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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    M.G.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    S.J.                                       :
                                               :
                        Appellant              :   No. 1122 WDA 2017

                Appeal from the Orders Entered on July 20, 2017
       In the Court of Common Pleas of Allegheny County Civil Division at
                          No(s): FD-07-009307-004

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                                FILED MARCH 16, 2018

           S.J. (“Father”) appeals pro se from the July 20, 2017 orders denying his

petition for contempt against M.G. (“Mother”) without a hearing and awarding

Mother $600 in counsel fees on the basis that the petition was obdurate and

vexatious.1 We affirm.

           This appeal stems from the parties’ child custody dispute. Mother and

Father married in 1994, separated in 2007, and divorced in 2010. They have

two children, an adult son who is not the subject of this appeal, and a minor

daughter, Su.J., born in October 2000. This matter has a lengthy and tortuous

procedural history, due primarily to Father’s myriad petitions for contempt and

for the modification of the parties’ custody order, and the ensuing appeals to

this Court.
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1 As an order denying a petition for contempt is final and appealable when
entered in relation to a prior final order, the present appeal is properly before
this Court. Schultz v. Schultz, 70 A.3d 826, 828 (Pa.Super. 2013).
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       The trial court’s January 21, 2016 custody order governed the parties’

custody arrangement during the period relevant to this appeal. That order

awarded Mother sole legal custody and primary physical custody of Su.J.

Father was granted periods of partial physical custody; however, as we discuss

infra, Father’s right to physical custody diminished during October 2016 when

the court made it subject to Su.J.’s discretion.      Similarly, Mother’s legal

custody was subject to a provision in the January 2016 order that required

her to consult with Father regarding school-related and extracurricular

activities. Nevertheless, Mother had ultimate authority to enroll Su.J. in an

activity if Father refused to agree.

       During July 2016, Father filed a petition for contempt against Mother.

Father alleged that Mother violated the January 21, 2016 order by traveling

outside of Allegheny County with Su.J. for longer than twenty-four hours

without advising him, using Su.J. as an intermediary, and misleading the court

regarding Su.J.’s desire to attend summer programs at two universities.

Mother filed a response, in which she requested that the trial court deny

Father’s petition and award her with counsel fees. The court denied Father’s

petition on July 13, 2016, and granted Mother’s request for $1,000 in fees.

Father timely appealed on August 11, 2016.2

       On August 18, 2016, while Father’s appeal remained pending, the trial

court received an ex parte letter from Su.J. The record reveals that the court’s
____________________________________________


2We affirmed the July 13, 2016 contempt order on January 30, 2017. See
M.G. v. S.J., 160 A.3d 271 (Pa.Super. 2017) (unpublished memorandum).

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administrative assistant intercepted the letter, and returned it to Su.J.,

explaining that the court could not read it without first sharing it with Mother

and Father. Su.J. then had the letter signed by both parties, and sent it back

to the court.   In her letter, Su.J. indicated that the current child custody

situation had become very difficult and stressful for her, and requested a

meeting with the court.

      On September 1, 2016, the court entered an order indicating that it had

reviewed Su.J.’s letter and permitted the parties to praecipe for a custody

conciliation, including an in camera interview with Su.J. Father filed a praecipe

on September 19, 2016, and the court scheduled a conciliation and an in

camera interview for October 20, 2016.       On October 21, 2016, the court

entered an interim order awarding primary physical custody to Mother and

granting partial physical custody to Father at Su.J.’s discretion.

      On February 13, 2017, Father filed a praecipe for further custody

proceedings. The trial court scheduled a hearing, which began on June 29,

2017. The court then scheduled an additional in camera interview with Su.J.

However, on July 20, 2017, prior to the interview, Father filed yet another

petition alleging that Mother was in contempt of the final custody order

entered on January 21, 2016. That petition, which is the genesis of the instant

appeal, reiterated several of Father’s previous allegations of contempt and

implicated events that occurred prior to July 2016. Noting the staleness of

Father’s claims, Mother countered that Father was attempting to annoy and



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harass her, and she requested counsel fees. That same day, the court entered

the above-captioned orders that denied Father’s petition for contempt and

awarded Mother $600 in fees.3 In its Rule 1925(a) opinion, the trial court

subsequently explained that it denied Father’s petition for contempt because

the allegations therein “pertained to previous custody orders, hearings, and

appeals, all of which have been dealt with before.”           Trial Court Opinion,

8/31/2017, at 3.

       On August 1, 2017, Father timely filed a notice of appeal from both

orders, along with a concise statement of errors complained of on appeal.

Father levels an interconnected web of assertions within the six prolix claims

he presents for our review. See Father’s brief at 3-4. We address, infra,

Father’s claim that the trial court abused its discretion in awarding attorneys’

fees based upon his obdurate and vexatious behavior. However, as the trial

court observed in denying the underlying petition for contempt, most of the

assertions against Mother were litigated in Father’s prior appeals to this Court.



____________________________________________


3 In one order, the trial court simply crossed out Father’s proposed order for
relief and inscribed the handwritten notation “denied.” In the second order,
the trial court specifically articulated its conclusions that “1. [Father’s] Petition
for Contempt is denied[;] 2. [Father’s] Petition constitutes obdurate and
vexatious behavior in raising stale claims and lacking necessary specificity[;
and] 3. Counsel for [Mother] is awarded the sum of $600.00 in counsel fees,
to be paid by [Father] within fifteen (15) days.” Trial Court Order, 7/20/17.
Father attached both orders to his notice of appeal.




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See    M.G.    v.   S.J.,    160    A.3d       271   (Pa.Super.   2017)   (unpublished

memorandum). We do not address those duplicate issues herein.4

       The allegations of contempt that are actually before us in the present

appeal are that (1) Mother traveled with Su.J. outside of Allegheny County for

longer than twenty-four hours after the July 2016 contempt proceedings

without advising Father; and (2) Mother enrolled Su.J. in summer programs

after the July 2016 contempt proceedings without first consulting Father using

Our Family Wizard.        For the following reasons, we affirm the trial court’s

conclusion that neither of these claims entitled Father to a contempt hearing.

       We review civil contempt orders pursuant to an abuse of discretion

standard of review. K.M.G. v. H.M.W., 171 A.3d 839, 844 (Pa.Super. 2017).

A trial court abuses its discretion “if, in resolving the issue for decision, it

misapplies the law or exercises its discretion in a manner lacking reason.


____________________________________________


4Father also raises claims pertaining to the trial court’s conduct of the ongoing
child custody proceedings.         Specifically, Father argues that the court
demonstrated bias and prejudice by “accepting its tip staff’s directive via e-
mail that resulted in the child not appearing as a witness at the Custody
hearing of June 29, 2017,” and by quashing his subpoena of a police officer.
Father’s brief at 14-15. These claims are not properly before this Court.
Father did not include these claims in his petition for contempt, and the court
did not address them in its July 20, 2017 contempt orders. Father appealed
only from the July 20, 2017 orders, and did not appeal from any court orders
pertaining to the ongoing custody hearing. Even if he had, it is clear that any
such appeal would be interlocutory. See G.B. v. M.M.B., 670 A.2d 714, 720
(Pa.Super. 1996) (“[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.”).


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Similarly, the trial court abuses its discretion if it does not follow legal

procedure.”   Id. at 844-45 (quoting Bold v. Bold, 939 A.2d 892, 895

(Pa.Super. 2007)).

     Our child custody statute provides that “[a] party who willfully fails to

comply with any custody order may, as prescribed by general rule, be

adjudged in contempt.” 23 Pa.C.S. § 5323(g)(1). In order to support a finding

of civil contempt, the petitioning party must prove by a preponderance of the

evidence “(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.” Coffman v. Kline, 167 A.3d 772, 780 (Pa.Super. 2017).

However, a court cannot revisit contempt claims that were litigated, or could

have been litigated, during a prior contempt proceeding.      See Glynn v.

Glynn, 789 A.2d 242, 249 (Pa.Super. 2001) (en banc) (holding that the

doctrine of res judicata barred the appellant’s challenge to the court’s

contempt finding, because the appellant could have raised this challenge

during a prior contempt proceeding).

     We first address Father’s claim that Mother took Su.J. outside of

Allegheny County for longer than twenty-four hours without advising him. In

his petition for contempt, Father alleged that Mother violated paragraph

thirteen of the January 21, 2016 custody order, which provides as follows.

     13. If either parent is to take vacation in a location outside
     Allegheny County, they will notify the other party as to the

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      location of that vacation at the time the vacation is scheduled.
      [Su.J.] is permitted to travel within the continental United States
      with either parent during their custody time. Each parent shall
      advise the other of travel outside Allegheny County for periods
      exceeding 24 hours. International travel with [Su.J.] shall not
      require an Order of Court as long as the parties agree to the times
      and receive advance notice and an itinerary of the travel. In the
      event that the parties cannot agree to a proposed trip, the party
      scheduling the trip may bring the matter before the Court. Neither
      party will schedule a vacation that interferes with [Su.J.’s] school
      or with the Holiday schedule set forth above.

Order, 1/21/16.

      In support of this allegation, Father attached to his petition a copy of

Mother’s answers to his third combined interrogatories and request for

production of documents. Therein, Mother acknowledged that she traveled

outside of Allegheny County with Su.J. for longer than twenty-four hours on

several occasions after the July 2016 contempt proceedings. This included a

five-day trip in August 2016 to Deep Creek, Maryland, and several three-day

trips to attend weddings, visit a university, and visit family.         Mother

acknowledged with respect to all but one of these trips that she did not advise

Father using Our Family Wizard.

      As noted above, Father has raised the issue of Mother’s travel with Su.J.

in the past.   In its opinion addressing Father’s appeal from the July 2016

contempt proceedings, the trial court rejected a similar claim as a

misinterpretation of its January 21, 2016 order.       The court explained as

follows.

           Father alleged that Mother violated Paragraph 13 of the
      January 21, 2016 custody order outlining travel outside of


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      Allegheny County. The allegation is quite ridiculous. The Court
      has been aware for some time that Mother attends a family
      reunion in Deep Creek, MD around the Fourth of July holiday.
      Father had even once brought this issue to the Superior Court,
      arguing that Mother misled the Court in describing her family get-
      together as a “family [re]union.” He argued that the gathering
      was not a family reunion because the child had testified in camera
      that the family does not, in fact, have t-shirts made. This Court
      determined that Paragraph 13 was clearly meant to apply to
      general vacations or the special business trips on which Father
      takes the child, and not the family reunion trip which has been the
      source of Father’s litigation since 2011.

Trial Court Opinion, 9/12/16, at 3-4 (citations omitted).

      Thus, while it is true that paragraph thirteen directs that the parties

should advise each other if they travel outside of Allegheny County with Su.J.

for longer than twenty-four hours, the trial court has clarified that this

provision applies to vacations, and not to Mother’s family reunion trips, or to

the sort of three-day trips described in her answers to Father’s interrogatories.

Moreover, we observe that the court expressly approved Mother’s August

2016 trip to Deep Creek in an order entered June 9, 2016. Because Father

did not allege or establish in his petition that Mother took Su.J. on a vacation

after the July 2016 contempt proceedings without advising him, he was not

entitled to a hearing.

      Next, we address Father’s claim that Mother enrolled Su.J. in summer

programs without first consulting him using Our Family Wizard. Father’s claim

relates to paragraph two of the January 21, 2016 custody order, which

provides as follows, in relevant part.

      2. Extracurricular Activities

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         a. The parents will discuss (utilizing “Our Family Wizard”)
         and seek to agree prior to enrolling [Su.J.] in any school
         related or extracurricular activities, especially when those
         activities will occur during both parents’ custody time and
         will require their facilitation and/or participation.

         b. If the parents cannot agree, Mother will have the sole
         authority to decide whether to enroll [Su.J.] in the activity.

         c. Both parties are to keep a record on the “Our Family
         Wizard” calendar of the schedule of any and all activities in
         which [Su.J.] is enrolled.

Order, 1/21/16.

      In her response to Father’s petition for contempt, Mother acknowledged

that she enrolled Su.J. in summer programs at two universities in 2017.

Mother also acknowledged that she had not used Our Family Wizard since

November 2016. However, Mother denied that this was a material violation

of the January 21, 2016 custody order, given her sole legal custody of Su.J.,

and the fact that the October 21, 2016 order subjected Father’s periods of

partial physical custody to Su.J.’s discretion. Insofar as Su.J. was not required

to contact Father if she did not desire, we agree with Mother’s position that

the alleged transgressions were immaterial.

      Father is correct that Mother’s decision to enroll Su.J. in summer

programs without consulting him is a technical violation of the January 21,

2016 order. However, it is clear that Mother’s violation was de minimis. As

Mother indicated, she has sole legal custody of Su.J. While the order provides

that Mother should consult with Father before enrolling Su.J. in school-related

and extracurricular activities, Mother retained exclusive authority to enroll

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Su.J. in the program if she and Father were unable to reach an agreement.

Thus, even if Mother had consulted Father about these programs, it would

have made no difference.

      Mother’s violation is particularly insignificant in light of the court’s

October 21, 2016 custody order that made Father’s periods of physical custody

entirely at Su.J.’s discretion. Tellingly, the genesis of the October 2016 order

was Father’s overreaction to his daughter’s desire to attend a similar summer

program at a university during summer 2016. At her in camera interview with

the trial court, Su.J. described how Father first pressured her not to attend

that program, and when this ploy failed, Father threatened to cease all

communication with her, a device that he had employed with the parties’ older

child. Su.J. told the court, “when I left, he said you know, if you go . . . I

don’t want to have anything to do with you, I’ll cut you off like your brother.”

N.T., 10/20/16, at 36.       Su.J. attended the program despite Father’s

protestations; however, the confrontation with Father was so distressing that

the fifteen year old approached the trial court directly and requested control

over Father’s custodial periods. Su.J. explained to the court, “It had gotten

[so] bad that I didn't want to go over any more. And when I got back [from

the program], I was so fired up and I was so angry. I was like, I want the

Judge to know and I wanted her to hear it from me and I want her to know

how [it] was so bad and how I was so stressed[.]” Id. at 43. In light of

Father’s intimidation of Su.J. under identical circumstances one year earlier,


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and the lingering effect of those aggressive tactics on Su.J.’s emotional health,

Mother acted reasonably in neglecting to inform Father of their daughter’s

participation in similar summer programs during 2017.

      In sum, Mother’s decision to forego consulting Father about Su.J.’s

potential enrollment in the summer programs during 2017 was justified in

light of Father’s reaction to her participation in a comparable program, and

the fact that Su.J.’s enrollment did not affect Father’s custodial rights. As it

is clear that Father is not entitled to relief, we discern no abuse of discretion

in the court’s decision to deny the petition.

      Next, we reject Father’s challenge to the trial court’s decision to award

Mother $600 in counsel fees. This Court will not disturb a trial court’s award

of counsel fees absent an abuse of discretion. A.L.-S. v. B.S., 117 A.3d 352,

361 (Pa.Super. 2015). Our child custody statute provides that a court “may

award reasonable interim or final counsel fees, costs and expenses to a party

if the court finds that the conduct of another party was obdurate, vexatious,

repetitive or in bad faith.” 23 Pa.C.S. § 5339. Concerning the type of conduct

that would warrant the imposition of counsel fees, this Court has explained

that a custody filing is “vexatious” if it is “brought without legal or factual

grounds and if the action served the sole purpose of causing annoyance.”

A.L.-S., 117 A.3d at 362.

      The trial court found that Father’s petition was obdurate, vexatious,

repetitive, and filed in bad faith. Trial Court Opinion, 8/31/17, at 3-4. The


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court stressed once again that Father’s petition for contempt “related

exclusively to matters previously considered and ruled upon by all levels of

Pennsylvania jurists[, and that it had] no choice but to award fees.” Id. at 4.

Stated plainly, the trial court could no longer countenance Father’s

recalcitrance.

      The certified record supports the trial court’s characterization of Father’s

petition for contempt.    Indeed, our review of the record reveals that the

petition consisted entirely of claims that were either previously litigated, de

minimis, or utterly devoid of merit. This is not the first time that Father filed

a frivolous petition, and his prior actions have made it abundantly clear that

simply entering an order denying his petition will not discourage him from

pursuing meritless claims in the future. Accordingly, we find that it was within

the trial court’s discretion to conclude that the imposition of counsel fees was

appropriate.

      As the trial court did not abuse its discretion in denying Father’s petition

for contempt without a hearing or by awarding Mother $600 in counsel fees,

we affirm the trial court’s July 20, 2017 orders.

      Orders affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2018




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