J-S01032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.S.                                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

S.C.

                         Appellee                     No. 2573 EDA 2015


                  Appeal from the Order Dated July 15, 2015
              In the Court of Common Pleas of Delaware County
                  Domestic Relations at No(s): 2009-011738


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED FEBRUARY 18, 2016

       Appellant, L.S. (“Father”), appeals from the order entered in the

Delaware County Court of Common Pleas, which denied his petitions to

enforce South Carolina’s contempt orders against S.C. (“Mother”) and to

change venue. We affirm.

       The relevant facts and procedural history of this case are as follows.

Mother and Father are the biological parents of two children, L.T.S., born

May 1997, and C.M.S., born June 1998 (“Children”). On August 22, 2003,

Mother and Father divorced pursuant to a Richland County, South Carolina

divorce   decree,   which   contained   a   custody    agreement   (“Custody

Agreement”) entered into by consent of all parties. The Custody Agreement

gave the parties shared legal custody and set forth a detailed physical

custody schedule in which Mother had primary physical custody, subject to
J-S01032-16


Father’s periods of partial physical custody.   The Custody Agreement also

stated that the parties must file all actions related to the enforcement of the

Custody Agreement in Richland County, South Carolina.           Following the

divorce, Mother moved with Children to Delaware County, Pennsylvania.

      After Father filed several rules to show cause why Mother was not in

contempt of the Custody Agreement, the South Carolina court found Mother

in contempt on five separate occasions. First, on September 20, 2010, the

South Carolina court entered the first contempt order against Mother. In it,

the court sentenced Mother to a term of six months’ incarceration and

instructed that Mother could purge the contempt finding by paying Father

$5,000.00 by March 20, 2011. The first contempt order further stated that

failure to pay this amount to Father in a timely manner would result in the

issuance of a bench warrant for Mother’s arrest.     Next, on November 12,

2010, the South Carolina court entered the second contempt order against

Mother.   In it, the court sentenced Mother to a term of six months’

incarceration and instructed that Mother could purge the contempt finding by

paying Father $3,302.52 by May 12, 2011.         The second contempt order

further stated that failure to pay this amount to Father in a timely manner

would result in the issuance of a bench warrant for Mother’s arrest. Again,

on January 5, 2011, the South Carolina court entered the third contempt

order, dated January 4, 2011, against Mother. In it, the court directed the

Clerk of Court to issue a bench warrant for Mother’s arrest to serve a term of


                                     -2-
J-S01032-16


six months’ incarceration and instructed that Mother could purge the

contempt finding by paying $1,500.00 to the Clerk of Court of Richland

County, South Carolina. Then, on March 25, 2011, the South Carolina court

entered the fourth contempt order against Mother. In it, the court directed

the Clerk of Court to issue a bench warrant for Mother’s arrest to serve a

term of six months’ incarceration consecutive to any previously imposed

sentences for contempt. Finally, on June 7, 2011, the South Carolina court

entered the fifth contempt order, dated May 31, 2011, against Mother. In it,

the court sentenced Mother to a term of six months’ incarceration and

instructed that Mother could purge the contempt finding by paying $750.00

to the Clerk of Court of Richland County, South Carolina and $202.35 to

Father within thirty days of the contempt order.      The fifth contempt order

further stated that failure to pay these amounts in a timely manner would

result in the issuance of a bench warrant for Mother’s arrest. Mother failed

to satisfy any of the purge conditions contained in the contempt orders and

Richland County, South Carolina issued bench warrants for Mother’s arrest.

      On August 22, 2011, the South Carolina court entered an order in

which it relinquished jurisdiction with respect to enforcement of the Custody

Agreement to Delaware County, Pennsylvania.          The South Carolina court

cited as its reasons for relinquishing jurisdiction, its inability to enforce the

Custody Agreement and the contempt orders. Meanwhile, in Pennsylvania,

Mother filed a petition to modify custody in Delaware County, Pennsylvania.


                                      -3-
J-S01032-16


The Pennsylvania court ultimately awarded Mother sole physical and legal

custody of the Children. On May 9, 2012, Richland County, South Carolina

recalled its outstanding bench warrants for Mother’s arrest.       Then, after a

hearing on May 14, 2012, the Pennsylvania court gave full faith and credit to

the   South   Carolina   contempt   orders   and    the   South   Carolina   order

relinquishing jurisdiction to Pennsylvania by order of May 23, 2012.

      On June 7, 2013, in Pennsylvania, Father filed a petition to enforce the

South Carolina contempt orders against Mother.            On February 24, 2014,

Father filed a petition to change venue.           On February 18, 2015, the

Pennsylvania court issued an order in which it recused the Delaware County

bench and reassigned the matter to a Chester County judge. On April 27,

2015, the Pennsylvania court held a hearing on Father’s petition to enforce

the South Carolina contempt orders and Father’s petition to change venue.

Mother did not attend the hearing.       The court denied both of Father’s

petitions on May 27, 2015, but improperly docketed the order on May 29,

2015, to a separate docket involving the parties.         On July 15, 2015, the

court entered its May 27, 2015 order on the correct docket, and allowed

Father to file a timely notice of appeal from that later date. On August 12,

2015, Father timely filed a notice of appeal and a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).

      Father raises the following issues for our review:

         DID THE TRIAL COURT ERR IN DE FACTO VACATING THE
         DELAWARE COUNTY, PENNSYLVANIA ORDER OF MAY 23,

                                     -4-
J-S01032-16


         2012—WHICH CONFIRMED AND GAVE FULL FAITH AND
         CREDIT TO THE RICHLAND COUNTY, SOUTH CAROLINA
         ORDERS OF COURT DATED SEPTEMBER 20, 2010,
         NOVEMBER 12, 2010, JANUARY 4, 2011, MARCH 25, 2011,
         MAY 31, 2011, AND AUGUST 22, 2011—IN VIOLATION OF
         23 PA.C.S.A. §§ 5443(A) AND (B), 5446(A), AND 5453?

         DID THE TRIAL COURT ERR IN FAILING TO ENFORCE
         THOSE PORTIONS OF THE SOUTH CAROLINA ORDERS
         DATED SEPTEMBER 20, 2010, NOVEMBER 12, 2010,
         JANUARY 4, 2011, MARCH 25, 2011, AND MAY 31, 2011:
         FINDING [MOTHER] IN CIVIL CONTEMPT; SENTENCING
         [MOTHER] TO INCARCERATION; AND SETTING PURGE
         CONDITIONS,    INCLUDING     COMPENSATION     AND
         RESTITUTION TO [FATHER]?

         DID THE TRIAL COURT ERR IN FAILING TO FIND
         [MOTHER] IN CONTEMPT OF THE ORDERS DATED
         SEPTEMBER 20, 2010, NOVEMBER 12, 2010, JANUARY 4,
         2011, MARCH 25, 2011, MAY 31, 2011[?]

         DID THE TRIAL COURT ERR IN FAILING TO GRANT COUNT
         VII OF [FATHER’S] PETITION TO ENFORCE, WHEREIN
         [FATHER] INCURRED SIGNIFICANT COUNSEL FEES AND
         EXPENSES IN THE COURSE OF SEEKING ENFORCEMENT
         OF ORDERS OF COURT, AND WHERE [MOTHER]
         PROFFERED NO LEGALLY COGNIZABLE DEFENSE TO THE
         ENFORCEMENT THEREOF?

         DID THE TRIAL COURT ERR IN FAILING TO GRANT COUNT
         VIII OF [FATHER’S] PETITION TO ENFORCE, WHERE
         [FATHER] REQUESTED A TRANSFER OF PHYSICAL AND
         LEGAL CUSTODY OF THE SUBJECT CHILDREN AS A
         SANCTION FOR [MOTHER’S] NONCOMPLIANCE WITH
         PRIOR COURT ORDERS?

(Father’s Brief at 6-7).

      After a thorough review of the record, Father’s brief, the applicable

law, and the well-reasoned opinions of the Honorable Thomas G. Gavin, we

conclude Appellant’s issues on appeal merit no relief.     The trial court


                                   -5-
J-S01032-16


opinions comprehensively discuss and properly dispose of those questions.

(See Opinion in Support of Denial of Father’s Petitions, filed May 29, 2015,

at 5-9; Trial Court Opinion, filed September 14, 2015 at 3-6) (finding:

(issues 1-3) Father’s motivation to enforce contempt incarceration of

Mother is end-run around Delaware County order, which granted Mother sole

custody of Children; additionally, enforcement of South Carolina contempt

orders is not permitted because South Carolina relinquished jurisdiction to

Pennsylvania on August 22, 2011, and recalled bench warrants for Mother’s

arrest on May 9, 2012, prior to Pennsylvania’s May 23, 2012 order, which

gave full faith and credit to South Carolina orders; because no bench

warrants existed when Pennsylvania gave full faith and credit to South

Carolina orders, Pennsylvania court has no authority to arrest or incarcerate

Mother; if Delaware County effectuated Mother’s arrest without current

bench warrants, that would result in false imprisonment of Mother; even if

current bench warrants did exist, Delaware County could only detain Mother

pending extradition to South Carolina; Richland County, South Carolina has

indicated its lack of desire to extradite Mother based on its relinquishment of

jurisdiction; further, under 42 Pa.C.S.A. § 4306(f), full faith and credit does

not apply to order of contempt, which provides for term of incarceration;

Father’s assertion that court can enforce payment of purge money included

in South Carolina contempt orders is also incorrect; time periods for

payment of purge amounts have long passed and timeframe in which Mother


                                     -6-
J-S01032-16


would face bench warrant has expired; moreover, purge amounts are not

“foreign judgments” entitled to full faith and credit because they were not

reduced to monetary judgments; therefore, court correctly denied Father’s

petition to enforce South Carolina contempt orders; (issue 4) court

determined Mother’s actions in case were not arbitrary or vexatious and do

not justify order directing Mother to pay Father’s counsel fees and expenses

incurred in filing current petitions; court noted that Father has brought

majority of petitions in this action, Mother did not bring current action before

court, and Mother has not brought many petitions before court in this action;

additionally, Mother’s alleged willful disregard for South Carolina contempt

orders is too remote in time because contempt orders are from 2010 and

2011; since that time, South Carolina has recalled bench warrants for

Mother’s arrest, relinquished jurisdiction, and demonstrated its unwillingness

to extradite Mother; under these circumstances, there are insufficient facts

to find that Mother’s conduct requires imposition of attorney’s fees; (issue

5) because court was unable to enforce South Carolina contempt orders and

incarcerate   Mother,   transfer   of   custody   to   Father   while   Mother   is

incarcerated is moot; court also notes its discomfort with Father’s attempt to

use transfer of custody as sanction for civil contempt because it does not

serve best interests of Children; therefore, court properly denied Father’s

request for transfer of custody as sanction for Mother’s non-compliance with

South Carolina contempt orders). Accordingly, we affirm on the basis of the


                                        -7-
J-S01032-16


trial court’s opinions.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2016




                          -8-
                                                                     Circulated 02/03/2016 04:27 PM




               IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY,
                                  PENNSYLVANIA
                                CIVIL ACTION-LAW

              l.S~                                DOCKET NUMBER: 2009-011738
          Plaintiff                                              2011-010287

                          vs.

                                                  IN CUSTODY


                      ·, Self-Represented
                        ,, Self-Represented


                                              ORDER

                                ;{-'.µ,
              AND NOW, this     h day of July, 2015   it is hereby ORDERED and

    DECREED that the Order and Opinion filed on May 29, 2015 in the above

    matter was filed to the docket number 2011-010287 in error and shall

    therefore be amended to be captioned and docketed to .2009-011 738.




                                              BY THE COURT:




                                              <~£~
                                              Thomas G. Gavin, Senior Judge



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       IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY,
                         PENNSYLVANIA
                        CML ACTION-LAW

      i..s.                                   DOCKET NUMBER: 2011-010287
 Plaintiff

                  vs.
                                              IN CUSTODY


Les Springob, Self-Represented
Susan Carney, Self-Represented


                               ORDER AND OPINION

      On June 7, 2013, Plaintiff/Father         \.....S4'      who resides at

                                  filed a Special Petition to Enforce Orders

Dated September 20, 2010, November i2, 2010, January 4, 2011, March 25,

2011, and May 31, 2011 seeking enforcement of five Orders entered in South

Carolina finding Defendant/Mother,           s.c ..         in contempt of a custody

agreement. On February 24, 2014, Plaintiff filed a Petition for Special Relief to

Change Venue in the Nature of a.Nunc Pro Tune Petition seeking to transfer

this matter to another Pennsylvania county. A hearing was held on these

Petitions on April 27, 2015.

                        Factual and ProceduralHistory

      On or about 2003,
                     .
                        the parties were divorced by the decree
                                                           .
                                                                of The

Honorable John M. Rucker of Richland··county, South Carolina. During the

divorce action, Mother relocated with the parties two minot children, L. T. S.

                     andC.M.S.                               to Delaware County,

                                         1
 Pennsylvania. The divorce decree contained acustody agreement stating that if

 Father sought to change custody or modify visitation, he was to bring an action

in Pennsylvania and if Mother sought to modify custody or visitation, she

would bring the action in South Carolina where Father lived at the time.

Father has since moved to Florida.

      After issuance of the divorce decree, the parties' custody agreement

became contentious resulting in open custody filings in Richland County,

South Carolina and in Delaware County, Pennsylvania.     After two months of

communication between Richland County and Delaware County, an Order was

entered on or about August 22, 2011 by Judge Morris of Richland County

relinquishing jurisdiction and transferring the custody action to Delaware

County. This Order was registered in South Carolina right away, but was not

registered in Pennsylvania until May 14, 2012. Prior to relinquishing

jurisdiction, Richland County had entered five Orders of Contempt against

Mother for violating the Custody Agreement. These Orders provide as follows:

   1. The Order of September 20, 2010 found Mother in contempt and

      sentenced her to a term of six months of incarceration and also provided

      that she may purge herself of the contempt by paying $5,000 to Plaintiff

      by 5:00p.m. on March 20, 2011. It provided that if Defendant failed to

    . make the payment by that time, Plaintiffwas to file an affidavitand

      thereafter a Bench Warrant-would issue for the arrest and incarceration

      of Mother.



                                       2
2. The Order of November 12, 2010 found Mother in contempt and

  sentenced her to a term of six months incarceration and also provided

  that she may purge herself of the contempt by paying $3,302.52 to

  Plaintiff by 5 :OOp.m. on May 12, 2011. It provided that if Mother failed

  to make the payment by that time, Plaintiff was to file an affidavit and

  thereafter a Bench Warrant would issue for the arrest and incarceration

  ofMother.

3. The Order of January 4, 2011 found Mother in Contempt and directed

  the Clerk of Court to issue a Bench Warrant for her arrest and

  incarceration for a term of six months. It provided a purge amount of

  $1500.00 to be paid to the Clerk of Court of Richland County.

4. The Order of March 25; 2011 found Mother in Contempt and sentenced

  her to a term of six months of incarceration consecutive to any previously ·

   issued contempt order. It directed that a Bench Warrant be issued for

   her arrest.

5. The Order of May 31, 2011 found Mother in Contempt and sentenced her

   to a term of six months of incarceration and provided a purge amount of

   $952.35 (some of which were to be· paid to the Clerk of Courts and some

   paid to Father) to be paid within 30 days of service of the Order. It

   provided that if Mother failed to make payment by that time, Plaintiff was

   to file an affidavit and thereafter a Bench Warrant would issue for the

   arrest and incarceration of Mother.



                                     3
       ALL OF THE BENCH WARRANTSISSUED BY RICHLANDCOUNTY

 WERE RECALLED ON MAY 9, 2012. On May 12, 2012, after South Carolina

 had already recalled their Bench Warrants, Delaware County, by Order of

 Court, confirmed the registration of and gave full faith and credit to, the five

 South Carolina Orders at issue herein.

      The custody matter progressed in Delaware County to a custody hearing
                                                       )


 before a Master who recommended an order awarding Mother sole legal and

physical custody of the children. This recommendation became an Order of the

Court two days later. Father then filed a Petition to Vacate which was denied

and a Demand for Hearing De Nova which was dismissed. Father raised the

issue of jurisdiction in his Petition·to Vacate. The custody matter was appealed

to Superior Court which issued an Opinion on November 12, 2014 affirming

the Court of Common Pleas of Delaware County and remanding.

      On February 18, 2015, Delaware County issued an Order recusing the

Delaware County Bench, reassigning the matter to an out of County Judge,

and directing that Father's Special Petition to Enforce Orders Dated September

20. 2010, November 12, 2010, January 4, 2011, March 25, 2011, ·and May 31,

2011 and Petition for Special Relief to ·change Venue in the Nature of a Nunc

Pro Tune Petition be heard. The matter was thereafter appointed to the

undersigned, a Senior Judge of Chester County Pennsylvania.

      Father's petitions were heard on April 27, 2015. Father represented

himself. Mother did not appear. Father presented testimony and exhibits

regarding his position and presented one witness as to Mother's ability to pay

                                        4
her purge amounts.    Father is nominally seeking enforcement of the South

Carolina Orders sentencing Defendant to incarceration, payment of $45,415.53

to him for expenses and $2,250.00 to Richland County as payment for the

purge amounts under the Orders of Contempt. However, I find as a fact that

his motivation to enforce the contempt incarceration is an end run around the

Delaware County Court award of sole custody of the parties children to

defendant. Obviously, if she is incarcerated, he is first in line to be the

children's custodian. Courts ought not facilitate end runs, especially where the

trial court has been affirmed by an appellate court. Here, plaintiff is not

entitled to relief for the reasons that follow.

                                 Statement of Law

      Our Superior Court in Standard Chartered Bank v. Ahmad Hamad Al

Gosaibi & Bros. c«, 2014 PA Super 179, 99 A.3d 936, 940 (2014) appeal

denied, 108 A.3d 36 .(Pa. 2015) examined the laws regarding Full faith and

credit explaining that the United States Constitution requires that "full faith

and credit shall be given in each State to the public Acts, Records, and judicial

Proceedings of every other State." Id. 2014 PA Super 179, 99 A.3d 936, 940

(2014) appeal denied, 108 A.3d 36 (Pa. 2015) This is codified by Congress in

28 U.S.C. 17~S which states in pertinent part that "Acts, records and judicial

proceedings or copies thereof, so authenticated, shall have the same full faith

and credit in every court within the United States and its Territories and

Possessions as they have by law or usage in thecourts of such State, Territory

or Possession from which they are taken." _ Standard Chartered Bank goes on to

                                          5
explain that full faith and credit is "enshrined in Pennsylvania's Enforcement

Act, which states:

       (b) Filing and status of foreign judgments.-A copy of any foreign
      judgment including the docket entries incidental thereto
       authenticated in accordance with act of Congress or.this title may
      be filed in the office of the clerk of any court of common pleas of
      this Commonwealth. The clerk shall treat the foreign judgment in
      the same manner as a judgment of any court of common pleas of.
      this Commonwealth. Ajudgment so filed shall be a lien as of the
      date of filing and shall have the same effect and be subject ta the
      same procedures, defenses and proceedings for reopening,
      vacating, or staying as a judgment of any court of common pleas of
      this Commonwealth and may be enforced or satisfied in like
      manner.

      (f) Definition.-As used in this section "foreignjudgment" means
      any judgment, decree, or order of a court of the United States or of
      any other court requiring the payment of money which is entitled
      to full faith and credit in this Commonwealth.


42 Pa.C.S. § 4306(b), (f)

      With regard to enforcement of a custody matter, 23 Pa.C.S.A.§ 5443,

Duty to Enforce, provides that. "A court of this Commonwealth may utilize any
                            .



remedy available under other laws of this Commonwealth to enforce a child

custody determination made by a court of another state." Pa.R.C.P. 1910.13-1

and Pa.R.Crim.P.150 both provide that "when an individual is arrested outside

the county of issuance, the authority in charge of the county jail in the

arresting county promptly shall notify the proper authorities in the county of

issuance that the individual is being held pursuant to the bench warrant."

                                      Discussion

 Special Petition to Enforce Orders Dated September 20, 2010, November12,

          2010, January 4, 2011, March 25, 2011, and May 31, 2011
                                        6
      Father in his Special Petition to Enforce Orders Dated September 20,

2010. November _12. 2010, January 4, _2011, March 25. 2011. and May 31.

2011 is seeking enforcement of five South Carolina Orders finding Mother in

contempt of a custody agreement. As is mentioned above, each Order finds

Mother in Contempt and either requires 1) a term of incarceration with the

Option to pay a set purge amount by a certain date, which is now long since

passed, and if payment is not made then a Bench Warrant shall issue and

Mother shall serve a term of incarceration;
                                .
                                            or, 2) the issuance of a Bench
                                                                      .


Warrant for Mother to serve the term of incarceration; or 3) the issuance of a

Bench Warrant for Mother to serve a term of incarceration and a purge

amount. In support of his position to have these Orders enforced, Father

points to the May 21, 2012 Order issued by Judge Green of Delaware County

which in pertinent part provides that the five South Carolina orders are

"Confirmed, shall be given full faith and credit, and are made the Orders of this

Court." I find that the enforcement of these Orders is not permitted for

multiple reasons.

      First, Father is asking this Court to enforce the Orders of South

Carolina, which relinquished its jurisdiction of this matter to Delaware County

on August 22, 2011. Richland County South Carolina recalled their bench

warrants on May 9, 2012, three days prior. to the issuance of Judge Green's

Order giving full faith and credit to said Orders. SINCETHE BENCH

WARRANTS
       DID NOT EXISTATTHE TIMEJUDGE GREENGAVE FULLFAITH

                                        7
AND CREDIT TO THE ORDERS OF SOUTH CAROLINA and still do not exist,

this Court has no authority to arrest and incarcerate Mother. If Delaware

County were to effectuate an arrest without a current bench warrant in place,

the County would essentially be falsely imprisoning Mother. Even if a bench

warrant were currently in existence, Delaware County would only be permitted

to detain Mother pending extradition to South Carolina. See, 23 Pa.C.S.A.§

5443 and 42 Pa.R.C.P. 1910.13-1. Richland County South Carolina has

communicated to this Court that they have no desire to extradite Mother as

they have relinquished all jurisdiction of this case to Delaware County.

      Additionally, under 42 Pa.C.S. § 4306(~, full faith and credit would not

apply to an Order of Contempt wherein the Defendant was sentenced to a term

of incarceration. 42 Pa.C.S. § 4306 provides that a foreignjudgment "shall be

treated in the same manner as a judgment of any court of common pleas of

this Commonwealth." However,it goes on to define in section f of 42 Pa.C.S.

4306 that a "foreignjudgment means any judgment, decree, or order of a court

of the United States or of any other court requiring the payment of money

(emphasis added) which is entitled to full faith and credit in this

Commonwealth." Full faith and credit therefore does not apply to an Order of

Contempt providing for a term of incarceration.

      ThisCourt finds that payment of the purge amounts provided for in each

Order is also not enforceable. First, three out of the five Orders provided that

Mother can purge her contempt by paying a certain amount of money to the

Clerk of Court or to Plaintiffby a certain date and, if she did not do so, a bench

                                         8
warrant would issue. The time period for payment of the purge amount has

long since passed as these Orders were issued between 2010 and 2011. The

time period for Mother to pay the purge amount and not face issuance of a

bench warrant is therefore expired. One of the five Orders provides simply for

a term of incarceration with no purge amount and the final Order provides for

a purge amount with no time limit stated. The purge amount in this last order,

the Order dated January 4, 2011, still cannot be enforced as a purge amount

issued by a Court after a finding of civil contempt is used "to coerce the

defendant into compliance with the court's order." Knaus u. Knaus, _387 Pa.

370, 377, 127 A.2d 669, 672 (1956). Civil contempt is a way for the Court to

enforce its ruling over the defendant and, since jurisdiction has been

relinquished to Pennsylvania, South Carolina no longer has the ability to

enforce that ruling over Mother. Also, this purge amount cannot be given full

faith and credit as it was not reduced to a money judgment in order to fall

within the definition of "foreignjudgment" in 42 Pa.C.S. § 4306.



 Petition for Special Reliefto Change Venue in the Nature of a Nunc Pro Tune

                                     Petition

      In his Petition for Special Reliefto Change Venue in the Nature of a Nunc

Pro Tune Petition Father is requesting that the present matter be transferred

out of Delaware County and into another Pennsylvania County. As this matter

was assigned to me, a Senior Judge of Chester County, Pennsylvania, this

Petition is moot.

                                         9
     Based on the foregoing, it is hereby



                                ORDERED



     Plaintiff/Father's Special Petition to Enforce Orders Dated September 20.

2010, November 12. 2010. January 4, 2011. March 25, 2011. and May 31,

2011 and Petition for Special Relief to Change Venue in the Nature of a Nunc

Pro Tune Petition are DENIED.



                                    BY THE COURT:



                                  ~&>-&~
                                    Thomas G. Gavin, Senior Judge




                                       10
                                                           Circulated 02/03/2016 04:27 PM




     IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY,
                        PENN.SYLVANIA
                      CIVIL ACTION-LAW

      L&s.                                   DOCKET NUMBER: 2009-011738
 Plaintiff

                   vs.                       2573 EDA 2015

         S.<.,                               IN CUSTODY
 Defendant

Brian C. Vertz, Esq., Attorney for Plaintiff
     ,5,  c. ·, Self-Represented


                                  OPINION

GAVIN,   S.J.                                    FILED:, 2015


      Appellant,   T     \_0.S.   (hereinafter "Father"), appeals from the

Order and Opinion dated May 27, 2015 and docketed on May 29, 2015

denying his Special Petition to Enforce Orders Dated September 20, 2010,

November 12. 2010. January 4, 2011. March 25, 2011. and May 31, 2011

and his Petition for Special Relief to Change Venue in the Nature of a Nunc

Pro Tune Petition. This Order was entered followinga hearing held on April

27, 2015 where Father had opportunity to present evidence and testimony

and to make argument.

      Subsequent to the entry of the Order, on July 15, 2015, this Court

entered art Order correcting the docket number under which it originally

filed the Order and Opinion. The Order and Opinion was first docketed

under 2011-010287 in error and was correctly filed on July 15, 2015 under
                                         1
docket number 2009-011738.      This Court, in an abundance of caution,

gave Father thirty days from the date of the July 15, 2015 Order to file an

Appeal.   Father filed his Notice of Appeal along with a Rule 1925(bl

Statement of Matters Complained of on Appeal on August 12, 2015.

      Appellant's Statement raises five main issues for appeal. Those

issues are summarized as follows: 1) This Court erred in de facto vacating

the Delaware County, Pennsylvania Order of May 23, 2012 which confirmed

and gave full faith and credit to the Richland County, South Carolina

Orders of Court in violation of 23 Pa.C.S.A. 5443(A) and (B), 5446(A), and

5453; 2) This Court erred in failing to enforce those portions of the South

Carolina Orders finding Appellee in civil contempt, finding Appellee in

criminal contempt, sentencing appellee to incarceration, and setting purge

conditions including compensation and restitution to Appellant; 3) This

Court erred in failing to find Appellee in Contempt of the South Carolina

Orders; 4) This court erred in failing to grant Count VII of Appellant's

Petition to Enforce, wherein Appellant incurred significant counsel fees and

expenses in the course of seeking enforcement of orders of court, and where

Appellee proffered no legally cognizable defense to the enforcement thereof;

and 5) This Court erred in failing to grant Count VIII of Appellant's Petition

to Enforce where Appellant requested a transfer of physical and legal

custody of the subject children as a sanction for Appellee's noncompliance

with the prior court orders.


                                       2
      Upon review of Father's Statement, this Court believes that the Order

and Opinion as well as the record as a whole fully address all issues

complained of on appeal. As the reasons for the Order and Opinion appear

of record, this Court does not believe it is required to prepare an Opinion.

See Pa.R.A.P. 1925(a)(2)(ii).However,out of an abundance of caution, this

Court will address issues four and five raised by Father as the reasons for

the decisions on those issues are not as apparent in the record. This Court

will not address issues one through three of Father's Statement as those

issues are addressed fully in the Order and Opinion and the record as a

whole.

      The standard of review in custody appeal is well established. Our

Superior Court has explained that, "In reviewinga custody order, our scope

is of the broadest type and our standard is abuse of discretion. We must

accept findings of the trial court that are supported by competent evidence

of record, as our role does not include making independent factual

determinations. In addition, with regard to issues of credibility and weight

of the evidence, we must defer to the presiding trial judge who viewed and

assessed the witnesses first-hand." G.A. v. D.L., 2013 PA Super 168, 72

A.3d 264, 268 (Pa. Super 2013) "Wemay reject the conclusions of the trial

court 'only if they involvean error of law, or are unreasonable in light of the

sustainable findings of the trial court."' Id.



                                         3
          Father contends in issue four of his Statement that this Court erred

in failing to grant Count VII of Appellant's Petition to Enforce, wherein

Appellant incurred significant counsel fees and expenses in the course of

seeking enforcement of orders of court, and where Appellee proffered no

legally cognizable defense to the enforcement thereof. In custody cases, "a

court may award reasonable interim or final counsel fees, costs and

expenses to a party if the court finds that the conduct of another party was

obdurate, vexatious, repetitive or in bad faith." 23 Pa.C.S.A. 5339. The

imposition of counsel fees is within the trial court's discretion and is

reviewed under the abuse of discretion standard. A.L.-S. v. B.S., 2015 PA

Super 125, 117 A.3d 352, 361 (Pa. Super 2015) A Court has abused its

discretion "if it failed to followproper legal procedures or misapplied the

law." Id. Here, Father contends that this Court erred in failing to order

payment of counsel fees to Beth Hoffman, Esq., who prepared, filed, and

presented his Petition for Enforcement of the South Carolina Orders.I In

support of this contention, Father explains that Appellee/Mother acted with

disregard for the law when, after the entry of the South Carolina Orders,

she never paid the funds owed to him under the orders and never

presented herself before the court to serve her sentences of incarceration

for contempt. He states that Mother's actions were arbitrary and vexatious

and caused him to have to hire Ms. Hoffman and file this petition. "A suit is

1   It should be noted that Attorney Hoffman did not appear on Appellant's behalf to present argument on
Father's Petition to Enforce the South Carolina Orders.

                                                       4
'vexatious,' such as would support an award of counsel fees in a child

custody case, if it is brought without legal or factual grounds and if the

action served the sole purpose of causing annoyance." Id.

      This Court did not find facts sufficient to believe that Mother's

actions were arbitrary or vexatious. Mother did not bring the current

action before this Court. In fact, Mother has not brought many petitions

before the Court at all in this action. The party who has brought many

petitions to the Court including multiple Petitions for Contempt of Custody

has been Father. As for Appellant's contention that Mother willfully

disregarded the findings of contempt in South Carolina, those actions are

too remote in time and are essentially moot here. The findings of contempt

were made between 2010 and 2011. Since that time, South Carolina has

recalled their warrants and relinquished jurisdiction to Pennsylvania.

South Carolina has also communicated to this Court their unwillingness to

extradite Mother to South Carolina if she were to be incarcerated in

Pennsylvania based on contempt. Plainly, this Court does not find facts

sufficient to find that Mother's conduct requires the imposition of attorney's

fees in this matter.

      The second and final issue that should be addressed here as it was

not fully addressed in this Court's Order and Opinion is Father's issue

number five which states that this Court erred in failing to grant Count VIII

of Appellant's Petition to Enforce where Appellant requested a transfer of

                                       5
physical and legal custody of the subject children as a sanction for

Appellee's noncompliance with the prior court orders. As our Superior

Court knows, "the purpose of a civil contempt proceeding is remedial.

Judicial sanctions are employed to coerce the defendant into compliance

with the court's order, and in some instances, to compensate the

complainant for losses sustained." Wcinnkessel v. Heffner, 2011 PA Super

46, 17 A.3d 408, 414 (Pa Super. 2011)

      In the present case, this Court did not find that it was able to enforce

the Orders of South Carolina and incarcerate Mother therefore a transfer of

custody to Father while Mother is serving her incarceration would be moot.

This Court would like to note however that it finds Father's attempt to use

the transfer of custody as a sanction for civil contempt quite discomforting.

The driving force behind a custody decision is the best interests of the

children. This Court does not believe that the best interests of the children

would be served by using _them as a sanction for either party's behavior.

The children have been living with Mother in Delaware County for years

now and one child has reached the age of majority. The second child will

reach the age of eighteen in less than one year. This Court will not

condone the attempt to use any child as a sanction especially not children

who are practically adults in the eyes of the law.

                                CONCLUSION



                                       6
      For all of the reasons set forth above and in this Court's Order and

Opinion, dated May 27, 2015, this Court respectfully submits that there

has been no error or abuse of discretion and the Order and Opinion dated

May 27, 2015 should be affirmed.


                                            BY THE COURT:



                                           ~IA-~~
                                             I
                                            Thomas G. Gavin, S.J.

                                               /t~~




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