J-S31015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 A.W.E.                                   :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 J.O.E., JR.                              :
                                          :
                      Appellant           :   No. 122 WDA 2019

            Appeal from the Order Entered November 14, 2018
  In the Court of Common Pleas of Indiana County Civil Division at No(s):
                           No. 12061 CD 2014


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                     FILED OCTOBER 03, 2019

      In this pro se appeal in a child custody matter, J.O.E. (“Father”) raises

challenges to two trial court orders: (1) A June 2018 order granting Mother’s

request to withdraw her appeal of a mediation ruling, canceling a scheduled

custody trial, and directing the parties to comply with an April 2018 custody

order, and (2) a November 2018 order clarifying the April 2018 custody order

and denying Father’s petition for contempt. He also claims the trial court was

biased against him.

      We conclude that Father’s claim that the trial court is biased against him

is meritless. We conclude that Father waived any challenges to the June 2018

order withdrawing the appeal, canceling the custody hearing and directing

compliance with the April 2018 order because he did not file a timely objection

to the order before the trial court. We conclude that the November 2018 order

did not modify an award of custody or modify any terms of custody and,
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therefore, the court did not err in issuing the order clarifying custody without

a hearing and without consideration of the custody factors. However, we

conclude that the trial court erred in denying the motion for contempt without

holding a hearing. We therefore reverse the portion of the November 2018

order addressing the motion for contempt and remand for proceedings

consistent with this memorandum.

       Mother and Father are parents to three children, C.S.E. (born October

1997), R.A.E. (born May 2001), and M.J.E. (born November 2005) (collectively

“Children”).1 In December 2013, Father was charged with criminal homicide,

robbery, and theft. In September 2015, he pled guilty to first-degree murder,

and the trial court sentenced him to life imprisonment without the possibility

of parole.

       The following procedural history is relevant to this appeal. In April 2018,

the parties attended a custody mediation. Following this mediation, the court

entered a consent order, which provides, in part, that:

              Father shall be permitted to have written
              communication in the form of letters, drawings,
              photographs, etc. . . . with each of the minor
              children[,] no more than once per week. This
              communication shall be addressed directly to the
              minor children and limited to the [C]hildren, custody
              matters, and matters related directly to the minor
              children. Furthermore, the minor children shall be
              permitted to reciprocate written communication back


____________________________________________


1When the court issued its 2018 order, R.A.E. and M.J.E. were minor children.
At the time of the disposition of this appeal, the only minor child is M.J.E.

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            to Father and Mother shall not discourage and/or
            prohibit such reciprocity.

Order, Apr. 4, 2018, at ¶ 6.

      Mother filed a Motion to Appeal Mediation Ruling Granting Contact. The

court scheduled a custody trial. In May 2018, Father filed a Petition for

Visitation of Minor Children. The trial court stated it took “[n]o action . . . as

to this petition because [Father] already had contact with [the Children]

pursuant to the consent custody order of April 4, 2018.” Trial Court Opinion,

filed Jan. 9, 2019, at 3 (unpaginated) (“1925(a) Op.”).

      In June 2018, Mother filed a Motion to Withdraw Request for Appeal of

Mediation Ruling. On June 15, 2018, the trial court granted Mother’s motion

to withdraw the appeal, canceled the custody trial, and held that the consent

custody order of April 4, 2018 remained in full force and effect.

      On August 8, 2018, Father filed a petition entitled “Contempt of Court,”

alleging Mother violated the April consent order and requesting that the court

find her in contempt. Father alleged Mother failed to deliver to Children more

than twelve letters that Father allegedly sent to them between April 4, 2018

and August 5, 2018 via United States Mail to Mother’s residence. Father also

requested the trial court to find Mother in contempt of the April 4, 2018 order

for failing to claim a package that Father allegedly mailed via certified mail on

July 18, 2018, addressed to Mother, which was allegedly filled with letters to

Children. Moreover, Father alleged that he had sent a letter/birthday card to

his daughter, R.A.E., via United States mail, to his mother, and that his mother

had hand-delivered the letter to R.A.E., which had upset Mother. Mother then

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sent an e-mail to Father’s mother concerning the latter’s delivery of the

letter/birthday card to R.A.E. without Mother’s knowledge or permission.

       Mother did not file a response to this petition, and the trial court did not

hold a hearing. On November 14, 2018, the court entered an order providing

the following:

              1. Pursuant to Consent Order of Court of April 4, 2018,
              [Father] is permitted to have written communication
              with the minor children no more than once a week.
              (Paragraph 6 of the Order of April 4, 2018) The Order
              is clarified as follows:

                 a. the written communication shall be by U.S. Mail
                 addressed directly to the [C]hildren.

                 b. the correspondence shall not be delivered to the
                 [C]hildren by any third-party.

                 c. [Father] shall not discuss his criminal cases in
                 the correspondence.

                 d. [Mother] shall not interfere in the delivery of the
                 correspondence     unless     the    correspondence
                 contains improper matters.

              [2.] The Petition for Contempt is denied.

Trial Court Order, 11/14/18.

       Father filed a Notice of Appeal. On appeal Father argues2 that the trial

court erred in June 2018 when it canceled the child custody hearing based on

Mother’s withdrawal of her appeal, but without his consent. He argues the
____________________________________________


2 Father failed to include a statement of questions involved in his brief on
appeal, but he outlined his issues in a section of his brief entitled summary of
the case, and all of his issues raised in his brief are either set forth or
suggested in both the summary of the case and his concise statement. Thus,
we will not penalize him for his inaccuracy in following the Pennsylvania Rules
of Appellate Procedure. See Pa.R.A.P. 2116.

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November 2018 order changed the custody order, without a hearing and

without consideration of the factors. He claims the entry of the order violated

his Due Process rights. He further argues that in the November 2018 order,

the court denied his motion for contempt and “further restricted [Father’s] . .

. contact/communications with his minor children” without a trial or hearing,

in violation of his Due Process rights. Father’s Br. at 13-14. He also argues

the trial court was biased against him.

      A. June 2018 Order Granting Petition to Withdraw Appeal,
      Cancelling Custody Hearing, and Ordering Compliance with April
      2018 Custody Order

      In June 2018, the trial court entered an order granting Mother’s petition

to withdraw her appeal of the mediation ruling, canceling the custody trial,

and directing that the April 2018 order would remain in effect.

      Father argues the trial court erred in canceling the custody hearing

without his consent. He claims the court violated his due process rights

because it did not hold a custody hearing, and did not consider the custody

factors.

      Father did not object after the court granted the petition to withdraw,

cancelled the hearing, and directed that the April 4, 2018 order would remain

in effect. Father asserts that his time in the prison library was limited and

states that he needed to determine his next step in the custody case, but he

does not explain why he did not object to the cancellation of the custody trial.

We conclude Father’s explanation for his failure to timely object in the trial

court is inadequate. Thus, to the extent Father raises issues of custody and

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visitation based on the June 2018 order, he failed to timely bring those issues

before the trial court, and therefore waived the issues. See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”).

      Father at times also appears to argue the trial court erred in denying his

petition for visitation, which he filed after the April 2018 order, but before the

June 2018 order granting the petition to withdraw the appeal. The court has

not addressed the order, and therefore there is no order from which to appeal,

and we therefore cannot address it. As this motion is outstanding, the trial

court should address it upon remand. We note that the petition sought

visitation with Children at the prison, which would be more contact than Father

currently has with Children.

      B. November 2018 Order Clarifying Custody Order

      Father next claims the court erred when it entered the November 2018

order because it changed the custody order without a hearing and without

consideration of the custody factors.

      “Section 5328(a) requires that the sixteen enumerated factors be

considered when the court is determining a child’s best interest for the

purpose of making an award of custody.” M.O. v. J.T.R., 85 A.3d 1058, 1062

(Pa.Super. 2014); see 23 Pa.C.S.A. §§ 5323(a), 5328(a). Further, if the court

is modifying the custody order, but not awarding custody, it need not consider

the custody factors, but must determine that the modification would be in the

children’s best interest. M.O., 155 A.3d at 1062. Moreover, when addressing

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visitation of an incarcerated parent, courts are to consider additional factors,

including:

         (1) age of the child; (2) distance and hardship to the child
         in traveling to the visitation site; (3) the type of supervision
         at the visit; (4) identification of the person(s) transporting
         the child and by what means; (5) the effect on the child both
         physically and emotionally; (6) whether the parent has and
         does exhibit a genuine interest in the child; and (7) whether
         reasonable contacts were maintained in the past.

M.G. v. L.D., 155 A.3d 1083, 1094 (Pa.Super. 2017) (quoting D.R.C. v.

J.A.Z., 31 A.3d 677, 687 (Pa. 2011)).

      The trial court concluded:

         [Father] claims that the order of November [14], 2018 does
         not clarify the consent order of April 4, 2018, but rather
         restricts his contact with [C]hildren. A comparison of the two
         Orders shows otherwise.

         The custody consent order of April 4, 2018 provides that
         [Father] was permitted to have “written communication in
         the form of letters,” and that the communications shall be
         addressed directly to the minor children. While not
         specifically stating that contact was to be by mail, it is clear
         that the intent of the order and the parties would be by U.S.
         Mail. [Father’s] incarceration supports this interpretation of
         the order. Other than mail addressed to the [C]hildren, or
         telephone communication with the [C]hildren, there are no
         other means of communication available to [Father].

         [Father] also claims that the ban on delivery of
         correspondence by third parties constitutes a further
         restriction on his ability to contact the [C]hildren as set forth
         in the consent custody agreement of April 4, 2018. Again[,]
         the language used in the order at issue supports the
         common sense interpretation of the consent order showing
         the intent that contact would come directly from [Father],
         addressed directly to the [C]hildren and by mail.

1925(a) Op. at 4-5.


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        We agree with the trial court. The November order clarified the April

order, and did not modify the award of custody or modify any terms of the

custody order. Rather, under each order Father is permitted to mail letters to

Children and is limited in the topics which may be discussed, and under both

orders Mother cannot interfere with the receipt of letters. Compare Order,

filed Apr. 4, 2018, at ¶ 6 (providing Father shall have “written communication

. . . with each of the minor children,” communication “shall be addressed

directly to the minor children,” communication shall be “limited to the children,

custody matters, and matters related directly to the minor children,” and

Mother “shall not discourage and/or prohibit” reciprocity), with Order, filed

Nov. 14, 2018 (providing “written communication shall be by U.S. Mail,”

“correspondence shall not be delivered by any third party,” Father “shall not

discuss his criminal cases,” and Mother shall not interfere in the delivery

“unless the correspondence contains improper matters”). Therefore, the court

did not err in failing to consider the custody factors or to conduct a best

interest analysis, and did not err in clarifying the order without a hearing.

        C. November 2018 Order Denying Petition for Contempt

        Father also argues that the trial court erred in denying his petition for

contempt. He argues Mother failed to give the letters to Children and sent an

email    to   Father’s   mother   (“Paternal   Grandmother”)    when    Paternal

Grandmother delivered letters to Children from Father. He argues the court

should have held a hearing prior to ruling on the motion.




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       We conclude that the trial court abused its discretion in denying Father’s

petition for contempt without holding a hearing.

       We have held that a trial court abuses its discretion if it dismisses a

petition for contempt without conducting a hearing.3 Chrysczanavicz v.

Chrysczanavicz, 796 A.2d 366, 369 (Pa.Super. 2002); Basham v. Basham,

713 A.2d 673, 674 (Pa.Super. 1998). In Chrysczanavicz, the mother filed a

contempt petition alleging the father had not complied with two court orders

dealing with health insurance coverage for the parties’ child. Chrysczanavicz,

796 A.2d at 367. Because the father had not appeared at two hearings, the

court issued bench warrants for his arrest. Id. at 368. On the day of the

father’s arrest, the court held a hearing. Id. The court left a voicemail

message for the mother on the day of the hearing, but provided no other

notice to the mother. Id. The mother did not attend the hearing. Id. The trial

court discussed the health insurance issue with the father and his counsel. Id.

Based on the unsworn statements of the father and his counsel, and without

allowing the mother an opportunity to respond, the court dismissed the

mother’s contempt petition. Id.

       We noted that, in civil contempt proceedings, “[t]he complaining party

has the burden of proving by a preponderance of the evidence that a party
____________________________________________


3 The order denying Father’s civil contempt petition is an appealable order
because the order that Mother allegedly failed to comply with was a final
consent custody order. Schultz v. Schultz, 70 A.3d 826, 828-29 (Pa.Super.
2013) (concluding “order refusing to find an individual in contempt is
appealable only where the respondent failed to comply with a prior final
order”).

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violated a court order.” Id. at 369 (quoting Williams v. Williams, 681 A.2d

181, 183 (Pa.Super. 1996)) (alternation in original). We concluded that the

court did not provide mother “with sufficient notice so that she could be

present to testify and attempt to carry her burden of proving that [the f]ather

was in contempt of the court orders.” Id.

      In addition, we noted the “five elements deemed essential to a civil

contempt adjudication,” which include: “(1) a rule to show cause why

attachment should issue; (2) an answer and hearing; (3) a rule absolute; (4)

a hearing on the contempt citation; and (5) an adjudication.” Id. (quoting

Cahalin v. Goodman, 421 A.2d 696, 698 (Pa.Super. 1980)). We concluded

these elements not only protect a party who may be found in contempt, but

also “protect the complaining party so that he or she may be heard.” Id.

      We concluded that the mother’s rights “were compromised by the failure

of sufficient notice and by the dismissal of her petition without a hearing” and

that the court abused its discretion when it made a contempt determination

“on a record where no testimony was taken and no evidence entered.” Id.

      Here, Father filed a petition for contempt of court, alleging Mother failed

to comply with the trial court’s April 2018 Order. Mother did not file a

response. Without holding a hearing on the petition, the trial court denied the

petition for contempt. Order of Court, filed Nov. 14, 2018. As in

Chrysczanavicz, the trial court dismissed the contempt petition where there

was no testimony or evidence entered and without permitting Father an

opportunity to meet his burden. The trial court therefore abused its discretion

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by denying the contempt petition without holding a hearing. We will remand

this case to the trial court to conduct such a hearing.

      The dissent argues that a hearing would have been futile because the

April order was not “definite, clear, and specific.” Concurring and Dissenting

Memorandum at 4. We disagree. As to the issue in Father’s Petition for

Contempt, that is, that Mother did not give letters to Children, the April order

was unambiguous. Father had the right to send letters to Children, and Mother

was not to interfere with that right.

      D. Bias

      Father also claims the trial court is biased against him. Father is not

entitled to relief on this claim. Father did not file before the trial court a motion

for recusal. Further, even if he had, “[a]dverse rulings alone do not establish

the requisite bias warranting recusal” of a trial court judge. See Arnold v.

Arnold, 847 A.2d 674, 681 (Pa.Super. 2004). Here, although Father disagrees

with the trial court’s orders, other than generalized complaints of bias, there

is no evidence to support his claim.

      Order affirmed in part, reversed in part. Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judge Stabile joins the Memorandum.

Judge Olson files a Concurring/Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2019




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