J-A18026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    H.P.T                                      :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    R.A.R.                                     :
                                               :
                       Appellant               :     No. 226 WDA 2020

                Appeal from the Order Entered February 5, 2020
       In the Court of Common Pleas of Allegheny County Family Court at
                            No(s): FD08-7200-001


BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                                 FILED AUGUST 18, 2020

        Appellant, R.A.R. (“Mother”) appeals from the February 5, 2020 Order

that found Mother in contempt of the existing custody Order. Upon review,

we affirm.

        The Honorable Alan Hertzberg, who has presided over this case since its

inception, has provided a thorough and accurate procedural and factual

history, which we adopt for purposes of this appeal.             Trial Ct. Op., filed

3/19/20, at 1-9. Relevant to this appeal, Mother and H.P.T. (“Father”), who

are parents to 12-year-old S.T. (“Child”), have been involved in a contentious

custody dispute for the last 10 years.             Mother, a dentist, and Father, a

surgeon, married in October 2005 and separated multiple times until their

final separation in January 2008 when Child was less than a year old.1 Father

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1   The court entered the parties’ final Divorce Decree on September 8, 2010.
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filed a Complaint in Custody and the trial court ordered both parties to submit

to mental health evaluations. The examining psychiatrist diagnosed Mother

with general anxiety disorder, obsessive-compulsive disorder, and narcissistic

personality traits, and concluded that Father did not have a psychiatric

diagnosis.

       After a six-day trial, the trial court awarded the parents shared legal and

physical custody of Child. The October 28, 2009 Order2 (“Custody Order”)

directed parties to follow a “5-5-2-2” schedule, where in repetitive two-week

cycles, Mother has physical custody of Child for 5 days, Father has physical

custody of Child for 5 days, and then Mother and Father both have physical

custody of Child for 2 days, respectively. The trial court also ordered Mother

to continue medication and psychotherapy, as recommended by her

physicians. See Order, 10/28/2009.

       Following a hearing in December 2013 on Petitions for Contempt filed

by both parties, the trial court modified the Custody Order to include a

requirement that Mother “be examined by a psychiatrist by March 31, 2014

and by March 31 of each year thereafter with written proof promptly provided

to Father after each such examination.” Order, 12/23/13.

       Over the next five years, the parties required court intervention on

various custody related issues, but continued to share physical custody of

Child on the 5-5-2-2 schedule.            During this time, Father married J.L.T.
____________________________________________


2The court dated the Order October 27, 2009, but did not docket the Order
until October 28, 2009.

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(“Stepmother”) and, in September 2014, Father had a second child with

Stepmother. Mother also remarried, but she is currently divorced.

      In August 2018, after a two-day hearing, the trial court found Mother in

contempt for withholding custody from Father after then-11-year-old Child

told Mother he was afraid of Father when Father attempted to discipline him.

The trial court heard evidence, inter alia, of a recorded telephone conversation

between Father and Child in which Mother was whispering instructions to

Child, and ultimately found Child’s testimony to be coached by Mother and not

credible.   The trial court ordered Mother to pay Father’s counsel fees and

provide Father with 21 days of make-up physical custody.           See Order,

8/28/18.

      By January 2019, after Father and Child experienced a marked

improvement in their relationship, they ceased attending ongoing family

therapy by agreement of Father, Child, and the therapist.

      In August 2019, Mother again withheld custody from Father after Child

told Mother he was afraid of Father when Father attempted to discipline him.

The facts of the triggering incident are largely undisputed. Specifically, late

in the evening on August 18, 2019, Child was in his bedroom laying down on

the top bunkbed in his underwear, which he usually slept in. Father entered

Child’s bedroom and the two got into an argument because Child lied to Father

about overdue library books and resulting fines. Stepmother entered the room

as the argument escalated; Father informed Child that Child would have to

pay for the fines and Child told Father to “shut up.” Father, who had never

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used physical discipline on Child, began to climb the bunkbed ladder and told

Child that he was going to kill Child. Stepmother told Father to stop and held

him back while Child jumped from bed and ran next door to the neighbor’s

house. While at the neighbor’s home, Child used the neighbor’s telephone to

make a call. Stepmother and Father immediately went to neighbor’s house to

talk to Child, and Child returned home voluntarily.

      The next day after work, Father and Child made up; Father hugged and

kissed Child and told Child “I love you,” and Child apologized to Father. Father

disciplined Child by taking away his electronics. Father, Stepmom, Child, and

Child’s little brother all attended a baseball game together that evening.

      The next morning, Child attended a scheduled dentist appointment

where Father, Stepmother, and Mother were all present. The next two nights,

Father, Child, and Child’s little brother had a “camp-out” in the living room

while Stepmother was traveling for work.

      Child returned to Mother’s custody four days after the argument, on

August 22, 2019.    That evening, during Child’s scheduled phone call with

Father, Child told Father that he was scared of Father and did not want to

return to Father’s home. Child was supposed to return to Father’s care the

next evening. Mother withheld custody.




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       On August 26, 2019, Father served Mother with an Emergency Petition

for Enforcement, Contempt, Counsel Fees, and Other Appropriate Sanctions.3

On August 29, 2019, Mother served Father with a Motion to Suspend Custody

and for Contempt.4

       On September 17, 2019, after meeting with counsel, the trial court

ordered Father and Child to attend a counseling session within 10 days and

resume the existing custody schedule within 20 days.

       On September 24, 2019, Mother filed a Petition for Modification of

Custody, requesting sole legal custody and primary physical custody of Child.

Mother discontinued the Petition on November 22, 2019.

       On December 4, 2019, the trial court held an evidentiary hearing on

Father’s Petition for Contempt and Mother’s Motion to Suspend Custody, but

parties could not complete all of the testimony. On December 5, 2019, the

trial court once again ordered Father and Child to attend a counseling session

within 10 days and resume the existing custody schedule within 20 days. Child

resumed therapy, and spent a weekend with Father around the Christmas

holiday, but the regular custody schedule did not resume.


____________________________________________


3Father’s Emergency Petition is dated August 26, 2019, and the trial court
avers that it was served on that date; however, the court did not docket the
Emergency Petition until September 19, 2019. See Trial Ct. Op. at 8.

4 Mother’s Motion is dated August 29, 2019, and both the trial court and
Mother aver that it was served on that date; however, the court did not docket
the Emergency Petition until September 19, 2019. See Trial Ct. Op. at 8;
Mother’s Br. at 24.

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      On February 3, 2020, the trial court heard additional testimony on

Father’s Petition and Mother’s Motion.     During the hearing, the trial court

heard testimony from Father; Mother; Child; Stepmother; Shirley Mitchell, a

family therapist (“Therapist”); M.D., Child’s nanny (“Nanny”); and M.P., the

neighbor.

      On February 4, 2020, the trial court found Mother in contempt of both

the Custody Order and the December 20, 2013 Order that directed Mother to

obtain a psychiatric evaluation every year and provide written proof to Father.

The trial court ordered Father and Child to begin reunification counseling

forthwith. The trial court ordered Mother, inter alia, to follow the Custody

Order schedule to begin within 60 days, provide Father with 60 days of make-

up custody, pay $4,000 of Father’s counsel fees, and provide Father proof of

Mother’s annual psychiatric evaluations from 2014-2020 within 30 days.

      Mother timely appealed. Both Mother and the trial court complied with

Pa.R.A.P. 1925.

      Mother raises the following issues for our review:

      1. Whether the trial court abused its discretion and committed an
         error of law when it held Mother in contempt for withholding
         custody after Father threatened to kill [] Child and [T]herapist
         recommended supervised custody for Father.

      2. Whether the trial court abused its discretion and erred as a
         matter of law by awarding Father make-up custody time and
         ordering Mother to pay Father’s counsel fees.

      3. Whether the trial court abused its discretion and committed an
         error of law when it held Mother in contempt of the Custody
         Order while still suspending Father’s custody for two (2)



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         months and ordering reunification counseling for Father and []
         Child.

      4. Whether the trial court abused its discretion and committed an
         error of law by setting an arbitrary date for Father to resume
         custody without any reference to success of the reunification
         therapy, therapeutic goals, or what needed to be accomplished
         before custody resumed.

      5. Whether the trial court abused its discretion and erred as a
         matter of law by holding Mother in contempt of the December
         20, 2013 Order where Mother provided proof of completion of
         psychiatric examinations.

Mother’s Br. at 3-4 (reordered for ease of disposition; some capitalization

omitted).

      It is well settled that “each court is the exclusive judge of contempts

against its process.”    G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013)

(citation omitted). We review a trial court’s finding on a contempt petition for

a clear abuse of discretion, and must place great reliance on the sound

discretion of the trial judge. P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa. Super.

2012). A trial court abuses its discretion if it “overrides or misapplies the law

or exercises judgment which is manifestly unreasonable, or reaches a

conclusion that is the result of partiality, prejudice, bias or ill will as shown by

the evidence of record[.]” N.A.M. v. M.P.W., 168 A.3d 256, 261 (Pa. Super.

2017) (citation omitted). Importantly, “[t]his Court defers to the credibility

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

before it, as that court has had the opportunity to observe their demeanor.”

Harcar v. Harcar, 982 A.2d 1230, 1236 (Pa. Super. 2009) (citations

omitted).



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      The Custody Act 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 civil contempt cases, the

complaining party has the burden of proving non-compliance with the court

order by a preponderance of the evidence.” Stahl v. Redcay, 897 A.2d 478,

489 (Pa. Super. 2006) (citation omitted). To sustain a contempt finding, the

complainant must prove: “(1) that the contemnor had notice of the specific

order or decree which [s]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. (citation omitted).

      In her first two issues, Mother avers that Father did not present

adequate evidence to hold her in contempt of the Custody Order and,

therefore, the trial court erred when it ordered Mother to provide Father with

make-up custody time and pay Father’s counsel fees. Mother’s Br. at 23, 60.

Mother concedes that she failed to relinquish custody to Father as required by

the Custody Order. Id. at 23. However, she argues that she did not act with

the requisite wrongful intent because once Child told her about the incident

with Father, she could not “in good conscience return [] Child to Father’s care

without the incident being addressed.” Id. Mother contends that the trial

court abused its discretion when it disregarded “nearly uncontradicted”

evidence that Child was genuinely afraid of Father, including evidence that

Therapist recommended supervised visitation, and that the trial court failed to

consider that Mother acted prudently in seeking court and therapeutic

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intervention. Id. at 20. Finally, Mother argues that the trial court abused its

discretion when it considered testimony and evidence from the initial custody

hearing in 2009 and a contempt proceeding in 2018 to evaluate Mother’s

wrongful intent in 2019. Id. at 25. Mother’s arguments fail.

      Instantly, the trial court did not find Mother and Child’s testimony to be

credible that Child was fearful of Father. Trial Ct. Op. at 8, 10. Instead, the

trial court credited the testimony of both Father and Nanny that Mother

influences Child to say things, and the testimony of Father, Stepmother, and

Nanny that Child did not exhibit fear of Father in the days after the incident.

Trial Ct. Op. at 9-11.

      The trial court opined:

      [T]here was abundant evidence, both direct and circumstantial,
      that Mother’s noncompliance was volitional and that she acted
      with wrongful intent. When Father called [Child] on August 22,
      2019 and [Child] told Father he did not want to go to Father’s
      home, Father credibly testified he heard Mother whispering to
      [Child]. During the August[] 2018 contempt hearing, I personally
      listened to Mother doing this same thing in the early April 2018
      tape-recorded conversation. [Nanny], who has cared for [Child]
      for ten years, credibly testified that [Child] lied when he said he
      was afraid of Father due to “a lot of influence from his mom to say
      these things[.]”

      This is volitional behavior by Mother with the wrongful intent to
      obtain Father’s custody time. On August 18, 2019, when [Child]
      jumped from the bed and went to the neighbor’s home, the
      “violence” he avoided, being smacked or spanked, was not




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       unreasonable.[5] Furthermore, [Child] showed no fear of Father
       afterwards.

Trial Ct. Op. at 9-10.

       Moreover, the record belies Mother’s claim that Therapist recommended

to the court that Father and Child have supervised visitation.        Therapist

testified that she discussed supervised visitation with Child as an option to

make him feel comfortable, but clarified that, in her opinion, supervised

visitation was not necessary, she was not concerned about overnight

visitation, and that it was in Child’s best interest to continue to have contact

with Father. N.T., 2/3/20, at 69-71.

       The evidence of record supports the trial court’s findings. We decline to

usurp the credibility determinations of the trial court or reweigh the evidence.

Accordingly, we find no abuse of discretion in the trial court’s finding of

contempt and order for Mother to provide Father with make-up custody time

and pay Father’s counsel costs.

       Even if the trial court had found Child and Mother’s testimony credible

that Child was fearful of Father, Mother’s alleged fear for her Child’s safety

was not a valid reason for Mother to withhold custody without court

intervention.     This Court rejected a similar argument in Luminella v.

Marcocci, 814 A.2d 711 (Pa. Super. 2002), when a mother, who withheld

____________________________________________


5 The trial court also emphasizes that Father subsequently agreed with
Therapist to remove Child’s electronics to discipline him instead of physical
force, and the trial court explained, “Whether reasonable or not, I do not
endorse or encourage [Father] or any parent to use physical force to discipline
a child.” Trial Ct. Op. at 10 n.5.

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custody from her children’s father in violation of an existing custody order,

argued that she should not be held in contempt because she feared for her

children’s safety. Id. at 719. In rejecting the mother’s argument, this Court

concluded, “[t]o accept [this] argument is to accept anarchy.” Id. This Court

was persuaded in part by the fact that the mother did not pursue modifying

the existing custody order until the father filed a contempt petition, and held

that a parent “is not permitted to ignore the order and unilaterally institute

measures she feels appropriate instead of the order.” Id.

      In its Opinion, the trial court also highlighted that, like the parent in

Luminella, Mother withheld custody from Father and did not attempt to

modify the custody order until after Father filed a Petition for Contempt,

lending more support to the trial court’s finding of contempt. The trial court

concluded that Mother may not “unilaterally institute measures she feels

appropriate instead of the [O]rder.” Trial Ct. Op. at 11 (quoting Luminella,

814 A.2d at 719). We agree.

      Finally, Mother contends that the trial court erred when it considered

testimony and evidence regarding Mother’s psychiatric diagnosis from the

initial custody proceeding in 2009, and the recorded evidence of Mother

whispering in the background of a phone conversation between Child and

Father that Father had presented during the previous 2018 contempt

proceeding. Mother avers that the trial court abused its discretion when it

used “facts not of record” to determine whether Mother exhibit wrongful intent

in her most recent violation of the Custody Order. Id at 25 (citing Eck v. Eck,

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475 A.2d 825, 827 (Pa. Super. 1984), and In re Custody of Frank, 423 A.2d

1229, 1237 (Pa. Super. 1980)). We find no abuse of discretion.

      This Court has held that a parent’s past conduct is an appropriate

consideration when it has an ongoing negative effect on a child. Vicki N. v.

Josephine N., 649 A.2d 709, 712 (Pa. Super. 1994). “It would be patently

ridiculous to say . . . that a court must blind itself to all that a parent has done

prior to the custody hearing.       We do not live our lives in distinct and

unconnected periods of time, with the past importing nothing for the present,

nor the present for the future.” Snarski v. Krincek, 538 A.2d 1348, 1360

(Pa. Super. 1988).

      As discussed above, the credible testimony of Father, Stepmother, and

Nanny that Father presented during the instant 2019-2020 contempt

hearings, standing alone, was sufficient to sustain a finding of contempt.

Moreover, contrary to Mother’s assertion, the past evidence that Mother

challenges is part of the record as a whole. Based on the above case law, we

conclude the trial court properly exercised its discretion in considering the past

conduct.

      In her third issue, Mother avers that the trial court abused its discretion

when it held Mother in contempt of the Custody Order for withholding custody,

and then concluded that an immediate return to Father’s custody would not

be in Child’s best interest. Mother’s Br. at 50. Mother argues that the trial

court’s 60-day suspension of custody and the requirement that reunification

counseling take place demonstrates that she was acting in Child’s best interest

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when she withheld custody in violation of the Custody Order and should not

be held in contempt. Id.

      Mother mischaracterizes the trial court’s disposition. She assumes that

Father’s actions precipitated the trial court’s Order for reunification counseling

prior to Child returning to Father’s physical custody. On the contrary, as the

trial court explained, “it was Mother’s contemptuous behavior that created the

need for reunification therapy. Thus, there is no inconsistency in [the court’s]

findings, no error and no abuse of discretion.” Trial Ct. Op. at 12. We agree

and find no abuse of discretion.

      In her next issue, Mother asserts that the trial court abused its discretion

when it set an “arbitrary” date for Father to resume custody without any

requirement that reunification counseling was successful or that Father and

Child achieve therapeutic goals prior to reunification. Mother’s Br. at 52.

      Mother fails to cite any controlling legal authority to support her

argument that the trial court should have based its custody disposition on a

therapeutic goal or recommendation. Moreover, the trial court did not pick an

“arbitrary” date for reunification; rather, the court based its timeline on (1)

Father’s history of successfully resuming custody of Child within 10 to 20 days

after a counselling session; and (2) the fact that Father and Child might need

more time to facilitate a change in family counselors. See Trial Ct. Op. at 13.

Accordingly, this issue lacks merit.

      Finally, Mother argues that the trial court abused its discretion when it

found her in contempt of the December 23, 2013 Order which required her to

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submit to annual psychiatric examinations and provide written proof to Father.

Mother’s Br. at 58.     Mother first contends that Father’s testimony at trial

indicated that Mother complied in 2013 or 2014, and 2018, and, therefore,

the trial court should not have held Mother in contempt. Id. at 58-59. Mother

then argues, in contradiction, that Father’s testimony is not credible because

it is based on “vague recollection” and “contradicts” the allegation in his

Emergency Petition that Mother had provided no proof of compliance.          Id.

Mother presents no logical argument to address her abuse of discretion claim.

Moreover, the trial court found Father’s testimony—that Mother failed to

provide him with written proof that she submitted to a psychiatric evaluation

in 2014, 2015, 2016, 2017, and 2019—to be credible. Trial Ct. Op. at 13-14

(citing N.T. 12/3/19 at 37-38). We decline to usurp the trial court’s credibility

determinations. We, therefore, conclude this issue merits no relief.

      In conclusion, the trial court did not abuse its discretion when it found

Mother in contempt of the Custody Order and the December 23, 2013 Order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2020




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