J-A21040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 L.M.                                    :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 C.MCG.                                  :    No. 560 EDA 2018

              Appeal from the Order Entered February 1, 2018
  In the Court of Common Pleas of Bucks County Family Division at No(s):
                              2011-62920-C


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                  FILED NOVEMBER 26, 2018

      L.M. appeals from the order finding her in contempt of the July 31, 2017

custody order and remanding her to the Bucks County Correctional Facility for

ten days, which could be purged “immediately thereafter” if she wrote a “letter

in her own hand as to how she will abide by this Court’s Order in the future,”

and ordering her to pay to C.M.’s counsel $12,256.75 in counsel fees within

10 days of her release. We affirm.

      L.M. and C.McG. are the parents of twin children, L. and E. (“Children”)

(born April 2010). L.M. initiated this custody action in September 2011. On

July 31, 2017, following a 14-day hearing, the trial court ordered that primary

physical custody of Children would be with C.McG. during the school year and

that L.M. would have custody every first and third weekend. This schedule

would reverse in the summer.
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      C.McG. filed a Petition for Special Relief for Finding of Contempt and

Counsel Fees (“Petition for Contempt”), alleging L.M. was in contempt of the

custody order when she did not return the Children at 5:00 p.m. on Sunday

following two of her custody weekends. L.M. filed an Answer and the trial court

conducted a hearing, at which both C.McG. and L.M. testified.

      C.McG. testified that on the weekend of October 22, 2017, L.M. returned

Children home 30 minutes late because they went to dinner in Peddler’s

Village, which was ten minutes from C.McG.’s home. N.T., 2/1/18, at 10. She

further testified that L.M. failed to return Children on Sunday, November 5,

2017, and that L.M. kept them Sunday night and drove them to school on

Monday. Id. at 13-19.

      L.M. did not deny that she was 30 minutes late on October 22, 2017, or

that she kept Children on November 5, 2017. She claimed that on October 22,

she and her mother took Children to get donuts at Earl’s, a restaurant in

Peddler’s Village. Id. at 33-34. Further, on November 5, Children were very

upset and L.M. felt she had to let them stay. Id. at 36-37.

      In the Petition for Contempt, C.McG. stated her counsel’s rate was

$450.00 per hour. Petition for Contempt at ¶ 32. At the hearing, C.McG.’s

counsel informed the court that she attended a custody conference, as well as

the hearing on the emergency petition. N.T., 2/1/18, at 81-82. She provided

to the court a fee certification and affidavit, which included an itemization of

the fees. Id. at 81-83. The documents supporting the fee award are not part

of the certified record. L.M. also filed a petition for contempt, which was

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denied. L.M. sought a counsel fee award of $10,000.00. Id. at 79. L.M.’s

counsel’s fee certification also is not part of the certified record.

      The trial court found that C.McG.’s counsel was “an attorney in good

standing before” the court. Id. at 82-83. It found, based on counsel’s affidavit

and certification of legal fees, that the fees sought, $12,256.75, were

“reasonable and necessary to prosecute this contempt action.” Id.

      The trial court found L.M. in contempt. It stated:

         This litigation has continued for approximately seven years.
         There have been almost 200 filings back and forth between
         [L.M.] and [C.McG.]. The filings are created because a
         couple who was once very much in love and got along
         famously can no longer say that. This romance, this
         partnership, ended on very unhappy terms.

                                       ...

         So I have sat through 14 hearings in this case. I have made
         all of these decisions. It’s not a science. It’s not an art. It’s
         not a crap shoot either. I have to make a decision separate
         and apart from the troubles between [C.McG.] and [L.M.] as
         to what would be in the best interests of these two children.
         They’re babies. They can’t speak for themselves.

                                       ...

         What have I heard today? Well, I read the Petition, of
         course. And having read it, I said to myself, there must be
         an explanation. How could an Order which is so clear and
         unmistakable be the subject of this type of violation? So, of
         course, as with all cases, this case especially, I read the
         report of the Custody Conference Officer. And it mirrors the
         facts that I’ve heard today.

         The other information section notes that [L.M.] withheld the
         children. I’m looking further in that Custody Conference
         Report, and there is, apparently, a quote from [L.M.] that
         said[,] “What else should a responsible parent do when



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       children are that upset,” referring to this meltdown which
       you describe.

       The answer to that is very simple, [L.M.]. You’re the adult
       and they are the children. I don’t believe they had a
       meltdown, but let’s assume they did. Before that meltdown
       happened, before the temperature rises with [Children] you
       say to them as best you can explain to children their age,
       look, [C.McG.] and I have an agreement. I have to drop you
       off by 5 o’clock.

       Now, I know you’d like to stay and have pizza and watch the
       football game, but [C.McG.] has dinner ready for you. I
       understand that and I’ll see you soon enough. That’s what,
       quote, a responsible parent would do.

                                    ...

       Let’s hear the testimony again to recapitulate what was
       said. On the weekend of October 22, 2017[, L.M.] returned
       the children at 5:30 p.m. Is that so egregious as to outrage
       this Court’s sensibilities? No. We understand traffic,
       deadlines, commitments, other issues that come up.
       Children always aren’t ready when we expect them to be.

       So that extra half-an-hour is not a matter of great urgency,
       except we know that [L.M.] understands that 5 o’clock
       means 5 o’clock. And where was she? Was she so far away
       that the 5 o’clock timeline was not attainable? No, she was
       within ten minutes of [C.McG.’s] home, in Peddler’s Village.

       We take judicial notice that Peddler’s Village is in close
       proximity to where the children should be returned. From
       [C.McG.’s] point of view, while she’s angry that the timeline
       is not met, she could also, at least, in the first place say I
       wonder why [L.M.] is late. I hope the kids are okay. Maybe
       they were in a car accident. Maybe something happened.

       The explanation is we wanted to go to Earl’s, Peddler’s
       Village, and they were there with their Nana. That’s great
       before 5 o’clock or on your time, but it is unacceptable on
       the times that I have specified.

       It is a blatant, clear, willful, intentional disregard of my
       Order. And please understand, [L.M.] that it’s my Order and
       therefore, it’s your Order. You have given me the authority


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J-A21040-18


       to make important decisions in your children’s lives and I
       accept that duty, but when I do, the Order must be obeyed;
       otherwise, we have anarchy and chaos.

       I’m never happy when I’m confronted with a Petition for
       Contempt. I somehow think that I failed or perhaps the
       system failed. The system hasn’t failed. You failed. Is this
       an aberration, that October 17th event? No, because on the
       heels of that quickly we have the weekend of November 3rd,
       2017 through November 5th, 2017. That is the weekend
       that was important to you. 5 o’clock is still the timeline.

       There are texts back and forth. Texts which are responded
       to. Texts which are ignored. . . .

       I don’t believe this meltdown is true, but what I do believe
       is that you tell [C.McG.] the children will have dinner with
       you. [C.McG.] has already made plans and expects the
       Order to be followed and doesn’t agree with that.

       Is she being ridiculous? No, she has said we have an Order,
       and she has probed into my mind as to the reason for that
       Order, and she is correct. These are school kids. We want
       to make sure they get home in time to have dinner.
       Wherever that will be, and that it is not a late evening and
       that they get to school fed and refreshed and relaxed.

       . . . At a time when the children should have been at the
       dinner table with [C.McG.], at 5:17 p.m., [L.M.] in no
       uncertain terms states the kids are staying here. And that’s
       confirmed again by a voicemail which I heard in court. The
       kids are staying here. I’m not taking them to you.

       You did not return the children until after school on Monday.
       I assume intellectually [C.McG.] realized that they would be
       returned to school, but she didn’t know that until thereafter.
       The text messages are instructive. They just continued and
       continued.

       One of the ones that I find to be very important is confirming
       what [C.McG.] said in her testimony, a blunt direct
       statement, quote, at 5:17 p.m., “The kids are staying here,”
       end of quote. Why? Because she has decided. No, I have
       decided. You have allowed me to decide.




                                   -5-
J-A21040-18


       So when I think about it, and the personalities at play here,
       it is not the failing of me or it’s not the failing of the court
       system. It’s the failing of an otherwise responsible,
       reasonable, intelligent woman to appreciate if not the
       majesty of the court, but the importance of a Court Order.

       I look for an explanation. I couldn’t find it. The explanation
       which I conclude is appropriate is this. [L.M.] feels aggrieved
       by my Order. She came into court thinking she’s the birth
       mother and, therefore, she gets a priority as to custody.

       In many cases that happens. It didn’t happen in this case
       because of the conduct of [L.M.] and [C.McG.] on some
       levels, but the decision is that the children would be best
       served if they stayed with [C.McG.].

       We did not say that [L.M.] is not a capable parent. We gave
       her, as part of the Order, the first and third weekend of
       every month, from Friday at 5:00 p.m. to Sunday at 5:00
       p.m. We also recognize that it’s important for the children
       to be with both parents and said the physical custody order
       will reverse in the summer.

       It’s fair to the children. It’s fair to the parents, and in my
       view, it makes perfect sense. We find as a fact, and the
       evidence is compelling and unmistakable that [L.M.] is in
       willful violation of this Court’s Order. This was mean-
       spirited. It was done with a view and a mindset to
       contravene our Order.

                                     ...

       There are no equities in this particular contempt matter.
       They are clearly on the side of [C.McG.]. They are clearly
       against [L.M.], who acted, again, willfully and with
       deliberation and with a mean spirit.

                                     ...

       We find that [L.M.] is in willful contempt of this Court’s Order
       previously entered. She is remanded and committed to the
       Bucks County Correctional Facility for a period of ten days.
       She will be taken into custody now. Within that time period
       she will send a letter to the Court in her own hand explaining
       to me how in the future she intends to abide by this Order.



                                    -6-
J-A21040-18


          Ten days after her release, whenever that occurs, she shall
          -- . . . pay in cash or certified check to . . . counsel for
          [C.McG.] the sum of $12,256.75.

          Again, so it is clear, so there’s no mistake, I want you to
          write to me in your own hand how you intend to abide by
          this Order in the future. She’s remanded to the custody of
          the Sheriff. That’s all.

N.T., 2/1/18, at 84-97. The trial court then issued an order finding L.M. in

contempt and ordering that:

          [L.M.] is remanded to the Bucks County Correctional Facility
          for a period of ten (10) days. Within that time she is to write
          a letter in her own hand as to how she will abide by this
          Court’s Order in the future, and to be purged of contempt
          immediately thereafter.

          Within ten (10) days of her release, [L.M.] shall pay to
          [C.McG.’s] counsel in cash or certified check, the amount of
          $12,256.775 in counsel fees.

Order, 2/1/18. L.M. filed a motion for reconsideration, which the trial court

denied.

     L.M. filed a timely notice of appeal. She raises the following issues on

appeal:

          1. Whether the trial court committed an abuse of discretion
          in holding the Appellant in contempt of [its] July 31, 2017
          Order.

          2. Whether the trial court impermissibly commingled civil
          and indirect criminal contempt resulting in [L.M.’s] punitive
          punishment in contravention of statutorily required
          procedural safeguards.

          3. Whether the trial court erred in awarding attorney’s fees
          where the evidence does not support a finding that the
          [L.M.’s] actions were vexatious, obdurate or in bad faith.

          4. Whether the trial court erred in failing to consider the
          reasonableness of the attorney’s fees awarded.


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J-A21040-18


         5. Whether an award of attorney’s fees should be subject to
         a cogent standard to determine both the reasonableness of
         the fees awarded and contemnor's ability to pay.

L.M.’s Br. at 3.

      Although in her first issue in her statement of questions L.M. states the

trial court erred in finding her in contempt, she waived this claim by failing to

include it in the argument section of her brief. In re W.H., 25 A.3d 330, 339

n.3 (Pa.Super. 2011) (finding claims waived where appellate brief does not

contain discussion of claim with citation to relevant authority or development

of claim in meaningful fashion). Further, even if she had not waived the claim,

we would conclude it lacks merit. Here, the trial court properly found her in

contempt because C.McG. proved, and the trial court found, that L.M. had

notice of the custody order, that L.M.’s violation of the order was volitional,

and that she acted with a wrongful intent. Coffman v. Kline, 167 A.3d 772,

780 (Pa. Super. 2017) (quoting Sutch v. Roxborough Memorial Hosp., 142

A.3d 38, 67–68 (Pa. Super.), appeal denied,163 A.3d 399 (Pa. 2016)) (stating

to support finding of contempt, petition must establish “(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”).

      L.M. next argues the trial court erred by commingling civil and indirect

criminal contempt and by imposing incarceration. She maintains the dominant

purpose of the trial court’s order was to vindicate the court’s authority and,

therefore, the court held her in criminal, rather than civil, contempt. She


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J-A21040-18



argues that the trial court imposed a criminal sanction in violation of her Due

Process rights. She further contends that, although the order contained a

purge condition, she was not granted an opportunity to purge the

imprisonment prior to her incarceration.

      The Divorce Code governs contempt for non-compliance with custody

orders and provides:

         (1) A party who willfully fails to comply with any custody
         order may, as prescribed by general rule, be adjudged in
         contempt. Contempt shall be punishable by any one or more
         of the following:

            (i) Imprisonment for a period of not more than six
            months.

            (ii) A fine of not more than $500.

            (iii) Probation for a period of not more than six
            months.

            (iv) An order for nonrenewal, suspension or denial of
            operating privilege under section 4355 (relating to
            denial or suspension of licenses).

            (v) Counsel fees and costs.

         (2) An order committing an individual to jail under this
         section shall specify the condition which, when fulfilled, will
         result in the release of that individual.

23 Pa.C.S.A. § 5323(g).

      The difference between civil contempt and criminal contempt is “a

distinction between two permissible responses to contumacious behavior.”

Garr v. Peters, 773 A.2d 183, 190-91 (Pa.Super. 2001) (quoting Diamond

v. Diamond, 715 A.2d 1190, 1194 (Pa.Super. 1998)). The responses are

“classified according to the dominant purpose of the court.” Id. at 190. “If the

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J-A21040-18



dominant purpose is to prospectively coerce the contemnor to comply with an

order of the court, the adjudication is civil.” Id. In contrast, if “the dominant

purpose is to punish the contemnor for disobedience of the court’s order or

some other contemptuous act, the adjudication of contempt is criminal.” Id.

Further, the “[d]ominant purpose of coercion or punishment is expressed in

the sanction imposed.” Id. Where the contempt is civil, it “coerces with a

conditional or indeterminate sentence of which the contemnor may relieve

himself by obeying the court’s order.” Id. at 191. A criminal contempt

“punishes with a certain time of imprisonment or a fine which the contemnor

is powerless to escape by compliance.” Id. (quoting Diamond, 715 A.2d at

1194). “[T]hose accused of indirect criminal contempt are provided the

safeguards which statute and criminal procedures afford.” Crozer-Chester

Med. Ctr. v. Moran, 560 A.2d 133, 137 (Pa. 1989).

      Here, the trial court stated it found L.M. in civil contempt. Trial Court

Opinion, filed Mar. 16, 2018, at 4, 8-9. Further, the order contained a purge

condition and the court entered the order to coerce future compliance, to the

benefit of C.McG. Although L.M. did not have an opportunity to purge herself

of the contempt prior to her incarceration, the statute merely requires a purge

condition. It does not require that the person found in contempt be permitted

to purge himself or herself prior to imprisonment. 23 Pa.C.S.A. § 5323(g)(2);

see also Sinaiko v. Sinaiko, 664 A.2d 1005, 1008-10 (Pa.Super. 1995)

(finding, where husband had ability to pay, trial court did not abuse discretion

when finding husband in contempt and immediately remanding to Bucks

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J-A21040-18



County prison, with a purge condition of payment of $39,936.00). Cases have

suggested in dicta that a party must be provided an opportunity to purge

before imposition of punishment. See, e.g., Flannery v. Iberti, 763 A.2d

927, 929 (Pa.Super. 2000) (citing Diamond, 715 A.2d at 1994) (stating that

contempt is civil in nature, rather than criminal, if contemnor is given

opportunity to purge himself before imposition of punishment); Sinaiko, 664

A.2d at 1009 (quoting Colbert v. Gunning, 533 A.2d 471, 472 (Pa.Super.

1987) (stating that if contemnor is given opportunity to purge himself before

imposition of punishment, contempt order is civil in nature). The cases do not

hold that a person found to be in contempt cannot be placed in custody

immediately, and released after completion of a purge conduct. See, e.g.,

Flannery, 763 A.2d at 929 (holding court did not err in not holding party in

contempt); Sinaiko, 664 A.2d at 65 (finding court did not abuse discretion

when finding husband in contempt, ordered husband remanded to custody,

and found husband had present ability to pay purge amount).

      We further note that the trial court had numerous interactions with the

parties, having presided over a 14-day hearing to determine custody. Based

on this record, we find the trial court did not abuse its discretion when it found

L.M. to be in civil contempt and when it order imprisonment for 10 days, with

an opportunity to immediately purge the contempt by writing a letter

specifying how she intended to comply with the custody order.

      L.M.’s next three issues address the requirement that she pay

$12,256.75 in counsel fees. L.M. first maintains the trial court determined the

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fees without considering whether the amount was reasonable and without

providing an opportunity for her to challenge the reasonableness of the fees.

        Counsel fees are a proper sanction for contempt for noncompliance with

a custody order. 23 Pa.C.S.A. § 5323(g)(1)(v). We review an award of counsel

fees for an abuse of discretion. Wood v. Geisenhemer–Shaulis, 827 A.2d

1204, 1208 (Pa.Super. 2003).

        In the contempt petition, C.McG. stated that counsel’s rate was $450.00

per hour.1 At the hearing, the C.McG.’s counsel provided the trial court with a

fee certification for $12,256.75, and noted that she had been required to

attend a Custody Conference and the hearing due to the contempt. N.T.,

2/1/18, at 81-82. The trial court reviewed the fee certificate and found the

fees sought reasonable and necessary to prosecute the contempt petition. Id.

at 82-83; Trial Ct. Op. at 10. The trial court did not provide a lengthy

discussion as to why the sought amount was reasonable, but did review the

certification and affidavit and concluded that the fees sought were reasonable

and necessary. Although $12,256.75 may be considered a high fee award, we

cannot find that this was an abuse of discretion, particularly where the court

reviewed the presented documentation, L.M. did not object to the certification

and affidavit, and L.M. sought $10,000 in counsel fees for prosecution of her

contempt petition against C.McG.




____________________________________________


1
    There is no allegation that this was not a reasonable hourly fee.

                                          - 12 -
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      L.M. next maintains the record does not support a conclusion that her

actions were vexatious, obdurate, or in bad faith. L.M. did not raise this issue

in her Statement of Errors Complained of on Appeal, and, therefore, waived

it. Pa.R.A.P. 1925(b)(vii) (issues not included in statement are waived).

Further, as noted above, an award of counsel fees is a proper sanction for a

finding of contempt in custody actions. 23 Pa.C.S.A. § 5323(g)(1)(v). The

court did not need to find L.M.’s actions were vexatious, obdurate, or in bad

faith to award such fees.

      In her last issue, L.M. contends the court erred in failing to consider her

ability to pay the counsel fees prior to ordering the sanction.

      We have held that a trial court does not abuse its discretion if it imposes

counsel fees as a sanction for failure to comply with a custody order without

determining whether the party has the ability to pay the fee award. Hopkins

v. Byes, 954 A.2d 654, 659 (Pa.Super. 2008). L.M. asks us to require an

assessment of ability to pay, or require that the party be provided an

opportunity to establish they lack the ability to pay, where the fee award is

more substantial than the $500.00 at issue in Hopkins. On its face, the

statute does not require a prior finding of ability to pay, and we decline to

engraft a new provision onto clear statutory text.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2018




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