J-S09028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.D.G.                                 :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
M.C.M.                                 :
                                       :
                  Appellant            :   No. 1699 MDA 2017
                                       :
                                       :
            v.                         :
                                       :
                                       :
P.R.G. AND D.S.G.                      :

              Appeal from the Order Entered October 6, 2017
  In the Court of Common Pleas of Franklin County Civil Division at No(s):
                               2014-1898


BEFORE:   GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED APRIL 04, 2018

     M.C.M. (“Mother”) appeals from the order granting a Petition for Civil

Contempt for Disobedience of Custody Order and ordering Mother to pay

reasonable counsel fees in the amount of $1,000.00 to P.R.G and D.S.G.

(“Grandparents”) and to M.D.G. (“Father”), and to provide make-up custody

time to Grandparents and Father. We affirm the finding of contempt and the

award of reasonable counsel fees as to Grandparents. We conclude that the

trial court did not err in awarding make-up custody time because Mother

agreed to provide such time. We vacate the order to the extent it awards

reasonable counsel fees to Father.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09028-18



       In a May 29, 2014 order, the trial court awarded Mother primary

physical custody of B.G. (“Child”), Father partial physical custody every

Friday from 12:00 p.m. to 5:00 p.m., and Mother and Father shared legal

custody. The order stated that Father was to exercise physical custody at

Grandparents’ home.1 Grandparents filed a petition for special relief and, on

February 22, 2016, the trial court amended the custody order to provide

that Grandparents were to have physical custody of Child every other

weekend. The order directed that the parties attend a conciliation. On June

1, 2016, Father and Grandparents filed a Praecipe to Discontinue, requesting

that the prothonotary “discontinue the above captioned matter.” Praecipe to

Discontinue, filed June 1, 2016.

       On December 29, 2016, Grandparents filed a Petition for Civil

Contempt for Disobedience of Custody Order, stating that Mother had not

allowed Father or Grandparents to see child for more than ten weeks and

that Mother had failed to answer any phone call or text message for six

weeks. Pet. For Civil Contempt for Disobedience of Custody Order, filed

12/29/16, at ¶ 3. The petition concluded that: “[Grandparents] respectfully

request that the Court find [Mother] in contempt and order that primary

physical custody of [Child] be given to [Grandparents], or in the alternative,


____________________________________________


1 This order became final after 180 days, when neither party moved or filed
a praecipe with the trial court to schedule a hearing or pre-trial conference.
Order of Court and Directive for Conciliation, filed 5/29/14, at 2.



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[Grandparents] shall have periods of make-up time every weekend from 5

P.M. Friday until 5 P.M. Sunday for the next four (4) weeks.” Id. at 2.

       The trial court held a hearing on January 31, 2017, which Mother did

not attend. That same day, the trial court found Mother in contempt2 and

ordered that the weekly visits with Father and bi-weekly visits with

Grandparents resume and that Grandparents have make-up custody time.

Order of Court, filed 1/31/17, at 1-2. The trial court further ordered Mother

to pay $1,000.00 in counsel fees. Id. at 2.3 Mother appealed and this Court

remanded to the trial court for a hearing at which Mother would be present.

We further concluded that the trial court had jurisdiction over the contempt

proceeding because the Praecipe to Discontinue was not sufficient to

discontinue a custody action, reasoning that the trial court had not granted

leave to, and the parties did not have a written agreement to, discontinue

the   action.    M.D.G.     v.   M.C.M.,       No.   372   MDA   2017,   unpublished

memorandum at 4 (Pa.Super. filed Aug. 4, 2017) (citing Pa.R.C.P. 1915.3-

1(b)(2)(A)-(B)).




____________________________________________


2 On February 13, 2017, Grandparents filed a pro se Petition for Civil
Contempt for Disobedience of Custody Order, stating that Mother did not
provide custody time following the January 31, 2017 order.

3 The trial court also required Mother to provide her contact information to
Father and Grandparents and update information for the medical providers
evaluating or treating Child. Order, filed 1/31/17, at 2.



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       On remand, the trial court held a hearing on October 4, 2017, at which

all parties were present. Counsel for Father and Grandparents stated that he

represented all three parties. N.T., 10/4/17, at 6. When discussing the

motion that the parties would address at the hearing, counsel agreed that he

was proceeding on the contempt petition he filed “on behalf of the [Gs],”

using the last name of Grandparents and Father, which is the same. Id.

       P.R.G. (“Grandmother”) testified that at the time of the January 31,

2017 hearing, she had not seen Child in 16 weeks.4 N.T., 1/31/17, at 9. She

stated that in October 2016 Mother informed Father that the custody order

had been canceled and she therefore would not let him or Grandparents see

Child. Id. Grandmother continued to send text messages to Mother, but

Mother stopped responding after four weeks. Id. at 13. Grandmother and

Father drove to Mother’s home, but Mother had relocated. Id. at 12.

Grandmother testified that Mother told people “that she changed [her]

phone numbers so we could no longer get a hold of her and contact her.” Id.

at 10. She further testified that she did not know where Mother lived, that

Mother had moved eight times since Child was born, and that Mother had




____________________________________________


4At the October 4, 2017 hearing, the testimony from the January 31, 2017
hearing was incorporated. N.T., 10/4/17, at 6-7. In addition, Grandmother
and Father testified at the October 4, 2017 hearing regarding two custody
periods subsequent to March 2017 where Mother did not permit them to
exercise their right to custody.



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notified Grandmother and the trial court of only one address change. Id. at

10-11.

      Father also testified at the hearing. He stated that he had had no

contact with his son for 16 weeks, N.T., 1/31/17, at 15-16, and that

Grandmother accurately described the efforts made to contact Mother. Id.

15.

      Mother testified in defense that she stopped following the February 22,

2016 custody order because she had learned in October 2016 “through the

Prothonotary’s Office the court order had been cancelled.” N.T., 10/4/17, at

31. She testified that she spoke with her attorney, who informed her that “it

was up to me whether I wanted to let them continue their visits.” Id. at 32.

Mother stated, however, that after she learned in March 2017 that the order

was still in effect, she began following the order again. Id. at 35. Mother

further testified that she has had the same phone number and has lived at

the some residence since November 2016. Id. at 47-48. When confronted

with Facebook posts in which she stated that Child’s Father and his family

could no longer contact her because she changed her number, Mother

claimed she had not changed her number because of Father, but rather

because of harassment from “other people” and that she informed Father if

she changed her number. Id. at 50.

      In addition to the above testimony, Mother testified that she did not

object to providing make-up custody time. N.T., 10/4/17, at 44-46. Mother’s




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counsel noted Mother agreed to the make-up custody time, but argued that

“make-up” custody time was not a proper contempt sanction. Id. at 67-68.

     The trial court granted Grandparent’s motion for contempt and ordered

Mother to pay reasonable counsel fees in the amount of $1,000.00 to

Grandparents and Father. The court also ordered that Grandparents and

Father would have “make-up” custody time:

        [T]o provide restitution for custodial time that [Father and
        Grandparents] lost by virtue of the contempt [of] the Court
        Orders that [Grandparents] shall have eight weekends of
        make up custodial periods and [Father] shall have sixteen
        Fridays of make up custodial periods. The Court directs
        such makeup time to begin immediately. It is specifically
        noted    that   [Mother]     testified   under   oath    that
        [Grandparents] and [Father] are due this make up time
        and she has agreed, under oath, to the same. The Court’s
        Order of May 29, 2014 and February 22, 2016 remain in
        effect and describe the Custody of subject child.

Order, 10/6/17.

     Mother filed a timely notice of appeal and raises the following issues:

        I. Whether the trial court committed an error of law and
        fact by finding Mother in contempt when the record does
        not support a finding of contempt pursuant to 23 Pa.C.S. §
        5323(g)?

        II. Whether the trial court committed an error of law by
        ordering punishments for contempt which were not
        [commensurate] with the conduct of Mother and the
        surrounding circumstances?

        III. Whether the trial court committed an error of law by
        ordering punishment for contempt to benefit a non-
        complaining party?

        IV. Whether the trial court committed an error of law by
        ordering punishments for contempt that are not authorized


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          by the inclusive list for contempt punishments set forth by
          23 Pa.C.S. § 5323(g)?

Mother’s Br. at 5 (suggested answers omitted).

   I.     Finding of Contempt

        Mother first maintains that the trial court erred in finding her in

contempt because she did not willfully disobey a court order. Mother argues

that, because of the Praecipe to Discontinue, she did not believe a valid

custody order existed and, therefore, she had no intent to violate the order.

She notes that in the prior appeal, the trial court in its opinion pursuant to

Pennsylvania Rule of Appellate Procedure 1925(a) stated that “[t]o be fair, a

reasonable person could easily understand the [Praecipe to Discontinue] to

indicate that the custody action has ceased to exist.” Mother’s Br. at 14

(quoting Trial Court Opinion, filed 3/31/17, at 3).

        We review a civil contempt order for an abuse of discretion. Harcar v.

Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009) (citing Hopkins v. Byes,

954 A.2d 654, 655–56 (Pa.Super.2008)). A trial court abuses its discretion

only if “it misapplies the law or exercises its discretion in a manner lacking

reason.” Id. Further, we defer to the trial court’s credibility determinations

where they are supported by the record, “as that court has had the

opportunity to observe [the witnesses’] demeanor.” Id. at 1236 (quoting

Garr v. Peters, 773 A.2d 183, 189 (Pa.Super. 2001)).

        “To be in contempt, a party must have violated a court [o]rder, and

the complaining party must satisfy that burden by a preponderance of the

evidence.” J.M. v. K.W., 164 A.3d 1260, 1264 (Pa.Super. 2017) (en banc)

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(quoting Hopkins, 954 A.2d at 655). A party seeking a finding of contempt

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.” Id. (quoting P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7

(Pa.Super. 2012)).

      The trial court found that the record supported a finding of contempt

because Grandparents credibly testified that Mother “affirmatively and

repeatedly refused to comply with her obligations” under the custody order.

Trial Court Opinion, filed Nov. 28, 2017, at 3 (“Rule 1925(a) Op.”). The court

found Mother’s explanation—that an “unnamed person in the Prothonotary’s

Office” told her the case was discontinued and her attorney told her she no

longer needed to comply with the custody order—to be not credible. Id. The

trial court noted Mother had a history of intentionally withholding custody

and concealing “her whereabouts and contact information from the other

parties and this Court.” Id. The trial court rejected the contention that

Mother withheld custody time because of the advice of counsel, noting that

“there is nothing in the record that lawfully gave her the right to withhold

custody.” Id. at 4.

      We defer to the trial court’s credibility findings, which are supported by

the record, and conclude that the trial court did not abuse its discretion

when it found Mother in contempt.




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  II.     Award of Reasonable Counsel Fees

        Mother next argues that the award of counsel fees could not be

justified as needed to compel future compliance because she had resumed

compliance with the order in March 2017. She also argues that counsel fees

are not an appropriate sanction here because Grandparents and Father are

not innocent parties. Rather, according to Mother, the “the catalyst for all

issues was [Grandparents] and Father, through counsel,” filing the Praecipe

to Discontinue. Mother’s Br. at 18. She further maintains the fees were not

appropriate because she is proceeding in forma pauperis due to her

indigence, and she cannot purge the contempt by complying with the order

or by paying the counsel fees.

        We review an award of counsel fees for an abuse of discretion. Wood

v. Geisenhemer-Shaulis, 827 A.2d 1204, 1208 (Pa.Super. 2003). Counsel

fees are a proper sanction for contempt for noncompliance with a custody

order. 23 Pa.C.S.A. § 5323(g)(v). “Sanctions for civil contempt can be

imposed for one or both of two purposes: to compel or coerce obedience to a

court order and/or to compensate the contemnor’s adversary for injuries

resulting from the contemnor’s noncompliance with a court order.” Mrozek

v. James, 780 A.2d 670, 674 (Pa.Super. 2001) (quoting Goodman v.

Goodman, 556 A.2d 1379, 1392 (Pa.Super. 1989)).

        We reject Mother’s argument that the fee award was improper because

she had resumed compliance with the custody order. The trial court

disbelieved Mother’s testimony that she stopped obeying the custody order

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because “unnamed individuals” in the Prothonotary’s Office told her that the

case had been discontinued and her attorney told her she no longer had to

follow the order. 1925(a) Op. at 3. The trial court noted that, as a matter of

law, a party can discontinue a custody action in which a complaint has been

served only by leave of court or with written agreement of the parties,

neither of which circumstance existed here. See id. (citing Pa.R.C.P. 1915.3-

1(b)(2)). The trial court concluded that upon incorrectly hearing it was

discontinued, Mother “deliberately and completely stopped abiding by the

Custody Order upon advice of counsel.” Id. at 5-6. The trial court further

noted that Grandmother testified that Mother changed her residence

numerous times and failed to apprise Father and Grandparents of the

changes, and changed her phone number “in an attempt to ensure that

neither [Father] or [Grandparents] could contact her.” Id. at 5. The court

concluded that it “disagree[d] with [Mother’s] claim that the punishment was

not   commensurate     with   [Mother’s]     conduct   and   the   surrounding

circumstances which were [Mother’s] creation.” Id. This was not an abuse of

discretion.

      Mother also argues that the trial court erred when it imposed the fees

because she does not have the financial ability to pay the fees. However, a

trial court may order a party to pay counsel fees as a sanction for violating a

custody order without first determining whether the party had the ability to




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pay the fees. Hopkins, 954 A.2d at 659. Accordingly, we conclude the trial

court did not err in doing so here.5

       Further, Mother’s claim that the award of counsel fees was improper

because she was unable to purge herself of the contempt is meritless.

Mother cites no case law or statute, and we are aware of none, that states

that a person found in contempt of a custody order must be provided an

opportunity to purge where the sanction is an award of counsel fees. Rather,

the statute authorizes the award of counsel fees as a sanction for a finding

of contempt, without mentioning or requiring a purge condition. See 23

Pa.C.S.A. § 5323(g)(1)-(2) (providing the available sanctions for contempt

of custody order, including counsel fees and imprisonment, and stating that

“[a]n order committing an individual to jail under this section shall specify

the condition which, when fulfilled, will result in the release of that

individual”); see also Gunther v. Bolus, 853 A.2d 1014, 1016 (Pa.Super.

2004) (“The typical sanction for civil contempt is remedial in nature. For
____________________________________________


5 In Hopkins, the trial court found the mother in contempt for violating a
custody order and ordered the mother to pay $500.00 in counsel fees within
90 days. Unlike the trial court order in Hopkins, the order in this case did
not state a time period in which Mother was required to pay the counsel
fees. A date on which the fees would be due, or a statement that the fees
could be made in increments, would be beneficial to determining whether an
award is reasonable. See Hopkins, 954 A.2d at 659 (noting that the trial
court calculated fee and concluded mother owed “$5.55 per day, hardly an
unaffordable burden.”). However, because $1,000 is not an unreasonable
fee, and a trial court need not determine whether a contemnor is able to pay
prior to issuing a sanction of reasonable counsel fees for violation of a
custody order, we conclude the trial court did not abuse it discretion.



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example, a court may require the contemnor to compensate the opposing

party for losses incurred as a result of the violation or reimburse the party’s

attorneys’ fees and costs. It is also common in civil contempt for a court to

impose a conditional prison sentence, giving the contemnor an opportunity

to purge the contempt and avoid the sentence by compensating the

opposing party, paying counsel fees, or doing some other affirmative act

within a certain time period”).

     III. Make-Up Custody Time

        Mother contends that the trial court erred when it ordered make up

custody as a sanction for contempt.6

        The make-up custody time, however, was not a sanction. Rather, as

the trial court stated in its order, Mother agreed that Grandparents and

Father were entitled to make-up custody time. Accordingly, the trial court

did not err in ordering such time.

     IV.   Sanctions to Benefit Non-Complaining Party

        Mother next claims the trial court erred by ordering punishment for

contempt      to   benefit   a   non-complaining   party.   She   maintains   that

Grandparents filed the December 29, 2016 petition for contempt and that

Father was not a party to the petition. She argues it was error to find her in

contempt and award sanctions benefitting Father as she had no notice of, or


____________________________________________


6   For readability, we address Mother’s fourth claim before her third claim.



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opportunity to defend against, the charge of violation of the order as to

Father.

       The trial court was of the opinion that because both Grandparents and

Father filed the December 29, 2016 petition, the award of sanctions to

benefit Father was not error.7 We disagree.

       Grandparents filed the petition for contempt and requested relief for

Grandparents, not Father. In their petition, Grandparents stated that Father

had not been provided his custody time. Father also testified at the hearing

regarding his lost custody time. Father did not, however, file a motion for

contempt or motion to join Grandparents’ motion. Accordingly, it was error

for the trial court to award sanctions based upon the reasoning that Father

filed a petition.8 Accordingly, we vacate the order to the extent it states that

Mother must pay counsel fees to Father.
____________________________________________


7 The trial court also claims it was addressing Grandparents February 13,
2017 petition. However, at October 4, 2017 hearing, it was agreed that the
February petition, which alleged violations of the January 31, 2017 order,
was not at issue. N.T., 10/4/17, at 5-6.

8  The trial court did not discuss whether Mother had notice that Father
alleged her conduct constituted contempt or whether she had an opportunity
to address the allegations. See Diamond v. Diamond, 792 A.2d 597, 601
(Pa.Super. 2002) (“when the contempt proceedings are predicated on a
violation of a court order that followed a full hearing, ‘due process requires
no more than notice of the violations alleged and an opportunity for
explanation and defense’”). Because the award of counsel fees was based on
counsel representation that he charged his clients $1,000.00 for the petition,
and because Mother agreed to the award of make-up custody time, we
decline to determine whether Mother had notice and an opportunity to
defend against Father’s allegation of contempt.



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      Counsel stated that he charged his clients a flat $1,000.00 fee for

handling the petition for contempt. N.T., 1/31/17, at 14. As counsel filed the

petition for Grandparents, not Father, and the information regarding

payment was entered during Grandmother’s testimony, we will not disturb

the requirement that Mother pay $1,000.00 in counsel fees to Grandparents.

      Order affirmed in part. Order vacated to the extent it orders the

payment of counsel fees to Father. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/2018




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