J-A01032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEANETTE DELEON AND MINOR                          IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DAVID J. SPILLANE

                            Appellant                   No. 734 EDA 2015


            Appeal from the Judgment of Sentence January 20, 2015
             In the Court of Common Pleas of Northampton County
                  Civil Division at No(s): C0048PF2014000602


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                             FILED MARCH 02, 2016

        David J. Spillane (Father) appeals from his judgment of sentence,

entered in the Court of Common Pleas of Northampton County, after being

convicted of indirect criminal contempt (ICC)1 for violating a temporary

protection from abuse (PFA)2 order.            After careful review, we affirm.

        Father and Appellee, Jeanette DeLeon (Mother), were married in July

2013; they have one minor child, L.S. (Child) (d/b 6/13), born of the

marriage.     In December 2013, the parties separated.        Mother and Child
____________________________________________


1
   See 23 Pa.C.S. § 6114(a) (“Where the police, sheriff or the plaintiff have
filed charges of indirect criminal contempt against a defendant for violation
of a protection order issued under this chapter . . . or a court-approved
consent agreement, the court may hold the defendant in indirect criminal
contempt and punish the defendant in accordance with law.”).
2
    See 23 Pa.C.S. § 6102, et seq.


*Former Justice specially assigned to the Superior Court.
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moved into Mother’s parents’ residence. On January 31, 2014, Mother filed

a divorce complaint, including a count for custody of Child. On February 18,

2014, the parties entered into a custody agreement, that was adopted as an

order of court.     Mother retained primary physical custody of Child, Father

had partial physical custody and the parties shared legal custody.

       On August 25, 2014, the trial court issued a temporary PFA order

against Father after Mother accused Father of physically assaulting her

during a custody exchange.               The PFA order prohibited Father from

“abus[ing], harass[ing,] stalk[ing,] or threaten[ing]” Mother or Child and

“evicted and excluded [Father from Mother’s residence . . . or any other . . .

residence where Mother or [Child may live].”                  Temporary PFA Order,

8/25/14, at ¶ 1.       The PFA order forbade Father from contacting Mother,

Child and any other protected person “by oral, nonverbal, written or

electronic means[.]”       Id. at ¶ 3.         Finally, the PFA order also stated that

“[e]xcept for such contact with the minor child[] as may be permitted under

paragraph 5 of this order [relating to custody],3 [Father] is prohibited from

having ANY CONTACT with Plaintiff [or Child] . . . directly or indirectly, at

any location[.]” Id. (emphasis in original).4
____________________________________________


3
  Paragraph 5 of the PFA references the parties’ child custody order. That
custody order states that it supersedes any prior order relating to child
custody. Id. at ¶ 5.
4
  The PFA clearly states that “[Father] shall have no partial physical
custody/visitation rights.” Id. at ¶ 5.



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       On September 3, 2014, the trial court extended the temporary PFA

order until February 17, 2015, and modified it by adding the following

terms:

    1. The parties shall adhere to the current order regarding custody of the
       parties’ minor child [which included Father resuming periods of partial
       physical custody;]

    2. The exchange point for transfers of physical custody shall be at the
       Skippack Police [B]arracks[;]

    3. Should Defendant fail to return the minor child to Plaintiff’s care at the
       end of his periods of partial custody, he agrees to forego all future
       visitation, until such time as the PFA is resolved. He also agrees to
       pay [a] minimum of $500 to Plaintiff’s attorney for fees should he fail
       to return the minor child and Plaintiff seeks contempt for said failure[;
       and]

    4. Only the parties should be present at the exchange of custody.         No
       third party or relatives.

Modified Temporary PFA Order, 9/3/14.5

       Subsequently, on October 28, 2014, the parties entered into a final

custody agreement, which was made an order of court, where Mother and

Father had shared legal custody, Mother retained primary physical custody,

and Father had partial physical custody (every other weekend from 6 p.m.

Friday until 6 p.m. Sunday).           Custody Order, 10/30/14, at ¶ 2.    When

Mother was receiving custody, she picked the Child up at the Skippack Police
____________________________________________


5
  On September 24, 2014, after Mother filed another PFA petition against
Father, the court vacated the parties’ September 3, 2014 custody order.
N.T. PFA Hearing, 9/24/14, at 8. Mother alleged that Father pushed,
grabbed and punched her arm when she was taking custody of their child.
Id. at 14-15.



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Barracks; when Father received custody, he picked the Child up at the

Hellertown Police Station. Id. With regard to holidays the order states, in

relevant part:

        3. Holidays. Holidays shall be shared as the parties may agree.
        If the parties cannot agree, they shall observe the following
        holiday schedule, which shall prevail over all other periods of
        physical custody.

                                       *       *   *

           e. New Year’s Eve/New Year’s Morning. From 12:00
           p.m. on New Year’s Eve until 12:00 p.m. on New Year’s
           Day. In even-numbered years, Mother shall have custody.
           In odd-numbered years, Father shall have custody.

Id. at ¶ 2-3. Finally, the custody order stated “the custody provisions of this

order supersede any and all prior orders, including any temporary or final

Protection from Abuse (‘PFA’) Orders.” Id. at ¶ 10 (emphasis added).

        On January 2, 2015, Mother filed the instant indirect criminal contempt

complaint6 alleging that Father violated the temporary PFA order by sending

her approximately 10 text messages and appearing at her residence7 on

New Year’s Day to regain custody of their daughter.          After a contempt


____________________________________________


6
  Mother filed two other indirect criminal complaints against Father on
October 15, 2014 and October 20, 2014. On October 17, 2014, the court
found father in contempt for violating the PFA by going to Mother’s residence
and speaking with her brother (who is also covered under the PFA). Again,
on October 23, 2014, Father was found in contempt for failing to return Child
to Mother.
7
    At the time, Mother was living with her parents.




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hearing, the trial judge found Father in contempt and sentenced him to

serve 7 days in prison and pay a $500 fine.8 This timely appeal follows.

       On appeal, Father presents one issue for our review: Whether the trial

court abused its discretion in finding Appellant in indirect criminal contempt

of a PFA order when Appellant acted at all times in compliance with a

superseding custody order.

       Where a PFA order is involved, “an [indirect criminal contempt] charge

is designed to seek punishment for violation of the protective order."

Commonwealth v. Jackson, 10 A.3d 341, 346 (Pa. Super. 2010) (citation

omitted). To establish indirect criminal contempt, the Commonwealth must

prove:    1) the order was sufficiently definite, clear, and specific to the

contemnor as to leave no doubt of the conduct prohibited; 2) the contemnor

had notice of the order; 3) the act constituting the violation must have been

volitional; and 4) the contemnor must have acted with wrongful intent.

Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa. Super. 2012) (citation

omitted).

       [W]hen reviewing a contempt conviction, much reliance is given
       to the discretion of the trial judge. Accordingly, [the appellate
       court is] confined to a determination of whether the facts
       support the trial court decision. Williams v. Williams, [] 681
       A.2d 181, 183 (Pa. Super. 1996)[.] We will reverse a trial

____________________________________________


8
  The court also ordered that the temporary PFA order remain in full force
and effect.




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      court’s determination only when there has been a plain abuse of
      discretion.

Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa. Super. 2002) (some

citations omitted).

      Instantly, Father contends that the portion of the parties’ custody

order regarding holidays with their daughter is “poorly written and

ambiguous . . . and makes it unclear if [he] had custody of his daughter for

New Year’s Eve or New Year’s Day.” Appellant’s Brief, at 9. He claims that

all of his actions were motivated by his desire to protect his custody rights

and not “with the wrongful intent” necessary to violate a PFA.       Finally, he

asserts that the PFA was also unclear “insofar as it was superseded by the

Custody Order.” Id. at 10.

      Initially, we note that the language in the parties’ final custody order

clearly states that a parent assumes custody of Child from 12:00 p.m. on

New Year’s Eve until 12:00 p.m. on New Year’s Day.           However, even if

Father found this language ambiguous, the PFA clearly indicates that he was

excluded from Mother’s residence.      Moreover, Father was prohibited from

having any contact with Mother or Child except for contact necessary for him

to exercise his partial custody rights. The custody order is consistent with

the PFA’s residential restriction insofar as it states that when Father receives

custody, he shall pick up the Child at the Hellertown Police Department.

      With regard to his intent to violate the PFA, Father testified that

despite the parties’ agreement that the drop off location for custody

exchanges is to occur only at Hellertown Police Station or the Skippack State

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Police Station, he showed up at Mother’s residence in contravention of the

custody arrangement. N.T. Indirect Criminal Contempt Hearing, 1/20/15, at

41.    Moreover, Father admitted that he had been told on numerous

occasions by Mother, Mother’s parents, as well as the police not to come to

Mother’s house.      Id.   Under such circumstances, we find that the facts

support the trial court’s determination that Father had the wrongful intent to

violate the PFA. Kolansky, supra. See Commonwealth v. Brumbaugh,

932 A.2d 108, 111 (Pa. Super. 2007) (“wrongful intent can be imputed by

virtue of the substantial certainty that [one’s actions will be] in violation of

the PFA Order.”); Commonwealth v. Haigh, 874 A.2d 1174 (Pa. Super.

2005) (judges should use common sense and consider context and

surrounding factors in making determination as to whether violation of a PFA

is truly intentional).

      Finally, we find no merit to Father’s claim that the custody order

superseded the PFA order.      In Dye for McCoy v. McCoy, 621 A.2d 144,

(Pa. Super. 1993), our Court stated

      [S]ection 6108(a)(4) [of the Protection from Abuse Act]
      precludes a custody award, pre-existing or following the PFA
      Order, from nullifying the PFA Order as its purpose is to assure
      the safety of a child or children above and beyond any other
      Orders or relationships involving the children. To hold otherwise
      would have the effect of emasculating the central and
      extraordinary feature of the PFA which is to prospectively control
      and prevent domestic violence[.]”

Id. at 145. Accordingly, while certain provisions relating to custody of Child

may take precedence over portions of the parties’ PFA order, it by no means


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gave Father permission to go to Mother’s residence in complete derogation

of the PFA order and its purpose of protecting Mother and Child.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




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