J-S57043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

W. W.                                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

M.S. – W.

                            Appellee                No. 1044 EDA 2014


                  Appeal from the Order Entered March 5, 2014
              In the Court of Common Pleas of Philadelphia County
                         Civil Division at No: 1310V7081


BEFORE: DONOHUE, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED NOVEMBER 13, 2014

       Appellant, W.W.,1 appeals pro se from the trial court’s March 5, 2014

order denying Appellant’s petition for contempt. Appellant alleged Appellee,

M.S.-W., repeatedly violated the trial court’s final order entered pursuant to

the Protection From Abuse Act, 23 Pa.C.S.A. § 6101, et seq. We affirm.

       Appellant commenced this litigation with a Protection From Abuse

(“PFA”) petition he filed against Appellee on October 9, 2013. Appellee filed

a PFA petition against Appellant on October 17, 2013.       On November 5,

2013, the parties appeared at a hearing before Judge Ida K. Chen and

____________________________________________


1
   In a prior appeal, at number 987 EDA 2013, this Court redacted the
parties’ names. See infra at footnote four. For consistency, we have done
the same here.
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consented to entry of a mutual stay-away order to be effective for one year.

Also on November 5, 2013, the trial court devised a temporary custody

order to govern the parties in their ongoing dispute over the custody of their

minor child.2

       On January 23, 2014, Appellant filed a petition to hold Appellee in

contempt of the PFA order, alleging Appellee violated a no contact provision

in the order. Appellant filed a second petition to hold Appellee in contempt

of the PFA order on January 31, 2014.            On March 5, 2014, Judge Maria

McLaughlin conducted a hearing, at the conclusion of which she declined to

hold Appellee in contempt but ordered make-up custody time for Appellant.

N.T. Hearing, 3/5/14, at 29-31. Appellant filed this timely pro se appeal on

April 1, 2014. He raises two issues for our review:

              Did the trial court erred [sic] when during Appellant’s
       Petition for Contempt [. . .] and without a petition for
       modification of custody filed or pending, unilaterally and without
       a petition for modification of custody filed or pending,
       unilaterally and illegally modified the custody provisions
       contained in the original mutual Protection From Abuse Orders
       agreed to by the parties and entered as an Order of Court?

            Did the trial court erred [sic] when it failed to find Appellee
       in contempt for violating the mutual Protection From Abuse
       Order agreed to by the parties and entered as an Order of
       Court?


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2
   See 23 Pa.C.S.A. § 6108(a)(4) (permitting the trial court to create
temporary custody arrangement as part of a PFA order).




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Appellant’s pro se Brief at 8.3

       Appellant’s first issue is not properly before this court. “Generally, a

custody order will be considered final and appealable only if it is both: (1)

entered after the court has completed its hearings on the merits; and (2)

intended by the court to constitute a complete resolution of the custody

claims pending between the parties.” Wagner v. Wagner, 887 A.2d 282,

285 (Pa. Super. 2005). The parties’ custody battle is ongoing, and the trial

court planned additional hearings shortly after the March 5 PFA contempt

hearing. The record reflects the trial court conducted an expedited hearing

on the custody dispute on March 12, 2014, only one week after the order

presently on appeal. At the conclusion of that hearing, the trial court issued

an interim custody order pending a full hearing to be held July 30, 2014.4

Since the trial court has not completed its hearings on the pending custody

dispute, and since the order on appeal plainly does not constitute a complete

resolution of the parties’ custody claims, we decline to address Appellant’s

first assertion of error.



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3
    Appellee has not filed a brief with this Court.
4
   By order of May 9, 2014, this Court quashed Appellant’s appeal from the
trial court’s March 12, 2014 order because that order was not final and
appealable. W.W. v. M.S.-W., 987 EDA 2013 (per curiam order, May 9,
2014). We note that the appendix to Appellant’s pro se brief erroneously
includes the trial court opinion pertaining to the March 12, 2014 order.



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       In his second assertion of error, Appellant claims the trial court erred
                                                                              5
in not finding Appellee in contempt of the March 5, 2014 PFA order.

Section 6114.1 of the PFA Act permits a plaintiff to file a petition for civil

contempt with the court that issued the PFA order. 23 Pa.C.S.A. § 6114.1.

Appellant has done so here.

             In proceedings for civil contempt of court, the general rule
       is that the burden of proof rests with the complaining party to
       demonstrate, by preponderance of the evidence, that the
       defendant is in noncompliance with a court order. However, a
       mere showing of noncompliance with a court order, or even
       misconduct, is never sufficient alone to prove civil contempt.

              To be punished for contempt, a party must not only have
       violated a court order, but that order must have been "definite,
       clear, and specific-leaving no doubt or uncertainty in the mind of
       the contemnor of the prohibited conduct. Because the order
       forming the basis for civil contempt must be strictly construed,
       any ambiguities or omissions in the order must be construed in
       favor of the defendant. In such cases, a contradictory order or
       an order whose specific terms have not been violated will not
       serve as the basis for a finding of contempt. To sustain a finding
       of civil contempt, 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. A person may
       not be held in contempt of court for failing to obey an order that
       is too vague or that cannot be enforced.



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5
   An order declining to hold a party in contempt is appealable where the
contempt relates to a prior final order. Schultz v. Schultz, 70 A.3d 826,
828 (Pa. Super. 2013). Since the alleged contempt relates to the final PFA
order entered March 5, 2014, we will address the merits of Appellant’s
argument.



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In re Cullen, 849 A.2d 1207, 1210-11 (Pa. Super. 2004). We review the

trial court’s decision for an abuse of discretion. Id. at 1210.

       Appellant claims the trial court erred because Appellee repeatedly

contacted him in violation of the no contact provision in the November 5,

2013 PFA order. Appellee, through counsel conceded at the hearing that she

contacted Appellant regarding custody exchanges of the parties’ minor child.

N.T. Hearing, 3/5/14, at 7.           Appellee believed she was free to do so

because, on the written PFA order, the trial court left the “no contact” box

unchecked.     Id. at 6.     Appellant argues the PFA order was clear, definite,

and specific in ordering no contact despite the unchecked box, because

language elsewhere in the PFA order prohibited contact between the parties.

Appellant also asserts the box was erroneously left unchecked.6

       The trial court concluded reasonable minds could differ as to whether

the PFA order prohibited contact, and therefore declined to hold Appellee in

contempt. We agree with the trial court’s assessment. The text next to the

unchecked box reads as follows: “Except as provided in paragraph 5 of this

order, [M.S.-W.] shall not contact [W.W.] by telephone or by other means,

including through third persons.” PFA Order, November 5, 2013. Paragraph
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6
  Though the transcript is less than clear on the subject, the parties seem to
reference subsequent corrections to the PFA order. N.T. Hearing, 11/5/13,
at 10. They did not, however, have signed copies of it at the hearing. Id.
We have confined our analysis to the order of record that was the basis for
the trial court’s decision to deny Appellant’s contempt petition.




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5 of the order details the parties’ custody arrangement regarding their minor

child.7

       Under these circumstances, we believe the trial court acted within its

discretion in determining that Appellee’s conduct did not amount to an

intentional    violation   of   a   definite,    clear,   and   specific   court   order.

Furthermore, it appears Appellee could reasonably believe contact was

permissible regarding custody exchanges even if the disputed box was

checked. We find no error in the trial court’s decision.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2014




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7
   The record reflects that the parties made custody exchanges at a police
station in Ardmore, Pennsylvania. N.T. Hearing, 11/5/13, at 10.



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