J-A25020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    K.A.M.                                           IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                              Appellee

                         v.

    L.S.

                              Appellant                  No. 179 EDA 2017


                  Appeal from the Order Entered December 7, 2016
                In the Court of Common Pleas of Montgomery County
                           Civil Division at No: 2002-25932


BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                          FILED FEBRUARY 12, 2018

           Appellant, L.S. (“Mother”), appeals from an order entered in the Court

of Common Pleas of Montgomery County denying her petition to hold K.A.M.

(“Father”) in civil contempt. We affirm.

           We summarize the relevant factual and procedural history of this matter

as follows. Father and Mother have two children, H.M., who is emancipated,

and W.M. (“W”), who was born on February 22, 2000 and is now 17 years old.

On May 19, 2004, the trial court approved the parties’ stipulation to terms of

shared legal and physical custody of the children (“2004 order”).




____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      In August 2014, W informed Mother that he no longer wished to live at

Mother’s home. Mother wrote that she would not force W to comply with the

2004 order to give him time to process what he was feeling. Thereafter, W

lived exclusively with Father. For the next six months, Father continued to

pay Mother monthly child support of $10,177.00, even though W no longer

lived with her.

      In February 2015, Father filed a petition to terminate child support

payments to Mother. In response, on March 27, 2015, Mother filed a petition

for special relief to enforce custody order and for contempt of custody order,

alleging violations of the legal and physical custody provisions of the 2004

order and seeking attorney fees as sanctions. On April 2, 2015, Father filed

an answer and counterclaim seeking to modify the physical custody schedule.

      On July 20, 2015, the trial court appointed Maria Gibbons as guardian

ad litem (“GAL”). On September 1, 2015, the trial court entered an order

approving the parties’ stipulation for family therapy designed to reunify W and

Mother.

      On October 3, 2016, following eight days of hearings, the trial court

issued detailed findings of fact and a 14-page order which held that Father

was not in contempt. The order also awarded Father primary physical custody,

set forth a gradual increase of Mother’s limited custodial time, included

provisions for ongoing family therapy, and directed Father and Mother to each

pay 50% of the fees charged by several professional witnesses.


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      On October 13, 2016, Mother filed a motion for reconsideration

challenging, inter alia, the dismissal of her contempt petition. On October 20,

2016, the trial court entered an order granting reconsideration of the October

3, 2016 order “as to the issues set forth in the aforementioned motion.” In a

footnote, the trial court added: “The Court did advise the parties on the record

that the [p]etitions requesting financial relief would be considered by the Court

post hearing and following the entry of an [o]rder on the underlying custodial

issues.”

      In an order docketed on December 7, 2016, the trial court amended the

October 3, 2016 order to require Father to pay 60% of the professional

witnesses’ fees instead of 50%. The order continued: “The final disposition of

the following [p]etitions were addressed in the Court’s October 3, 2016

[o]rder: Father’s [p]etition [f]or [t]ermination (filed on February 2, 2015)

[and] Mother’s [p]etition for [s]pecial [r]elief [t]o [e]nforce [c]ustody [o]rder

(filed on March 27, 2015) for [c]ontempt . . .”

      On January 6, 2017, Mother appealed to this Court and filed a statement

of errors complained of on appeal. The trial court filed a Rule 1925 opinion

stating that “[a]ny displeasure with this Court by Mother with regard to a

failure to find Father in contempt of the [2004 order] . . . has been waived by

Mother’s failure to appeal the October 3, 2016 [o]rder.” Trial Court Opinion,

3/9/17, at 5.    Even if Mother preserved this issue for appeal, the court




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continued, its denial of her contempt petition was a proper exercise of

discretion. Id. at 5-7.

      Mother raises the following issues in this appeal:

      [1.] Whether this Court should consider both the trial court’s
      October 3, 2016 and December 7, 2016 Orders when determining
      whether the trial court abused its discretion by failing to find willful
      contempt by [Father]?

      [2.] Whether the trial court abused its discretion by failing to
      provide any basis for its summary dismissal of Mother’s Petition
      for Civil Contempt in the trial court’s Findings of Fact and
      accompanying Order?

      [3.] Whether the trial court abused its discretion in not finding
      [Father] in willful contempt of the May 19, 2004 Custody Order,
      or the September 1, 2015 Family Therapy Order?

Mother’s Brief at 9.

      We review the trial court’s decision on Wife’s contempt petition for clear

abuse of discretion. See Flannery v. Iberti, 763 A.2d 927, 929 (Pa. Super.

2000) (citation omitted). An abuse of discretion occurs when the trial court

exercises its judgment in a manifestly unreasonable manner. See Kraisinger

v. Kraisinger, 928 A.2d 333, 341 (Pa. Super. 2007).

      In proceedings for civil contempt,

      the general rule is that the burden of proof rests with the
      complaining party to demonstrate, by preponderance of the
      evidence, that the defendant is in noncompliance with a court
      order. However, a mere showing of noncompliance with a court
      order, or even misconduct, is never sufficient alone to prove civil
      contempt.

      To be punished for contempt, a party must not only have violated
      a court order, but that order must have been definite, clear, and


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       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. In such
          cases, a contradictory order or an order whose specific
          terms have not been violated will not serve as the basis for
          a finding of contempt.

       To sustain a finding of civil contempt, the complainant must prove
       certain distinct elements: (1) that the contemnor had notice of the
       specific order or decree which he is alleged to have disobeyed; (2)
       that the act constituting the contemnor’s violation was volitional;
       and (3) that the contemnor acted with wrongful intent. A person
       may not be held in contempt of court for failing to obey an order
       that is too vague or that cannot be enforced.

Lachat v. Hinchliffe, 769 A.2d 481, 488-89 (Pa. Super. 2001) (citations and

quotation marks omitted).

       In her first argument on appeal, Mother contends that she was not

required to appeal within thirty days of the October 3, 2016 Order, and

therefore, she preserved her objection to the denial of her contempt petition

for appeal. We agree.

       Following the October 3, 2016 order, Mother filed a motion for

reconsideration in which she objected, inter alia, to the denial of her contempt

petition. On October 20, 2016, the trial court granted reconsideration “as to

the issues set forth in the aforementioned motion.” This order was a timely

grant1 of reconsideration on all issues in Mother’s motion, including her


____________________________________________


1 See 42 Pa.C.S.A. § 5505 (court has jurisdiction to grant reconsideration of
final order within thirty days after its entry).

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contempt petition. Thus, the October 20, 2016 order relieved Mother of any

duty to appeal within thirty days after October 3, 2016.

      Father argues that the footnote to the October 20, 2016 order limited

the grant of reconsideration to financial issues outside the scope of Mother’s

contempt petition, thus placing Mother on notice of her duty to appeal within

thirty days after October 3, 2016. The footnote is too ambiguous for us to

agree with Father’s construction.    The footnote did not expressly exclude

Mother’s contempt petition from reconsideration; it simply referenced the

court’s promise to review “financial” issues “post hearing” after deciding

“custodial issues.”   These “financial” issues arguably included Mother’s

demand for attorney fees in her contempt petition.           Further, Father’s

interpretation conflicts with the main text of the Order, which granted

reconsideration on all issues, including the contempt petition.

      Father also claims waiver based on the text in the December 7, 2016

order that the October 3, 2016 order was the “final disposition” of the

contempt petition. We disagree with Father (and, by extension, the trial court)

on this point. To repeat, the main text of the October 20, 2016 order granted

reconsideration of Mother’s contempt petition, so the final disposition of the

contempt petition did not take place until the December 7, 2016 order.

      We review Mother’s second and third arguments on appeal together,

because the theme of both arguments is the same: the trial court abused its

discretion by failing to provide any basis for denying the contempt petition


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and by disregarding evidence of Father’s contempt. More specifically, Mother

accuses Father of violating the 2004 order by (1) threatening to call the police

if Mother came onto Father’s property to pick up W on her custody day, (2)

failing to communicate with Mother on numerous issues relating to W’s

education, (3) failing to consult with Mother on W’s medical and dental issues,

(4) failing to inform Mother that W decided to participate in a summer program

in Europe, (5) failing to inform Mother that W was bullied at school or punched

a close friend at school, and (6) unilaterally canceling family therapy sessions

or otherwise undermining Mother’s attempts at reunification with W. Id. at

13-18.

      Having carefully reviewed the record, we conclude that the trial court

acted within its discretion by denying Mother’s contempt petition.           Despite

Mother’s   insistence   that   the   trial   court   ignored   reams   of   evidence

demonstrating Father’s contempt for the 2004 order, we conclude that the

trial court provided a balanced and thoughtful assessment of Father’s conduct.

On one hand, the court took Father to task for allowing W “to make unilateral

decisions relating to his responsibilities (not going to school/therapy, dropping

out of activities, not seeing his Mother, and not following [c]ourt [o]rders).”

Findings of Fact, 10/3/16, at 2. On the other hand, the court perceived that

Father is a loving parent who did not manipulate or bully W into leaving

Mother’s household. W made up his own mind to live with Father, because W

feels closer to Father than to Mother, “has assimilated to life in Father’s


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household,” and “clearly does not want to return to living in Mother’s

household.” Id. at 6, 8.    The court also found that Father did not interfere

with reunification therapy between Mother and W.          Both the GAL and W

testified that W met with Mother and “poured his heart out” during

reunification therapy, but Mother did not respond. Id. at 8.

      Simply put, the trial court carefully weighed the testimony, and acted

within its discretion, in ruling that Father’s conduct, while not completely

above reproach, did not evince contempt for the 2004 order. The trial court

also acted within its discretion in deciding that Mother’s motive for seeking

contempt sanctions was not to vindicate her parental rights but to retaliate

against Father for petitioning to terminate monthly child support payments.

See Trial Court Opinion, 3/9/17, at 6 (“[o]nly after Father filed his [p]etition

to [t]erminate [s]upport on February 2, 2015 did Mother then file her

[p]etition for [c]ontempt, many months after her acquiescence to the

establishment of a new custodial status quo,” i.e., W’s exclusive residence in

Father’s household). We accord considerable deference to the trial court’s

evaluation of Mother’s contempt petition due to the fact-sensitive nature of

these proceedings. See Flannery, 763 A.2d at 929. We see no reason to

take issue with the trial court’s substantive decisions in this case.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/18




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