J-A02020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.A.B.,                                       IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

J.C.B., JR.

                        Appellant                  No. 2091 EDA 2016


                Appeal from the Order entered June 1, 2016,
              in the Court of Common Pleas of Bucks County,
                Civil Division, at No(s): A06-13-61133-C-19.


BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY RANSOM, J.,                          FILED APRIL 28, 2017

      Appellant, J.C.B., (“Father”) appeals from the trial court’s order

awarding L.A.B. (“Mother”) counsel fees in the amount of $15,605.25. We

reverse.

      We adopt the following statement of facts from the trial court’s

opinion, which in turn is supported by the record. See Trial Court Opinion

(TCO), 7/27/16, at 1-8. The parties are the parents of three children: R.B.,

born in December 2007; N.B., born in January 2010; and Z.B. born in May

2012. In 2013, Mother filed a divorce complaint which included a claim for

custody. On July 24, 2015, following three days of evidentiary hearings, the

trial court entered an order in which it granted the parties shared legal

custody of their children. Mother was awarded primary physical custody of

the children, while Father was awarded partial physical custody of them on
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the first, second, and fourth weekend of each month.               In addition, Father

was also awarded a two-and-one-half hour “dinner visit” every Wednesday.

       On March 9, 2016, Mother filed several motions, including a “Motion

for Order for Evaluation of R.B. for Individualized Education Program and for

R.B. to Receive Any Special Education Services Recommended as a Result

Same.”1     On April 25, 2016, Father filed a petition to amend the existing

custody order to include a holiday schedule. Both matters were consolidated

for a hearing which began on May 27, 2016. As part of her case, Mother

presented the testimony of R.B.’s principal and second-grade teacher

regarding their belief that R.B. would benefit from a learning assessment.

This   recommendation        was    based      on   observations   of   R.B.’s   in-class

performance. Both parents would have to consent to such testing. Mother

immediately consented.          Despite being made aware of the request in

November 2015, Father withheld his consent.                 After returning for the

afternoon session on May 27th, Mother’s counsel hand-delivered to both the

trial court and Father’s counsel a request for counsel fees and costs pursuant

to 23 Pa.C.S. § 5339.

       The evidentiary hearing was continued until May 31, 2016.                 At that

time, Mother testified that, although R.B. maintained good grades, the child


____________________________________________


1
  The other motions dealt with psychological services for all three children
and their denial is not at issue in this appeal.




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spent excessive time completing homework assignments and in retaining

knowledge of the facts on which she was tested.        Father then began to

present his case by eliciting testimony from his sister and father.        The

hearing was again continued to June 1, 2016, at which time Father testified.

        Father testified to an email he received from the school principal on

April 12, 2016, in which she stated that R.B. was doing well and did not

need additional testing. The next day she reversed her opinion, and at the

evidentiary hearing the principal maintained the need for an educational

assessment. Father also noted that this need for an educational assessment

was made prior to R.B.’s taking of a standardized test on which she did very

well.

        At the conclusion of the testimony, and upon hearing arguments from

the parties, the trial court granted Mother’s motion by ordering that R.B. be

assessed for any special education needs.        In addition, the trial court

modified the existing custody arrangement to reflect that, for purposes of

R.B.’s future educational needs, Mother was awarded sole legal custody of

R.B. Finally, the trial court granted Mother’s request for counsel fees. The

court stated:

        We have to look at motivation. What does our Supreme Court
        say? In an appropriate case, the Court can and perhaps should,
        order counsel fees. It’s to give you guidelines; not because you
        like or dislike the person. No. The conduct has to be of such a
        nature that it’s obdurate and vexatious and arbitrary. That’s
        happened here. Father has been absolutely arbitrary. He knows
        better, but he wants to continue this fight. We don’t get the
        testing for [R.B.] unless Mother asks [her counsel] to file a
        Petition. Father will not bend. He won’t move. He won’t break.

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      He will fight her tooth and nail, which is his right. It’s how our
      system works, but when, as here, we find that he has willfully
      and deliberately and intentionally litigated a matter on a strictly
      arbitrary basis because he ignores every fact in the case and
      comes up with his own agenda. We believe that the vexatious,
      obdurate behavior should be compensated, and, therefore, we
      grant the Petition of [Mother’s counsel] for attorney’s fees.

N.T., 6/1/16, at 168-69.

      Pursuant to the trial court’s directive, Mother’s counsel filed an

itemized bill for her services in the amount of $15,606.25.       On June 17,

2016, Appellant filed a motion for reconsideration, which was not addressed

by the trial court, and then a timely appeal, in which he contends that the

trial court “abused its discretion by finding his behavior (position) arbitrary,

vexatious and obdurate.” Father’s Brief at 4.

      As this Court has recently summarized:

      Our standard of review of an award of counsel fees is well-
      settled, we will not disturb a trial court’s determination absent
      an abuse of discretion. Verholek v. Verholek, 741 A.2d 792,
      795 (Pa. Super. 1999). A trial court has abused its discretion if
      it failed to follow proper legal procedures or misapplied the law.
      Id. See also Thunberg v. Strause, 545 Pa. 607, 682 A.2d
      295 (1996) (appellate court’s scope of review in cases involving
      counsel fees is limited to determining whether trial court abused
      its discretion).

A.L.-S. v. B.S., 117 A.3d 352, 361 (Pa. Super. 2015).

      In Dong Yuan Chen v. Saidi, 100 A.3d 587 (Pa. Super. 2014), this

Court discussed the proper interpretation of Section 5339 of the Child

Custody Act:

      No case exists regarding interpretation or construction of this
      statute. The statute was adopted as proposed, with legislative

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      remarks on the overall goal of the new custody law, but without
      legislative comment with respect to counsel fees. Section 5339
      provides the authority for the award of counsel fees and costs in
      custody matters in cases of contempt, but also in cases where a
      party’s conduct is “obdurate, vexatious, repetitive or in bad
      faith.” Id.

Chen, 100 A.3d at 591 (footnote omitted). The Chen court then noted that

the above language from Section 5339 is identical to the language of two

sections of the Judicial Code that allow for the award of counsel fees based

on the conduct of a litigant save the addition of the term “repetitive,” the

word the trial court found to be the basis of its award of counsel fees in that

case. Id. at 591-593 (citing 42 Pa.C.S. §§ 2503(7), (9)).        In Chen, the

husband had filed “seven petitions over as many years.” Id. at 593.

Nevertheless, “in light of the fact that each petition sought distinct relief

pertaining to a variety of legitimate issues that typically arise in a custody

matter,” and the fact that each petition was not wholly meritless, we

concluded that the trial counsel’s award of counsel fees under Section 5339

“was unwarranted and an abuse of discretion in this case.” Id.

      In order to properly interpret Section 5339, the Chen court further

reasoned:

      Because this is a matter of first impression, we are inclined to
      look to case law interpreting section 2503 for guidance in
      determining whether Husband’s conduct rose to the level
      warranting an award of counsel fees to Wife. A suit is vexatious,
      such as would support an award of counsel fees, if it is brought
      without legal or factual grounds and if the action served the sole
      purpose of causing annoyance. In re Barnes Foundation, 74
      A.3d 129 (Pa. Super. 2013) (interpreting 42 Pa.C.S, § 2503(7)).
      “Behavior that protracts litigation may nonetheless not rise to
      the level of obdurate, vexatious and dilatory conduct within the

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         meaning of the statute.” 17 West’s Pa. Prac., Family Law § 13:2
         (7th ed.) (citing Gardner v. Gardner, 371 Pa. Super. 256, 538
         A.2d 4 (1988)). Section 2503(9) serves not to punish all those
         who initiate legal actions that are not ultimately successful, or
         which make seek to develop novel theories in the law, as such a
         rule would have a chilling effect on the right to bring suit for real
         legal harms suffered. Rather, the statute focuses attention on
         the conduct of the party from whom counsel fees are sought and
         on the relative merits of that party’s claims. Thunberg v.
         Strause, [545 Pa. 607, 682 A.2d 295 (1996)].

Chen, 100 A.3d at 592.

         Both Chen and A.L.-S. involved repetitive petitions initiated by the

party against whom counsel fees were assessed. See Chen, supra; A.L.-

S., 117 A.3d at 362 (reversing award of counsel fees when mother filed

three separate petitions to modify custody over a five-month period; these

filings were necessitated, at least in part, by the trial court’s error in refusing

to accept jurisdiction).        Here, Father was assessed counsel fees for

contesting, over a four-month period, Mother’s petition seeking additional

educational testing for R.B. based on his belief that such testing was not

necessary given her improving grades and performance on standardized

tests.     Neither the trial court nor Mother cites any case law that would

permit the award of counsel fees under these circumstances. Accordingly,

upon review, we hold that Father’s opposition to such testing, over a

relatively short period of time in custody proceedings that have been

litigated over several years, does not warrant an award of counsel fees

under Section 5339.        See, e.g., O’Connell v. O’Connell, 597 A.2d 643,

647 (Pa. Super. 1991) (reversing award of counsel fees; husband’s vigorous


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defense of his position in a “bitterly contested” support matter did not

establish “the stringent requirement that [husband’s] behavior was dilatory,

obdurate or vexatious” or done in bad faith); Lower v. Lower, 584 A.2d

1028, 1032 (Pa. Super. 1991) (affirming refusal to grant attorney fees

because the record supported the trial court’s conclusion that “the continuing

dispute between the parties had to be decided by a third party”).

      Even if we were to conclude that Mother could seek counsel fees under

Section 5339 for Father’s opposition to a petition she filed, we would still

conclude that the trial court abused its discretion in granting Mother’s

petition. In explaining the reasons for its decision, the trial court stated:

          Here, the record reflected that Father was obdurate and
      vexatious in his conduct towards [sic] Mother and R.B. School
      policy dictated that an educational evaluation would only be
      administered with the approval of both parents. Father, ignoring
      the recommendations of educational professionals regarding
      R.B.’s best interests, refused to consent, leading to the ongoing
      litigation in this case. We note that Father’s request for a
      “formal apology” from St. Ignatius demonstrated his disregard
      for the professional opinions of R.B.’s educators. Additionally,
      we found that Father’s arbitrary refusal to consent to the
      education evaluation left Mother with no other option but to file a
      Petition with this [c]ourt, asking this [c]ourt to compel a result
      which should have easily been resolved by both parents.

         When we announced our decision to impose counsel fees
      upon Father, we recognized that such an award should be an
      option only in these cases where the evidence is clear. Here,
      Father’s refusal to consent to limited testing for R.B. was
      motivated by Father’s personal animus toward Mother.           He
      rejected an evaluation to effectuate his daughter’s best interests
      in a specific school and curriculum which both parents
      continually supported.

        A court, presiding over a child custody case, should not
      micromanage every issue between parents, however, in this

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       instance the issue presented was not trivial. It implicated a vital
       educational matter which, if unresolved, would be contrary to
       R.B.’s best interests, now, and in the future.

Trial Court Opinion, 7/27/16, at 9-10.

       After reviewing the record of the hearings regarding the litigation of

Mother’s petition, we agree with Father’s claim that the trial court’s

conclusion that his opposition was motivated by animus toward Mother has

no support in the record.         Mother made no such assertions, and Father’s

testimony demonstrated none. Moreover, the trial court makes no mention

of the objective data upon which Father based his decision to withhold

consent.    Thus, we conclude that the trial court erred in awarding Mother

counsel fees.2

       Order     reversed.        Application    denied   as   moot.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2017


____________________________________________


2
 Given our decision, we deny as moot Mother’s application for counsel fees,
costs, delay damages and interest pursuant to Pa.R.A.P. 2741 and 2744.




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