J-S58031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

B.N.D.                                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellant

                      v.

J.A.S.

                           Appellee                   No. 844 MDA 2015


                  Appeal from the Order Entered April 17, 2015
                  In the Court of Common Pleas of York County
                   Civil Division at No(s): 2013-FC-000769-03


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

MEMORANDUM BY GANTMAN, P.J.:                       FILED OCTOBER 06, 2015

         Appellant, B.N.D. (“Mother”), appeals from the order entered in the

York County Court of Common Pleas, finding Mother in contempt of the

court’s May 12, 2014 custody order and imposing sanctions in the form of

attorney fees. We affirm.

         The relevant facts and procedural history of this case are as follows.

Mother and J.A.S. (“Father”) are the biological parents of M.S. and J.S.

Mother and Father separated in the spring of 2013.       Following separation,

Mother stayed permanently in Ohio with the children, while Father returned

to Pennsylvania. On May 3, 2013, the York County Court of Common Pleas

entered an order granting Mother and Father joint legal custody of the

children and awarding Mother primary physical custody of the children in

Ohio.      Father filed a petition for modification of the custody order on

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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September 10, 2013. After a two-day custody trial, the York County court

entered a new custody order on May 12, 2014, which, inter alia, granted

Father physical custody of the children for the February 13, 2015 weekend.

     In January of 2015, M.S. made allegations of abuse against Father to

her therapist in Ohio.   The therapist reported M.S.’s abuse allegations to

Fairfield County Child Protective Services (“Fairfield County CPS”) in Ohio,

who then informed York County Children, Youth and Families (“York County

CYF”) of the allegations on January 28, 2015. York County CYF conducted

an investigation into the abuse allegations in Pennsylvania, which included

an interview with Father.   On February 11, 2015, Mother informed Father

that J.S.’ doctor had advised that J.S. not travel that weekend due to an ear

infection. Father requested to exercise his custody rights as to M.S. for the

February 13, 2015 weekend; however, Mother refused Father’s request

despite Mother learning on 2/12/15, from a York County CYF caseworker

that M.S.’ abuse allegations were unfounded.

     On March 13, 2015, Mother filed a motion for an emergency ex parte

order in Ohio, asking the Ohio court to suspend Father’s custody rights and

grant Mother sole custody of the children based on M.S.’ abuse allegations.

On March 18, 2015, Father filed a petition in York County, asking the court

to hold Mother in contempt of the May 12, 2014 custody order, for not

allowing him to have custody of M.S. during the February 13, 2015

weekend. On March 24, 2015, following a hearing, the Ohio court entered

an emergency ex parte order, temporarily suspending Father’s custody

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rights until April 23, 2015.        With respect to the contempt action in York

County, Mother filed a motion for change of venue based on forum non

conveniens on April 6, 2015.           On April 16, 2015, the York County court

denied Mother’s motion for change of venue, after a hearing. On April 17,

2015, the York County court held a hearing on Father’s contempt petition,

found Mother in contempt of the court’s May 12, 2014 custody order, and

ordered Mother to pay Father $850.00 for attorney fees incurred.        Mother

filed a timely notice of appeal and Rule 1925(b) statement of errors

complained of on appeal on May 13, 2015.1

       Mother raises the following issues for our review:

          WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
          AND/OR   ABUSED   ITS   DISCRETION  IN  DENYING
          APPELLANT’S MOTION FOR FORUM NON CONVENIENS AND
          CHANGE OF VENUE WITH RESPECT TO APPELLEE’S
          MOTION FOR CONTEMPT CONTRARY TO 23 PA.C.S.A. §
          5427?

          WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
          AND/OR ABUSED ITS DISCRETION IN FINDING APPELLANT
____________________________________________


1
  Civil contempt orders imposing sanctions for non-compliance with a prior
court order generally constitute final, appealable orders. Stahl v. Redcay,
897 A.2d 478, 487 (Pa.Super. 2006), appeal denied, 591 Pa. 704, 918 A.2d
747 (2007) (citing Lachat v. Hinchliffe, 769 A.2d 481, 488 (Pa.Super.
2001) (stating civil contempt paired with sanctions constitutes final,
appealable order). “Ordinarily, an adjudication of contempt, with a directive
to specifically perform, without sanctions, is interlocutory and not
appealable.”   Richardson v. Richardson, 774 A.2d 1267, 1268 n.2
(Pa.Super. 2001). The imposition of attorney fees related to contempt
proceedings constitutes a sanction for purposes of this rule of appealability.
Rhoades v. Pryce, 874 A.2d 148, 153 (Pa.Super. 2005) (en banc), appeal
denied, 587 Pa. 724, 899 A.2d 1124 (2006).



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         IN CONTEMPT OF THE CUSTODY ORDER AFTER TRIAL
         DATED MAY 12, 2014?

(Mother’s Brief at 4).

      Our standard of review for a civil contempt order is as follows:

         When considering an appeal from an [o]rder holding a
         party in contempt for failure to comply with a court
         [o]rder, our scope of review is narrow: we will reverse only
         upon a showing the [trial] court abused its discretion. The
         [trial] court abuses its discretion if it misapplies the law or
         exercises its discretion in a manner lacking reason. 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.

Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009) (internal citations

omitted); Mrozek v. James, 780 A.2d 670, 673 (Pa.Super. 2001) (stating

same). Additionally, this Court has stated:

         Each court is the exclusive judge of contempts against its
         process.     The contempt power is essential to the
         preservation of the court’s authority and prevents the
         administration of justice from falling into disrepute. When
         reviewing an appeal from a contempt order, the
         [appellate] court must place great reliance upon the
         discretion of the trial judge.

Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa.Super. 2002).

      Section 5323 of the Pennsylvania Code governs punishment for

contempt in custody actions as follows:

         § 5323. Award of custody

                                  *    *    *

         (g) Contempt for noncompliance with any custody
         order.—


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           (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). To sustain a finding of civil contempt involving a

custody order, this Court has stated:

        [T]he complainant must prove certain distinct elements by
        a preponderance of the evidence: (1) that the contemnor
        had notice of the specific order or decree which she 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.

Harcar, supra at 1235. An alleged contemnor must have the opportunity

to explain her non-compliance with the court order, as intent is an essential

element of contempt.       Nemeth v. Nemeth, 451 A.2d 1384, 1387

(Pa.Super. 1982).

     Our standard of review of the denial of a motion for change of venue

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based on forum non conveniens is as follows:

         A court’s decision to exercise or decline jurisdiction is
         subject to an abuse of discretion standard of review and
         will not be disturbed absent an abuse of that discretion.
         Under Pennsylvania law, an abuse of discretion occurs
         when the court has overridden or misapplied the law, when
         its judgment is manifestly unreasonable, or when there is
         insufficient evidence of record to support the court’s
         findings.     An abuse of discretion requires clear and
         convincing evidence that the trial court misapplied the law
         or failed to follow proper legal procedures.

M.E.V. v. R.D.V., 57 A.3d 126, 129 (Pa.Super. 2012). Section 5427 of the

Pennsylvania Code sets for the law applicable to an inconvenient forum

finding as follows:

         § 5427. Inconvenient forum

         (a) General rule.—A court of this Commonwealth which
         has jurisdiction under this chapter to make a child custody
         determination may decline to exercise its jurisdiction at
         any time if it determines that it is an inconvenient forum
         under the circumstances and that a court of another state
         is a more appropriate forum. The issue of inconvenient
         forum may be raised upon motion of a party, the court’s
         own motion or request of another court.

         (b) Factors.—Before determining whether it is an
         inconvenient forum, a court of this Commonwealth shall
         consider whether it is appropriate for a court of another
         state to exercise jurisdiction. For this purpose, the court
         shall allow the parties to submit information and shall
         consider all relevant factors, including:

            (1) whether domestic violence has occurred and is
            likely to continue in the future and which state could
            best protect the parties and the child;

            (2) the length of time the child has resided outside
            this Commonwealth;


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            (3) the distance between the court in this
            Commonwealth and the court in the state that would
            assume jurisdiction;

            (4) the    relative   financial   circumstances     of    the
            parties;

            (5) any agreement of the parties as to which state
            should assume jurisdiction;

            (6) the nature and location of the evidence to
            resolve the pending litigation, including testimony of
            the child;

            (7) the ability of the court of each state to decide
            the issue expeditiously and the procedures necessary
            to present the evidence; and

            (8) the familiarity of the court of each state with the
            facts and issues in the pending litigation.

23 Pa.C.S.A. § 5427(a)-(b).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Gregory M.

Snyder, we conclude Appellant’s issues on appeal merit no relief. The trial

court opinion comprehensively discusses and properly disposes of those

questions. (See Trial Court Opinion, filed June 12, 2015, at 2-6) (finding:

(1) court considered all eight factors contained in Section 5427 of

Pennsylvania Code to determine whether York County was inconvenient

forum, noting: with respect to first factor, alleged abuse of M.S. occurred in

York   County   and,   after   investigation,   York   County        CYF    determined

allegations were unfounded; with respect to second factor, fact that children

live with Mother in Ohio weighs slightly in favor of Mother’s request that

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Ohio court hear contempt matter; with respect to third factor, distance

between York County court and Ohio court, is between six and seven hours

by car, which is not inordinately long and does not have much impact on

where contempt matter should be decided; with respect to fourth factor,

while Father’s financial circumstances are better than Mother’s, this has not

inhibited Mother’s ability to participate in contempt matter as demonstrated

by private counsel representing Mother in proceedings; with respect to fifth

factor, Mother and Father had no agreement regarding jurisdiction or venue;

with respect to sixth factor, Mother failed to convince court it would be

impossible or difficult to present evidence in York County as Father agreed to

Mother presenting evidence via telephone; with respect to seventh factor,

contempt matters are given high priority in Pennsylvania and Mother

presented no evidence on Ohio court’s ability to decide contempt matter

expeditiously; and with respect to eighth factor, York County court is more

familiar with underlying custody matter because it issued original custody

order, and proceeding in Ohio court focused on abuse allegations, not

custodial   relationship   between   Mother   and   Father;   therefore,   upon

consideration of factors contained in Section 5427 of Pennsylvania Code,

York County was proper venue for contempt matter; (2) Father was entitled

to partial custody of children for three-day weekend beginning on February

13, 2015; Mother admitted she refused to allow Father to exercise his

custody rights on those dates; Mother conceded she knew abuse allegations


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were unfounded because of phone call from CYF caseworker on February 12,

2015, yet she told Father he could not have custody of children; Mother

presented no evidence to support her claim that Father and his girlfriend

violated the May 12, 2014 custody order by blowing smoke in children’s

faces; Father expressed to Mother that he still wanted to exercise his

custody rights as to M.S. despite J.S.’ ear infection, but Mother refused to let

Father do so; therefore, Mother willfully violated custody order with respect

to M.S. during February 13, 2015 weekend). Accordingly, we affirm on the

basis of the trial court’s opinion.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2015




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