J-S40015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    S.S.,                                               IN THE SUPERIOR COURT
                                                           OF PENNSYLVANIA
                               Appellant

                          v.

    A.B.,

                               Appellee                    No. 423 WDA 2019


                    Appeal from the Order Entered February 20, 2019
                 In the Court of Common Pleas of Westmoreland County
                          Civil Division at No(s): 96 OF 2014-D

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED AUGUST 30, 2019

            S.S. (Father) appeals pro se from the order entered on February 20,

2019, wherein the trial court dismissed Father’s contempt petition directed at

A.B. (Mother), finding that Mother was not in contempt of a prior order of

court that concerned the custody of the parties’ child, born in September of

2011. After review, we affirm.

            Father raises the following issue for our review:

            Was the [l]ower [c]ourt in error when it state[d] that [Mother] did
            not violate the [c]ourt’s [o]rder by moving without notice when
            the record and testimony clearly states that she did, and in doing
            so, cut off all forms of communications between [Father] and his
            family with his child?




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S40015-19


Father’s brief at 4. In conjunction with his stated issue, Father argues that

the court incorrectly determined that Mother’s move within the same

apartment complex was not a relocation as defined in 23 Pa.C.S. § 5322.

Father further asserts that the court erroneously stripped him of his custody

rights without notice and a modification hearing, thus, eliminating any contact

between him and his child to which he is entitled. Father lastly argues that

the court erred by not granting his request to allow paternal grandmother to

be given intervenor status in the case.

      In reviewing an appeal from an order issued in response to a contempt

petition, we note that the purpose of civil contempt is remedial, and sanctions

are used to coerce the respondent into compliance with a valid court order.

See In re Contempt of Cullen, 849 A.2d 1207, 1210 (Pa. Super. 2004).

            On appeal from an order holding a party in contempt of
      court, our scope of review is very narrow, and we place great
      reliance on the court’s discretion. Garr v. Peters, 773 A.2d 183,
      189 (Pa. Super. 2001). “The court abuses its discretion if it
      misapplies the law or exercises its discretion in a manner lacking
      reason.” Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa. Super.
      2009). “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 falling into disrepute.” Habian v. Habian, 73 A.3d 630, 637
      (Pa. Super. 2013). Absent an error of law or an abuse of
      discretion, we will not disrupt a finding of civil contempt if the
      record supports the court’s findings. Mrozek v. James, 780 A.2d
      670, 673 (Pa. Super. 2001).

            “In proceedings for civil contempt of court, the general rule
      is that the burden of proof rests with the complaining party to
      demonstrate that the defendant is in noncompliance with a court
      order.” MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa.
      Super. 2012). “To sustain a finding of civil contempt, the


                                     -2-
J-S40015-19


      complainant must prove, by a preponderance of the evidence,
      that: (1) the contemnor had notice of the specific order or decree
      which he is alleged to have disobeyed; (2) the act constituting the
      contemnor’s violation was volitional; and (3) the contemnor acted
      with wrongful intent.” Id. Nevertheless, “a mere showing of
      noncompliance with a court order, or even misconduct, is never
      sufficient alone to prove civil contempt.” Habjan, supra at 637.

Thomas v. Thomas, 194 A.3d 220, 225-26 (Pa. Super. 2018).

      Taking the above recitation of the law regarding contempt into

consideration, and following our review of the record, the briefs of the parties,

and the thorough analysis provided by the Honorable Scott O. Mears, Jr., of

the Court of Common Pleas of Westmoreland County, we conclude that Judge

Mears properly addressed the issue presented and the arguments set forth in

Father’s brief in support of that issue. Accordingly, we adopt Judge Mears’

opinion as our own for purposes of further appellate review and affirm the

February 20, 2019 order on the basis espoused in Judge Mears’ opinion.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2019




                                      -3-
                                                                                               Circulated 08/23/2019 01:41 PM




                IN THE COURT OF CO:MMON PLEAS OF WESTMORELAND COUNTY, PA
                                                 CIVIL ACTION - CUSTODY

! S.S.,               .   Plaintiff,
                                                         )
                                                         )
                                                         )
                vs.                                      )        423 WDA 2019
                                                         )
    . A.B.,                                              )
                          Defendant.                     )


                             Opinion in Support of Order Pursuant to Pa. R.A.P. 1925

    : J. Mears                                                                                       May 10, 2019

                                                         History
I'
I
                On January 17, 2014, S.S. (hereinafter "Father") filed a Complaint in Custody                      in

    l Westmoreland County, seeking custody of bis minor child, St. S. (born 9/21/11). On February
    . 27,. 2014, a custody conciliation conference took place.               A.B. (hereinafter "Mother'') was
         physically present, and Father, who was incarcerated at SCI - Pine Grove, in Indiana,
    : Pennsylvania., took part by telephone. The parties came to an agreement, where Mother was to
         have sole legal and primary physical custody. It was agreed that Mother would consent to Father
f        having unsupervised partial physical custody once he was released from prison, and successfully
I                                                                          .
         completed reconciliation therapy and _parenting __ classes. A consent order setting forth those
    ;provisions was entered on that date. Order of Ct., Feb. 27, 2014 .
                                       ..   ..
             On July 22, 2014, Father filed- a Petition for Modification of Custody Order. A
    )conciliation conference was scheduled on September 18, 2014. Again, Mother was personally

    .present, and Father took part by telephone. The Honorable Christian F. Scherer issued an order
    .keeping the major custody provisions set forth in the February 27, 2014 consent order in place.1                   ·

     .He also added several miscellaneous provisions including a provision indicating that "[n]o party
     '
     ishall relocate a minor child unless every individual who has custody rights to the child consents
     '
    Ito the prop sed relocation OR the Court approves the proposed relocation." Order of Ct. 2,
                �
    1Sept. 19, 2014. It was noted that if a relocation were to occur, the relocating party was to serve

lthe notice required in 23 Pa.C.S.A. Section 5337 upon the non-relocating party. Id.

 I
j This included the provision that Father not be granted custodial rights except upon his release from prison.
I
j                                                       Page 1 of 8
r
l




                       Father did not request a custody trial following the entry of that order. However, on

    ·: February 9, 2015, Father filed another modification petition. A conciliation conference was
    '. scheduled to take place on March 3, 2015. Father did not appear, and his modification petition
        I                                            .
        I was       dismissed. The court issued an order on 'March 9, 2015, indicating that the provisions of the
                September 19, 2014 were to remain in full force and effect. Order of Ct. Mar. 9, 2015. Nothing

    . further took place on this case until 2018 .
    '                  A review of the docket would indicate that ·an "Amendment to Custody Complaint" was
                filed at the Prothonotary's Office by Father, on September 20, 2018. In said pleading, Father
                requested that the "Custody Complaint" be amended so that L.M. (hereinafter "Paternal
    .Grandmother'') would "be allowed to enter this Complaint as a [sic.] Intervenor due to having a
        l                                                   .

            :personal stake in it as the child's Grandmother." Pl.'s Am. to Custody Compl.,
                                                                                       .
                                                                                            Sept. 20, 2018.
        I

            I Father filed a "Proof of Service" indicating that this document was served on the Westmoreland
            i
            .County Clerk of Courts but no other entities. This court was unaware that this document had

        '
        lever been filed before reviewing the docket to respond to Father's appeal.
                       On October 11, 2018, Father filed and served on the court a "Petition for Civil Contempt
        .for Disobedience of Custody Order." In it, he claimed that "[tjhe defendant, Abbey Boring has
            I

        ·:violated the Court Order by relocating the said minor without consent.                         The defendant has

    I tei:mmated all           communication, to include, phone, mail, visits, and visits with the rest of the
                                                                                    .
    I

    · plaintiff's family. Toe defendant has violated Rule 1915.17." Pl.tsPet. for Civil Contempt, Oct.
                11, 2018. .,
                       On October 10, 2018, pursuant to Westmoreland County Rule of Civil Procedure
                Wl915.12,2 this court scheduled a contempt conciliation conference and permitted Father to

              participate by telephone.
            '
            !         Toe contempt conciliation conference took place on November 19, 2018. Mother was
            .present in person. Father was present by telephone. No testimony was taken at this proceeding.
            I


            :However, Father represented that he remained incarcerated. Mother represented that while she
            had moved with the minor child since the issuance of the September 19, 2014 custody order, she
            had merely moved from one unit at St. Clair Manor to ·another unit. Despite the fact that no
            I




                2
        .  The rule sets forth the following: "upon filing of any motion or petition alleging violation of a custody or partial
         custody order, and seeking enforcement of the order, whether or not sanctions are requested, the Court shall direct
        ,the parties to appear before the Court for a 15 minute conference to conciliate the disagreement. All parties and
· their counsel shall appear for this conference." Westmoreland County R.C.P. Wl915.12.
                                                                Page 2 of 8

                                                                ?7
!I




      testimony was taken, the court found that this move did not constitute a "relocation" as defined
 ; in 23 Pa.C.S.A. Section 5322. Furthermore, the court found that since Mother was not required
 '
 j to foster any communication between the child and his father (especially before Father was
 j released from prison-and completed counseling and classes), Mother could not be in contempt
 i for terminating communication.

             Father subsequently filed a Notice of Appeal, and, on December 21, 2018, the Court
      scheduled an evidentiary hearing on the Petition for Contempt.   In the scheduling order, the court
. indicated that this was done after "reconsidering its decision on November 19, 2018 to dismiss
      Father's Petition for Civil Contempt for Disobedience of Custody Order and deciding that an
      evidentiary hearing is arguably appropriate given the fact that there was no testimony under oath
      at the conciliation conference of November 19, 2018 that Mother has not relocated the minor·
      child." Order of Ct., Dec. 21, 2018.
             The evidentiary hearing took place on February 19, 2019.             The parties testified
      consistently 'With the representations· they made at the November 19, 2018 conciliation
. conference. At the February 19, 2019 bearing, Father testified as follows:


                    Q:      And sir, where are you residing currently?
                    A:      SCI Camp Hill.
                    Q:      So you're incarcerated?
                    A:      Yes, sir.



                    Q:      You were sentenced for something?
                    A:    . Yeah, it was 7 to 15.
                    Q:      For what?
                    A:      Arson.
                    Q:      And when did you start your sentence?
                    A:      2016.
                    Q:      Okay. Right now, as things stand, it looks like you
                            probably wouldn't be released until 2023, but if your
                            appeal is successful, you could be released much earlier, is
                            that fair?
                    A:      Yes, sir.
                    Q:      Okay. You understand you don't have any custodial rights
                            until you're released from incarceration.        Do you
                            understand that?
                    A:      Yes, sir.

 ''
 l:                                              Page 3 of 8

                                                   28
 l Tr. Evid. Hr'g. 7:6 - 8:11, Feb. 19, 2019.
 '




  i.      Father claimed in his petition that Mother relocated with the minor child in violation of
· 1 Pennsylvania Rule of Civil Procedure 1915.17. Pl.;s P�t. for Civil Contempt, Oct. 11, 2018.


 l
 ·,
              Mother's uncontested testimony was as follows:


     i
     1
                 ..             Q:      Now, in 19 - I'm sorry. In 2014,·· when the order was
1
:




     I                                  issued, where were you residing?
     i!                         A:      150 Love Avenue in Seward, PA.
     \                          Q:      Is that a housing plan?
                                A:     -Yes, ma'am, it is.
                                Q:      And what's that housing plan called?
                                A:      St. Clair Manor.
                                Q:      Now, since that time, have you moved from that specific
                                        apartment?
     I
                                A:      Yes. ·
     i
                                Q:      And where did you move to, not the address?
     II(
     :,                         A:      Another apartment in the same complex.
                                Q:      And how far away from your original apartment is that new
                                        apartment?
                                A:      30 or 40 feet niaybe. I don't know, and that's being honest.
                                        I don't know.
                                Q:      No further questions, Your Honor.


     i\Tr. Evid. Hr'g.          14:8-22, Feb. 19, 2019.
     �                      .
     It
     I,
                      The Court dismissed the contempt petition, and Father's appeal followed.


                                                            Discussion


                      In bis Concise Statement of Errors Complained of on Appeal, Father's first argument is
         'l
         t

             b.at the Court erred in failing to find Mother in contempt of court for relocating without giving
         i�jtproper
                      notice. Specifically, he indicates that "[a]ny address change is a move, and the Defendant
         �is in Contempt.'' Pl. 's Concise Statement of Errors l, Apr. 6, 2019. The Appellate Court's
         fstandard of review is as follows:

                                This Court will reverse a trial court's order denying
                                a civil contempt petition only upon a showing that the trial court

                                                            Page 4 of 8

                                                                29
                        misapplied the law or exercised its discretion in a manner lacking
                        reason. In proceedings for civil contempt of court, the general rule
                        is that the burden of proof rests with the complaining party to
                        demonstrate that the defendant is in noncompliance with a court
                        order. To sustain, a :finding of civil contempt, the complainant
                        must prove, by a preponderance of the evidence, that: (I) the
,·
;:
                        contemnor had notice of the specific order or decree which he is
r                       alleged to have disobeyed; (2) the act constituting the contemnor's
                        violation was volitional; and (3) the contemnor acted with
                        wrongful intent. .



i
�
         MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012)(citations omitted).

�                 '



                In the Pennsylvania Child Custody Act, "relocation'.' is defined as follows: "A change in
''
'
i
I
         a residence of the child which significantly impairs the· ability of a nonrelocati.ng party to

i exercise custodial rights." 23 Pa. C.S.A. § 5322. Mother testified that she moved from one unit
  1



'I of St. Clair Manor to another. She indicated that she believed her new apartment to be
 Ii approximately thirty to      forty feet away from where she had previously resided. There was no
!" evidence
 ,)
                  that she had lived in other residences since the custody order was entered on September
 !I 19,      2014. Even if Father were free and had substantial custody time with bis son, his rights


 .
 � could not be affected by a move such as this. In this case, Father's custodial rights only come



 I
   into play if he gets out of jail, schedules reunification therapy, completes parenting classes, and
   comes to a mutually agreeable arrangement with Mother. Because it is clear that bis custodial
                       im.p�ed
 ��ghts
 �
        have  not been          �tall by Mother's mo�e. he has not proven . tha� she has violated

     I
 L                                                                          .

         any court order by relocating, and this court cannot hold her in contempt.            .
                Father next argues that this court was in error when "it ordered that the Appellant will not
     1
     l1have any form of physical custody until bis release." It should first be noted that Father initially
     1Jagr�ed
              to this condition when he entered into a consent order on February 27, 2014. He
     !apparently
                  changed his mind when he filed modification petitions _on July 8, 2014 and February
     [l9, 2015.    On March 9, 2015, the court entered an order indicating that the September 19, 2014
     'order,
               which suspended his rights until after incarceration, would remain in full force and effect.
     (This was the la.st ruling where the court addressed or was asked to address custody. Rule 903(a)
         of the Pennsylvania Rules of Appellate Procedure provides as follows: "Except as otherwise
         prescribed by this rule, the notice of appeal required by Rule 902 (manner of ta.king appeal) shall


                                                     Page S of 8

                                                         30
i,
!l be filed within 30 days after the        entry of the order from which the appeal is taken." Pa.R.A.P.
          903(a). In this case, Father has waited al.most four years to appeal this ruling.
                 Finally, Father argues that "[t]be Court was in error for failing to review the record before
� the bearing ... " and that the Court should have addressed bis request that Paternal Grandmother

I         be added "as Intervenor in this case."
I
,                Pennsylvania Rules of Civil Procedure 1915.6(b), regarding joinder of parties, provides
I
I
r,;       as follows:
 ff
 I•



 [
 L
                         [i]fthe court learns from the pleadings or any other source that any
                         other person who 'claims to have custodial rights with respect to tb:e
 I                       child is not a party to the action, it shall order that notice be given
 ti
 1.                      to that person of the pendency of the action and of the right to
 ri                      intervene therein.
 l.
    t(
          Pa RC.P. No. 191:.6(b).
    1,
    :;           The comment to this rule is as follows:

                         Toe position taken by the rules is that a person in physical custody
    (:                   of the child and a parent whose parental rights have not been
    l:                   terminated are necessary parties to a custody determination. While
    (;                   it may be desirable to have other persons who claim custody rights
    .,                   as parties to the action, their joinder is not a prerequisite to a
    11                   custody determination.
     �                     .
     :l Pa. R.C.P. No. ·1915.6 cmt. (1994).
     !I
     11


     ij          In this case, the Court was never served with the "Amendment to Custody Complaint"
     � wh rein Father requested that his mother be added as a party. If it had been, then arguably the
          �
     ; court should have given the Paternal Grandmother notice that she had the right to intervene.

      I   However, it can be assumed that she had already been provided notice of the custody action by
      I
      I
          her son, since her son wanted her to intervene.
                 Al.though the custody rules ·do not set forth the procedure to petition the court to
      l intervene, Rule 2328 of the Pennsylvania Rules of Civil Procedure sets forth the general
          requirements for intervenors:

                         Application for leave to intervene shall be made by a petition in the
                         form of and verified in the manner of a plaintiff's initial pleading in


                                                        Page 6 of 8

                                                            31
I.
                              a civil action, setting forth the ground on which intervention is
I::
jl                            sought and a statement of the relief or the defense which the
                              petitioner desires to demand or assert. Toe petitioner shall attach to
                              the petition a copy of any pleading which the petitioner will file in
                              the action if permitted to intervene or shall state in the petition that
                              the petitioner adopts by reference in whole or in part certain named
                              pleadings or parts of pleadings already filed in the action.
t,
fl
� Pa.R.C.P. No. 2328.


 !                    Paternal Grandmother never filed a petition to intervene. Instead, it was Father, in his

 � "Amendment to Custody Complaint," who made this request.                            He did not· cite any authority
 �                                                                                       .

               indicating the ground on which intervention was . sought - he merely stated that Paternal
 \1

 \
     i         Grandmother had "a personal stake in it as the child's Grandmother." He did not attach a copy
     I                                                                             .
               of any pleading which Paternal Grandmother would file and, on her behalf, he never adopted by
         t
         i     reference portions of any pleadings already filed. Under the rules of civil procedure, the onus is
     I on Paternal Grandmother to petition the court to intervene in this matter. Because she has not,
     '•'·
     j' the court cannot consider adding her as a party, whether it was aware of Father's "Amendment to
     j         Custody Complaint" or not.


                                                                Conclusion
         [I
         d

         I
         ii           Ibis court maintains that Father's contempt petition was properly denied, that Father's
               constitutional rights to custody hav� not been violated, and that this court was- not in err_or in
         f failing to allow Paternal .Grandmother to intervene in this matter.
         t


         !I




          I
                                                                                              s, Jr.
          I.


               ATTEST:



          I    �����������
               Prothonotary



                                                             Page 7 of 8


                                                                32
;1       cc:   Steven Sanchez, Plaintiff, MV3721, P.O. Box 200, SCI Camp Hill, Camp Hill, PA
               17001-0200
               Richard McGiffin, Esq., Attorney for Defendant, 16 E. Otterman St., Greensburg, PA
               15601
               File




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                                                Page 8 of 8
                                                  33
