J-S28031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    S.J.C.                                     :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    R.D.C.,                                    :
                                               :
                       Appellant               :       No. 33 MDA 2018

               Appeal from the Order Entered December 26, 2017
                 in the Court of Common Pleas of York County
                   Civil Division at No(s): 2017-FC-2064-03


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

MEMORANDUM BY MUSMANNO, J.:                           FILED OCTOBER 12, 2018

        R.D.C. (“Father”) appeals from the Order finding him in contempt of a

prior court Order directing him to return his minor daughter, M.C. (“Child”)

(born in June 2011), from North Carolina, where he resides, to Pennsylvania,

where S.J.C. (“Mother”) resides, and sanctioning Father with 60 days’

incarceration and payment of Mother’s attorneys’ fees in the amount of

$1,723.95.1     We affirm in part and vacate in part, and remand for further

proceedings.

        On October 25, 2017, Mother filed a Complaint for custody, seeking

shared legal custody and primary physical custody of Child in Pennsylvania,
____________________________________________


1We note that “an order of contempt is final and appealable when the order
contains a present finding of contempt and imposes sanctions.” In the
Interest of C.W., 960 A.2d 458, 460 n.1 (Pa. Super. 2008) (citation and
brackets omitted); see also Diamond v. Diamond, 715 A.2d 1190, 1194-
95 (Pa. Super. 1998) (holding that indirect criminal contempt orders entered
prior to the conclusion of the underlying case are appealable under the
collateral order doctrine set forth in Pa.R.A.P. 313).
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with Father to have partial physical custody of Child in North Carolina. On

October 27, 2017, Mother filed a Petition for special relief.      Therein, she

alleged that, in October 2017, Father had taken Child to North Carolina without

Mother’s knowledge, and had refused to return Child to Mother’s care in

Pennsylvania. Mother petitioned the trial court to order Father to return Child

to Pennsylvania pending the outcome of the parties’ custody case. Mother’s

Petition included a Notice of presentment of the matter on November 6, 2017.

On October 31, 2017, Mother filed an Affidavit of Service, stating that on

October 28, 2017, a process server had personally served Father in North

Carolina with, inter alia, Mother’s Petition for special relief and the Notice of

presentment.

      Father did not appear at the hearing on November 6, 2017. At this

hearing, the trial court entered an Order (hereinafter the “Return Order”)

stating, in relevant part, as follows:

             In this matter, we have Mother here, through counsel, for a
      [P]etition for special relief asking for [] [C]hild to be returned to
      the jurisdiction. It appears that Father took [] [C]hild to North
      Carolina and has had [] [C]hild there for approximately one
      month[,] and has not allowed [] [C]hild to go back to Mother or
      see Mother in that one-month time period.

             There is a conciliation conference scheduled for November
      13, 2017 [(hereinafter the “conciliation conference”)].
      Accordingly, we order that Father shall return [] [C]hild to Mother
      immediately so that [] [C]hild can be in the jurisdiction, so that
      Mother can get some make-up time for the month of custody that
      she has missed, and so [that] [C]hild can go back to school … [,]
      until the conciliation conference can be held ….

           In the event that Father does not bring [] [C]hild back
      amicably, Mother may go to North Carolina armed with this Court

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       Order and obtain [] [C]hild[,] to bring [] [C]hild back to York
       County, Pennsylvania. …

Trial Court Return Order, 11/6/17, at 1-2.

       At the conciliation conference on November 13, 2017, both Father and

Mother appeared.2       Two days later, Father filed an Emergency Petition for

special relief. Therein, he alleged that (a) he never received the Notice of

presentment concerning Mother’s Petition for special relief; and (b) he became

aware of the Return Order for the first time at the conciliation conference.

Father also requested an award of sole legal and physical custody of Child to

him, alleging that such an award would be in Child’s best interest in light of

Mother’s alleged mental health issues. On the same date, Father additionally

filed a Motion to vacate the Return Order.

       One week thereafter, Mother filed an Answer to Father’s Emergency

Petition and a Petition for contempt against Father, asking the court to find

him in contempt of court and to order Child immediately returned to Mother

and enrolled in a York County school district.     Mother also requested that

Father be ordered to pay her attorneys’ fees of $1,312.50.

       On November 27, 2017, the trial court entered an interim Order for

custody, pending trial, directing that the parties would share legal custody,

and would share physical custody on an alternating week basis. The court

further directed Father to immediately return Child to York County.




____________________________________________


2 Father did not bring Child back to Pennsylvania for the conciliation
conference.
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       Also on November 27, 2017, the trial court entered an Order in open

court, stating, in relevant part, as follows:

       We want to make it very clear … that we have told the parties and
       counsel that [the Return] Order, except to the extent it is changed
       by … [O]rder resulting from the … conciliation conference …, those
       Orders better be obeyed, because regardless if there are any
       defects in original service, [] [F]ather has appeared at the
       conciliation [conference] …, he has appeared here with counsel,
       and we have warned Father of the dire consequences if [] [C]hild
       does not, at the very least, go back and forth on the week on/week
       off schedule[,] as … Mother apparently has not seen [] [C]hild for
       over two months.

             Therefore, Father is warned that if he is found in contempt,
       particularly in contempt for actions from this date forward, the
       consequences will be most severe.

Trial Court Order, 12/1/17, at 1-3.

       The trial court held a hearing on the parties’ competing Petitions on

December 20, 2017 (hereinafter the “contempt hearing”).3 At the close of the

contempt hearing, the trial court issued an Order (hereinafter the “Contempt

Order”) stating as follows:

       The [c]ourt has before it Father’s Petition to Vacate the [Return]
       Order …, as well as a Petition for Special Relief and/or Petition for
       Contempt by Mother[,] asking that [] Father be held in contempt
       of the [Return] [O]rder[,] as well as the November 2[7], 2017
       [interim] [O]rder.

             We find Father in contempt. We further find that he was
       properly served. And we simply do not believe him. We find no
       credibility in him that he was served with only part of the
       documents.


____________________________________________


3Father was present and testified at the contempt hearing. Father turned
over custody of Child to Mother four days before the hearing.
                                           -4-
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           Therefore, [Father’s] Petition to Vacate is denied.
     Interestingly, it’s of no relevance whether the [Return O]rder
     would be vacated or not, since Father admitted on the stand that
     he got a copy of it and chose to disobey it[,] and the decision that
     was announced at [the] conciliation conference …, and was made
     an [O]rder on November 22, 2017, was done in his presence and
     he chose to disobey that also because he didn’t think Mother’s
     mental health was properly addressed.

             We find that Father’s believing that his own assessment of
     the situation trumps [c]ourt Orders to be opprobrious. Therefore,
     it is the order of this [c]ourt that the [Return O]rder stands. …

           Further, Father is found in contempt of [c]ourt for
     disobeying both the [Return Order,] as well as the conciliation
     conference decision made … into a Court Order on November 22,
     2017.

           We also take judicial notice of the fact that on November 9,
     2017, [the] York County Prothonotary sent a copy of the [Return]
     [O]rder to Father by ordinary mail. And that further, Mother’s
     attorney sent [Father] a copy of the [Return] [O]rder[,] and
     [Father] claims to have not gotten any copies of [it] until after the
     … conciliation conference.

           Therefore, the sanctions for Father’s contempt are as
     follows:

              No. 1, by April 30, 2018, he shall pay to Mother or her
        attorneys the sum of $1,723.95 as an award of attorney’s
        fees.

             No. 2, Father shall serve a sentence of 60 days
        imprisonment in the York County Prison[,] to commence
        on Wednesday, January 3, 2018 at noon ….

             No. 3, while Father is incarcerated, his rights of
        custody with [respect to Child] will be temporarily
        suspended, and Mother will enjoy those weeks per the
        November 22, 2017[] [interim] [O]rder. But[,] when
        [Father] is released from incarceration, if there has not
        been a further Order of Court by that time, then he may
        go back to the week on/week off schedule set forth … [in]
        that November 22, 2017 Order.


                                     -5-
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Contempt Order, 12/26/17, at 1-4.

       Father timely filed a Notice of appeal from the Contempt Order, and

shortly thereafter, a court-ordered Concise Statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).4

       In the meantime, on January 19, 2018, Father filed with this Court a

Motion for bail pending appeal,5 challenging the trial court’s prior denial of the

Motion for bail that he had presented to that court. In response, this Court

remanded Father’s Motion for bail for the trial court judge to state on the

record his reasons for refusing bail.

       On January 29, 2018, the trial court filed a “Statement on Bail.” Notably

to this appeal, the court explained therein that it had denied Father’s Motion

for bail because it had not found Father in indirect criminal contempt, but,

rather, in civil contempt, for his failure to follow a custody Order, such that

bail did not apply. However, the trial court conceded that it had erred in failing

to include a purge condition in the Contempt Order, pursuant to section




____________________________________________


4See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (holding that the
appellant’s failure to comply strictly with Rule 1925(a)(2)(i) (requiring a
Children’s Fast Track appellant to simultaneously file the concise statement
with the notice of appeal) did not warrant waiver of his claims, as there was
no prejudice to any party).

5Therein, Father stated that he was incarcerated at that time, in the York
County Prison, pursuant to the Contempt Order.


                                           -6-
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5323(g)(2) of the Child Custody Act.6 Accordingly, the trial court requested

that this Court remand the matter so that it could correct this error.7

       On remand, by an Order entered on February 6, 2018, the trial court

amended the Contempt Order to include a purge condition (hereinafter “the

amended purge condition”), pursuant to subsection 5323(g)(2). Specifically,

the court directed that if Father made a payment of $1,723.95 (i.e., the

amount of Mother’s attorneys’ fees initially imposed in the Contempt Order)

to Mother or her attorney, he would immediately be released from

incarceration.8

       On appeal, Father presents the following issues for our review:

       I. Whether the lower court committed [an] error of law or abuse
       of discretion in its determination that [Father] was being
       sentenced for civil contempt instead of criminal contempt[,] when
       the court sentenced [Father] to 60 days of confinement in the York
       County Prison without any purge conditions?
____________________________________________


6 Section 5323(g), governing contempt for noncompliance with a custody
order, requires, in relevant part, that “[a]n order committing an individual to
jail under this section shall specify the condition which, when fulfilled, will
result in the release of that individual.” 23 Pa.C.S.A. § 5323(g)(2) (emphasis
added); see also id. § 5323(g)(1)(i), (v) (providing that “[a] party who
willfully fails to comply with any custody order may, as prescribed by general
rule, be adjudged in contempt. Contempt shall be punishable by any one or
more of the following: (i) Imprisonment for a period of not more than six
months[;]” and/or “(v) Counsel fees and costs.”).

7 The trial court likewise made the same concession of error, and request for
remand on this point, in its Pa.R.A.P. 1925(a) Opinion issued on January 31,
2018.

8 It is unclear from the record whether Father paid Mother’s attorneys’ fees in
order to be released from incarceration or whether he served the full 60 days
in the York County Prison.


                                           -7-
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       II. Whether the lower court used the appropriate standard in
       adjudicating [Father] in contempt?

       III. Whether the evidence was sufficient to support a finding of
       contempt beyond a reasonable doubt[,] when the lower court did
       not permit [Father] to submit evidence as to all of the elements
       of contempt?

       IV. Whether the lower court committed [an] error of law or abuse
       of discretion when it failed to consider the “wrongful intent”
       element of contempt?

Father’s Brief at 5 (capitalization omitted).9 As Father’s issues are related, we

will address them simultaneously.

       This Court has explained our standard of review, and the law concerning

contempt, as follows:

       When a party appeals a court’s order holding them in contempt of
       court, our review is very narrow. We are limited to determining
       whether the trial court committed a clear abuse of discretion. This
       Court must place great reliance on the sound discretion of the trial
       judge when reviewing an order of contempt.

               The power to punish for contempt, including the power to
       inflict summary punishment, is a right inherent in the courts and
       is incidental to the grant of judicial power under the Constitution.
       The court may order civil or criminal contempt. The characteristic
       that distinguishes civil from criminal contempt is the ability of the
       contemnor to purge himself of contempt by complying with the
       court’s directive. If he is given an opportunity to purge himself
       before imposition of punishment, the contempt order is civil in
____________________________________________


9 We note that Father’s brief does not comply with Pennsylvania Rule of
Appellate Procedure 2119, which requires that “[t]he argument shall be
divided into as many parts as there are questions to be argued; and shall have
at the head of each part … the particular point treated therein, followed by
such discussion and citation to authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a). Father’s Argument section headings do not correspond to
the four issues he sets forth in his Statement of Questions Presented.
Nevertheless, we will overlook this defect and address the merits of his claims.
                                           -8-
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       nature. If the purpose of the order is to punish despite an
       opportunity to purge, the order is criminal in nature. A court may
       exercise its civil contempt power to enforce compliance with its
       orders for the benefit of the party in whose favor the order runs[,]
       but not to inflict punishment.

Sinaiko v. Sinaiko, 664 A.2d 1005, 1009 (Pa. Super. 1995) (emphasis

added;    citations,   quotation     marks,    emphasis,   and   paragraph   breaks

omitted);10 see also Gunther v. Bolus, 853 A.2d 1014, 1018 (Pa. Super.

2004) (stating that “[i]n civil contempt, the contemnor is able to purge himself

of the contempt and thus holds the key to the jailhouse door; that is, he may

relieve himself of the sanction by complying with the court’s order.” (citation

and quotation marks omitted)).

              The proper classification of a contempt adjudication is
       important because it governs the procedures that must be
       followed. If the adjudication is criminal,[11] then the contemnor is
       entitled to all of the procedural rights and safeguards afforded to
       criminal defendants, including the right to trial by jury. There is
       nothing inherent in the violation of a court order that renders the
       violation itself civil or criminal. Rather, it is the judicial response
       to the violation that determines whether the contempt is civil or
       criminal. We must look to the nature of the sanction imposed in
       order to ascertain the trial court’s “dominant purpose.” In the
       most basic terms, if the dominant purpose is to coerce the
____________________________________________


10 As the statute implicated in this appeal, section 5323(g), does not state
whether it authorizes incarceration for civil or criminal contempt, we must turn
to our case law for guidance.

11 Criminal contempt may be classified as either direct or indirect. “A direct
criminal contempt consists of misconduct of a person in the presence of the
court, or misbehavior so near thereto as to interfere with the immediate
business of the court.” Fenstamaker v. Fenstamaker, 487 A.2d 11, 14 (Pa.
Super. 1985) (citation omitted). “A charge of indirect criminal contempt
consists of a claim that a violation of an order or decree of court occurred
outside the presence of the court.” Commonwealth v. Ashton, 824 A.2d
1198, 1203 (Pa. Super. 2003) (citation omitted).
                                           -9-
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      contemnor to comply with a court order, it is civil; if the dominant
      purpose is to punish the contemnor for a past violation, it is
      criminal.

Gunther, 853 A.2d at 1016 (footnote added; internal citations omitted); see

also Diamond, 715 A.2d at 1195 (stating that “a determination of criminal

contempt is a criminal conviction conferring on the contemnor all the negative

characteristics of being a convicted criminal. The right of a citizen to be free

of the stigma of an unfounded criminal conviction is a hallmark of American

jurisprudence.”).

      Father challenges the trial court’s finding him in contempt, and argues

that the court (a) incorrectly determined that it had found him in civil, rather

than criminal contempt, where the contempt was penal in nature; (b)

unlawfully ordered him incarcerated without first giving him an opportunity to

purge himself pursuant to 23 Pa.C.S.A. § 5323(g)(2); (c) applied an incorrect,

civil standard of proof (instead of a criminal standard of “beyond a reasonable

doubt”); and (d) improperly barred him from introducing evidence to prove

his innocence and lack of wrongful intent.      See Father’s Brief at 7, 9-13.

Father points out that he had returned Child to Pennsylvania four days before

the contempt hearing.      Id. at 10.    Father contends that, therefore, any

incarceration imposed as a sanction was to punish him, via criminal contempt,

for his failure to comply with the Return Order, rather than to coerce his

compliance with a specified action through the civil contempt process. Id.

Father additionally argues that the trial court erred in failing to afford him all

of the essential procedural safeguards attendant to a proceeding of indirect

                                     - 10 -
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criminal contempt.      Id.    Finally, Father urges that mere disobedience of a

court order is not enough to support a criminal contempt finding, and that

there is a requirement that any disobedience of a court order must be

accompanied by “wrongful intent.” Id. at 8, 12.

       We conclude that, contrary to the trial court’s classification, the

Contempt Order was predominantly criminal, not civil, in nature. Where the

trial court immediately sentenced Father to 60 days’ incarceration for his

failure to comply with the Return Order, with no opportunity to purge prior to

the commencement of his confinement,12 its dominant purpose was to punish

Father. See Gunther, 853 A.2d at 1016, 1018 (stating, respectively, that (a)

“if the dominant purpose [of a contempt order] is to punish the contemnor for

a past violation, it is criminal”; (b) “[i]n criminal contempt, the contemnor is

punished with a fixed term of imprisonment or fine that he is powerless to

escape by compliance”; and (c) “if the adjudication is criminal, then the

contemnor is entitled to all of the procedural rights and safeguards afforded




____________________________________________


12 The Contempt Order, which undisputedly did not originally contain a purge
condition pursuant to 23 Pa.C.S.A. § 5323(g)(2), ordered Father’s
incarceration for 60 days to begin on January 3, 2018. The trial court did not
add the amended purge condition until February 6, 2018.
                                          - 11 -
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to criminal defendants”13 (citation and quotation marks omitted)).

       Moreover, though the trial court complied with this Court’s directive and

added the amended purge condition, i.e., Father’s payment of Mother’s

attorneys’ fees, the court imposed such condition to allow for Father’s release

from incarceration. The amended purge condition was therefore not a proper

“purge” condition, as it was not an opportunity for Father to purge himself

before imposition and commencement of incarceration. See, e.g., Gunther,

853 A.2d at 1016 (observing that “[i]t is [] common[,] in civil contempt[,] for

a court to impose a conditional prison sentence, giving the contemnor an

opportunity to purge the contempt and avoid the sentence by … paying

counsel fees[] … within a certain time period.” (emphasis added)).

       Accordingly, the trial court erred when it imposed upon father a criminal

contempt sanction of 60 days’ incarceration, where the court had failed to (1)

impose a purge condition under subsection 5323(g)(2) until after Father’s

incarceration had commenced; and (2) afford Father any of the procedural

safeguards he was due in a criminal contempt proceeding. See Gunther,

supra; Diamond, supra; see also In the Interest of E.O., 2018 PA Super

247, at *7 (Pa. Super. 2018) (vacating a contempt order where the trial court


____________________________________________


13 In Diamond, supra, this Court explained that the essential procedural
safeguards that are attendant to a criminal contempt proceeding include: the
right to bail; the right to be notified of the specific accusations against the
contemnor; a reasonable time to prepare a defense; the assistance of counsel;
the right, upon demand, to a jury trial; and that guilt must be proven beyond
a reasonable doubt. Diamond, 715 A.2d at 1196 n.10. Here, Father was not
afforded any of these safeguards.
                                          - 12 -
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held father in criminal contempt for violating a visitation order in an underlying

dependency proceeding, and ordered him to serve seven days in jail, but failed

to provide father with any of the required procedural safeguards attached to

indirect criminal contempt matters, and only a fine was authorized by the

applicable statute, 42 Pa.C.S.A. § 4133).

      However, upon consideration of the record and the contempt hearing

transcript, we affirm the trial court’s finding that Father was in contempt of

the Return Order generally, which was amply within its discretion.           See

Gunther, 853 A.2d at 1016, 1020 (where the trial court held the contemnor

in contempt of a prior court order, improperly imposed a criminal sanction

without the necessary due process, and incorrectly classified the sanction as

being civil in nature, this Court vacated the portion of the contempt order

imposing sanctions, but “affirm[ed] the trial court’s finding of contempt”); see

also Sinaiko, supra (emphasizing that this Court must place great reliance

on the sound discretion of the trial judge when reviewing an order of

contempt).    We thus vacate the portion of the Contempt Order imposing

sanctions, see Gunther, 853 A.2d at 1020, and remand the matter to the




                                      - 13 -
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trial court to afford it the opportunity to impose a proper sanction14 in

accordance with this Memorandum. See id.

       Contempt Order affirmed in part and vacated in part. Case remanded

with instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2018




____________________________________________


14  For instance, the trial court could exercise its discretion to again order
Father to pay Mother’s attorneys’ fees, pursuant to 23 Pa.C.S.A.
§ 5323(g)(1)(v). See also Sutch v. Roxborough Mem’l Hosp., 142 A.3d
38, 68-69 (Pa. Super. 2016) (stating that “[a] court may require the
contemnor to compensate the opposing party for losses incurred as a result
of the violation or reimburse the party’s attorneys’ fees and costs.
Nevertheless, an award of counsel fees is intended to reimburse an innocent
litigant for the expenses the conduct of an opponent makes necessary, such
as the cost of the contempt hearing, so it can be … compensatory[,] but it
cannot be punitive.” (citations, quotation marks, and paragraph break
omitted)).
                                          - 14 -
