J-A28017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.E.W.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                    Appellee

                          v.

J.D.F.,

                    Appellant                   No. 1185 EDA 2015


                   Appeal from the Order entered April 9, 2015
                In the Court of Common Pleas of Delaware County
                    Domestic Relations, at No(s): 2006-006840

BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY PANELLA, J.                         FILED JANUARY 25, 2016

          J.D.F. (“Father”), acting pro se, appeals from the order entered on

April 9, 2015, in the Court of Common Pleas of Delaware County, which

denied Father’s contempt petition against M.E.W. (“Mother”) regarding their

child, C.F., born in September 1998. We affirm.

      Father and Mother are the parents of C.F., and M.F., born in March

2000 (collectively, the “Children”). The original custody stipulation was

entered on December 19, 2006. The existing custody order was entered on

February 7, 2014.

      On December 1, 2014, Father filed a petition for contempt of the

custody order against Mother regarding M.F. On December 10, 2014, the
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trial court held a hearing on the petition. The trial court denied the petition. 1

Father filed a timely motion for reconsideration.

        During the pendency of the motion for reconsideration, C.F. entered

inpatient mental health treatment without Father’s consent, and without

Father being informed of the decision. On January 21, 2015, Father filed a

second petition for contempt of the custody order against Mother regarding

C.F.

        In both petitions, Father alleged that Mother was in contempt of the

joint legal custody portion of the existing custody order. In the petitions,

Father asserted that Mother knowingly made important decisions regarding

inpatient mental health treatment for both of the Children without his

consent, and without informing him of the decisions, in violation of the joint

legal custody provisions of the existing custody order.

        On March 25, 2015, the trial court held a hearing on both the motion

for reconsideration concerning M.F. and the petition for contempt concerning

C.F. In an order entered on April 9, 2015, the trial court denied the motion

for    reconsideration   concerning   M.F.,   and   the   petition   for   contempt

concerning C.F.

        Father timely filed a notice of appeal in relation to the order denying

the petition for contempt concerning C.F., but did not file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1
  Although the December 11, 2014 order is not entered on the trial court’s
docket and does not appear to be part of the certified record, the trial court
refers to it in its order entered on April 9, 2015.
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1925(a)(i) and (b).2 In an order entered on April 24, 2015, the trial court

directed Father to file a Rule 1925(b) statement within twenty-one days. As

no party alleges any prejudice from Father’s separate, late filing of the Rule

1925(b) statement, we will proceed to review the issue he raises on appeal.

See In re K.T.E.L., 983 A.2d 745, 747-748 (Pa. Super. 2009) (finding that

the appellant’s failure to simultaneously file a Rule 1925(b) statement did

not result in waiver of all issues for appeal where the appellant later filed the

Statement, and there was no allegation of prejudice from the late filing).

      On appeal, Father presents the following issue for our review.

         Whether the [trial court] erred in its decision that
         Mother/Appellee was not in violation of the Custody Order
         providing for Joint Legal Custody when it failed to hold Mother
         in contempt for not informing and/or consulting Father prior
         to the minor child (C.F.) (age 16) being placed into a mental
         health facility?

Father’s Brief, at 4.

      Relying on K.H. v. J.R., 826 A.2d 863, 874 (Pa. 2003), a negligence

case, Father argues that legal custody is defined by statute as the legal right

to make major decisions affecting the best interest of a minor child,


2
  In a per curiam order entered on June 15, 2015, this Court explained that
the portion of the order entered on April 9, 2015 that denied Father’s motion
for reconsideration of the trial court’s December 11, 2014 order regarding
M.F. was not properly before this Court on appeal, as Father failed to
preserve a timely appeal. See Valentine v. Wroten, 580 A.2d 757 (Pa.
Super 1990) (appeal will not lie from the denial a motion for
reconsideration). Our order explained that only the portion of the order
entered on April 9, 2015 that denied the petition for contempt relating to
C.F. was preserved for review on appeal.



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including but not limited to, medical, religious, and educational decisions.

Father contends that Mother violated the provision in the existing custody

order providing for joint legal custody by unilaterally making the mental

health decisions for C.F., and that she should be held in contempt of the law

regarding joint legal custody.

      Initially, we observe that, as the existing custody order in this matter

was entered in February 2014, and the hearing on the contempt petition at

issue was held in March 2015, the Child Custody Act, (“the Act”), 23

Pa.C.S.A. § 5321 is applicable. See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa.

Super.   2012)   (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).

      We have stated that

      [t]he 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. Indeed, the knowledge gained
      by a trial court in observing witnesses in a custody proceeding
      cannot adequately be imparted to an appellate court by a printed
      record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation

omitted).

      In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard.

            Although we are given a broad power of review, we are
      constrained by an abuse of discretion standard when evaluating

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      the court’s order. An abuse of discretion is not merely an error of
      judgment, but if the court’s judgment is manifestly unreasonable
      as shown by the evidence of record, discretion is abused. An
      abuse of discretion is also made out where it appears from a
      review of the record that there is no evidence to support the
      court’s findings or that there is a capricious disbelief of evidence.

Id., at 18-19 (quotation marks and citations omitted).

      With any custody case decided under the Act, the paramount concern

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

      In reviewing orders dealing with contempt, this Court must consider

that each court is the exclusive judge of contempt against its process. See

Garr v. Peters, 772 A.2d 183, 189 (Pa. Super. 2001). When reviewing an

appeal from a contempt order, this Court must place great reliance upon the

discretion of the trial court. See P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa.

Super. 2012). In proceedings for civil contempt of court, the general rule is

that the burden of proof must rest with the complaining party to

demonstrate the respondent is in noncompliance with the court order. See

MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012).

      Furthermore, to sustain a finding of civil contempt, the complainant

must prove, by a preponderance of evidence, that: (1) the contemnor had

notice of the specific order or decree which he is alleged to have disobeyed;

(2) the act constituting the contemnor’s violation was volitional; and (3) the

contemnor acted with wrongful intent. See id.; P.H.D., 56 A.3d at 706 n.7.

This Court will only reverse a trial court order denying a civil contempt

petition upon a showing that the trial court misapplied the law or exercised

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its discretion in a manner lacking reason. See Harcar v. Harcar, 982 A.2d

1230, 1234 (Pa. Super 2009).

      In this case, the trial court determined that Father failed to present

any evidence that Mother made the decisions on behalf of C.F. See Trial

Court Opinion, 6/3/15, at 4. Moreover, the trial court found that Mother’s

withholding the information regarding C.F.’s mental health issues was not

motivated by wrongful intent. See id.3 Rather, the trial court found it was in

the best interests of the child, where C.F. had requested Mother’s assistance

in seeking professional mental health treatment, for Mother to follow C.F.’s

desire for confidentiality. See id., at 8-9.

      Upon careful review of the certified record, including the notes of

testimony, the parties’ briefs, the trial court opinion entered June 3, 2015,


3
  The trial court also refused to hold Mother in contempt because Mother had
a good faith belief that the Mental Health Procedures Act (“MPHA”), 23
Pa.C.S.A. § 50 P.S. § 7101 et seq., prohibited Mother from informing Father
about C.F.’s admission to the mental health treatment facility. See Trial
Court Opinion, 6/3/15, at 4. In its opinion, the trial court also discussed the
issue of whether the trial court misapplied the MPHA, since Father
specifically raised that issue in his concise statement. Father, however,
attempts to discuss the trial court’s application of the MPHA in his brief,
asserting that it was erroneous, without having raised the issue in the
statement of questions involved section of his brief. We, therefore, find that
he has waived his challenge to the trial court’s application of the MPHA. See
Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797
(Pa. Super. 2006) (stating that an appellant waives a claim by failing to raise
it as an issue in both his concise statement and his statement of questions
involved section of his brief on appeal). Had Father raised the issue, we
would find that the trial court’s reasoning with regard to Father’s first issue
was sufficient for us to conclude that the trial court did not err or abuse its
discretion in determining that Mother was not in contempt of the existing
custody order.
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J-A28017-15


and the applicable law, we discern no error of law or abuse of discretion by

the trial court. Accordingly, we affirm the order of the trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/25/2016




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