J-A12003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.R.                                            IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

L.T.

                                                     No. 1394 WDA 2016


                 Appeal from the Order Dated August 26, 2016
               In the Court of Common Pleas of Allegheny County
                      Family Court at No(s): FD 07-003697

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY SOLANO, J.:                       FILED OCTOBER 26, 2017

       In this, his ninth appeal in this custody case,1 J.R. (“Father”) appeals

pro se from the order of August 26, 2016, which denied his petition for a

hearing to find L.T. (“Mother”) in contempt. We affirm.

       Father and Mother share physical and legal custody of their ten-year-

old biological child (born April 2007). According to the custody order of

March 24, 2015, each parent has physical custody of the child on an

alternating weekly schedule, starting on Fridays at 3:00 p.m. Neither parent
____________________________________________
1 Father’s tenth appeal, No. 60 WDA 2017, was disposed of on August 28,
2017, by an unpublished memorandum. The other appeals were at Nos.
1870 WDA 2015, 2002 WDA 2015, 456 WDA 2016 (see unpublished
memorandum of Feb. 21, 2017); 1490 WDA 2015 (dismissed on Feb. 5,
2016, for failure to file a brief); 494 WDA 2015 (see unpublished
memorandum of Jan. 22, 2016); 391 WDA 2015, 495 WDA 2015 (see
unpublished memorandum of Dec. 30, 2015); and 814 WDA 2015 (quashed
as interlocutory on July 2, 2015).
J-A12003-17


needs the other’s approval to enroll the child in extra-curricular activities or

is obligated to take the child to any extra-curricular activities while

exercising physical custody. The parents are to notify each other of

enrollment by use of a shared “Our Family Wizard” computer calendar

program; but so long as sufficient notice of an upcoming extra-curricular

activity has been provided to the other parent, “the failure to accurately

modify the calendar is not a basis for an allegation or finding of contempt.”

Order, 3/24/15, at ¶ 2(c)(iii). The order also provides that the child shall be

available for telephone contact with the non-custodial parent every day at

7:00 p.m.

       On July 12, 2016, Father filed a pro se petition for a contempt hearing.

In his petition, Father alleged that Mother was in violation of the custody

order for the following reasons: (1) the child told Father during a telephone

conversation that he would be attending summer camp “beginning this

week,” but Mother did not provide notice to Father of the child’s enrollment

in summer camp by entering that information in Our Family Wizard, see Pet.

7/12/16, at ¶ 7-9,2 (2) the child was not ready to be transferred into

Father’s custody at 3:00 p.m. on July 8, 2016, id. at ¶ 10, and (3) Mother

has not ensured that the child receives Father’s daily telephone call at 7:00

p.m. while the child is in Mother’s care, id. at ¶ 11. Father attached a copy
____________________________________________
2Father does not contest Mother’s authority to unilaterally enroll the child in
summer camp.



                                           -2-
J-A12003-17


of the Our Family Wizard entries and of various court orders from 2013,

2014, and 2015 as proof that Mother had previously been found in contempt

by hearing officers for violating custody orders multiple times, including for

failing to notify Father of the child’s enrollment in summer camp and for not

allowing Father daily telephone contact in 2015.3 Father requested that

Mother be ordered to pay him $250 in connection with his costs for filing the

petition, and “any other relief the [c]ourt deems appropriate in the child’s

best interest and under [23 Pa.C.S. § 5323(g)].” Id. at 2.4 Mother filed no

response.



____________________________________________
3 On the same date as Father filed his petition for a contempt hearing,
Father also filed a motion to compel Mother’s compliance with the custody
order. Similar to the allegations in his petition, Father’s motion to compel
requested that Mother be compelled to adhere to the portions of the custody
order requiring Mother to enter the summer camp schedule into the family
calendar and to ensure that child receives Father’s daily telephone call.
4   The statute states:

        (g) Contempt         for   noncompliance    with   any   custody
        order.—

           (1) A party who willfully fails to comply with any custody
           order may, as prescribed by general rule, be adjudged in
           contempt. Contempt shall be punishable by any one or more
           of the following:

              (i) Imprisonment for a period of not more than six months.

              (ii) A fine of not more than $500.

              (iii) Probation for a period of not more than six months.

(Footnote Continued Next Page)

                                           -3-
J-A12003-17


      The court heard argument on Father’s petition for a hearing on August

26, 2016.5 At that proceeding, Father appeared pro se, and Margaret Wei,

Esq., from the Women’s Center and Shelter of Greater Pittsburgh, appeared

as counsel for Mother. Mother was not present. Father objected to Attorney

Wei’s appearance, as Mother had no counsel of record on this case. N.T.,

8/26/16, at 2. Attorney Wei explained that her office has been representing

Mother in both her support action and this custody action and that an

attorney from the Women’s Center had filed a praecipe for appearance in

both actions, but the praecipe had been filed only under the support docket

number. Id. at 3-4. Father noted that Attorney Wei’s co-worker had

previously represented Mother on the custody case and was instructed by

the hearing master to enter her appearance on the custody docket, but had


(Footnote Continued) _______________________
             (iv) An order for nonrenewal, suspension or denial of
             operating privilege under section 4355 (relating to denial
             or suspension of licenses).

             (v) Counsel fees and costs.

          (2) An order committing an individual to jail under this
          section shall specify the condition which, when fulfilled, will
          result in the release of that individual.

23 Pa.C.S. § 5323(g).
5 The Local Rules of Civil Procedure for the Allegheny County Court of
Common Pleas provide that motions relating to domestic relations matters
are to be presented to a motions judge (after seven days’ notice has been
given to the opposing party), who may then order a hearing or judicial
conciliation. Alleg. Cnty. C.P. Local Rule 1930(a).



                                          -4-
J-A12003-17


never done so. Id. at 4-5. Father requested that the proceeding pause while

Attorney Wei formally entered her appearance on the custody docket. Id. at

3. The court denied Father’s request and proceeded with the argument. Id.6

       In support of his petition, Father first argued that Mother failed to put

the summer camp schedule into the family calendar in contravention of the

requirements of the custody order. N.T. at 5-6. In response, Attorney Wei

presented the court with a copy of e-mail communications between Father

and Mother regarding the child’s enrollment in summer camp. Id. at 6-7.

Father complained that the documents were inappropriately before the

court, as Mother had not filed a written response to his motion. Id. at 7.

       Second, Father complained that the child was not available to receive

Father’s daily phone calls while in Mother’s care. N.T. at 5, 7. Attorney Wei

countered that Father’s petition was not clear on what days phone calls were

allegedly missed. Id. at 7-8. Father countered that he would present

evidence of the missed calls at the contempt hearing once the court ordered

it. Id. at 8.

       Third, Father argued that the child was not ready for pickup at 3:00

p.m. on the days that he attended camp because the camp bus dropped the

child off after 3:30 p.m., and this decreased Father’s custody time. N.T. at


____________________________________________
6 Following the hearing, at approximately 2:00 p.m. on that same day,
Attorney Wei filed a praecipe for the appearance of her office on the custody
docket.



                                           -5-
J-A12003-17


8-10.7 Again, Father stated that he would have the evidence of the specific

dates and times available for the contempt hearing. Id. at 10.

        The court dismissed Father’s petition. N.T. at 12. 8 The written order of

dismissal states: “There is no contempt. There are communications between

[the] parties regarding camp and there are no specifics on the alleged

contempt.” Order, 8/26/16. Father filed a timely appeal, and raises the

following issues:

        1. Did the Trial Court err in denying the [Father’s] Petition for a
        Contempt Hearing so that evidence and witness testimony could
        be heard regarding the [Mother’s] Contempt of Court Order as it
____________________________________________
7   Father stated,

        [Mother] would put [the child] in camp and kept him in camp
        and left him there. When I went to her house to pick him up, he
        wasn’t there.

              ...

        [F]ortunately I waited and started making phone calls, where my
        son is, and he came off a [camp] bus to an empty house a half
        hour into my custodial time. If I would have left, there was no
        one home.

              ...

        And I made numerous calls to his mom and texts, and she said,
        he’s at camp, read Our Family Wizard. So I went into Our Family
        Wizard and a month after she said that he was in camp, she
        wrote that – when are you picking [the child] up? At home or at
        camp?

N.T. at 8-10.
8 The court also denied Father’s motion to compel Mother’s compliance with
the custody order, which it had addressed simultaneously at the argument.



                                           -6-
J-A12003-17


      relates to adhering to Statue Statute/Law as it relates to 23
      Pa.C.S. §5323.g and following Case Law set by the Superior
      Court of Pennsylvania?

      2. In regards to [Mother’s presence] in Court, did the Trial Court
      err in allowing[:]

         a) [Mother] to be absent from the hearing?

         b) an attorney who had not filed an appearance to represent
         [Mother]?

            i. this attorney and her colleagues have shown up to the
            same Trial Court under similar circumstance in several
            previous hearings and have all been told to file their
            appearance and have failed to do so.

         c) the attorney to present evidence without having filed and
         served [Father] with a response prior to the hearing?

      3. In her bias and incompetence, did the Trial Court err when
      she wrote in her Order that “there are no specifics of the alleged
      contempt” when in fact [Father] supplied very specific
      information including the evidence of the contempt, items that
      [Father] must now incorporate in all his filings because of the
      Trial Court’s continued efforts to squash his rights to pursue
      enforcement of the Custody Order it wrote under 23 Pa.C.S.
      §5323.g by refusing to enforce the Court Order she wrote and
      now denying [Father]’s right to be heard?

Father’s Brief at 2-3.

                     Failure to Hold Contempt Hearing

      We address Father’s first and third issues together. In them, Father

argues that the trial court erred in denying his petition to hold Mother in

contempt without holding an evidentiary hearing.

         Our standard of review from an order denying a petition for
      civil contempt is as follows. This Court will reverse a trial court’s
      order denying a civil contempt petition only upon a showing that


                                      -7-
J-A12003-17


       the trial court misapplied the law or exercised its discretion in a
       manner lacking reason.

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

omitted), appeal denied, 75 A.3d 1282 (Pa. 2013).

       Father asserts that there is a five-step process in a civil contempt

proceeding — “(1) a rule to show cause why an attachment should not issue,

(2) an answer and hearing, (3) a rule absolute (arrest), (4) a hearing on the

contempt citation, and (5) an adjudication of contempt.” Father’s Brief at 5,

10 (citing, among other cases, Crislip v. Harshman, 365 A.2d 1260 (Pa.

Super. 1976)). He claims that the trial court omitted the first four of these

steps. Id. Father contends that an evidentiary hearing would have provided

him an opportunity to provide evidence to support his allegations of Mother’s

violations. Id. at 7, 10. Overall, Father argues that the trial court denied his

petition out of bias, id. at 7, and that the trial court’s conduct was

obstructive and diminished the court’s integrity. Id. at 4.9

       Regarding Father’s petition for contempt, the trial court found the

following:

       [T]his [c]ourt determined that the alleged actions, even if true,
       [do] not rise to the level of contempt. Mother’s failure to register
       the child’s summer camp on Our Family Wizard does not
       constitute willful noncompliance. It does not prevent Father from
       exercising his custodial rights. And it did not even have the
____________________________________________
9 In support, Father cites “Pa. §99.1” and “Pa. §33 Rule 1.2.” It appears
Father is attempting to cite to Pennsylvania’s Code of Civility, 204 Pa. Code
§ 99.1, and Code of Judicial Conduct, 207 Pa. Code, Ch. 33, Rule 1.2.



                                           -8-
J-A12003-17


      effect of keeping Father in the dark, as the child readily told his
      Father of the camp during one of their nightly phone calls.
      Similarly, and given the history of this case, Father’s vague
      allegations of occasional tardiness in terms of telephone calls
      and custody exchanges are not indicative of even a colorable
      claim of contempt.

             In the past, this [c]ourt has had to warn Father that his
      litigious conduct toes the line of abuse of process. Indeed, Father
      has acted as if the [c]ourt was an appropriate forum to further
      harass Mother . . . . Despite Father’s persistent insistence, this
      [c]ourt refuses to construe the Domestic Relations Code in the
      medieval sense.

Trial Ct. Op., 12/2/16, at 4 (footnote omitted).

      We agree that Father’s petition for contempt did not warrant a

hearing. First, Father’s contention that the five-step process outlined in

Crispin governs contempt proceedings is misplaced. That process once

governed contempt proceedings in support cases, but it was replaced by a

streamlined procedure under Pa.R.C.P. 1910.21 in 1981, and has undergone

further changes since that time. See Lowenschuss v. Lowenschuss, 470

A.2d 970, 973 (Pa. Super. 1983). The procedure for a hearing on a petition

for contempt based on willful failure to follow a custody order is governed by

a different Rule of Civil Procedure. See Everett v. Parker, 889 A.2d 578,

580 (Pa. Super. 2005). Rule 1915.12 dictates that “[a] petition for civil

contempt shall begin with a notice and order to appear,” and that the

“petition shall allege the facts which constitute willful failure to comply with

the custody order.” Pa.R.C.P. 1915.12(a), (b). No answer to the petition is




                                     -9-
J-A12003-17


required. Pa.R.C.P. 1915.12(d). Rule 1915.12 also allows for a hearing on

the petition, but does not mandate one. See Pa.R.C.P. 1915.12(d), (e).10

        No hearing was needed here because the alleged misconduct of Mother

did not rise to the level of contempt.

        To be in contempt, a party must have violated a court order, 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, 1264 (Pa. Super. 2017) (en banc) (quotation

marks,     brackets,     and    citations      omitted).   “[A]   mere   showing   of

noncompliance with a court order, or even misconduct, is never sufficient


____________________________________________
10   Rule 1915.12(d) and (e) states:

        (d) The petition shall be served upon the respondent by personal
        service or regular mail. No answer to the petition shall be
        required. If service is by mail, the hearing on the petition shall
        not be held sooner than seven days after mailing of the petition
        unless the court for cause shown orders an earlier hearing. If the
        respondent fails to appear, the court shall continue the hearing
        and may order personal service by the sheriff or constable, or
        alternative service as accepted by the court, of the petition and
        notice of a new hearing date, or the court may issue a bench
        warrant for production of the respondent in court and not for
        imprisonment.

        (e) After hearing, an order committing a respondent to jail for
        contempt of a custody order shall specify the condition which
        must be fulfilled to obtain release of the respondent.

Pa.R.C.P. 1915.12(d), (e).


                                          - 10 -
J-A12003-17


alone to prove civil contempt.” Lachat v. Hinchcliffe, 769 A.2d 481, 488

(Pa. Super. 2001).

       Here, Father alleged that Mother failed to provide notice of the child’s

enrollment in summer camp through the Our Family Wizard program.

However, the custody order states that “the failure to accurately modify the

calendar is not a basis for an allegation or finding of contempt.” Order at ¶

2(c)(iii).11 Second, Father alleged that the child was not ready for pickup at

3:00 on two Fridays, because the bus which returned the child from camp

returned later than 3:00 p.m. However, Father stated on the record that the

child was only one half-hour late, and that Mother had attempted to contact

Father to ask whether he would be picking up the child at camp. Finally,

Father alleged that Mother was not complying with the portion of the

custody order providing that the child be available for daily telephone

contact at 7:00 p.m. However, although averments of time are generally

required to be made with specificity, Pa.R.C.P. 1019(f), Father did not

specify the days the child was unavailable, impairing Mother’s ability to

defend the claim or to even obtain relevant phone records. On these facts,


____________________________________________
11 Moreover, Father’s petition acknowledges that he had actual notice of the
child’s enrollment, as the child informed him of it during a telephone call,
and Father stated on the record that Mother had communicated with him
about camp enrollment via Our Family Wizard a month prior to the
commencement of camp. Further, Father’s notice of summer camp
enrollment would not have had any bearing on whether the child would
attend camp while in Mother’s physical custody.



                                          - 11 -
J-A12003-17


we cannot conclude that the trial court abused its discretion in finding that

Father’s claims of contempt were either lacking in merit, de minimis in view

of the contempt standard, or overly vague. We therefore affirm the trial

court’s denial of the petition without a hearing.

                         Representation of Mother

      Father contends that Mother’s counsel (1) had not officially entered

her appearance when she spoke on Mother’s behalf (and outside of Mother’s

presence) at the hearing, and (2) improperly presented evidence at the

hearing without having filed a verified response to Father prior to the

hearing. Father apparently contends that this conduct violated Local Rule

208.3(a)(2)(c) and Pa.R.C.P. 1024. Father’s Brief at 8-9.

      Regarding the first point, the trial court found:

             . . . Father contends that this [c]ourt erred by allowing
      Mother’s attorney to represent Mother at the motion without
      Mother being present. This is no error as this [c]ourt does not
      require represented litigants to be present during motions court.
      Father would counter that Mother’s attorney should not have
      been permitted to represent Mother during the motion, because
      the attorney had not yet entered her official appearance for her
      client. The issue of whether the entry of appearance is necessary
      is moot: [an attorney from the Civil Law Project of the Women’s
      Center and Shelter of Greater Pittsburgh] entered her
      appearance in October 2015, albeit on the parties’ other docket
      [.] . . . For reasons unknown, Father has taken great umbrage
      with whom Mother has chosen to represent her in these
      proceedings. The [c]ourt does not share his standpoint. Father
      has never had a problem understanding exactly who was
      representing Mother – or, more importantly, to whom he had to
      serve a copy of his contempt motions.

Trial Ct. Op. at 4-5 (citations and footnotes omitted).


                                     - 12 -
J-A12003-17


       We agree that this issue merits no relief. “Entry of a written

appearance is not mandatory.” Pa.R.C.P. No. 1012(a), Note. Father

acknowledges, even in his list of issues presented on appeal, that Attorney

Wei and her colleagues have represented Mother in previous hearings. 12

Father presents no legal authority that would have forbade Attorney Wei’s

representation of Mother at the hearing, and he makes no argument

explaining how he was prejudiced by the representation.

       The trial court made no explicit finding regarding Father’s second point

(that the court accepted evidence without Mother having filed a verified

response). However, upon review, we conclude that no relief is due. No

responsive pleading to a petition for contempt was required by the Rules.

See Pa.R.C.P. 1915.12(d). Local Rule 208.3(a)(2)(c) is inapplicable, as the

governing procedure is that under Pa.R.C.P. 1915.12, and, to the extent it

does not conflict, Local Rule 1930 (“Domestic Relations Matters Generally”);

neither of these rules requires a response to a motion for contempt. 13 In

addition, the only evidence substantiating new facts proffered by Attorney

Wei at the argument was the set of electronic messages between Mother

and Father regarding the child’s enrollment in summer camp. Father


____________________________________________
12We additionally note that the Women’s Shelter has represented Mother on
several of the previous appeals to this Court.
13 And, as Mother points out, Local Rule 208.3(a)(2)(c), cited by Father,
actually states that no response is required.



                                          - 13 -
J-A12003-17


understands the language of the resulting order of the court that “[t]here

are communications between [the] parties regarding camp” to mean that the

court denied his petition based on these messages, but at the argument

Father not only acknowledged that the child had informed him of his camp

enrollment, but also that Mother had sent him messages regarding camp a

month prior to its commencement. We therefore decline to find that the trial

court decided Father’s petition based on improper evidence. No relief is due

on this issue.

      For all of these reasons, we affirm the order of the trial court denying

Father’s petition for a contempt hearing.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2017




                                    - 14 -
