J-A25019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 T.K.,                                    :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 M.D.C.                                   :   No. 3499 EDA 2017

               Appeal from the Order Entered October 5, 2017
              In the Court of Common Pleas of Delaware County
                   Civil Division at No(s): No. 2015-003199


BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY PANELLA, J.:                              FILED MAY 24, 2019

      T.K. (“Father”) appeals from the order finding him in indirect civil

contempt of a custody order in this highly contentious custody and visitation

dispute.   We conclude that the underlying order M.D.C. (“Mother”) alleged

Father violated was not “definite, clear, and specific” as to the conduct that

the learned trial court subsequently held prohibited. To the contrary, the trial

court, in virtually identical circumstances, accepted and endorsed the very

course of conduct Father had adopted. Accordingly, we are constrained to

reverse the order of contempt.
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       This is the third of three inter-related companion appeals sharing a long,

complex, and somewhat convoluted history.1           However, the basic facts

relevant to the issues in this appeal are not in substantial dispute, even though

the parties disagree about the inferences to be drawn, and a host of other

issues.

       Briefly summarized, Father is a citizen of the United States, and a

resident of Delaware County, Pennsylvania. Mother is a native of Argentina.2

Mother’s parents (“Grandparents”) are also from Argentina. At times, Mother

and Father lived in Argentina. Currently, both live in Pennsylvania.

       The trial court granted Father primary physical custody and legal

custody of both Children, in an emergency order. Mother has joint legal

custody with regard to medical care and decisions, not at issue in this appeal.

Mother also received partial physical custody: one hour of supervised

visitation two times a week.

       Mother was convicted on charges of assault and harassment of Father

arising from an incident while the family was on vacation in Colorado. Father



____________________________________________


1 Defendant/Appellee, M.D.C. (Mother), her parents, and Father have been
involved in some form or other of custody and visitation dispute over Mother
and Father’s two minor children, M.A.K. (born in 2009) and T.M.K. (born in
2010) (“Children”), since at least 2011.

2 While Father mentions only Mother’s Argentinian citizenship, he does not
dispute her claim of dual citizenship. Mother’s citizenship is not at issue in
this appeal.


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has Protection from Abuse orders against Mother in Pennsylvania, Colorado,

and allegedly, Argentina as well.

       Additionally, Mother was acquitted on charges of child abuse arising

from the same incident. While the child abuse charges were pending, the

Colorado court imposed significant limitations on Mother’s access to her

Children. Those limitations resulted in the restrictions on visitation imposed

in the Emergency Custody Order.

       While the record confirms Mother’s strong desire to have the limitations

lifted, it does not appear that they were, even after the acquittal on the child

abuse charges. Father also alleged kidnapping or attempted kidnapping of the

Children by Mother and the Grandparents for return to Argentina. Mother and

Grandparents dispute these allegations.

       On June 23, 2016, Mother filed a pro se petition for contempt, claiming

that   Father   intentionally   disobeyed   the   Emergency   Custody    Order.

Specifically, Mother alleged that Father took the Children on vacation to

Disney World in Florida from June 15, 2016 to June 25, 2016, without her

permission. This extended vacation deprived Mother of the visitation granted

to her under the emergency custody order.

       At the hearing on Mother’s petition, held in October of 2017, Mother

conceded that in May of 2016, Father’s counsel e-mailed her, stating that

Father had scheduled a vacation with the children for the next month and

suggesting make-up visitation dates.        In her reply, Mother endorsed the


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concept of vacation for the Children in principle, but objected to the proposed

trip, citing the “precarious situation.”3

        Mother was also concerned that the vacation could interfere with the

timing of hearings for the final custody order. Father’s counsel indicated that

the vacation “should not interfere with any [c]ourt dates and we are offering

makeup time for the missed visits.” Mother reiterated her opposition to the

vacation under the circumstances, and asked Father’s counsel if counsel had

better knowledge of the court’s schedule. Father’s counsel responded that she

did not.

        Mother showed up at the church as scheduled for her visitation. As the

Children were with Father in Florida, however, no visitation occurred. Mother

did not agree to any make-up dates before the fact.         However, after the

vacation she accepted and attended two make-up visitation sessions in July.

        At the close of hearing, the trial court found Father in contempt, and

awarded one thousand dollars in attorney fees for Mother’s counsel.         This

timely appeal followed. Both Father and the trial court complied with Pa.R.A.P.

1925.

        Father raises three questions for our review on appeal:


____________________________________________


3 In full, quoting from her e-mail to Father’s counsel, Mother said, “As you
know from my previous declarations, I will never oppose to the children
enjoyment [sic] but I think that this is at least unwise to plan for vacations in
the present situation that we are in in [sic] the middle of such a precarious
situation.” N.T. Hearing, 10/3/17, at 101.


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      1. Whether the trial court erred and abused its discretion in
      holding Father in contempt of the April 24, 2015 Custody Order in
      circumstances where the Order was not "definite, clear and
      specific," and there was no evidence to establish that Father
      knowingly or intentionally violated the Order?

      2. Whether the trial court erred and abused its discretion in
      holding Father in contempt of the April 24, 2015 Custody Order in
      circumstances where Father’s attorney, Phyllis Bookspan, not
      Father, was the actor, and Father’s attorney acted in 2016 in a
      manner that complied with the Custody Order as interpreted by
      the trial court previously on December 29, 2015?

      3. Whether the trial court erred and abused its discretion in
      holding Father in contempt of the April 24, 2015 Custody Order
      where Mother was in fact provided make-up custodial time missed
      during Father’s vacation with the children, which was consistent
      with the trial court’s December 29, 2015 interpretation of the
      Custody Order?

Appellant’s Brief, at 4.

      Our standard of review is well-settled.

      As an initial point, we note that appellate review of a finding of
      contempt is limited to deciding whether the trial court abused its
      discretion.

      Judicial discretion requires action in conformity with law on facts
      and circumstances before the trial court after hearing and
      consideration. Consequently, the court abuses its discretion if, in
      resolving the issue for decision, it misapplies the law or exercises
      its discretion in a manner lacking reason. Similarly, the trial court
      abuses its discretion if it does not follow legal procedure.

      This Court must place great reliance on the sound discretion of the
      trial judge when reviewing an order of contempt.

Lachat v. Hinchcliffe, 769 A.2d 481, 487–88 (Pa. Super. 2001) (formatting

and citations omitted).

      We also remain mindful of these applicable legal principles:



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      An abuse of discretion is not merely an error of judgment, but if
      in reaching a conclusion the law is overridden or misapplied, or
      the judgment exercised is manifestly unreasonable, or the result
      of partiality, prejudice, bias or ill-will, as shown by the evidence
      or the record, discretion is abused.

Kopp v. Turley, 518 A.2d 588, 590 (Pa. Super. 1986) (quotation marks and

citations omitted).

      “Accordingly, we are confined to a determination of whether the facts

support the trial court’s decision.   Also in civil contempt proceedings the

complaining party has the burden of proving by a preponderance of the

evidence that a party violated a court order.”            Chrysczanavicz v.

Chrysczanavicz, 796 A.2d 366, 368–69 (Pa. Super. 2002) (citation, internal

quotation marks, and brackets omitted).

      The right to punish for contempt is adherent in all courts. It is a
      power essential to the preservation of the court’s authority and
      prevents the administration of justice from falling into disrepute.
      In considering an appeal from a contempt order, great reliance
      must be placed upon the discretion of the trial judge. The
      authority of a judge, however, to hold one in contempt,
      depriving as it does a person of liberty, is an authority that
      should be used rarely, and with extreme caution.

Marian Shop, Inc. v. Baird, 670 A.2d 671, 672–73 (Pa. Super. 1996)

(citations and internal quotation marks omitted; emphasis added).

      We need only address Father’s first issue on appeal, as it is dispositive.

Father contends the court abused its discretion in finding that the emergency

custody order was definite, clear, and specific in prohibiting scheduling of

vacations that interfered with Mother’s visitation without Mother’s prior

consent.


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      In order to support a finding of contempt, the order or decree
      which the contemnor has been held to have violated, must be
      definite, clear, and specific—leaving no doubt or uncertainty in the
      mind of the contemnor of the prohibited conduct. Because the
      order forming the basis for civil contempt must be strictly
      construed, any ambiguities or omissions in the order must
      be construed in favor of the defendant. . . . Additionally, the
      mere showing of noncompliance of a court order or misconduct, is
      never sufficient, alone, to prove contempt.

Id. at 673 (citations omitted) (first emphasis in original; second emphasis

added).

      To be punished for [civil] contempt, a party must have violated a
      court order. … Nevertheless, the mere showing of noncompliance
      of a court order or misconduct, is never sufficient, alone, to prove
      contempt. [T]he order or decree which the contemnor has been
      held to have violated, must be definite, clear, and specific - leaving
      no doubt or uncertainty in the mind of the contemnor of the
      prohibited conduct. Moreover, the contemnor must have had
      notice of the order he disobeyed, the act constituting her violation
      must be volitional; and she must have acted with wrongful intent.
      Because the order forming the basis for civil contempt must be
      strictly construed, any ambiguities or omissions in the order must
      be construed in favor of the defendant.

Bold v. Bold, 939 A.2d 892, 895 (Pa. Super. 2007) (emphasis and brackets

in original; quotation marks and citations omitted).

      For clarity and completeness, we reproduce the emergency custody

order:

      AND NOW, to wit, this 24th day of April, 2015, after consideration
      of Plaintiff’s Emergency Petition in Custody and Emergency
      Petition for Return of Passports filed on April 9, 2015, Defendant’s
      Answer and Counterclaim filed April 13, 2015 and Plaintiff’s
      Amendment to Plaintiff’s Emergency Petition in Custody and
      Emergency Petition for Return of Passports and Plaintiff’s Answer
      to Defendant’s Counterclaim filed on April 15, 2015, it is hereby
      ORDERED and DECREED as follows:


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J-A25019-18


          1. Primary physical custody of [the Children], is hereby
     awarded to [Father] until further Order of Court.

           2. Joint legal custody with respect to medical care and
     decisions is awarded to [Father and Mother.]

           3. Sole legal custody for all else awarded to [Father] until
     further Order of this Court.

           4. Supervised partial physical custody of the [the Children]
     is awarded to [Mother,] as follows; two sessions a week for one
     hour each, supervised by security personnel who may carry
     concealed arms and observed by an independent Spanish/English
     speaker interpreter; the said sessions to be in a classroom at St.
     Mary Magdalene Church in Media, Pennsylvania Mondays at 5:30
     PM to 6:30 PM and Thursdays at 4:15 PM to 5:15 PM; costs to be
     borne by Plaintiff/Father; no other persons are to be present at
     the sessions; and [Grandparents] are not to be on the grounds of
     the church during these sessions.

            5. The [c]ourt recognizes that [Mother] is subject to certain
     restrictions concerning minor children pursuant to criminal
     charges pending in the Eagle County Court of Colorado and the
     Mandatory Protection Order in Eagle County, Colorado. Therefore,
     the aforesaid supervised visitation is suspended until such time as
     [Mother’s] restrictions as they pertain to contact with the children
     are modified by the Eagle County Court of Colorado.

            6. All Passports of the children, both Argentine and United
     States, to be held in protective custody by Bernard Berman,
     Esquire, 20 West Third Street, Media, Pennsylvania, not to be
     released except upon written agreement of both parties, and/or
     until further Order of this Court.

           7. Both parties and children shall submit to a full custody
     evaluation, which shall include psychological examinations, and
     parent/child bonding evaluations. Agreement with respect to the
     evaluator to be determined no later than April 27, 2015 and it is
     to be entered as an Order of Court.

           8. Counterclaims of [Mother] are held in abeyance without
     prejudice.

Emergency Custody Order, 4/24/15, at 1-2.

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J-A25019-18


     At a December 2015 status hearing in the divorce proceeding between

the parties, Mother, pro se, raised the visitation issue. Mother noted that on

the next day, Father was taking the Children on vacation to Florida.       She

complained that she was being deprived of a visitation date, and argued that

Father should plan vacations so she would not miss any visitation.

     In an extended colloquy, the trial court explained:

     THE COURT: Dad does have legal custody at this time to make
     those decisions. I’m not saying he can just cancel your visitation
     whenever, but he does have the right to take the children on
     a vacation. However, then you should have makeup sessions
     next week or the following week so that you can see the children.

N.T. Hearing, 12/29/15, at 48 (emphasis added).

     Nevertheless, at the October 2017 hearing on the petition for contempt,

the same judge stated:

     THE COURT: You simply just don’t take your children and go on
     vacation and say oh well, because when you do, I get a Contempt
     Petition. Now, normally, I would agree that this is a little
     blip because Mom had makeup days and I don’t think mom
     was real big on getting her answers to the dates. I don’t see
     a response that said June 30th and whatever it is, July 7th, don’t
     work. This is a little bit of a unique case and mom sees these
     children two hours a week and that was done because the parties
     wanted an evaluation and I said on that record in the transcript
     that I didn’t want an evaluator coming in here and telling me there
     was no bond with mom because she hadn’t seen them for six
     months. As it is, this is a difficult area.

N.T. Hearing, 10/3/17, at 162 (emphasis added).

     In its opinion, the trial court denies that Father had the “legal right” to

take the Children on vacation.      Trial Court Opinion, 1/11/18, at p. 8

(unpaginated).   However, this conclusion is virtually the opposite of the

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position the trial court espoused at the divorce status hearing on December

29, 2015.

      We agree with the trial court that this is a difficult case, and share its

concern over the effects of the emergency custody order’s application over an

extended period. However, it is readily apparent that neither the trial court

nor the emergency order put Father on notice that he was at risk of being held

in contempt if he scheduled vacations that interfered with Mother’s visitation.

Under these circumstances, we cannot conclude that the order was definite,

clear, and specific in prohibiting Father from unilaterally planning vacations

with the Children that interfered with Mother’s visitation.

      Because the order forming the basis for civil contempt must be strictly

construed, any ambiguities or omissions in the order must be construed in

favor of Father. See Bold, 939 A.2d at 895. Here, the omission of any specific

requirements to pre-clear vacation dates in the order must be strictly

construed in Father’s favor.

      Construing this doubt or uncertainty in favor of Father, as we must

under our standard of review, we are constrained to conclude that the trial

court misapplied the law and abused its discretion in holding Father in




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contempt.     Because our conclusion resolves Father’s claim, we need not

address his second or third questions, and we expressly decline to do so.4

       Order reversed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2019




____________________________________________


4 The trial court opinion treats the claim as civil contempt. Father has not
challenged the trial court’s classification on appeal. Further, we conclude the
distinction would not alter our result in any event.

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