J-S82015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.J.C.,                                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

B.L.B.,

                            Appellant                  No. 642 WDA 2017


                 Appeal from the Order Entered March 27, 2017
                  In the Court of Common Pleas of Elk County
                        Civil Division at No(s): 2015-359


BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY BENDER, P.J.E.:                          FILED MARCH 6, 2018

        B.L.B. (“Mother”) appeals from the order dated March 20, 2017, and

entered March 27, 2017, wherein the trial court found Mother in contempt of

a prior custody order dated June 27, 2016. We affirm.

        Mother and M.J.C. (“Father”) are the parents of G.M.C. (“Child”), born

in February of 2015.           Mother’s last known residence was in Midway,

Pennsylvania,1 and Father resides in St. Mary’s, Pennsylvania.      The initial

custody order, dated June 27, 2016, granted legal custody, as well as

primary physical custody of Child, to Mother and partial custody for purposes
____________________________________________


*   Former Justice specially assigned to the Superior Court.
**   Retired Senior Judge assigned to the Superior Court.

1 The record indicates that Mother’s current address is confidential due to a
Protection from Abuse Order (“PFA”) entered in the Court of Common Pleas
of Elk County at docket no. 2015-368.
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of visitation to Father. The custody order contains a step-up mechanism for

Father to eventually have unsupervised visits.2         Additionally, the order

required Father to complete anger management classes, parenting classes,

and counseling, and to submit a report from the relevant providers, prior to

moving to unsupervised visitation. See Custody Order, 6/27/16, at 1-2.

        On February 8, 2017, Father filed a petition for civil contempt, alleging

that Mother was in violation of the custody order for “failure to proceed in

moving forward with unsupervised [visitation].” Petition for Civil Contempt,

2/8/17, at 1. After both parties testified at the contempt hearing, the trial

court found that Mother had refused to permit unsupervised visits despite

Father’s completion of all the prerequisites outlined in the Custody Order.

TCO at 1. Accordingly, the trial court held that Mother was in civil contempt

of court. Id.
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2   As explained by the trial court,

        Father initially was to have periods of custody on three alternate
        Saturdays, from 9:00 a.m. until 5:00 p.m., to be supervised by
        his mother, Katherine Tornatore. Thereafter, for three additional
        supervised visits, every other week, Father’s periods of partial
        custody would expand to include Saturday from 9:00 a.m. to
        5:00 p.m. and Sunday from 9:00 a.m. to 5:00 p.m. After this
        second three-visit cycle, Father automatically was to begin
        having unsupervised visits every other weekend on Saturday and
        Sunday, from 9:00 a.m. to 5:00 p.m. each day. After three such
        visits, Father then was to have unsupervised overnight visits
        every other weekend from Saturday at 9:00 a.m. until Sunday at
        5:00 p.m.

Trial Court Opinion (“TCO”), 6/20/17, at 5-6.



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      On April 25, 2017, Mother appealed from the March 27, 2017 order

holding her in contempt (“Contempt Order”) and, subsequently, she filed a

timely,   court-ordered   Pa.R.A.P.   1925(b)   concise   statement   of   errors

complained of on appeal.      Mother now presents this sole issue for our

review: “Whether the trial court abused its discretion or erred as a matter

of law in finding [Mother] in contempt, as [she] did not violate any provision

of the court order?” Mother’s Brief at 6.

      First, we must determine the appealability of the Contempt Order.

The trial court suggests that the order is interlocutory and, thus, Mother’s

appeal should be quashed. TCO at 2-3. We have clearly stated, however,

that “[a]n order finding a party in contempt for failure to comply with a prior

order of court is final and appealable if sanctions are imposed.”     Glynn v.

Glynn, 789 A.2d 242, 246 (Pa. Super. 2001).         In the instant matter, the

trial court imposed a six-month term of incarceration as a sanction for

Mother’s contempt of the prior Custody Order; thus, the Contempt Order

appears to be final and appealable.

      We further note that the sanctions imposed by the court were

conditioned as follows: “[Mother] may purge herself of this contempt and

thereby do[] away with the necessity of serving any portion of the jail term

hereby imposed as follows:

      1) [Mother] shall fully abide by the terms of the Custody Order
         dated June 27, 2016, through September 30, 2017.”




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See Contempt Order. “When a contempt order that imposes sanctions also

contains a purge condition, the purge condition does not transform a final,

appealable order into one that is interlocutory.”    Glynn, 789 A.2d at 247.

As explained by the Glynn Court:

      If that were so, a contemnor in a civil contempt action would not
      be able to appeal the contempt order until he/she was
      incarcerated or had paid sums owing as sanctions for contempt.
      It seems inappropriate and unnecessarily harsh for a contemnor
      in a civil contempt action to undergo incarceration or fulfill
      another sanction before this Court will accept an appeal of a
      contempt order. Rather, we conclude that, for a contempt order
      to be properly appealable, it is only necessary that the order
      impose sanctions on the contemnor and that no further court
      order be required before the sanctions take effect.

Id. at 247-48.

      Here, the trial court contends that the sanctions essentially cannot be

imposed without a further court hearing to prove that Mother violated the

terms of the custody order and, hence, it maintains that the contempt order

should be deemed interlocutory.     TCO at 2-3.     We disagree with the trial

court’s conclusion.   On its face, the Contempt Order does not require any

further court intervention before sanctions can take effect. In fact, the order

expressly states that the term of incarceration commences “on Monday,

October 2, 2019, at 9:00 a.m.,” and directs Mother to report to the Warden

of the Elk County Jail at such time. The Contempt Order only mentions the




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possibility of a further petition, notice and hearing in the event that Mother

does not abide by the purge conditions and fails to report to the jail.3

       We now address the merits of this appeal.4       “When considering an

appeal from an [o]rder holding a party in contempt for failure to comply with

a court [o]rder, our scope of review is narrow: we will reverse only upon a

showing the court abused its discretion.” Harcar v. Harcar, 982 A.2d 1230,

1234 (Pa. Super. 2009) (quoting Hopkins v. Byes, 954 A.2d 654, 655-56

(Pa. Super. 2008)). Additionally, we must consider that:

       Each court is the exclusive judge of contempts against its
       process. The contempt power is essential to the preservation of
       the court’s authority and prevents the administration of justice
       from failing into disrepute. When reviewing an appeal from a
       contempt order, the appellate court must place great reliance
       upon the discretion of the trial judge.

Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013) (quoting

Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa. Super. 2002)). “The
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3“If Respondent fails to report to the jail as required, a bench warrant will
be issued for her arrest and incarceration after petition, notice and hearing.”
Contempt Order at 1.

4 Father argues that, “[i]n light of the fact the time period for the contempt
has expired, and the fact sanctions were not imposed, the [a]ppeal by
[Mother] is moot and should be dismissed.” Father’s Brief at 13. To the
contrary, we do not regard this appeal as moot, since Mother remains
subject to the underlying custody order and a failure to comply with the
order may again subject her to contempt proceedings. See Barrett v.
Barrett, 368 A.2d 616, 619 n.1 (Pa. 1977). See also Griffin v. Griffin,
558 A.2d 86, 89 (Pa. Super. 1989) (rejecting the argument that the appeal
from a contempt order in a support case is moot, because the husband
remains subject to a continuing support order and a second failure to comply
with the order would again subject him to contempt proceedings).



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court abuses its discretion if it misapplies the law or exercises its discretion

in a manner lacking reason.” Id. (quoting Godfrey v. Godfrey, 894 A.2d

776, 780 (Pa. Super. 2006)).

       The general rule in proceedings for civil contempt is that “the burden

of   proof   rests    with   the   complaining   party   to   demonstrate,   by   a

preponderance of the evidence, that the defendant is in noncompliance with

a court order.” Id. (quoting Lachat v. Hinchcliffe, 769 A.2d 481, 488 (Pa.

Super. 2001)).

       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.

Id. (quoting Stahl v. Redcay, 897 A.2d 478, 489 (Pa. Super. 2006)).

       Here, the situation which gave rise to the petition for contempt

involved Mother’s failure to cooperate with Father’s court-ordered visitation

rights.   Under the terms of the Custody Order, Father had the right to

unsupervised visitation with Child beginning in September of 2016, provided

that he met all of the requirements set forth by the court. On February 4,

2017, Father produced documentation to Mother evidencing the completion

of his obligations under the custody order.5        In response, Mother sent a


____________________________________________


5 As a result of the existing PFA, Ms. Tornatore was the agreed upon go-
between for the parties. Ms. Tornatore delivered an envelope to Mother
(Footnote Continued Next Page)


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message to Ms. Tornatore stating that she was not approving “starting

unsupervised visitation,” and that “visits are to continue to be supervised.”

Mother’s Brief at 15-16 (citation to record omitted).            Ms. Tornatore

responded to Mother’s message three days later, simply stating, “Ok.” Id.

at 16.    The following day, Father filed the petition for contempt, which

alleged that Mother was in contempt of the Custody Order by failing to allow

Father to proceed with unsupervised visitation.            Id.   Mother argues,

however, that she cannot be held in contempt of court, as she believes she

did not violate the Custody Order.              Mother asserts that she had no

independent control over Father’s visits being supervised or unsupervised

and that she did not withhold Child from Father or otherwise interfere with

his time with Child. Id. at 17. After careful review of the record, we deem

Mother’s claim meritless.

      As demonstrated by the following, the trial court found all of the

requisite elements of civil contempt present in the instant matter:

             First, and importantly, although Mother’s counsel raised
      the issue in cross-examination, nowhere in the record did Mother
      indicate that her reason for refusing to permit unsupervised
      visitation was Father’s failure to complete the requisite
      counseling and classes by the dates identified in the Order. The
      [c]ourt found that these dates were not of the essence of
      Father’s compliance, particularly because of the short time span
      in which the requirements were to be completed.           Mother
      repeatedly emphasized at the hearing that her reason for
(Footnote Continued) _______________________

containing the documentation showing that Father had met the court-
ordered prerequisites to unsupervised visitation.



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       refusing unsupervised visits was an incident that occurred at a
       custody exchange approximately two weeks prior to Father’s
       completion of his counseling and coursework.2 Second, Mother
       does not dispute the fact that Father completed the necessary
       requirements for unsupervised visits and provided her with the
       paperwork confirming the same by February 4, 2017. She also
       was served with the petition for contempt outlining Father’s
       assertions that she had violated the [Custody] Order by refusing
       to permit unsupervised visits, and she continued to refuse
       thereafter. That constitutes a violation of the Custody Order.
          2 The incident involved what apparently was a heated
          exchange between Father and the person whom Mother
          had sent to pick up the Child at a custody exchange,
          Sandra Levenduski. The record is not altogether clear as
          to what happened, but Father clearly was angry and yelled
          at Ms. Levanduski because he did not believe she, instead
          of Mother, should be performing the custody exchange.

              Third, the [c]ourt also finds that Mother’s actions were
       volitional and done with wrongful intent. Her refusal was not by
       accident, happenstance, or circumstances beyond her control.
       Although the underlying reason or justification for the refusal
       might be reasonable at first glance, the plausibility of Mother’s
       fears, on which the [c]ourt renders no opinion, cannot justify an
       intentional disregard for provisions in a custody order that was
       drafted, at least in part if not in the whole, by Mother and her
       counsel. The Order clearly provides for automatic progression to
       unsupervised visitation and provides Mother with a reasonable
       and expeditious remedy if she has any issues with that
       progression.[6]     The [c]ourt finds that she consciously
       disregarded the [Custody] Order in violation of both its letter
       and spirit, which violation was volitional and intentional.

TCO at 7-9 (citations to record omitted).        “[T]his Court defers to the

credibility determinations of the trial court with regard to the witnesses who

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6 The final paragraph of the Custody Order expressly grants Mother the right
to file a motion seeking to limit or suspend the extension of Father’s visits if
she believes they are harmful, to be heard immediately by the conference
officer. TCO at 6; see also Custody Order at 3.



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appeared before it, as that court had the opportunity to observe their

demeanor.” Harcar, 982 A.2d at 1236. Under the circumstances here, we

cannot conclude that the trial court abused its discretion.        The record

contained more than sufficient evidence to support the trial court’s ruling.

      Accordingly, we hold that the court properly found Mother in civil

contempt of the Custody Order, and we affirm the March 27, 2017 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/2018




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