J-A09026-18


                                   2019 PA Super 50

    SCOTT A. COURTNEY,                         :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JENNIFER E. COURTNEY,                      :
                                               :
                       Appellant               :   No. 1271 WDA 2017

                 Appeal from the Order Entered August 8, 2017
               In the Court of Common Pleas of Allegheny County
                    Family Court at No.: FD 16-000887-0011

BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

OPINION BY DUBOW, J.:                                 FILED FEBRUARY 22, 2019

       Appellant, Jennifer E. Courtney, appeals from the August 8, 2017 Order1

of the Allegheny County Court of Common Pleas ordering her to pay $310 in

counsel fees to Appellee’s counsel. After careful review, we reverse.

       On May 18, 2016, Appellant filed a Petition for a Temporary Protection

From Abuse (“PFA”) Order against Appellee, her then-husband, while she was

seeking a divorce. The parties had three biological children, all under age

seven, and shared physical and legal custody.           In her Petition, Appellant

alleged “constant sexual abuse,” “constant harassment,” physical abuse, and

described Appellee’s attempt “to make a deal to move out but continue sexual

acts.” Petition for Temporary PFA, dated 5/18/16, at 3.


____________________________________________


1The trial court entered this Order on August 8, 2017. We have changed the
caption accordingly.
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       On May 18, 2016, Appellant obtained a Temporary PFA Order against

Appellee that, inter alia, prohibited him from returning to the shared residence

and abusing, harassing, stalking, or threatening Appellant and the children.

Temporary PFA Order, dated 5/18/16, at 1-3.2

       The parties litigated divorce, custody, and PFA proceedings over the

ensuing months.        A subsequent custody Order granted shared legal and

physical custody.      Custody Order, dated 9/19/16, at 1-2.    Another Order

prohibited Appellant’s boyfriend from being in the residence during her

custody time. Interim Order, dated 6/3/17.

       On June 22, 2017, Appellant filed a second Temporary PFA Petition, in

part due to an incident during a custody exchange. In addition to referencing

the prior history of “sexual abuse and control,” Appellant alleged as follows:

       For the past year, the defendant has psychologically abused me.
       He has tried to control me by constantly threatening to take away
       my children from me. Yesterday, when the defendant came to
       drop off our children, he demanded access to my home because
       he believed my boyfriend was present. My boyfriend was not
       present. I refused to grant the Defendant access, so he called the
       police. The police arrived, but did not come into the home as the
       children were not in danger.

       The defendant is constantly trying to control me, watching me,
       driving by my home, and stalking me. He states that he is going
       to leave me hurt and broke, living in a van down by the river. I
       just want the harassment to stop.
____________________________________________


2  The record is unclear about how this PFA Petition resolved. The court
continued a scheduled June 2016 hearing on the PFA Petition, and the matter
appears to have been consolidated for a custody conciliation with a domestic
relations officer in September 2016, which resulted in a custody Order. The
trial court’s Opinion and the briefs provide no clarity on this point.

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J-A09026-18



Petition for Temporary PFA, dated 6/22/17, at 3.

       On August 3, 2017, Appellee notified Appellant that he would file an

Emergency Petition for Counsel Fees alleging Appellant had filed her second

Temporary PFA Petition in bad faith.3

       On August 8, 2017, the parties appeared for a hearing on the second

PFA. Prior to the hearing, Appellant agreed to withdraw her PFA Petition if the

court entered an Order directing the parties, inter alia, to exchange custody

at the local police department and routinely communicate only by email. The

trial court granted Appellant’s request and entered an Order withdrawing

Appellant’s PFA Petition and imposing the requested conditions.              PFA

Withdrawal Order, dated 8/8/17. Because of this resolution, the court did not

conduct the PFA evidentiary hearing.

       That same day, however, the court conducted a hearing on Appellee’s

Emergency Petition for Counsel Fees that was based on Appellant’s filing of

the second Temporary PFA Petition. See N.T., 8/8/17. Both Appellant and

Appellee testified.     The trial court concluded that Appellant had filed her

second Temporary PFA Petition in bad faith because there was no testimony

about Appellee’s forcible attempt to enter her home. In finding that Appellant

had filed the PFA in bad faith, the trial court concluded that Appellant’s “vague



____________________________________________


3The lower court entered Appellee’s Emergency Petition on the docket on
August 9, 2017.

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J-A09026-18


allegations of psychological abuse do not rise to the level of a valid PFA so I

do find that the PFA was filed in bad faith.” N.T., 8/8/17, at 26.

       As a result, the trial court entered an Order granting Appellee’s Petition

and directing Appellant to pay $310 in counsel fees payable within ten days.4

Appellant filed a Motion to Reconsider, which the trial court denied on

September 1, 2017.

       Appellant filed a timely Notice of Appeal on September 6, 2017. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant presents the following issues for our review:

       [1.] Did the trial court commit an abuse of discretion and/or error
       of law in awarding counsel fees to [Appellee] pursuant to 23
       Pa.C.S. § 6117(b) when there was no evidence that [Appellant]
       had acted in bad faith in commencing the PFA action?

       [2.] Did the trial court commit an abuse of discretion and/or error
       of law in awarding counsel fees to [Appellee] pursuant to 42
       Pa.C.S. § 2503 when there was no evidence that [Appellant] had
       acted in a dilatory, obdurate, or vexatious manner in commencing
       the PFA action?

       [3.] Did the trial court commit an abuse of discretion and act
       contrary to the purpose and legislative intent of the PFA Act and
       contrary to the public policy of the Commonwealth of Pennsylvania
       by imposing counsel fees against [Appellant], who commenced
       the PFA action alleging abuse and seeking protection and safety?



____________________________________________


4 The trial court stated on the record that Appellant’s failure to pay the $310
within ten days “will result in the issuance of a rule to show cause with
incarceration being the most likely outcome if the burden of proof is met.”
N.T., 8/8/17, at 28.



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J-A09026-18


Appellant’s Brief at 4 (capitalization omitted).5

       “Our standard of review of an award of counsel fees is well settled: we

will not disturb a trial court’s determination absent an abuse of discretion.”

A.L.-S. v. B.S., 117 A.3d 352, 361 (Pa. Super. 2015).          “A trial court has

abused its discretion if it failed to follow proper legal procedures or misapplied

the law.” Id.

       We will address Appellant’s first and third issues together.       Section

6117(b) of the Domestic Relations Code provides: “Notwithstanding any other

provision of law, upon finding that an individual commenced a proceeding

under this chapter in bad faith, a court shall direct the individual to pay to the

defendant actual damages and reasonable attorney fees.”            23 Pa.C.S. §

6117(b). Section 6117(b) then cautions trial courts: “Failure to prove an

allegation of abuse by a preponderance of the evidence shall not, by

itself, result in a finding of bad faith.” Id. (emphasis added).

       The Domestic Relations Code does not define bad faith. Black’s Law

Dictionary defines “bad faith” as “[d]ishonesty of belief, purpose, or motive.”

Black’s Law Dictionary (10th ed. 2014).




____________________________________________


5 With respect to Appellant’s second issue, the trial court specifically declared
in its Opinion that it did not award counsel fees for “dilatory, obdurate or
vexatious conduct” pursuant to 42 Pa.C.S. § 2503. Appellee originally sought
fees under Section 2503 as well, and Appellant addressed this separately in
her Brief in an abundance of caution. We will not address this issue since it
did not serve as the basis for the trial court’s award of counsel fees.

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J-A09026-18


       This Court has explored the concept of bad faith in other contexts, but

not with respect this statute. See, e.g., Hart v. Arnold, 884 A.2d 316, 342

(Pa. Super. 2005) (defining arbitrary and vexatious conduct as distinct from

bad faith conduct, and concluding that “an opponent can be charged with filing

a lawsuit in ‘bad faith’ if he filed the suit for purposes of fraud, dishonesty, or

corruption.”); Condio v. Erie Ins. Exchange, 899 A.2d 1136, 1143 (Pa.

Super. 2006) (“[M]ere negligence or bad judgment is not bad faith.              To

support a finding of bad faith, the insurer’s conduct must be such as to ‘import

a dishonest purpose.’ In other words, the plaintiff must show that the insurer

breached its duty of good faith through some motive of self-interest or ill-

will.”).

       In defending its award of counsel fees, the trial court opined as follows:

“Upon questioning by her counsel, [Appellant] stated that the basis for the

PFA arose from a fear created by [Appellee] after he came to her house and

tried to forcibly enter her home. However, subsequent testimony served to

disprove this basis.” Trial Court Pa.R.A.P. 1925(a) Opinion, dated 11/6/17, at

5 (footnote omitted). Of particular importance to the trial court’s decision:

“Absent was any testimony of [Appellee’s] attempt of forcible entry, which

[Appellant] explained was the basis for her alleged fear that [led] to her

seeking a PFA in the first place.” Id. at 6.




                                       -6-
J-A09026-18


       After careful review, we conclude that (1) trial court misapplied the clear

dictates of Section 6117(b), and (2) the record does not support the trial

court’s finding of bad faith.

       First, we hold that the trial court found bad faith due to Appellant’s

failure to prove her allegations of abuse by a preponderance of the evidence.

The court equated the failure to prove her allegation with Appellant’s bad faith.

This is contrary to Section 6117(b), which instructs that the “[f]ailure to prove

an allegation of abuse by a preponderance of the evidence shall not, by itself,

result in a finding of bad faith.” 23 Pa.C.S. § 6117(b).

       Second, the trial court’s bad faith finding is unsupported by the certified

record. In making its finding on the record, the trial court simply restated

Appellant’s original allegation as described by her during her testimony at the

hearing on the Emergency Petition for Counsel Fees wherein she mentioned

forcible entry. However, Appellant had not included forcible entry as part of

her allegations in her second Temporary PFA Petition and no hearing on the

PFA occurred.6 The court briefly recounted some of the evidence presented

at the hearing on the Emergency Petition for Counsel Fees and summarily

restated its conclusion that the evidence did not meet the applicable PFA

standard. See Trial Court Opinion, dated 11/6/17, at 5-6. Without more,

____________________________________________


6We also note that the trial court never ruled on Appellant’s second Temporary
PFA Petition; Appellant had withdrawn her Petition by the time the court
conducted the hearing on Appellee’s Emergency Petition for Counsel Fees.



                                           -7-
J-A09026-18


there is no evidentiary basis for the bad-faith finding based on this sparse

record.7

       In sum, the trial court misapplied the clear dictates of Section 6117(b)

because it found bad faith due to Appellant’s failure to prove her allegations

of abuse by a preponderance of the evidence. Furthermore, the court’s bad

faith finding is unsupported by the certified record.      Accordingly, we are

constrained to reverse.

       Order reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2019




____________________________________________


7 Our review of the certified record shows no other apparent basis for the
court’s bad faith finding that could support affirmance on alternative grounds.
Absent was any evidence regarding Appellant’s dishonest belief, purpose, or
motives. The trial court’s Opinion alludes to allegations about an issue with
the presence of Appellant’s boyfriend, and the parties address this point in
their respective briefs. Yet the trial court did not rely on these allegations in
support of its bad faith determination, nor did it make any credibility
determinations about this point with any clarity. Rather, the trial court
exclusively focused on the lack of testimony about forcible entry into
Appellant’s home.

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