J-A18037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHERRILYN D. WASHINGTON                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

HARRY HAMILTON

                         Appellant                 No. 1765 MDA 2013


              Appeal from the Order Entered August 30, 2013
              In the Court of Common Pleas of Centre County
                     Civil Division at No(s): 2004-2534


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                       FILED JANUARY 26, 2015

      Harry Hamilton appeals from an order of the Court of Common Pleas of

Centre County holding him in contempt of a discovery order.        Following

careful review, we affirm.

      Sherrilyn D. Washington and Harry Hamilton have been involved in

protracted domestic relations litigation since June 8, 2004, when Washington

filed a complaint for divorce in which she sought, inter alia, custody of the

parties’ son, who was born on August 5, 2001.

      On September 12, 2011, Washington filed a motion to compel

responses to her second set of interrogatories and to her second request for

production of documents.     In the motion, she avers that she “needs the

requested information to properly litigate the divorce and related claims.”

Motion to Compel, 9/12/11, at ¶ 8.
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      On October 18, 2011, the court filed an order directing Hamilton to

respond to all discovery requests within twenty days.       On November 21,

2011, Washington filed a motion for sanctions averring that Hamilton served

inadequate and incomplete responses to her discovery requests.

      On April 9, 2013, the court granted Washington’s motion for

bifurcation and entered a divorce decree erroneously referencing mutual

consent pursuant to 23 Pa.C.S. § 3301(c).       On July 11, 2013, the court

vacated the April 9, 2013 decree and issued a new divorce decree on the

grounds of irretrievable breakdown (parties having lived separate and apart

for at least two years) pursuant to 23 Pa.C.S. § 3301(d).

      On August 5, 2013, Washington filed a petition for civil contempt

stating that Hamilton failed to comply with the October 18, 2011 discovery

order. The court held a hearing on August 28, 2013, at which it considered

several motions including Washington’s petition for civil contempt.         In

response, the trial court issued the following order from the bench:

                                   ORDER

      AND NOW, August 28, 2013, Plaintiff’s Petition for Civil
      Contempt for disobedience of this Court’s previous Order dated
      October 17, 2011, is hereby GRANTED. Defendant is hereby
      found in contempt for failing to respond to all outstanding
      discovery requests.

      Defendant shall respond to all outstanding discovery requests
      within thirty (30) days of this Order. Failure to do so will result
      in a period of incarceration of thirty (30) days in the Centre
      County Correctional Facility to commence on September 28,
      2013, at 9:00 a.m.



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       The order, reduced to writing, was filed on August 30, 2013, and

Hamilton filed a notice of appeal on September 30, 2013.

       On September 20, 2013, Hamilton filed a motion for stay or

continuance, which the court denied, and on September 23, 2013,

Washington filed a petition for enforcement of the contempt order and

opposing the request for continuance.1 By order filed October 11, 2013, the

trial court scheduled oral argument on November 4, 2013, for several

matters including Hamilton’s motion to dismiss the contempt petition.                 On

November      1,   2013,    Hamilton      filed   an   answer   to   the   petition   for

enforcement.2       By order dated November 4, 2013, the court granted

Hamilton’s motion for stay or continuance “once the investigation by the

United States Army is concluded.”3

       On June 12, 2014, Washington filed a petition for civil contempt

averring that the investigation was concluded and that Hamilton had failed
____________________________________________


1
  Our discussion of matters occurring in the trial court after the filing of the
instant appeal is solely for the purpose of giving a complete picture of the
extent to which the court has been involved in resolving the discovery issue.
2
  In his brief, Hamilton states that the trial court “held another hearing on
November 1, 2013 on Plaintiff’s motion to enforce the criminal contempt.”
Appellant’s Brief, at 6. However, the trial court docket does not reference
such a hearing, nor has a transcript of such proceeding been included in the
record on appeal.
3
  In his brief, Hamilton states that he “obtained the stay based on an
investigation by the United States Army concerning Hamilton’s marriages.”
Appellant’s Brief, at 14.




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to notify the court in violation of the November 4, 2013 order. On July 30,

2014, Hamilton filed a petition to vacate the contempt finding.     The same

day, the court scheduled argument on the contempt petition and the petition

to vacate for October 2, 2014.4

       Hamilton raises the following issues for our review:

       1. Whether the court errs as a matter of law and demonstrates
          bias by proceeding on a petition for contempt of a custody
          order that attaches only a previously litigated order
          concerning divorce from two years prior after an appeal has
          been filed on the divorce and custody action?

       2. Whether the court errs as a matter of law, violates
          Constitutional rights of an accused, and demonstrates bias by
          failing to conduct a hearing by permitting argument or sworn
          testimony including cross-examination, and the presentment
          of exhibits?

       3. If the trial court does not retain jurisdiction of matters of
          custody and declares all claims determined, may the parties
          appeal the actions in custody and the trial court’s failure for
          three years to conduct a hearing or make any of the
          considerations under Title 23 Chapter 51 of the Pennsylvania
          Statutes (particularly section 5328(a)(1) and (6-12) and
          5331)?

Appellant’s Brief, at 4.

       When considering an appeal from an order holding a party in contempt

of court our scope of review is limited. “We will reverse only upon a showing

of an abuse of discretion. This court must place great reliance on the sound

____________________________________________


4
  The most recent trial court docket sheet provided to this Court does not
contain a reference to the hearing, and no transcript has been provided as
part of the supplemental record.



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discretion of the trial judge when reviewing an order of contempt.”

Rhoades v. Pryce, 874 A.2d 148 (Pa. Super. 2005) (citations omitted).

     Hamilton notes that on August 28, 2013, the court held him in

contempt of an order filed October 18, 2011.           Although the discovery

requests, and any answers thereto, have not been included in the original

record as exhibits to any pleadings, and thus are not subject to our review,

the trial court stated at the hearing that the discovery requests related to

divorce, and not to custody. N.T. Hearing, 8/28/13, at 11-12.

     Hamilton maintains that once the trial court issued the divorce decree

on July 11, 2013 and an appeal was filed, it no longer had jurisdiction to

enter a contempt order related to discovery in the divorce matter.         We

disagree.   Pennsylvania Rule of Appellate Procedure 1701(b)(2) provides

that after an appeal is taken, the trial court may “enforce any order entered

in the matter unless the effect of the order has been superseded as

prescribed in this chapter.” “Generally, an appeal to an appellate court does

not act as an automatic supersedeas.”              G. Darlington, et al., 20A

Pennsylvania   Appellate   Practice,    §1701:20    (2014   ed.).   See   also,

Tanglwood Lakes Community Ass’n v. Laskowski, 616 A.2d 37 (Pa.

Super. 1992) (trial courts possess inherent power to enforce their orders by

imposing sanctions for failure to comply and such power is retained after

appeal, absent a supersedeas);         Travitzky v. Travitzky, 534 A.2d 1081

(Pa. Super. 1987) (trial court has inherent power to enforce its order even

after appeal is filed, absent a supersedeas); Rouse Philadelphia, Inc. v.

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Ad Hoc ’78, 417 A.2d 1248 (Pa. Super. 1979) (courts have always

possessed the inherent power to enforce their orders and decrees by

imposing sanctions for failure to comply with orders). Accordingly, the

appeal from the divorce decree did not preclude the trial court from issuing

an order finding him in contempt of a discovery order.

      Hamilton next argues that the trial court erred by failing to conduct a

hearing before finding him in contempt.          The trial court adequately

addressed this issue in its Pa.R.A.P. 1925(a) opinion, noting:

      The Court was not required to hold a full evidentiary hearing
      before entering the August 30, 2013 Order.         See, e.g.,
      Diamond v. Diamond, 792 A.2d 597 (Pa. Super. 2002)
      (contemnor who received notice and an opportunity for
      explanation and defense was afforded due process).

                                       ...

      Based upon a review of the relevant portions of the record,
      including the Answer to Interrogatories and Answer to Document
      Requests, the Court concluded that [Hamilton] had clear notice
      of the 2011 discovery order and intentionally violated it.
      Accordingly, the Court entered the August 30, 2013 Order,
      giving [Hamilton] thirty days to purge the contempt by
      responding to all outstanding discovery requests and directing
      that he be incarcerated should he fail to do so.

      [Hamilton’s] Motion to Dismiss the Contempt Petition is
      scheduled to be heard on November 4, 2013. Thus, [Hamilton]
      has been provided with notice of the underlying order, an
      opportunity to object, time to purge the contempt, and a
      hearing.

Trial Court Opinion, 9/1/13, at 2-3.




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      Accordingly, Hamilton has failed to establish that the trial court

violated his due process rights by its handling of the contempt matter, and

accordingly we perceive no abuse of discretion on the part of the trial court.

      Hamilton’s final issue involves his dissatisfaction with the way in which

the court has handled the protracted custody litigation regarding his son.

Based on the notes of testimony from the August 28, 2013 hearing, it is

clear that the discovery requests involved matters related to divorce, and

not to custody.     N.T. Hearing, 8/28/13, at 11-12.       Because the order

appealed from does not relate to custody, we decline to address the issue.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2015




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