody. A prior shared

physical custody arrangement was modified to allow Mother to maintain custody of the oldest
                ~-P. P.
child,   11111.•l!l.!I.I. . I,I. _lll(hereafter"RPP"),   every Thursday evening from 7:00 pm to Friday at

7:00 pm in addition to her shared weekly custody. The mid-week custodial exchange from

custodial parent to non-custodial parent was removed from the custodial order, limiting the

exchange of custody for each child to once a week instead of twice a week. On Mother's two

petitions for contempt against Father the trial court dismissed the first petition after a hearing

without making a finding of contempt. On the second petition the trial court found Father in

contempt of the custody order for his actions concerning Christmas 2014. Father was ordered to

pay five-hundred dollars ($500.00) in attorney fees to Mother's counsel for filing and arguing the

contempt petition.
                                                                                 I   I
   I.      Procedural Historv (See docket!

   Mother filed a petition for contempt on August 13, 2014, and a petition to modify custody

along with another petition for contempt on December 29, 2014. The petitions were scheduled

for a hearing on January 27. 2015. hut continued due to inclement weather that forced the courts

to close. Father filed a motion for recusal of the judge on January 22, 2015, which was deni. . ,

without a hearing on February 6, 2015. A hearing on Mother's three petitions was held on June

4, 2015. but was continued for an additional date, as there was insufficient time to hear the

testimony of all the witnesses. On June 16, 2015, Father filed a motion for a protracted hearing

on the remainder of the previously continued petitions. The motion was granted on June 19,

2015, and the protracted hearing was held on November 10, 2015. A final Order of court was

entered on December 22, 2015. Father filed a petition for reconsideration on December 29, 2015

which was denied by operation oflaw after passage of thirty days without signature. Father filed

this appeal on January 19, 2016.

    II.     Facts

    Father and Mother were subject to a custody Order, which was entered by agreement of the

parties, on May 17, 2013. That Order granted Father and Mother shared legal custody, and

shared physical custody of the parties' three minor children. The Order also gave detailed

custodial rights for holidays, and addressed the need for counseling, communication between the

parties, and attendance at extracurricular activities. (See Order dated May 17, 2013 ). On May 31,

2013, Father filed an appeal to the May 17, 2013 Order. (See Docket). In a Decision dated March

7, 2014, the Superior Court affirmed the trial court's Order. (See Non-precedential Decision -

See Superior Court I.O.P. 65.37).




                                                  ..;..-,
      The Order which forms the subject of this appeal was entered on December 22, 2013. The

hearing encompassed two days of testimony; June 4, 2015 and November I 0, 2015. Four ( 4)

witnesses testified: Robert Ham, RPP's teacher; Erica Hall, Department of Human Services

(hereafter "DHS") social worker: Mother. and Father. The three minor children were interviewed

111   camera. and the testimony was sealed. >;.l. November 10. 2015, p. 201, I. 5-8. Fatl.c:

submitted five (5) exhibits, which consisted of email correspondence, report cards, and a letter

from Erica Hall. Mother submitted fourteen (14) exhibits, which consisted of email

correspondence and letters.

       III.        Statement of Errors Complained of on Appeal

              J.  The court erred in denying Father: s recusal petitions.
              2. The court erred by treating the children as a party to contempt and custody
                   proceedings
              3. The court erred by permitting petitioner-Mother to introduce inadmissible hearsay in
                   the form of her own multiple electronic mail correspondence to respondent as
                   'evidence" of the truth of the matters asserted in those correspondence.
              4. The court erred by ignoring Father's filed claims of contempt against petitioner-
                   Mother.
              5. The court erred by altering the long-standing custody schedule where doing so
                   separated the children with no justifiable purpose and where the children were used to
                   and comfortable with the schedule.
              6. The court erred by quoting the law of the Conunonwealth governing cooperation by
                   custodial parties and explicitly instructing the parties to disobey that law.
              7. The court erred by forcing the custodial parties to conununicate regularly in direct
                    contravention to the law of the Commonwealth.
              8. The court erred by finding Father in contempt of violating the Christmas custody
                    schedule where Father testified that he made an honest mistake for which he
                    apologized to petitioner and attempted to rectify the situation, and petitioner herself
                    testified that she believed Father was "sincere" in the representation.
              9. The court erred by again incorrectly rendering the terms of the annual New- Years·
                    Eve-through -January -2nd custody schedule to reflect the opposite of its stated
                    intention at trial.
               10. The court erred as a matter of law in imposing attorney's fees on Father.




                                                        3
            Standard of Review

      The standard of review in a child custody matter is abuse of discretion. C.R.F. v. S.E.F.,

   45 A.3d 441, 443 (Pa. Super 2012). Findings of the trial court, which are supported by the

   record. issues of witness credibility. and weight of the evidence should he deferred to the trial

   judge. Id. The conclusions of the trial judge may be rejected if they involve an error of law.

   or are unreasonable. Id. "the discretion that a trial court employs in custody matters should be

   accorded the utmost respect, given the special nature of the proceeding and the lasting impact

   the result will have on the lives of the parties concerned." Jackson v. Beck, 858 A.2d 1250,

   1254 (Pa. Super. 2004).

         The standard of review for a finding of contempt in a child custody matter is whether the

   trial court committed a "clear abuse of discretion." G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super.

   2013). Deference should be given to the sound discretion of the trial court. Id. The contempt

   power is necessary to preserve the courts authority and the administration of justice. Garr v.

   Peters, 773 A.2d 183, 189 (Pa. Super. 2001).

   IV.      Analysis

   1. The court erred in denying Father's recusal petitions.

   Denial of Father's motion for recusal was proper. A motion for recusal requires a jurist to

make a two-pronged analysis. First, the jurist must make an "independent, self-analysis" of his or

her ability to maintain impartiality. Commonwealth v, Druce, 577 Pa. 581, 589 (2004). Second,

the jurist must decide if his or her involvement in the case would create an appearance of

impropriety or would undermine public confidence in the judicial system. Id. The Pennsylvania

Supreme Court presumes judges of the Commonwealth are "honorable, fair and competent," and

have the ability to decide if they can rule impartially and without prejudice with regard to a



                                                  4
motion for recusal. Id. The burden is on the petitioner to present evidence of bias, prejudice or

unfairness, which would raise a substantial doubt as to whether the jurist possesses the ability to

preside impartially. Arnold v. Arnold, 847 A.2d 674, 680 (Pa. Super. 2004). Prior adverse rulings

alone will not establish bias sufficient for recusal, particularly when the prior rulings are legally

appropriate. Id. at 681.

    Here, after a review of the Motion for Recusal, this Jurist made the required self-analysis and

came to the conclusion that impartiality had been maintained in prior proceedings, and that she

had the ability to continue to maintain impartiality in the protracted hearing to address Mother's

three filed petitions. Next, after a review of the notes of testimony from the hearing on May 1 7,

2013, which was the basis for the motion for recusal, this Jurist concluded that her further

involvement in this child custody matter would not create the appearance of bias, or undermine

public confidence in the judicial system. Father stated, "Father submits that this court has, or

appears to have, arrived at a sympathetic or emotional identification with Mother in the instant

matter, amounting to prejudgment or an appearance of prejudgment." (See Father's Motion for

Recusal at 2). Father cited eighteen (18) reasons to support his belief, all of which arose from the

May 17, 2013 hearing. Id. at2-17. However, the May 17, 2013 hearing culminated in an Order,

by agreement of parties, and no finding of contempt against Father. (See Order dated May 17,

2013). Father appealed that Order, raising some of the same issues on appeal that he raised in the

instant motion for recusal, and the trial court's order was affirmed in a decision dated March 7,

2014. Throughout Father's Motion for Recusal Father cited to fragments of statements from the

May 17, 2013 notes of testimony that he felt reflected prejudgment or an appearance of

prejudgment. (See Father's Motion for Recusal at 2-17). However, the fragmented statements




                                                   5
taken in their entirety and in the context of the hearing do not reflect any prejudgment of Father

by this Jurist, bias against Father or sympathy towards the Mother. N .T. May 17, 2013.

    2. The court erred by treating the children as a party to contempt and custodj
       proceedings.

       This court without further specificity from Father, interprets this alleged error as applying

to the hearsay objection, which Father made to statements the children made out of court. Father

made a partial continuing objection to any and all of these statements during trial, but does not

point to any specific error or specific statement on which the court allegedly relied in his 1925(b)

statement. The only statement made by the children, which was not corroborated separately by

the children in their testimony, or the testimony of the witnesses (including Father) is the

following: Mother stated on the record, "the children told me later that he took them to meet his

new girlfriend's family." N.T. June 4, 2015, p, 149, 1. 17-18. Father objected on hearsay grounds

and the court stated, "No, I don't consider it hearsay when they're children, because the children

I consider parties in this matter." N. T. June 4, 2015, p. 149, I. 19-22. The court elaborated that

the statement would be "bad" for purposes of hearsay, but it is "the only way that I have

information through parents about what the children have to say and what I can question them on

and interview them on later ... " Id. at p. 150, I. 1-10.

        The codified Pennsylvania Rules of Evidence do not specifically refer to a hearsay

exception for children, but Rule 803 (25) permits statements made by an "opposing party" as an

exception to the hearsay rule. The trial court has not found case law which specifically addresses

statements made by children in custody proceedings. Statements made by an alleged victim in a

Protection from Abuse case admitted through the testimony of a case worker and clinical

therapist have not been permitted. KD. by K.H.D v. J.D., 696 A.2d.232, 233 (Pa. Super. 1997).

Although children were considered parties for purposes of a termination proceeding (and by


                                                     6
reference in criminal and dependency     proceedings)       their testimony   was not allowed as a hearsay

exception.   In re ]11. T., 607 A.2d 271, 280-81 (Pa. Super. 1992). The trial court would prefer that

this Honorable Court recognize a hearsay exception for children's statements in family court for

reasons stated on the record. "its an unusual situation in Family Court, It's one of the only places

where people who aren't necessarily heard are directly involved in cases." N.T. June 4. 2015. p

150, l. 12-15. However, this Honorable Court need not acknowledge any such exception in the

case at bar. The trial court, in reviewing its custody factors and the best interest of the children.

did not rely on any out of court statements made by the children. The children's out of court

statements were not offered "for the truth of the matter asserted", but rather for the permissible

purpose of "establishing what was in the mind of the children and the impact upon the children

of [appellant's] conduct." Schwarcz v. Schwarcz, 548 A.2d 556, 562 (Pa. Super. 1988). ln the

contempt portion of the proceeding it was completely irrelevant if Dad did or did not, in fact,

take the children to meet his new girlfriend's family at Christmas. What was relevant to the trial

court was whether or not Father willfully failed to comply with the Order. The trial court's

finding of contempt by Father was not in any way based on where he went for Christmas, but

rather the fact that this Court believed that Father knew Mother was supposed to have custody on

Christmas Day and did not get it. When he had the opportunity to rectify the matter by returning

to Mother's home with the children, he failed to do so. (See number 8 below).

         Any other testimony (particularly considering the psychological state of child RPP, the

only child's whose custody was slightly altered by the Order under appeal) was corroborated

 through the testimony of the children, the Mother, RPP's teacher Mr. Ham, and the DHS social

 worker Ms. Hall.




                                                        7
       As a general rule, this trial court allows parents to testify about statements made by

children as a way of gaining insight as to what the children may want to discuss during each

child's interview. These statements are not considered for the truth of the matter and are

therefore not hearsay. If the trial court's practice is considered an error. it is a harmless error

since all of the out of court statements made by the children were either corroborated by other

witnesses or the children themselves, or they were not considered in the court's custody and

contempt determination in this matter. The trial court incorrectly categorized the children's

testing as an "exception to hearsay" when in actuality it was not hearsay at all for the reasons

stated above.

    3. The court erred by permitting petitioner-Mother to introduce inadmissible hearsay
       in the form of her own electronic mail correspondence to respondent as "evidence" of
       the truth of the matter asserted in those correspondences.

    Father did not object to the admission of the emails as inadmissible hearsay at the trial and

therefore waived this objection. Numerous emails previously exchanged between the parties,

were printed on paper, produced at trial, and entered as exhibits. N.T. June 4, 2015, p. 139, 154,

157, 162, 164, 168, 172, 199. N.T. November 10, 2015, p. 27. Father never objected to the

admission of the emails based on hearsay. N.T. June 4, 2015, p. 139-202. N.T. November 10,

2015, p 27. On the record Father stated he had no objection to Mother's packet of emails--

exhibit M-13. N.T. November 10, 2015, p 49. Mother testified on direct examination concerning

the contents of the emails. N.T. June 4, 2015, p. 139-202. Father testified regarding the emails

on cross examination. N.T. November, 10, 2015, p. 213-222, 228-240. Since Father failed to

object to the emails as inadmissible hearsay in court he did not preserve the issue on appeal.

    Regardless, the emails were not inadmissible hearsay. The statements made within the emails

fall under the hearsay exception for opposing party's statements. Pa.R.Evid. 803(25). The



                                                    8
electronic mail correspondence that Father refers to consists of numerous emails sent between

Mother and Father on an email account established specifically for custodial issues. The email

account was established per a final Order of court entered by agreement of parties. (See Order

dated June 7. 2011 ). The purpose of the account was to resolve communication issues between

Father and Mother in relation to custodial issues concerning the parties' three minor children

The Order, to which both parties agreed, also stated that email communications "may be

considered evidence at any future custody proceedings." Id. Additionally, as previously stated,

both parties gave testimony about the emails. Father, representing pro se, was also afforded the

opportunity to cross-examine Mother in regard to the emails, but declined. N.T. November 10,

2015, p. 49, l. 18-21.

    4. The court erred by ignoring Father's filed claims of contempt against petitioner-
       Mothcr.

    Father did not have a Petition for Contempt before the court. Pa R. Civ. P. 1915.12 requires

a Petition for Contempt along with an Information Sheet shall be filed with the Clerk of Court,

1501 Arch Street, l l th Floor, Philadelphia, Pennsylvania, 19102. A petition for civil contempt

shall begin with a notice and order to appear. Pa. R. Civ. P. 1915. l 2(a). The petition shall allege

the facts that constitute willful failure to comply with the custody order. Pa. R. Civ. P.

l 915.12(b). The petition for contempt is to follow substantially the format as set forth in Pa. R.

Civ. P. 1915 .12( c). The petition shall be served on the respondent by personal service or regular

mail. Pa. R. Civ. P. 1915.12(d).

    Here, Father asserted, "Father hereby prays that this court hold petitioner in contempt of

court for abuse of process and filing annual, barratrous, vexations contempt filings." (See

Father's Response to Petitioner's Serial Petitions for Contempt and Modification of Custody and

Memorandum of Law in Support Thereof, dated January 26, 2015 at 8-9). Father cites criminal


                                                   9
code for barratry, a misdemeanor of the third degree; criminal case law for conviction of

barratry, and a secondary source - About.Corn. Regardless of Father's assertions, stated in a

response to Mother's petitions, Father did not file a petition for contempt with the Clerk's Office.

There is no ontrv of a petition for contempt. filed by Father. on the Docket. (See Docket). Then.

is no mention of the Father's alleged petition ior contempt in the trial court's Order dated June 4.

2015, which specifically listed Mother's three petitions continued to October 23, 2015. (See

Order dated June 4, 2015). There is no mention of Father's alleged petition for contempt in the

trial court's Order dated June 19, 2015 granting Father's motion for a protracted hearing. (See

Order dated June I 9, 2015). The June 19, 2015 Order stated thatthe protracted hearing is to

resolve '" ... all of the claims raised by the opposing party in contempt of custody and

modification of custody, ... ". Id. Therefore, Father did not have a petition for contempt before the

court.

    5. The court erred by altering the long-standing custody schedule where doing so
       separated the children with no justifiable purpose and where the children were used
       to and comfortable with the schedule.

    Mother filed a petition to modify custody seeking primary physical custody of the parties'

three minor children. Mother alleged, as a basis for the modification, that Father was

uncooperative with her, and failed to parent in the best interest of the children. During the trial

Mother used her testimony, and email exhibits to elaborate on what she characterized as a lack of

cooperation. N.T. June 4, 2015, p. 135-182. Father asserted through testimony and exhibits that

he was cooperating with Mother's email requests for information, and meeting the minimal

cooperation necessary to support shared custody. N.T. November 10, 2015, p. 53-196.

    A court may modify a custody order if it serve the best interest of the child. 23 Pa. C.S. §

 5338(a). The burden of proof is on the petitioner to demonstrate that the modification would be



                                                  IO
in the child's best interest. Jackson v Beck, 858 A.2d 1250, 1252 (Pa. Super. 2004). The trial

court must consider all of the relevant factors enumerated in Pennsylvania's custody statute. 23

Pa. C.S. §5328(a) when granting a modification in custody. Set forth below are the trial court's

finding of fact with regard to the sixteen factors. which form the basis for the modification in



           I.   Which party is more likely to encourage and permit frequent and continuing
                contact between the children and another party.

                         'While the parents struggle with communication issues, and Father was

                found in contempt of the custody order on a single occasion, there was no other

                evidence presented at the hearing that would make either party more likely than

                the other to encourage and permit contact between the children and the other

                party.

           2. The present and past abuse committed by a party or member of the party's
              household, whether there is a continued risk of harm to the children or an abused
              party and which party can better provide adequate physical safeguards and
              supervision of the children.

                         This factor was not relevant to the case at bar.

           2.1. The information set forth in section 5329. 1 (a) (relating to consideration of child
                abuse and involvement with protective services).

                         In the summer of 2014 DHS received a confidential report in regard to the

                child RPP. N .T. June 4, 2015, p. 70, l. 17-24; p. 71, l. 6-9. An investigation

                culminated in an unfounded report. Id at p. 125, 1. 3-5. Therefore, this factor is

                not relevant to the case at bar. However, the investigation itself presented several

                emotional issues pertaining to RPP as further discussed in factor 10 below.




                                                    11
3.    The parental duties performed by each party on behalf of the children.

             Both parties are equally capable of performing parental duties on behalf of

      the children and both are adequate caretakers. They have both performed these

      duties on behalf of the children for an extended period of time

./    The need for stabiltty and continuity in the children's education family life and
      community life

             The parties have maintained shared custody of the children on a weekly

      basis since June 7, 2011. There were two custody exchanges per week, per child.

      The weekly custodial exchange of the children took place on Friday evenings at

      7:00PM. There was an additional custodial exchange every Wednesday from after

      school/camp to Thursday morning at school/camp exercised by the non-custodial

      parent for the week. (See Order dated May 17, 2013). During the children's

      interviews two children expressed a desire to change the custody to one custodial

      exchange per week. N.T. Sealed Interviews, p. 5, I. 7-12; p. 14-16. The children

      were articulate. The current Order was described as "hard", "annoying" and

      "sick." Id. at p. 5-6, 39, 41-42. The custody order was changed to reflect a well-

      reasoned request, by two of the three children, and to make the custody

      arrangement less confusing and more stable for the children.

 5. The availability of extended family.

              No evidence was presented at trial that was relevant to this factor.

 6.   The children's sibling relationships.

              The three children maintain their sibling relationship. In the new Order

      RPP is separated from his two siblings for one day every other week. When the

      children were asked about this separation they did not find it to be onerous.


                                        12
     The well-reasoned preference of the children, based on the children's maturity
     and judgment.

            Judge Ford interviewed the children in camera. The trial court found the

     children intelligent and articulate. During the individual interviews two children

     expressed a desire tor the change in custody from two custodial exchanges a week

     to one custodial exchange a week. The third child was neutral on the subject. (See

     number 4 above).

            Along with the aforementioned change, one child, RPP, expressed a well-

     reasoned desire to spend more time with Mother. RPP communicated his

     "coughing problem" as the main reason for the request. N.T, Sealed Interviews, at

     p. 7. RPP elaborated that Mother is readily able to cope with the coughing, while

     Father has difficulty with RPP's coughing. Id. at p.7-9, 23, 26. RPP was

     concerned about being "mean" by requesting more time with Mother, and

     reiterated that he only wanted a little more time with Mother and a little less time

     with Father. Id. at 15.

8. The attempts of a party to turn the children against the other parent, except in
   cases of domestic violence where reasonable safety measures are necessary to
   protect the child from harm.

             No evidence was presented at trial that was relevant to this factor.

9.   Which party is more likely to maintain a loving, stable, consistent and nurturing
     relationship with the children adequate for the children's emotional needs.

             Both parents have maintained a strong, loving relationship with the

     children. See below for the rationale on children's emotional needs.




                                       J3
I 0. Which party is more likely to attend to the daily physical, emotional,
     developmental, educational and special needs of the child

           While both parents are equally willing and able to provide for the daily

   physical. and educational needs of the children, Father lacks the ability to accept

    that the RPP · s emotional needs are changing and need attention.

           Robert Ham. RPP's teacher. testified about an email concerning RPP's

    behavior, which was sent to Mother. The email described RPP's behavior as being

    fidgety, distracting and generally not listening to adults for the day. It went on to

    state that the RPP expressed to Ham that he was upset about the recent death of a

    family member. The email ended by stating that no disciplining action was taken.

    N.T. June 4, 2015, p. 32, l. 1-19. On cross, Father, appearingpro se, questioned

    Mr. Ham for an extended period of time - 32 pages of testimony. During that time

    Father never asked about RPP's expression of distress over the loss of a family

    member. Id. at 33-65. Father's questioning culminated in establishing that RPP's

    is a "model student" an honor student with outstanding behavior. Id. The specific

    behavioral issues expressed by Mr. Harn were avoided by Father.

            Erica Hall, social worker, testified that in the summer of2014 a report was

    made to DHS concerning the child RPP. Id. at p. 70, I. 19-p. 71, I. 9. The report

    was unfounded, but Hall testified that RPP admitted to masturbating, and wetting

    the bed when he was upset or stressed. Id. at p.75, 1. 7; p. 77, 1. 17-20. After an

    appointment with the Philadelphia Children's Alliance, to confirm that the

    children were not being exposed to inappropriate material and were not being

    molested, the investigation was closed. Id. at p. 83, I. 7-10. Hall testified that the

    children could still benefit from counseling. Id. at 1. 10-13.Hall furthered that


                                       14
Mother wanted to get counseling for the children, but Father felt the children did

not need counseling. Id. at p. 83, I. 20 - p. 84, I. 12.

        Mother testified about RPP' s masturbatory behavior. Id at p. 183, I. 15-p

184. I. 16. Mother also testified about RPP's distraught behavior following his

prior bad day at school. Id at p. 186. 1. 5-16. Mother recorded RPP's behavior

after he asserted to Mother that he wanted to "suicide myself." id. at 1.11-12. The

recording was played for the court. Id at p. 192, I. 16 - p. 198, I. 11. RPP cried

throughout the recording, and some parts were inaudible, but it was clear that the

child was distressed and overwhelmed, Id There was no cross-examination of

this witness.

        Father. on cross-examination. testified that he did not directly discuss the

allegations ofRPP's masturbation in front of his mother and sisters with the child.

N .T. November 10, 2015, p. 248, l. 16-20. Father was evasive on the subject of

RPP's masturbation when testifying. Id. at p. 248, l. 16-p.252, l. 25. At one point

Father testified, "I have no information whether he - - what exactly was the nature

of what, if anything, he may have done. I don't even know that he did anything."

Id. at p. 249, 1. 7-9. On the subject of suicide, Father testified, "RPP has never

said anything in my custody even remotely alluding to suicide. Never, ever." Id.

at P. 147, I. 23-25. "RPP is an eloquent, intelligent 10 year-old boy, and to say, "I

want to suicide myself," is nonsense. That's not something he would say. It's not

his diction." Id. at p. 148, 1. 7-10. On the subject of bedwetting Father testified

that RPP has not had a bed wetting incident for approximately a year and a half,

 and only wets the bed if he stays up past 10 p.m. Id. at p 156, 1. l 9-p.158, 1. 1.



                                    15
   Father further stated, "And - - I understand that - - the report was that RPP wets

   the bed when he's upset but he doesn't. He doesn't." Id. at p. 158, l. 8-7.

           Mother was open. and willing to discuss RPP1s emotions and behavior

   with Robert Ham. Erica Hall. and the trial court. Mother was seeking assistance in

   addressing the somewhat common childhood issues of young men learning about

   their bodies and masturbating, and children that become sad and/or overwhelmed

   due to the loss of a loved one or other life circumstance. The trial court did not get

   the sense that anyone was to "blame" for these often common childhood

   situations, however, they do exist, and they need to be addressed. As previously

   stated, RPP's emotional needs are changing. Father's testimony reflects that he

   does not recognize any of the aforementioned issues. Mother recognizes the issues

   and is more likely to address the children's daily emotional needs ( especially as to

   RPP).

11. The proximity of the residence of the parties.

           Both parties live in the County of Philadelphia making facilitation of

   shared custody possible.

12. Each party's availability to care for the children or ability to make appropriate
    child-care arrangements.

           Both parents are available to care for the children and to make appropriate

    child-care arrangements when necessary.




                                      16
13. The level of conflict between the parties and the willingness and ability of the
    parties to cooperate with one another. A party's efforts to protect a childfrom
    abuse by another party is not evidence o.f unwillingness or inability to cooperate
    with the party.

           Throughout litigation. and twice in this appeal. Father incorrectly asserted

   that the •· standard of law" governing cooperation between parents in a shared

   physical custody agreement is a "minimal degree of cooperation." In fact, a

   minimal degree of cooperation is required before a court may award shared

   physical custody of the children between the parents. Nevertheless, that is the

   minimum and not the optimal standard. Father indicated in his testimony that he

   has minimal cooperation with Mother and unfortunately he does. N.T. November

    10, 2015, p. 1947, L 15-18. However, he fails to realize that it would be better for

   the children and the parents if a higher level of cooperation could be reached

    between them.

           Father's cooperation in parenting with Mother is minimal. Mother makes

    use of the custodial email account, and Father does respond to all emails.

    However, Father does not always respond promptly, and his replies are often not

    fully responsive to Mother's emails. Based on the totality of the parents testimony

    and the totality of the parents use of the custodial email account Mother would be

    more willing to cooperate with Father than vice versa.

14. The history of drug or alcohol abuse of a party or member of a party's household.

            This factor was not relevant to the case at bar.

15. The mental and physical condition of a party or member of a party's household.

            Neither party has any known mental or physical condition that would

    inhibit them from properly caring for the children.


                                      17
           16. Any other/actor.

               An analysis of the fifteen (15) factors above were considered by the trial court.

               No other factors were apparent.

   6. The court erred by quoting the law of the Commonwealth governing cooperation h,
      custodial parties and explicitly instructing the parties to disobey that la".

   A minimal degree of cooperation between the parties is a necessary requirement for a court

to award shared physical custody of the children to the parties. Indeed, this is the floor and not

the ceiling for communication between parties with shared custody of minor children.

               A minimal degree of cooperation does not translate into a requirement that the
               parents have an amicable relationship. Although such a positive relationship is
               preferable, a successful joint custody arrangement requires only that the parent be
               able to isolate their personal conflicts from their roles as parents and that the
               children be spared whatever resentments and rancor the parents may harbor. B. C.S
               v. J.A.S. 994 A.2d 600, 603 (Pa. Super. 2010) citing In re Wesley J.K., 445 A.2d
               1243, 1249 (Pa. Super. 1982).

As stated above, amicability is not required for shared custody, but would be the preferred

relationship. Therefore, the court did not instruct the parties to disobey the law. There is no law

preventing reasonable communication between parties with shared custody. Nonetheless the trial

court stated, "The parties are not to strive for 'minimal cooperation' but rather full co-parenting

skills." This statement is not an order to be amicable, but an order to fulfill their role as parents.

Father and Mother need to separate their difficulties in communicating from their roles as

parents, so the children are not negatively affected by the acrimony between the parents and their

"minimal" communication.

    7. The court erred by forcing the custodial parties to communicate             regularly in direct
        contravention to the law of the Commonwealth.

    The trial court Order contains language requiring the parties to cooperate and communicate

with each other in regard to medical appointments, extracurricular activities, and school projects.



                                                   18
               Neither party is to have any of the chi1dren seen by a physician or dentist (except
               in an emergency) without prior written notice of the date and time of the
               appointment to the other party.

               The parties must cooperate with each other on the children's extracurricular
               activities and projects. If either side wishes to sign one of the children up for an)
               activity. they are to e-mail the other side with the details and costs of the activity
               If the other side agrees in writing. the child may participate in that activity. If the
               other side does not agree in writing, the child may not be enrolled in the activity
               absent further written agreement ( e-mail) of the parties or further court order. If the
               requesting party does not receive any answer within four (4) days or ninety-six
               hours of the initial request, the child may be enrolled in the activity. The parties are
               not to strive for "minimal cooperation" but rather full co-parenting skills. (See
               Order dated December 22, 2015).

In addition to the rationale stated in number six (6), it is in the best interest of the children for

parents in shared custody arrangements to communicate. Insufficient cooperation and/or

communication could potentially expose the children to unnecessary, duplicate medical

appointments; frustration from conflicting extracurricular activities, and/or burden the children

with unnecessary, duplicative work on school projects.

    8. The court erred by finding Father in contempt of violating the Christmas custody
       schedule where Father testified that he made an honest mistake for which he
       apologized to petitioner and attempted to rectify the situation, and petitioner herself
       testified that she believed Father was "sincere" in that representation.

    The Order in place December 25, 2014 stated in part:

                Christmas Eve from 7 :00 P .M. to Christmas Day at 12:00 P .M. with mother in odd
                years: father in even years.
                Christmas Day from 12:00 P.M. to December 26th at 7:00 P.M. with mother in even
                years: father in odd years.

A finding of contempt requires: (1) the contemnor have notice of the Order; (2) the act

committed by the contemnor was volitional, and (3) the act was committed with wrongful intent

Harcar v. Harcar, 982 A.2d 1230, 1235 (Pa. Super 2009). The aggrieved party bears the burden

to show non-compliance with the Order by a preponderance of the evidence. Goodman v.

Goodman, 556 A.2d 1379, 1391 (Pa. Super. 1989).

                                                    19
        On June 7, 2011 an Order was entered, by agreement     of the parties, which contained the

above-stated   Christmas   custody schedule. (See Order dated June   7, 2011 ). On May 17, 20 I 3 an

Order was entered, by agreement of the parties, which contained the same Christmas schedule.

(See Order dated May 17. 2013). The parties had utilized that same Christmas schedule since

Christmas of 2011, and the nme in question would have been the fourth time the Christmas

schedule was utilized.

        On December 25, 2014 Mother made numerous attempts to exercise her Christmas

custodial time with her children. Mother arrived at Father's home at 12:00 P.M., knocked on the

door and rang the bell, but received no response. She sent an email to the custodial email account

and a text to Father's phone. N.T. June 4, 2015 at 136-137. There were numerous texts back and

forth, including a photo of the custody Order sent from Mother to Father. Id. at 141- 143. Mother

called Father's mother's home. Id. at 137. The minor children RPP and SP answered the phone.

Id. at 138. Mother could hear Father's voice in the background conversing with the children, but

Father did not get on the phone. Id. At 7:13 P.M Mother sent another text message to Father's

phone asking for her 7:00 P.M. phone call from the children, but there was no response. Id. at

 J 43-144. Father not only failed to return the children (despite the fact that they were within two

hours traveling time from Mother's home), he also failed to allow her to have her 7:00PM phone

call.

         Mother testified that on December 27, 2015 she received an email from Father. In the

 email Father apologized for the error he made regarding Christmas custody. N.T. June 4, 2015 at

 144. Mother testified that she responded, "Due to the lack of consideration or cooperation you

 have shown in the four-plus years we have been separated, I do not believe this apology. In fact,

 I think the entire incident was purposeful." Id. at 145. Mother further supported her doubts of



                                                   20
Father's sincerity throughout severa] pages of testimony. Id at 145-152. Within that testimony

the Mother stated that, "The other reason include - - while the apology sounds - - it does sound

sincere, this is the only email in all of our time that was not written in legalese or - -". Id. at 147.

When this statement is placed in the context of the testimony as a whole. it is clear that Mother

believes Father's failure to return the children at Christmas was a purposeful. contemptuous act.

and not a "sincere" apology for a "honest mistake" as Father would proffer.

        The trial court found that the Father had notice of the Order. Father testified that the

Christmas custody schedule in the May 2013 Order had been in place, and utilized without

incident. since 2011. N.T. November 10, 2015, p. 206-207. Father violated the Order when he

failed to surrender custody of the children to Mother on December 25, 2014 at 12:00 P.M. Father

committed the act willfully with wrongful intent. Father is an attorney and familiar with how to

read a court order. Id at 206. The Christmas custody schedule had been followed for three years

without incident. Id. at 206-207. If Father had mistakenly failed to follow the Order and return

the children at 12:00 P .M. he had several opportunities to correct his error. He could have

returned the children when he received Mother's photo text of the Order, which pointed to the

specific language in the Order that gave Mother custody of the children at 12:00 P.M. on

Christmas day in even years. Father testified that he had received Mother's text on Christmas

Day. Id at 211. Likewise, he could have returned the children when Mother called Father's

mother's home, where the children and Father were located at the time. Again Father chose to

ignore Mother, and refused to return the children to Mother's custody despite the fact that the

children were in Springfield, Pennsylvania, Delaware County, a relatively short travel time to

Mother's home. Father continued with his preplanned trip and traveled to Lehigh County with




                                                    2]
the children despite Mother's   urgent requests. Id at 209. Father willfully failed to follow the

court Order of which he was well versed, and was in contempt of the Order.

   9. The court erred bl again incorrectly rendering the terms of the annual New-Years-
      Eve-through-January-z=' custody schedule to reflect the opposite of its stated
      intention at trial.

   The December 22. 2015 Order states:

               New Year's Eve from 7:00 P.M. to New Year's Day at 12:00 P.M. with mother in
               odd years and father in even years.
               New Year's Day from 12:00 P.M. to January 2nrl at 7:00 P.M. with mother in £.Y..£!!
               years and father in odd years.

The order should state:

               New Year's Eve from 7:00 P.M. to New Year's Day at 12:00 P.M. with mother in
               odd years and father in even years.
               New Year's Day from 12:00 P.M. to January 2na at 7:00 P.M. with mother in odd
               years and father in £Y£!!. years.

This was the New Year's holiday schedule contained in the May 17, 2013 Order, by agreement

of parties, and this was not disturbed by the trial court. The Order contains a typographical error.

The words even and odd were inverted in the second paragraph. The error should be corrected to

give each parent custodial time on the holiday.

    10. The court erred as a matter of law in imposing attorney's fees on Father.

    Sanctions for civil contempt can be imposed to compel obedience to a court order and/or to

co~pensate the injured party. Mrozek v. James, 780 A.2d 670, 674 (Pa. Super. 2001). Attorney's

fees incurred by the aggrieved party, due to the conternnor's noncompliance, may be recovered

in civil contempt. Id.

    Here, Mother filed a Motion for Contempt on December 29, 2014. On December 22, 2015

 Father was found in contempt of the custody Order dated Mayl 7, 2013. Father was ordered to

 pay $500.00 in counsel fees to Stephen Older, counsel for Mother, for the necessity of filing and



                                                   22
arguing the Motion for Contempt. The sanctions were meant to be coercive and compensatory,

not punitive. In fact, the sanction was well below the attorney's fees actually incurred by Mother

because of Father's contemptuous behavior.

    11. Conclusion

   Based on the best interest of the children. custody was modified for two children. SP and EP

to a weekly basis with one custodial exchange per week. Based on the best interest of the child,

RPP, custody was modified to one custodial exchange per week between Father and Mother. In

addition, Mother will maintain custody of RPP every Thursday from 7:00PM to Friday at

7:00PM, to allow RPP some additional time with Mother.

   Father was found in contempt of the May 17, 2013 Order for his actions concerning

Christmas 2014. The other petition for contempt was dismissed after a bearing with no finding of

contempt.

    The Order contains a typographical error in the New Year's Day custody schedule, which the

trial court will gladly amend. The remainder of the errors that Father complained of on appeal

lack any basis in the evidentiary record, applicable statutes or case law. It is respectfully

requested that the findings of the trial court be affirmed.


BY THE COURT:


    ~            l'l, J-o/~
DAE                  I




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